Legal Process Question: Appeals Court Rulings

Factual Questions
1

I’m curious about the extent to which appeals judges consider legal issues that are not raised by the appellant but which become relevant as a result of their ruling on other issues. Here’s an example:

A guy gets fired from his job and sues the employer, claiming they didn’t have the contractual right to fire him. The job was unpaid, and his claim for damages rests on the notion that he was defamed by being fired. The trial judge rules that the firing was legal, but that he was still defamed. The employee doesn’t sue because he won the case, but the employer sues, claiming that since the firing was within their rights they can’t be said to have defamed the guy for exercising their legal rights, and that the trial judge made a legal error. The judges on the appeals court agree with that argument and would overturn the verdict on that basis.

But suppose in theory the appeals judges held that the employer did not in fact have the legal right to fire the guy. Then the entire legal question being appealed would be moot. So my question is: in such a circumstance, do the appeals court judges revisit this legal question, even though no one is raising it?

If they don’t, and they instead send it back to the trial judge for a new verdict consistent with their ruling, then the employee would now have to appeal the new ruling, based on a claim that the underlying legal ruling was also incorrect. So it seems more efficient to have them settle all legal issues at once.

OTOH if they do, this would imply that every time one issue is being appealed, the lawyers would have to argue in advance about all other legal issues, on the chance that the ruling on one issue will suddenly make the other issues relevant. Which is also inefficient, because if the judges rule the other way there was no point in those arguments.

[While on the subject, perhaps someone knowledgeable wants to weigh in on how common it is for judges to rule based on legal arguments that they came up with themselves and were not presented by either side, but that’s not the question above.]

2

Generally speaking, appeals courts will address only those grounds for appeal raised by the appellant (the party who appealed the case). Other grounds, even if valid, are usually deemed waived if not raised by appellant. This is particularly true in criminal cases, unless necessary to prevent manifest injustice, so you tend to see kitchen-sink briefs in criminal cases in which every possible grounds for appeal are raised.

Trial judges may indeed rule based on legal arguments that they came up with themselves which were not presented by either side, although it’s relatively unusual because (a) a good lawyer is likely to see that argument anyway, and make it if it helps her case, and (b) most judges prefer to decide a case based on the facts and the law as presented by the parties, either to be efficient or (sometimes, alas) out of laziness. If the judge has a novel theory that might be dispositive of the case, he ought to run it by counsel and give them the chance to argue or brief it rather than just spring it on them in his decision.

3

In the example I gave, the other issues only become relevant as a result of the appeals court ruling and they become relevant to the other party, IOW, not the appellant. The fact that the other party didn’t appeal a ruling that they won shouldn’t be considered waiving of these grounds, I would think.

I’m not sure if you weren’t addressing my question or if you’re saying that the other party is required to raise any issues that might potentially become relevant in light of any possible ruling or be deemed to have waived them.

4

Appellate courts may affirm a verdict on any legal grounds, even those not raised in the trial court. Sometimes an appellate court will say something like, “Issue X is not properly before us, but we will comment upon it because it is likely to arise at retrial,” and then go on to discuss the issue. But it happens in slightly different circumstances than you ask about here.

So in the example you raise… if I understand it correctly…

Guy sues employer, saying he was defamed by a illegal termination. He wins at trial.

Employer appeals, saying that the firing was legal and the trial court’s legal finding on that issue was in error.

Appeals court says no, firing was not legal. They won’t consider the issue of the defamation unless the employer raises it; an issue not briefed on appeal is waived. So that ends it.

Now, in the criminal context, we might imagine a scenario that would illustrate this.

African-American guy is charged with burglary in a common-law state. At trial, the prosecution uses its peremptory challenges to remove all the African-Americans from the venire, a practice objected to by the defense but permitted by the judge. At trial, the guy’s defense is that burglary is the breaking and entering, at night, of a residence with the intent to commit a felony therein. His actions took place just after sunset, and therefore there was light enough in the sky that it isn’t “night” within the meaning of the law. The trial court refuses to let him call an astronomer to testify about the amount of light visible at a particular time, ruling that night begins, as a matter of law, at sunset.

He is convicted.

On appeal, he argues a Batson violation for the exclusion of jurors and the legal error of the definition of “night.”

