Appellate Courts Playing God?

By [post_author] –

Posted on Freedom Advocates on August 12th 2008

One appellate judge explains why deciding issues sua sponte (without briefing) is inappropriate; “We don’t know enough about them. You’re playing God then because you haven’t had the benefit of the lawyers, the judge below, or the clients, or the evidence.
You’re just playing God without a record, and you have to assume a
certain competence in your counsel. . . . I’m loath to do it.

I have done it, I guess I really don’t like to do it because it’s too dangerous. There’s nothing worse than a lawyer being beaten by an assumption that simply is incorrect and wasn’t raised.”  (Tennessee Law Review Vol. 69: 245, emphasis in original.)

Sua sponte decisions have had significant debate within the legal profession. In California, the issue came to a head in 1986 with the passage of Government Code section 68081 which provides; “Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding … based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing. If the court fails to afford that opportunity, a rehearing shall be ordered upon timely petition of any party.”

The bill was sponsored by California’s Attorney General and the Department of Justice. It was opposed by California’s Judicial Council, the California Judges’ Association, individual justices of the courts of appeal and the Los Angeles County Superior Court. The Attorney General’s position was that occasionally an appeals court may wish to address a theory or question of law which neither party to the action anticipated. In such circumstances, it is customary for the court to solicit supplemental briefing and argument on the new point. However, there is no express requirement in California’s Constitution, statutes, case law or rules of court that the parties even be given notice, let alone an opportunity to be heard, on new issues which the court itself wishes to use their case to address. The practice of appellate courts deciding an issue on which the parties have not been given notice and an opportunity to be heard is a violation of basic due process.

The judicial bodies opposing this bill contended that it would add new grounds for rehearing appellate cases. It would introduce a new and costly level of hearings into the appellate process, thus thwarting the goal of speeding up appeals. It would give attorneys a new tool for delay and introduce a new body of case law on procedural obscurities. They believed the problem this bill purports to address could be solved in other, more effective ways. They argued that a vote against this bill would be a vote for “appellate efficiency.”

The passage of Government Code section 68081 made California the first state to address this fundamental right of “due process” by adopting specific legislative requirements. With this statute in place, if the court fails to afford the parties the opportunity to present their views through supplemental briefing, a rehearing shall be ordered upon timely petition of any party. In other words, the reviewing court has a mandatory duty to order a rehearing.

In practice Government Code section 68081 has not had the impact that was expected. Attorneys hesitate to use this process, fearing that they may be antagonizing the courts. Also, not every attorney is aware of this statute hidden away in the Government Code. However, case law indicates that courts will view this issue as involving fundamental due process and will enforce this provision.

Here is an example of the statute’s application; Our firm represented a party challenging the structure of the California Coastal Commission. Our clients prevailed before the superior court and the California court of appeal. In a special session called by the Governor, the Legislature then changed the statutory language applicable to the Commission, hoping to correct the deficiencies in the law.

Our clients applied for attorneys’ fees as the successful party and catalyst for the legislative change. In California, as in many other jurisdictions, attorneys’ fees are awarded regardless of a judgment if the lawsuit was the catalyst motivating the defendants to change their behavior in the manner sought by the litigation. The superior court awarded $176,811.75 as attorneys’ fees even though our clients never reached the judgment stage, since the lawsuit in fact caused the legislative change.

The Coastal Commission appealed the attorneys’ fees award to the court of appeal which then raised and decided an issue that was not addressed or briefed by the parties. The court held that the Legislature changed the law, not the Coastal Commission. It concluded that our case had not forced the Commission to change its behavior or position, but rather that the Legislature changed the law on its own accord. This unexpected argument was raised by the court of appeal during oral argument. The Deputy Attorney General even acknowledged at that time that they had not considered the issue.

Thus Government Code section 68081 became applicable to the denial of our clients’attorneys’ fees. We immediately ordered the legislative history of the corrective legislation from Legislative Research Incorporated. It is evident in the verified legislative history that the Coastal Commission sponsored the legislative change. The executive director of the Commission recommended that the Governor sign the legislation, and the Coastal Commission made its lengthy recommendation and supporting arguments recommending the Governor’s signature. This proved that the basis for the court of appeal’s sua sponte conclusion was incorrect and the Legislature had not been acting independently of the Coastal Commission but rather had followed the Commission’s recommendation.

Armed with Government Code section 68081, our clients filed a Request to Submit Supplemental Briefing or, in the Alternative, a Petition for Rehearing with the court of appeal. On March 24, 2008, the court of appeal denied their request. Next we filed a petition for review with the California Supreme Court which had the same mandatory duty to order a rehearing. Instead, on June 11, 2008, it also denied our petition.

We explored whether we could move the issue to federal district court now that we had exhausted our state remedies. Unfortunately, the Rooker-Feldman doctrine prohibits the federal trial courts from taking jurisdiction over a state supreme court in a case such as ours.

The only redress left is to proceed before the United States Supreme Court. This would be a case of first impression, and yet there are instances where Justices Souter, Breyer, Ginsburg and Scalia have each considered this issue from a pure due process standpoint without the help of legislation.

In a decision authored by Justice Souter, the United States Supreme Court unanimously held that the district court of appeals did “not stray beyond its constitutional or prudential boundaries” and did not abuse its discretion in deciding an issue briefed by neither party, “[a]fter giving the parties ample opportunity to address the issue.”  (United States National Bank of Oregon v. Independent Insurance Agents of America, Inc. (1993) 508 U.S. 439, 448, emphasis added.)

This issue should be taken into consideration in all court proceedings. In criminal cases, the stakes can be high. Where the Fifth Circuit Court of Appeals had raised a new issue of “procedural default” against a prisoner’s writ for habeas corpus and used it to render its decision against him, Justice Breyer concluded: “We note that the parties might have considered these questions, and the Court of Appeals might have determined their relevance or their answers, had that court not decided the procedural default question without giving the parties an opportunity for argument.”  (Trest v. Cain (1997) 522 U.S. 87, 92, emphasis added.)  The High Court then vacated the judgment and remanded the case for further proceedings consistent with its opinion.

As for attorneys’ fees awards, Justice Ginsburg authored an opinion in April, 2000 on the topic of due process from the payor’s perspective. The lower court had raised and decided the issue of whether a corporation’s sole shareholder could be held personally liable for an attorneys’ fees award, where that shareholder had not previously been a party. Justice Ginsburg wrote that the shareholder “seeks only the right to contest on the merits his personal liability for fees originally sought and awarded solely against the corporation. That right, we hold, is just what due process affords him.”  (Nelson v. Adams USA, Inc. (2000) 529 U.S. 460, 472, emphasis added.)

Finally, Justice Scalia reminds us that our justice system is not intended to be one of inquisitions. “The rule that points not argued will not be considered is more than just a prudential rule of convenience; its observance, at least in the vast majority of cases, distinguishes our adversary system of justice from the inquisitorial one.”  (United States v. Burke (1992) 504 U.S. 229, 246.)

We recognize that the California judiciary strenuously opposed the passage of Government Code section 68081. But once passed, it is the duty of the California Supreme Court, as the last California court of resort, to follow the mandatory duties imposed upon it. Ignoring the due process remedies and mandatory provision is a serious intrusion on a core function of the California Legislature.

A decision whether to file a Petition for Writ Certiorari to the United States Supreme Court is due in early September, 2008.  


Ronald A. Zumbrun is Managing Attorney of The Zumbrun Law Firm, a Sacramento-based public issues firm. You can learn more about the Zumbrun Law Firm at 


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