Appellate courts as first responders: the constitutionality and propriety of appellate courts' resolving issues in the first instance.

• Author: Steinman, Joan

In designing court systems in this country, all of the states and the federal government have created trial courts and one or more levels of appellate courts. Legal professionals, litigants, and the people of this country in general typically conceive of appellate courts as courts of review, courts that review decisions made by trial court judges, by decision makers in administrative agencies, or occasionally by arbitrators. We view it to be the role of trial judges and juries, administrative agencies, and arbitrators--not appellate courts--to make the initial findings of fact, reach the initial conclusions of law, apply the law to the facts in the first instance, and exercise discretion as to issues, raised in the foundational proceeding, whose resolution is not dictated by rules of law. We then see it as the function of courts of appeals acting as such to re-examine fact-findings, conclusions of law, applications of law to fact, and exercises of discretion under appropriate standards of review. (1) We generally expect courts of appeals to affirm, reverse, or vacate the judgment of lower courts or other tribunals, but not to act as a court of first instance in finding facts, stating the law, or exercising other judicial functions. (2)

Appeals courts sometimes review for clear error, and sometimes review for abuse of discretion. When reviewing agency action they may review for arbitrary and capricious action or for substantial evidence. (3) Even when review is de novo, so that the appeals court is giving no deference to the lower tribunal's conclusion, that earlier conclusion is being reviewed. The appeals court does not merely announce what a correct understanding of the law is. A lower court has taken the first stab at the issue, and the appeals court concludes that the trial court judge (or other decision maker) (4) either erred or reached the correct, or an acceptable, answer. (5) The appeals court has the benefit of the lower court's thinking and is passing judgment upon the lower court's determination.

We traditionally defend the division of function between trial and appellate courts on functional and institutional grounds. Despite some evidence that our beliefs about the relative superiority of particular decision makers are not always accurate, (6) as a society we generally believe and historically we generally have believed that trial courts--judges and juries--have advantages in making fact findings, so we allow appellate courts to review fact-findings but only to avoid severe aberrations, violations of duty, and clear errors that would result in injustice to the parties. We make the review deferential to give effect to our belief that judges and jurors who were firsthand witnesses to the testimonial evidence and arguments usually have a superior ability to accurately find the facts. (7) For reasons of consistency and in deference to trial court experience and expertise in fact-finding, we take the same tack, making review deferential--although perhaps not to exactly the same degree--even when all of the evidence is documentary or is otherwise available to appellate court judges in the same form in which it was presented to the trier of fact. Technological advances that can put appellate judges in shoes that very much resemble those of jurors and trial judges raise questions about whether appellate courts should defer to judges and juries as they traditionally have done, but thus far, and for the most part, appellate courts have remained deferential. (8)

Appellate courts utilize varying degrees of deference when reviewing matters that are within the district courts' discretion, depending on the reasons that discretion is afforded and sometimes based upon other policy considerations.

Finally, appellate judges typically are authorized and expected to review questions of law de novo because, as a society, we believe that appellate judges have advantages over trial judges in deciding what the law is or should be. As Professor Chad Oldfather, among others, has recognized, de novo review has been thought to be appropriate for questions of law based on beliefs that appellate court judges are more competent (than trial judges) to answer questions of law and to formulate new law when necessary. (9) We have reason to believe that three interacting heads are better than one and that appellate court judges will bring more expertise than trial judges to the task of lawmaking, based both on their greater experience and on advantages that appellate judges enjoy, such as more and better law clerks and greater time to devote to research, contemplation, writing, and editing. Moreover, appellate courts are better positioned in the judicial hierarchy (than are trial courts) to enforce uniformity and improve predictability in the law. But again the norm is that appellate courts address questions of law only after a tribunal that is inferior (hierarchically and perhaps qualitatively) has addressed those questions and has given the appellate court an analysis that can inform its own. (10)

Is there any place in our system for appellate courts to rule on issues upon which no inferior court has ruled? In fact, appellate courts, including the United States Supreme Court, sometimes do this. There are, indeed, a surprising number of occasions on which courts of appeals, including the United States Supreme Court, address and decide questions that a trial court judge did not decide. On those occasions, the appellate courts are not reviewing the decision of another tribunal. The Supreme Court has declared that intermediate federal courts of appeals ("IFACs") have discretion to decide when they will address such issues. For ease of reference, I will describe questions that no inferior court has ruled upon as "new issues" or "new questions."

This reality raises a great many questions. Preliminarily, there are what one might call definitional lines that need to be drawn. Parties are free to raise, in the appellate court, legal authorities that they did not cite below, without violating any general rule against appellate courts entertaining new issues. The line between new "arguments" or "theories" that may be raised for the first time on appeal without need of an exception to the general rule and new "issues" that may not be raised for the first time on appeal without need of an exception to the general rule is less clear. (11) There is no bright line for determining whether a matter was raised below, and there is likely a spectrum from old issues to new issues, rather than the two being polar opposites. Important though these line-drawing problems are, I will not dwell on them in this Article. I will focus on situations in which it is posited that a new issue is proffered.

Beyond this threshold matter, questions one might ask include: Do Article III or Congressional statutes speak to federal appellate authority to address new issues--and, if so, what do they say? What guidance has the Supreme Court given with respect to appellate courts' proper role with regard to new issues? What is the proper role of appellate courts with regard to new issues? When, if ever, is appellate courts' taking the "first stab" appropriate, and why? Do intermediate appellate courts and supreme courts vary in their responses to new questions, depending upon the different ways in which the new issues arise or based upon other parameters? What are those other parameters, and should appellate courts' responses vary with them? What do appellate courts' acceptance and decision of new questions say about the roles and capacities of appellate versus trial courts, and about how we design appellate systems? In this Article, I attempt to explore many of these questions and propose some answers.

Introductory Notes address the scope of this Article and of prior literature on aspects of its subject, and distinguish between raising issues and resolving issues. Part I explains the importance of the issues raised here and discusses sequencing theory because of the light it sheds on that importance. Part II explores Article III, Congressional legislation, and pronouncements and decisions by the Supreme Court concerning the power of the Supreme Court and of intermediate federal appellate courts to take the first stab at issues. It also makes the point that the scope of appellate jurisdiction before and after final judgment constrains what new issues appellate courts may hear. Part III shifts the focus from power to judicial discretion and examines the realities in the Supreme Court and in the federal intermediate appellate courts. It categorizes and discusses both cases in which the Supreme Court or IFACs did consider new issues and cases in which the Supreme Court or IFACs declined to consider new issues. In so doing, it categorizes the kinds of issues and the circumstances in which the Supreme Court and IFACS have been inclined to address new issues on appeal and the reasons they have given for declining to do so. Part IV evaluates these realities, exploring the circumstances in which appellate courts should and should not exercise their power to decide issues that were not ruled upon in the district courts. I am interested in seeing how explicitly and how satisfactorily case law addresses the circumstances under which appellate courts will decide issues not decided below. Just as in other areas of the law, case law developed over time ideally should tend toward greater clarity and certainty, as it develops theoretically and practically defensible answers to the questions when appellate courts should decide new issues and when appellate courts should utilize mechanisms to have trial judges or adjuncts to the appellate branch make initial determinations that appellate courts can review. The Article offers a proposal to govern the circumstances under which a new issue should be heard on appeal. It considers whether and when the Supreme Court should have more...