The appeals court may well say, "The trial court erred when it permitted the prosecution to remove African-American jurors without even an inquiry into their reasoning. The conviction is reversed. We do not need to reach the issue of the definition of “night,’ to dispose of the case. However, since the issue is likely to occur at re-trial, we will dispose of it now…” and then go on to either affirm the judge on the bright-line sunset rule or say it was a question of fact and the guy should have been allowed to call an astronomer or whatever…

5

I don’t think you did. I guess I must have written it poorly since two people misunderstood it. My apologies.

The trial court rules in favor of the employee. He rules that the firing was legal, i.e. not prohibited by employment contract. But he rules that even though it was not prohibited by the contract, the employer is liable for defamation because the firing had the effect of defaming the employee. Therefore they are liable.

The employer appeals, saying that this notion that they could be liable for a defamation that consisted entirely of a firing that they were otherwise permitted to do is a legal error. The appeals court agrees. This would overturn the verdict, and rule for the employer.

But to this point the appeals court has not addressed whether the firing was legal or not. That was not the legal question being appealed. The initial ruling on that question was in favor of the employers and they are the ones appealing the case, so they did not challenge it, obviously. But it wasn’t relevant until now, because the trial judge felt the plaintiff could win without it. Now that the appeals court said the plaintiff needs that to win, it becomes a crucial issue, that the plaintiff needs to appeal.

Does the appeals court take up that issue, or do they kick it back down to the trial level and wait for the plaintiff to decide to appeal the case?

6

In case this makes it more clear (& people have enough interest) this is based on a current ongoing case, as described here. In brief, Bruce Schobel is alleging that the American Academy of Actuaries violated its own bylaws in removing him as President-Elect, and thereby defamed him. He asked for a TRO prohibiting them from interfering with his continuing on as President-Elect. The judge denied his request for a TRO saying, among other things that there was not a significant likelihood of his prevailing, and it seemed that the Board of the AAA did not in fact violate the bylaws.

But the judge did seem sympathetic to his claims of defamation, which got me to wondering suppose the judge eventually ruled against Mr. Schobel on the bylaws claim but in favor of him on the defamation claims and the AAA appealed claiming that these were legally inconsistent. Would an appeals court revisit the entire bylaws issue or would they simply rule on the legal question being appealed, i.e. whether you could defame someone by exercising your otherwise-legal right to fire them.

7

A couple of examples:

Last year I briefed and argued a case in the 7th Circuit involving attorneys fees.
At oral argument, one of the judges (often mentioned as a SCt candidate) raked me over the coals on an issue involving the underlying merits of the case - which was not before the court and, therefore, was understandably not raised by either party. The court issued a published decision unfavorable to my client containing language extremely adverse to us on that merits issue. We requested reconsideration, asking them to delete just the one sentence which was unnecessary to the reversal, and which we knew would cause us considerable difficulty in subsequent litigation. The court declined without comment.

We have subsequently lost several cases in the district courts solely because of this language. In one recent decision, a district court commented at length on how goofy the language in question is. In language I loved, they posited that the issue was likely not briefed due to incompetence by my client’s attorney - namely me!

Another case, maybe 5 years back in the 6th Circuit. A DCt judge from California was sitting by designation. At argument he asked me all kinds of questions reflecting 9th Circuit law - which is VASTLY different than 6th Cir. The panel lets this guy write a published decision, which contains all kinds of wacky language directly contrary to longstanding precedent. Again, the court declines to alter the decision, and we lose tens if not hundreds of cases in the district courts before we finally get another panel to publish that - as we knew all along - that decision did not reflect the law in the circuit.

8

No takers? I’ll try one last time to make it clearer.

Two litigants, Abbott & Costello. Two legal issues, Issue 1 & Issue 2. Crucial point is that in order to win, Abbott must prevail on both legal issues, while Costello wins if he prevails on either one.

Trial judge rules in favor of Abbott on Issue 1, and in favor of Costello on Issue 2. Therefore Costello wins the case.

Costello believes that the judge has erred in ruling against him on Issue 1. But he doesn’t appeal, because he won the case. Instead, Abbott appeals, arguing that the trial judge erred in his legal ruling in favor of Costello on Issue 2. The appeals court agrees and overturns that ruling.

At this point, Abbott should win the case, because he has now prevailed on both issues, in trial court’s ruling on Issue 1 and on appeal on Issue 2. But now Costello is in an appeals situation, because he continues to believe the trial judge’s ruling in favor Abbott on Issue 1 is incorrect.

