The party presentation principle

Yesterday, the Supreme Court of the United States decided United States v. Sineneng-Smith, No. 19-67. In an 11-page opinion for a unanimous Court, Justice Ruth Bader Ginsburg remanded the case to the Ninth Circuit for reconsideration because that court had improperly injected an overbreadth issue in an unwarranted departure from the principle of party presentation. Under that principle, it is for the parties to frame the issues. Here, the Ninth Circuit not only injected an overbreadth issue that was not raised by the appellant but, ordering reargument, had invited briefs from amici (apparently sua sponte) and the parties not only to address that issue but to "brief such further issues as they, respectively, believe the law, and the record calls for." Justice Clarence Thomas joined in the Opinion of the Court but also filed a concurring opinion, not joined in by any other Justice, addressing the overbreadth issue and suggesting that the Court should in an appropriate case consider revisiting the overbreadth doctrine.

Although the Ninth Circuit's action was over the top, the Supreme Court's response raises a substantial question about the practice of the U.S. Court of Appeals for the Armed Forces (CAAF). The lion's share of CAAF's cases come to it on discretionary review under Article 67(a)(3), UCMJ:

The Court of Appeals for the Armed Forces shall review the record in—

* * *

(3) all cases reviewed by a Court of Criminal Appeals in which, upon petition of the accused and on good cause shown, the Court of Appeals for the Armed Forces has granted a review. [Emphasis added.]

Despite the statute's good cause requirement, CAAF's practice has long been to accept petitions in which the petitioner cites no issue at all. These are called, variously, "merits," "pro forma," or "no-issue" cases. They seem to be on the decline but still constitute a not insignificant chunk of Art. 67(a)(3) petitions. When the court entertains such a petition, it violates the party presentation principle the Supreme Court invoked in Sineneng-Smith. (In addition, CAAF occasionally specifies issues of its own making in cases that reach it on petitions that at least cite some issue.) CAAF has stood its ground on this erroneous practice despite occasional efforts by appellate government counsel to have such petitions dismissed. See generally Eugene R. Fidell & Dwight H. Sullivan, Guide to the Rules of Practice and Procedure for the United States Court of Appeals for the Armed Forces § 21.03[6], at 203-05 (LexisNexis 18th ed. 2019) ("Rules Guide") (collecting cases).

Appellate government counsel will presumably now challenge no-issue petitions (and by implication, CAAF's associated practice of affirmatively searching for error through its Central Legal Staff) in light of Sineneng-Smith. In any event, the next time CAAF grants review in such a case and rules for the petitioner on the merits, one can anticipate a government petition for certiorari. Rather than wait for that to happen, the court might wish to reexamine its practice and amend Rule 21(e) to provide that "[w]here no specific errors are assigned either in the supplement to the petition or as provided in Rule 19(a)(5)(C), the petition will be dismissed." See also Rules Guide §§ 21.03[6], at 205, 45.03[6], at 376 (Rules Advisory Committee proposal) (6-5 vote).

Gabriel Chin discusses Sineneng-Smith here on SCOTUSblog.