Right to a Full and Fair Hearing

Appellate courts sometimes decide an appeal on an issue not briefed or argued by the parties. The following discussion focuses on whether such an opinion deprives a litigant of a right to a full and fair hearing.

Date sent: Tue, 23 Sep 97

Recently we had a 1983 suit dismissed by the 9th Circuit. The sua sponte dismissal was essentially for failure to state a claim upon which relief could be granted. To call the decision terse would be charitable. The 9th Circuit would only part with a mere 14 words to render its opinion. An opinion which was arrived at without providing us an opportunity to brief the issue, an issue that had not been raised by the defense or the trial court.

Can anyone point me to authority which requires an appellate court to provide a full and fair hearing before dismissing on an issue raised sua sponte? I have found some but it is scarce and more would useful.

Date sent: Tue, 23 Sep 97

I have seen this issue arise on appeal after a district court has sua sponte dismissed an action. It happens particularly frequently with suits filed in forma pauperis, particularly by prisoners. Can you provide a little more information:

Was the suit filed in forma pauperis? Was it dismissed pursuant to 28 U.S.C. 1915(d) (which has recently been amended), or did the court cite other authority for the dismissal? What did the district court do with the case? Did the district court sua sponte dismiss for failure to state a claim and the Ninth Circuit affirm, or did the Ninth Circuit raise a basis for dismissing that was not the basis of the district court's ruling? Did the court provide notice to the parties that it was considering dismissal?

Date sent: Tue, 23 Sep 97

I have been thinking a lot about this issue, or a related one, based on recent cases coming out of my state (Hawaii's) high court. Our Supreme Court is a scholarly, one, and likes to expound at length on issues. This generally involves going far beyond the briefs and legal arguments submitted by the parties. The problem is, without an adversary presentation, issues important to the case or to the development of the law in general can be missed. This court also will issue lengthy decisions on issues raised sua sponte, like the one noted by the previous e-mail.

I have been wondering how to get the court on track. I have been thinking that some of the case law on justiciability (can't remember if it was ripeness, or mootness, or maybe some other) talks about the importance of an adversarial presentation of issues. So maybe you could look there.

I assume by the way that your case wasn't filed in forma pauperis. When I was a circuit court law clerk we would conduct a statutory review that would weed out about 99.9 per cent of those cases.

Date sent: Wed, 24 Sep 97

This was a 1983 class action NOT brought in forma pauperis. The district court dismissed upon the defendant's motion for summary judgment while finding that it lacked jurisdiction!

On appeal the 9th Circuit dismissed pursuant to Heck v. Humphrey 512 U.S. 477 which says state prisoners may not bring 1983 actions attacking their convictions. Neither of our named plaintiffs were ever state prisoners and Heck was not raised by the trial court or the defense. The appellate judges did not provide notice that they were considering dismissal.

Date sent: Wed, 24 Sep 97

Without getting too political, the refusal of the Senate to hold confirmantion hearings the Ninth Circuit's docket is out of control. This may be the reason that you only got 14 words.

I am wondering since it was a motion to dismiss for failure to state a claim, whether the 9th Circuit in rendering its opinion used any facts as a basis for its opinion. I recently submitted briefs to the Ninth Circuit appealing a dismissal on a 12(b) motion in which the district court based its dismissal on its "judicial notice" (improperly) of some facts from a prior action. If a court converts a rule 12(b) dismissal into a summary judgment motion through taking into account facts outside the pleading then it must give the parties notice and an opportunity to be heard. Rule 12 (b) Jacobson v. A.E. Capital Corp. 50 F.3d 1493, 1496 (9th Cir. 1995). Maybe this line of cases will help you.

Date sent: Tue, 23 Sep 97

This is an interesting problem.

A few years ago I was before the Second Circuit defending a declaratory judgment after a special jury verdict. The panel suggested to the appellant's attorney a line of procedural reasoning he had not raised. He said that he was not arguing that. They basically told him that he was so. Based on this reasoning they reversed and remanded for a defendant's verdict. I later found a Second Circuit case that was contrary to what they said. I also thought they were retrying an issue decided by a jury other than as at common law in violation of the Constitution. The case was not significant enough to deserve en banc review or certiorari, but I tried both approches unuccessfully. I find that about five percent of the time in this business you are going to be frustrated by unreasonable judges. No rule can be written to guarantee reasonableness by all judges at all times.

Date sent: Wed, 24 Sep 97

If the appeal was from a dismissal based upon a lack of subject matter jurisdiction and the affirmance was based upon a holding that the complaint did not state a proper section 1983 claim, I do not see how the Court strayed that much. In my opinion a better practice would be to ask for supplemmental briefs, but I have never seen it done.

Was this a prisoner case? Prisoner litigation provides all kinds of unresolved legal problems. For those not familiar with prisoner litigation, prisoners can improve their prison lives by constantly suing lots of people and exercising their Constitutional right to prolonged access to a first rate law library either donated or tax supported. For security reasons many max prisoners cannot use Westlaw and Lexis, but in my County the County Jail litigators sued for more hours of Westlaw at a time when the County Attorney could not afford Westlaw for the staff that had to defend the suit.

Date sent: Wed, 24 Sep 97

I have to object to your one-sided portrayal of prisoner litigation. I have represented prisoners myself in prisoner litigation, principally in the Fourth Circuit (not where a prisoner would want to be). Obviously, many prisoners file claims that are without merit or blatantly frivolous. Those are fairly easily disposed of. There are, however, a substantial number of prisoner suits that raise very troubling claims of severe mistreatment and abuse, and these complaints need to be taken seriously. It's all too easy to brush the whole lot of them aside as worthless by pointing to the odd claim for Westlaw access, filet mignon, etc., without trying to weed out the meritorious ones.

Date sent: Thu, 25 Sep 97

I've quickly read over the press release and materials you sent me and published to the list and here are my intial thoughts:

1) It sounds to me that the court believes you are arguing that the sentece imposed by the court is violaive of the constitution, and, therefore until vacated by either a state appeal, post-conviction, federal habeas, etc., you have no cognizable claim. Under Heck, as I read it, that would be correct, as an action in § 1983 cannot as long is there is a valid sentence in place. I would try to invalidate the sentence as quickly as possible, perhaps even instead of going up on cert, and then bringing the action again or a rule 60 motion in the district court.

2) Assuming that you have had the sentence invalidated and that time has run for rehearing, I think this is a great cert issue. I know the issue of when § 1983 versus when § 2254/55 is appropriate has been a vexing one for the Court and the lower courts -- I know because I've seen the lower federal courts get it wrong on a regular basis, of course when it comes out in my favor......

3) As far as procedure involved check out Trest v. Cain 96-7901, cert grant May 27, 1997, where in a federal § 2254 the court granted cert on the question of the sua sponte use of a procedural bar. The Court's § 1983 jurisp rudence and habeas jurisprudence have been remarkably similar of late and you might be able to aim for a GVR in light of the cert grant in Trest, as an alternative to the Heck question.

4) As far as local help in the Ninth Circuit on this issue, the western Washington district federal public defender's office has attorneys who have handled these issues splendidly, as has the California Appellate Project in San Francisco .

The above discussion was taken from the Appellate Law Discussion list and edited.

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