Sua sponte actions in the appellate courts: the "gorilla rule" revisited.

• Author: Offenkrantz, Ronald J.

The appellate judges returned an order su[a] sponte, or without request from either party, to remove Judge Scheindlin from the case. Legal experts couldn't recall another case in which a federal judge was removed without a request from the litigants. (1)

1. INTRODUCTION

   This article illuminates the problems associated with sua sponte appellate court actions and provides some suggested solutions to the issues they create. A recent high-profile example of sua sponte action occurred in 2013, when the Second Circuit removed Judge Shira Scheindlin from further proceedings in two stop-and-frisk cases (2) because Judge Scheindlin

   ran afoul of the Code of Conduct for United States Judges, Canon 2 ("A judge should avoid impropriety and the appearance of impropriety in all activities.") ... and ... the appearance of impartiality surrounding this litigation was compromised by the District Judge's improper application of the Court's "related case rule," ... and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court. (3) According to her lawyers' motion for leave to appear on the judge's behalf, that statement was the "functional equivalent of a judicial finding that [Judge Scheindlin] behaved improperly," (4) while the order itself "completely blind-sided" Judge Scheindlin. (5) By acting sua sponte, the Second Circuit deprived Judge Scheindlin of the protections granted to trial judges by Rule 21 of the Federal Rules of Appellate Procedure, which provides that trial judges accused of judicial misconduct must be given both notice of the charges against them and an opportunity to be heard before the appellate court. (6) Indeed, the Second Circuit's behavior was not only "a breach of the norms of collegiality and mutual respect that should characterize interactions between District and Circuit judges, [but] an affront to the values underlying the Fifth Amendment's guaranty of procedural due process of law." (7)

   Moreover, as the amici curiae in Ligon and Floyd pointed out, the Second Circuit's rationale regarding Judge Scheindlin's "appearance of partiality" was based on an inaccurately reported 2007 colloquy between Judge Scheindlin and plaintiffs' counsel from a related case, and on statements reported in three news articles but never actually made by Judge Scheindlin. (8) Although the Second Circuit later clarified that it did not mean to imply that Judge Scheindlin had engaged in misconduct, it upheld the reassignment, and reiterated its belief that "there [was] no barrier to our reassigning the cases nostra sponte." (9)

   The high-profile nature of the case, and of the stop-and-frisk policy in general, meant that Judge Scheindlin's sua sponte removal was widely reported in the press. (10) In effect, newspapers were reporting that appellate courts had carte blanche to raise and decide important issues in a case without ever seeking the input of any of the parties to it.

   The chain of events surrounding Judge Scheindlin's removal represents only a subcategory of the problems surrounding sua sponte actions in the appellate courts." In addition to being freely able to question the ethics of a respected judge without a complaint from any of the parties, appellate courts are free to decide cases on principles that were never argued and grant relief that was not sought by any litigant. (12) Commentators have criticized sua sponte actions on multiple grounds, (13) most notably on the basis that they deprive litigants of their right to procedural due process. (14)

   This article builds on prior scholarship by arguing that allowing an appellate court to reach out and grant relief not requested, based on arguments not made, both disserves the litigants and exercises a power that appellate courts should be loath to use, and by focusing attention on recent cases which highlight the continuing problem. Part II of this Article discusses the historical development of American appellate procedure, including how sua sponte actions derived from equity rather than the common law. Part III reviews current Supreme Court and state court jurisprudence regarding appellate court sua sponte actions. Part IV considers the negative consequences of appellate court sua sponte actions, examining some particularly striking cases and the due process implications of courts making sua sponte decisions. Part V considers some practical reforms to appellate court procedure, designed to mitigate the negative consequences of sua sponte actions.

