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Horvitz & Levy is a solutions-based firm focused on appellate success. We are distinguished by our commitment to responsive service and on-going innovation in the areas of civil appellate litigation, amicus curiae support, and trial strategy consultation.

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June 30, 2020

Preservation of issues is a basic requirement of the appellate process––issues not raised in the trial court are generally waived on appeal.

One exception to this rule is that “[a] new theory pertaining only to questions of law on undisputed facts can be raised for the first time on appeal.” Jon B. Eisenberg, California Practice Guide: Civil Appeals and Writs ¶ 8:237 (Rutter Group 2019) (emphasis omitted). An appellate court can consider such questions even if they were not raised in the lower court by any party. Id. ¶ 8:243.

There are, however, limits, to this exception, as illustrated by the United States Supreme Court’s decision in United States v. Sineneng-Smith, 140 S.Ct. 1575 (2020).

The defendant in Sineneng-Smith operated an immigration consulting firm and assisted clients in applying for a U.S. “labor certification” that the defendant knew her clients were ineligible to receive. Id. at 1575. The defendant was convicted of violating 8 U.S.C. § 1324, which prohibits knowing encouragement or inducement of aliens to enter or reside in the United States illegally. Sineneng-Smith, 140 S.Ct. at 1577.

The defendant was represented by counsel and argued unsuccessfully in the trial court that her conduct was not covered by § 1324. She further argued that, even if her conduct was covered, § 1324 is vague and, as applied, violated her First Amendment rights. On appeal, the defendant repeated the same arguments. Sineneng-Smith, 140 S.Ct. at 1578.

After briefing and oral argument, the Ninth Circuit Court of Appeals invited supplemental amicus curiae briefing on three issues of law, including whether § 1324 is overbroad under the First Amendment. Sineneng-Smith, 140 S.Ct. at 1578. The defendant was allowed to file only a response to the amicus briefs and “adopted without elaboration . . . [the] amici’s overbreadth arguments.” Id. at 1581. The Ninth Circuit then reheard the case and invalidated the statute on the ground of overbreadth.

In a unanimous opinion by Justice Ginsburg, the Supreme Court held the Ninth Circuit abused its discretion by deciding the case on the basis of an issue that the defendant had never raised. It made no difference to the Court that the defendant adopted the overbreadth argument in her supplemental brief. “How could she do otherwise? Understandably, she rode with an argument suggested by the panel. . . . [H]er own arguments . . . fell by the wayside.” Id. 

The Court explained 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.” Id. at 1579. “[A]s a general rule, our system ‘is designed around the premise that [parties represented by competent counsel] know what is best for them, and are responsible for advancing the facts and argument entitling them to relief.’” Id. “In short: ‘[C]ourts are essentially passive instruments of government.’ [Citation] They ‘do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.’” Id. 

The Court recognized there are “circumstances in which a modest initiating role for a court is appropriate,” id., and provided an addendum of cases in which the Court had requested supplemental briefing or approached amici curiae. However, the Court noted that none of these cases “bear any resemblance to the redirection ordered by the Ninth Circuit panel in this case.” Id. at 1579 n.4. Because “[n]o extraordinary circumstances justified the panel’s takeover of the appeal,” the Court vacated the judgment of the Ninth Circuit and remanded the case “for reconsideration shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties.” Id. at 1581-82.

The Supreme Court’s decision in Sineneng-Smith is a forceful reminder that parties to litigation cannot depend on the appellate court to rescue them if they fail to raise a dispositive issue on appeal. And to raise such an issue on appeal, parties must ordinarily have preserved it in the trial court. The Supreme Court’s decision also illustrates the importance of making the most effective use of amicus curiae briefs. 

In our firm’s appellate practice, we routinely consult with clients in the trial court to ensure that applicable legal theories are properly raised by, for example, motions in limine, trial briefs, jury instructions, and post-trial motions. And, once the case is on appeal, we work with our clients to develop an amicus briefing strategy. Good amicus briefs need not (and probably should not) raise entirely new issues, but they can provide important background information and perspectives that may otherwise be unavailable to the appellate court.