AuthorSchwartz, Ziv

Appellate courts usually describe themselves as dispute resolution venues that only decide issues presented by the parties. (1) The logic is simple: parties know their case best, and it is not fair for an appellate court to address an issue if it is not fully informed by the lower court's findings or the parties' arguments. (2)

But it is not uncommon for appellate courts to raise issues sua sponte. (3) This matters because by raising issues unilaterally, appellate courts undermine core principles of the adversarial system. Sua sponte action also raises concerns about the accuracy of judicial decisionmaking and often is used arbitrarily and with little transparency.

Take Evelyn Sineneng-Smith's case. Sineneng-Smith was prosecuted under federal law. (4) She was convicted at the district court and appealed. (5) After hearing oral argument, the court of appeals decided that the case raised questions that neither Sineneng-Smith nor the Government presented. (6) The court wanted to know, among other things, whether one section in the conviction statute was unconstitutionally overbroad or vague and ordered the parties to supplementally brief these questions. (7) Eventually, the court of appeals rejected all arguments Sineneng-Smith originally presented and instead found one section of the conviction statute unconstitutional. (8) It acquitted Sineneng-Smith of some convictions, affirmed the rest, and remanded the case to the district court. (9)

These facts may seem extreme, but the underlying behavior of the court of appeals--raising a new issue and asking the parties to brief it--is not particularly unique. (10) In fact, although the United States Supreme Court granted certiorari (11) and heard argument in Sineneng-Smith's case on the question that the court of appeals reached sua sponte, it reversed the decision because it found--sua sponte yet again--that the court of appeals abused its discretion by raising the constitutional issue on its own motion. (12) And the Supreme Court's sua sponte action in Sinneneng-Smith is no outlier. Although rarely noted, many of the Court's most important precedents were decided without the parties squarely raising the decisive issue, sometimes with (13) and sometimes without (14) any input from the parties.

And the Supreme Court is not alone. Appellate courts (15)--federal and state, (16) in criminal and civil cases (17)--often raise, address, and resolve issues parties forfeited, waived, or even intentionally excluded from their case. (18) These interventions do not stop at questions of subject-matter jurisdiction. Appellate courts routinely address--on their own motion--prudential questions, constitutional interpretation, precedential questions, and cases that involve "extreme circumstances" or "manifest injustice." (19)

Courts offer myriad justifications for sua sponte action, (20) but this article posits that these justifications all stem from at least one of two underlying rationales. First, "doing justice," a rationale related to appellate courts' equity jurisdiction and the current dearth of procedures for pursuing equitable resolution of cases. (21) Second, "getting the law right," which flows from appellate courts' role of articulating norms and directing the development of the law. (22)

These rationales seem compelling, but their attractiveness must be measured against the harms sua sponte action may inflict. Courts acting sua sponte potentially put the integrity of the adversarial system at risk. (23) And without the parties' input and participation, sua sponte action also increases the risk of error, is arguably inconsistent with due process, is arbitrary, and lacks transparency. (24)

On balance, the consensus is that appellate courts should be able to raise issues on their own motion, at least in some instances. Which instances? That question has been left mainly to the courts' discretion. And rather than imposing any limitations on "when," courts have instead opted to regulate "how" by asking parties for supplemental briefing. (25) Supplemental briefing allows parties to argue their views about the issue an appellate court wishes to raise sua sponte. (26) This practice has flourished in appellate courts, although not uniformly across the country. (27)

Courts and scholars have hailed supplemental briefing as a promising solution for the harms sua sponte action produces. (28) But only a few commentators have examined supplemental briefing's effects in depth. This article suggests that supplemental briefing, as currently applied, is not an adequate remedy for the harm that sua sponte action creates.

Sua sponte action requires a more in-depth treatment, and this article proposes that courts answer the question "when" to act sua sponte together with the question "how." Otherwise, the ills of sua sponte action will not be cured. Building on the rationales underpinning sua sponte action and on the deficiencies with the current administration of supplemental briefing, this article creates a framework that addresses sua sponte action according to its effects and divides it into two categories: necessary and unavoidable action and broad-scope action.

This article proceeds as follows. Section I delves into the appellate courts' adversarial model, sua sponte action, and the practice of supplemental briefing. Section II addresses four problems with supplemental briefing that suggest it is not delivering a promised cure to the alleged harms that sua sponte action inflicts. Finally, section III offers a new framework for appellate sua sponte action and supplemental briefing.


    The emergence of supplemental briefing is the result of a brewing dissonance in how American appellate courts work. Appellate courts repeatedly pronounce that their role is to resolve disputes based on the issues brought before them. (29) But at the same time, they decide issues sua sponte, without parties asking them to do so. (30)

    This practice is antithetical to the adversarial nature of the American appellate system, and presents additional problems of fairness and arbitrariness. But because it could be justified on different grounds, (31) courts use a solution that allows them to continue acting sua sponte while mitigating the harms that their action creates. They continue to act sua sponte but order parties to supplementally brief the issue the court raised on its own motion, allowing the parties to adversarially argue for a resolution. To better evaluate supplemental briefing, this section delves into the background from which it has emerged.

    1. Party Presentation versus Court's Sua Sponte Action

      Appellate courts around the nation proclaim that the adversarial system requires them to only resolve disputes that litigants bring forward. (32)

      In her penultimate opinion on the bench, Justice Ruth Bader Ginsburg, writing for a unanimous court, explained that in "our adversarial system of adjudication, we follow the principle of party presentation." (33) The Court emphasized that "in both civil and criminal cases, in the first instance and on appeal, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present." (34) As a general rule, the Court added, the American adversarial system is "designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief." (35)

      The upshot of the party presentation principle is that "courts are essentially passive instruments of government" (36) that "normally decide only questions presented by the parties." (37) And so, appellate courts do not consider issues "not passed upon below." (38) They also do not consider issues neither briefed nor argued before them (even if briefed or adjudicated below). (39) Some appellate courts have extended this rule of no adjudication to cover cases where parties brief an issue insufficiently. (40)

      This limit on appellate courts' decision-making has several justifications. It helps protect the integrity of the adversarial system (41) and its ideal of party presentation and control. (42) It also ensures fairness by not resolving issues that parties have not had an opportunity to address or have declined to argue, (43) and it promises an impartial adjudication. (44) A final justification is judicial efficiency. This general rule promotes efficiency in three ways. First, it makes sure that parties will offer all evidence they believe is relevant to the issues. (45) Next, it prevents a court from making an uninformed decision because the court has no idea what evidence a party might have offered if given an opportunity. (46) Finally, upholding the rule avoids arbitrary decision-making where "in a sympathetic case an appellant can serve [] up a muddle in the hope that [a court] will find somewhere in it a reversible error." (47)

      But this general rule and the rhetoric around it are not reflective of how the American appellate system works. Appellate courts do more than resolve disputes that parties present to them. (48) They raise and discuss issues sua sponte, on their own motion. (49) The term sua sponte action presents a range. (50) It includes courts addressing issues that parties forfeited or waived on appeal, even if they argued them below. (51) It also encompasses courts that address issues that a party raised belatedly on appeal after waiving it below. (52) Finally, it covers courts that resolve issues parties never raised at trial or explicitly assumed that are not in dispute. (53) Courts act sua sponte on many different occasions: when parties miss key precedents, (54) when the parties did not raise issues that the lower courts addressed, (55) jurisdictional questions, (56) prudential concerns, (57) dismissal of frivolous cases, (58) issues that amici curiae raised, (59)...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT