Appellate Lessons: Even When You Frame Your Issues Well, "Your" Case Isn't Really Yours

by Robert Thomas, InverseCondemnation, March 14, 2018

A slight divergence from our usual fare today, because we're looking at a tort case. A tort case? Yes, because this one has lessons for our appellate practitioner colleagues. The lesson: when you are in a court of last resort, "your" case isn't all yours, and even if you have framed your issues carefully, sometimes the court may go where you made clear you didn't want it to go.   

Here's the set up. The largest part of the Hawaii Supreme Court's jurisdiction is discretionary review of decisions of the Intermediate Court of Appeals. Five Justices sit on the court. Our rules of appellate procedure do not specify how many you need to convince in order for the court to "accept" certiorari (we call it "accepting" review, not "granting" cert). The coconut wireless reports, however, that it takes three votes to review a case. Maybe that's correct or maybe it isn't, but it's the assumption we operate on.

It also takes three to win on the merits. Seems like easy math. So how do you get a case like Castro v. Melchor, No. SCWC-12-0000753 (Haw. Mar. 13, 2018), in which three Justices agreed that the term "person" in Hawaii's wrongful death statute does not include a stillborn fetus, yet the court ended up affirming the court of appeals' upholding of a verdict awarding wrongful death damages for the loss of a stillborn fetus? The court's fractured opinions in the case give us insight on how it exercises its certiorari jurisdiction.  

The case was one of those that seems destined for a law school Torts casebook. A woman incarcerated in state prison was seven months pregnant, got "taken down" by prison guards, and as a consequence of her treatment and subsequent medical care, the baby was stillborn. She sued various State officials and officers for damages, raising claims for herself and on behalf of her stillborn daughter. The trial court rendered a verdict in both's favor, and awarded the plaintiff damages for her own losses and for damages sustained by her stillborn daughter. 

The State appealed to the Intermediate Court of Appeals, arguing that Hawaii's wrongful death statute limits recovery for "the death of a person," and that the fetus did not qualify. The ICA disagreed, concluding that, for "policy reasons," the statute allowed recovery, even though it "did not make an explicit ruling" on the question. The court affirmed the trial judgment. 

The State applied to the Supreme Court for certiorari. It expressly avoided presenting the question of whether a fetus is a "person" under the statute, instead choosing to frame the issues more generically. According to the Supreme Court's majority opinion:

Petitioners present two questions in their application for certiorari:

A.  Whether the award of loss of enjoyment of life damages for a stillborn fetus was error.

B.  Whether the award of $250,000 damages to the estate of Briandalynne Castro was error when there was no evidence presented to justify that monetary amount.

This case thus presents the narrow question of whether the estate of a stillborn fetus may recover loss of enjoyment of life damages under Hawaii’s survival statute, HRS § 663-7.

Slip op. at 20 (footnote omitted). The court accepted certiorari. 

If the State's wish to avoid the fetus = person issue wasn't understandable, during oral argument, it clarified it "did not intend for this issue to be a part of their case on certiorari." Concurring opinion at 6. "[T]hey had deliberately chosen not to challenge the ICA's interpretation of [the statute]." Id.

A total of four Justices, however, were willing to tackle the merits. Two Justices (Chief Justice Recktenwald and Justice Wilson) concluded the plain text of the statute was not clear, but that the legislative history demonstrated that it intended for a stillborn fetus to be considered a "person" for purposes of wrongful death recovery. Slip op. at 24. Two others (Justices McKenna and Pollack) concluded the plain language of the statute clearly excluded a fetus from the term "person," and would have reversed. Dissent at 16.

So even though the State did not directly challenge the foundational issue of whether a fetus qualifies as a person -- and indeed expressly avoided the question -- four Justices were willing to address the question, even though they disagreed on the analysis, resulting in a 2-2 split on the merits. Not surprisingly, both the majority and the dissenting opinions are written like majority opinions.

Which leaves the fifth vote, Justice Nakayama. Her concurring opinion took a different tack. On the merits, she agreed with the dissenters -- a fetus isn't a "person" -- although for slightly different reasons. Thus three Justices agreed there's no recovery for the wrongful death of a fetus. So how did we end up with the court affirming the ICA's contrary opinion?

Justice Nakayama voted to affirm because the State didn't raise the issue in its application for cert. 

The Intermediate Court of Appeals (ICA) held that "a claim may be brought pursuant to [Hawaii Revised Statutes (HRS)] § 663-3 for the death of a viable, unborn fetus." Castro v. Melchor, 137 Hawaii 179, 191, 366 P.3d 1058, 1070 (App. 2016). On certiorari, neither party challenged the ICA’s holding on this point. Accordingly, for this procedural reason alone, I agree with the Chief Justice insofar as he does not address the ICA’s holding that a wrongful death claim may be brought on behalf of a stillborn fetus that was viable before death, and affirms the ICA’s holding on the matter. Additionally, I believe that Justice McKenna should not have addressed the ICA’s holding on this point on the merits. Therefore, inasmuch as I am constrained in affirming the ICA’s decision with respect to its interpretation of HRS § 663-3, I am compelled to join the Chief Justice in affirming the ICA’s judgment on appeal.

Concurring opinion at 1-2. She therefore concluded that the court should have never addressed the issue, because the State didn't challenge it (given her analysis of the merits, in the immortal words of Justice O'Connor, "maybe they should have"). 

So there you have it: three votes going one way on the merits, but also four Justices willing to address the merits (and then splitting), even though the Petitioner asked them not to. Only one Justice was willing to say that the State should be held to its decision to not present the question of whether a fetus is a "person," and her opinion is worth quoting at length:

I believe that upon consideration of the principles underlying our adversary system, and our role as a neutral arbiter therein, our discretionary authority should be used sparingly in circumstances where the interests of justice demand us to consider questions that the parties have not presented.

A fundamental underpinning of the adversary system is “the principle of party presentation.” Greenlaw v. United States, 554 U.S. 237, 243 (2008). Under the principle of party presentation, courts “rely on the parties to frame the issues for decision” and are “assign[ed] . . . the role of neutral arbiter of matters the parties present.” Id. Put differently, the adversary system is “designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.” Id. at 244 (quoting Castro v. United States, 540 U.S. 375, 386 (2003) (Scalia, J., concurring)). Consequently, courts generally hesitate to consider issues not raised by the parties “both because our system assumes and depends upon the assistance of counsel, and because of the unfairness of such a practice to the other party.” United States v. Pryce, 938 F.2d 1343, 1353 (D.C. Cir. 1991) (Silberman, J., dissenting) (citations omitted).

A decision by this court to employ its authority to consider questions other than those presented by the parties contravenes the foregoing bedrock principles upon which the adversary system rests.

Concurring op. at 3-5. 

We have one question and one final thought on this topic.

Our question is whether the court should even have considered the case on the merits, given the State's framing of the issues. Once it became clear at oral argument that the State expressly was asking the court to not consider the issue -- we can't imagine that in doing so, the State was conceding that a fetus is a "person" and opening itself up to more liability, and was only arguing that the lower courts got the evidence wrong in this case because otherwise why would it have sought cert review? -- should the court have dismissed the application for cert as improvidently granted? After all, if the State was not challenging the foundational issue, what was left of importance for the Supreme Court to consider? As a result of moving forward, we have doctrinal confusion (to put it mildly), with no doubt in our mind that there's an open field in the future for the State or some other alleged tortfeasor to ask the court to consider this issue again. 

Our final thought is that even though you as an advocate may think that "your" case is yours to define, in the end it really isn't, and the court (especially a court of last resort) can pretty much do what it wants with your case and address issues that you'd prefer not to, even those which you expressly withhold or are not presented. See this example from takings law. Even issues that neither you nor the lower court even considered (as in this example). That doesn't mean you shouldn't frame your issues carefully, just don't be surprised if a court has a different approach.  

PDF: Castro v. Melchor, No. SCWC-12-0000753 (Haw. Mar. 13, 2018) (Nakayama, J., concurring)