2. SUA SPONTE ACTIONS IN HISTORICAL CONTEXT

   Modern appellate courts derive their power to take actions sua sponte from equity. (15) In the ancient English legal system, the House of Lords, which served as the appellate court in equity, had the power to review any issue of law or fact regardless of whether it was in the record, (16) and could "render any type of judgment it thought justice demanded." (17) By contrast, the principal procedure for appellate review at common law, known as the "writ of error," limited the appellate court's authority to questions of law raised and decided at the trial court level and prevented the appellate court from ruling on any question not reflected in the record. (18) "Appellate courts were not free to raise new issues sua sponte; issues not assigned as error were waived." (19) Trials under the writ of error ultimately reflected the idea of the "adversary process," under which the litigants rather than the court controlled the issues in the case. (20)

   The writ of error became the primary basis for appellate review early in United States history. Multiple sections of the federal Judiciary Act of 1789 provided for appellate review by writ of error, and Congress later provided that appeals in equity were to be "subject to the same rules, regulations, and restrictions" as writs of error. (21) Thus, "appellate procedure in this country became set in the mold of procedure on writ of error at common law." (22)

   Although law and equity have been merged in the federal system and in most state courts, current American appellate procedures still are "overtly based on the principles of writ of error review at common law, rather than the appeal in equity," and therefore emphasize the adversary process. (23) Sua sponte actions, derived as they are from equity, accordingly are incongruous with current principles of appellate review. (24)

3. JURISPRUDENTIAL APPROACHES TO SUA SPONTE ACTIONS IN THE UNITED STATES SUPREME COURT AND IN STATE COURTS

   1. The Supreme Court's Approach

      The Supreme Court has thus far refrained from placing direct limitations on appellate courts' discretion to act sua sponte, although it has provided some loose guidelines for appellate courts to follow. Perhaps the Court is unwilling to criticize or circumscribe this approach because the Court itself routinely raises issues sua sponte. (25) Singleton v. Wulff (26) encapsulates the Court's approach towards sua sponte actions in the federal courts of appeals: applying the Gorilla Rule. (27) In Singleton, the Court addressed the question of when new issues could be raised and decided in an appellate court, first noting that "[i]t is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below." (28) However, the Court then acknowledged that "[t]he matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases," and that a court may be "justified in resolving an issue not passed on below, as where the proper resolution is beyond any doubt or where 'injustice might otherwise result.'" (29)

      Within the space of two paragraphs, the Supreme Court therefore announced its general rule and abrogated it in favor of the Gorilla Rule: An issue can be raised and decided for the first time on appeal if the answer is beyond doubt, or--reflecting the influence of equity--an "injustice might otherwise result." (30) And the Court recently upheld the Gorilla Rule in Exxon Shipping Co. v. Baker, (31) stating that "[w]e have previously stopped short of stating a general principle to contain appellate courts' discretion ..., and we exercise the same restraint today." (32)

      Supreme Court cases addressing sua sponte actions on appeal have been squarely within Singleton's framework. The Supreme Court has held, for instance, that appellate courts deciding pure questions of law may consider relevant precedent not cited by any party at trial. (33) The Court has also ruled that the federal courts of appeals have broad discretion to raise new issues sua sponte. In United States National Bank of Oregon v. Independent Insurance Agents of America, (34) for example, although both parties assumed the validity of a particular statute, the D.C. Circuit sua sponte raised the issue of whether the statute had been repealed, asked the parties to address the issue at oral argument, and ordered supplemental briefing. (35) When neither party took a position on whether the statute was still valid, the D.C. Circuit sua sponte decided that it was no longer in force. (36) The bank argued on certiorari that the D.C. Circuit "lacked the authority to consider whether [the statute] remain[ed] the law and, alternatively, that it had abused its discretion in doing so." (37)

      Although the Supreme Court reversed the D.C. Circuit on the merits, (38) it held that "a court may consider an issue 'antecedent to ... and ultimately dispositive of' [a] dispute before it, even an issue the parties fail to identify and brief." (39) Indeed, the Court held that the federal courts of appeals have the ability sua sponte to reframe the issues presented by the parties. (40)

      The National Bank of Oregon Court also approved the D.C. Circuit's deciding the issue sua sponte because it gave the parties "ample opportunity to address the issue." (41) Similarly, in...