My question is how this type of situation plays itself out. I would have to imagine it comes up all the time.

9

You say the Appeals Court "overturns th[e D.Ct.] ruling. But then what does it do?

IME by far the most common result is for the App. Ct. to then remand the matter to the D.Ct. for rehearing, with instructions to avoid what the App. Ct. considered error in the D.Ct.'s previous handling of the case. In that case, both parties have to relitigate the merits in the D.Ct. Altho you say “Abbott should win the case, because he has now prevailed on both issues,” that is not necessarily the case. In overturning the D.Ct. decision in Costello’s favor, the App. Ct. may have simply said that the D.Ct. was wrong in finding in Costello’s favor - this does not require that the App. Ct. also find that the D.Ct. should have found in Abbott’s favor. Perhaps the D.Ct. could have found for Costello for another reason, or without making whatever error it previously committed. The terms of the remand can be pretty much as broad or as narrow as you could imagine. So it is hard to give a definite response to your hypo.

The less common action by the App. Ct. would be to reverse on the merits, and remand for effectuation consistent with that decision. In that case, Costello loses. But App. Ct.s are generally hesitant to do this, as they grant considerable deference to the fact-finders below, and generally are not authorized to issue de novo decisions based on their independent interpretation of the evidence.

Whatever the outcome, either party has time within which to either request reconsideration by the App. Ct. - either by the judge/panel or en banc, or to appeal/request cert to the next highest court. If you do not appeal a matter within the specified time limit, you generally have waived your appeal.

I’m not sure if you are asking something different/more. In reality, appellate courts can do pretty much whatever the hell they want, restrained only by the extent to which they care whether the parties will request review of their decision, and how receptive they expect the reviewer to be.

10

When Abbott appeals, he is appellant and Costello is the respondent. But Costello may well decide, since he’s in an appeal anyway, that issue 1 needs to be discussed. So he may cross-appeal on Issue 1, and becomes known as the respondent/cross-appellant; Abbott becomes the appellant/cross-respondant.

11

Thanks a lot, guys. That was very helpful.

Understood. But as a practical matter, I would have to think it’s likely that all relevant legal issues would have been explored at the initial trial, so it’s likely that the ramifications of the appeals ruling will be pretty clear. I’m no court scholar, but if I saw a judge whose ruling was just overturned suddenly whip out a completely new rationale for giving the legal victory to the same side as before I would think something is up, and I’d like to think that’s not too common.

OK. But then suppose the appeals court decides to uphold the ruling in favor of Costello. That would seem to mean that the arguments about Issue 1 were moot. But so it goes, and the lawyers get to bill their time, so everyone is happy. But what about the judges?

Do they issue a ruling on the cross appeal even though their denial of the initial appeal makes that issue moot? Or do they take it up anyway?

Perhaps they need to rule on it because it would become relevant if their upholding the trial ruling on Issue 2 is itself successfully appealed.

12

I don’t know if this is the same as in the US system, but in the Canadian courts, a respondent is allowed to raise legal arguments on appeal which support the judgment of the court below, without having to cross-appeal. That’s because in our system, the appeal is from the judgment of the court, not from the reasons for judgment.

So, in the example given by the OP, the employee as respondent could again argue on the appeal that the firing was illegal. The appellate court would have to rule on that issue, since it is so closely related to the defamation issue: if the firing was illegal, that would support the argument that the firing defamed the employee. The employee respondent can raise that on appeal, without a cross-appeal, because he’s not seeking to change the judgment of the trial court in his favour; he’s putting an additional argument forward, which he raised at trial, and argues that the trial court erred in law in its disposition of that point.

13

Not necessarily.

It is pretty common for a ct at any level to resolve what it considers the determinative issue, and then say other issues were raised but do not need to be resolved. Also, on remand, courts may allow either party to submit new evidence, allowing it to re-look at any issue.

And a court could rule for one party on a more preliminary basis, but then on remand rule for the same party at a subsequent step. Say the court rules for Abbott because Costello lacks jurisdiction. In such a case the D. Ct. may well not address the merits. The App. Ct. says, no, Costello had jurisdiction. So it goes back to the D. Ct., and the D.Ct. finds for Abbott on the merits. Most cases can be decided on any number of levels. So it is not at all unusual for a court to reach the same outcome for vastly different reasons.

Bottomline, a court can do pretty much whatever it wants to do. Which is one of the main reasons most cases settle out of court.