Last year, I blogged about State v. Ellis where a passing motorist gave a Highway Patrol trooper the middle-finger salute and was arrested for his trouble.  A divided Court of Appeals allowed the defendant’s conviction to stand.  The case made it to the Supreme Court, which recently issued an opinion reversing the conviction.

A quick recap of our story.  A trooper was assisting motorists when he noticed that the passenger in a car driving by had extended his hand out the window and was waving.  After the vehicle passed, the trooper kept watching and saw that the waving stopped but the passenger’s middle finger remained extended.  The trooper pursued and stopped the car.  The passenger would not identify himself until cuffed and placed in the patrol car.  Having determined that no one was in distress, the trooper issued a citation to the passenger for resisting, delaying, and obstructing an officer.

At trial, the defendant moved to suppress evidence of his refusal to identify himself, arguing that the facts did not establish reasonable suspicion to justify the stop.  After hearing evidence from the trooper, the trial court orally denied the motion without making written findings of fact or conclusions of law, stating instead that “[b]ased on a review of the evidence, the Court does find reasonable suspicion for the stop.  In addition, based upon the totality of the evidence the Court does find probable cause for the arrest.”  The defendant then pled guilty, but reserved his right to appeal the denial of his suppression motion.

In its first opinion, filed on 6 August 2019, the Court of Appeals majority found no error.  In the absence of written findings of fact and conclusions of law, the Court of Appeals inferred findings based upon the trial court’s oral ruling and assessed de novo whether those findings supported the trial court’s legal conclusion.

The Court of Appeals noted that the issue was not whether shooting the bird was a crime and that the defendant was not charged on the basis of that behavior.  Instead, the issue was whether the trooper, when initiating the stop, had reasonable suspicion that criminal activity was afoot.  The majority concluded that the defendant’s actions reasonably could alert an objective officer to a pending breach of the peace.  In dissent, Judge Arrowood argued that no reasonable suspicion existed for the stop.

Here’s where it gets interesting.  The majority noted that the State’s brief did not argue that the stop was predicated on reasonable suspicion.  Instead, the State had contended that the “community caretaker” exception, whose application does not require reasonable suspicion, justified the stop.  The majority disagreed, finding the community caretaker exception inapplicable.  However, the court went on to observe that, because the State was the appellee, the majority could still affirm the trial court’s decision on an alternative “reasonable suspicion” theory.  In so doing, the Court of Appeals stated that “it is our duty to affirm the trial court’s ruling if there is any legal means to justify that trial court’s ruling, even if that reason was not argued by the appellee.  Indeed, it is our duty to consider all possible legal bases to affirm the trial court even if the State, as appellee, had not filed a brief at all.”

This language caused a bit of a stir in the appellate practitioner world.  Questions arose as to whether the issue of reasonable suspicion had been fully argued and preserved below or whether the issue merely had been noted in the trial court’s ruling, abandoned by the State in its appellee’s brief, and then invoked by the Court of Appeals majority sua sponte.  Also, the language about the Court of Appeals’ “duty to affirm” was generating debate.  Just as I completed a blog post discussing the original opinion, the Court of Appeals withdrew it and filed a new opinion on 20 August 2019.

In its reissued opinion, the majority again affirmed the trial court, but with two significant modifications.  First, the reissued opinion specifically stated that the question of reasonable suspicion had been raised and argued before the trial court, thereby quelling any question whether the issue had been preserved under Appellate Rule 10, even if it was not argued on appeal as contemplated by Appellate Rule 28.  Second, discussion of the State’s brief was relegated to footnote 5, where the opinion stated that the “State argues, as an alternative legal basis justifying the stop, that the trooper’s traffic stop was justified under the judicially-recognized ‘community caretaking’ exception,” then noted that exception was inapplicable.  The footnote could be read to suggest that the State had argued both “reasonable suspicion” and “community caretaker,” though as we will see below, the State’s sole contention to that court was the latter.  Judge Arrowood maintained his dissent, modified in light of the revised majority opinion.

Taken together, these two Court of Appeals opinions suggest some limit on a reviewing court’s ability to strike out on its own when resolving a case.  As indicated in the first Court of Appeals opinion, an appellee can prevail on appeal without filing a brief.  The burden is on the appellant to convince the reviewing court that the trial court committed reversible error; a bold (or broke) appellee can just sit by and watch.  So the reviewing court’s opinion in favor of such a silent appellee will be based on a premise that was not briefed, at least not by the prevailing party.  May the reviewing court reverse based upon a theory no one ever argued?  The original opinion emphatically said “yes.”  The revised opinion suggests a more limited approach, that a reviewing court may rely on an issue that was preserved, even if not presented on appeal.

The defendant appealed to the Supreme Court on the basis of the dissent.  The State’s brief to the Supremes makes unusual reading, to say the least.  The State advised the Supreme Court that while the Court of Appeals found that the trooper had reasonable suspicion that justified the stop, “[t]he State did not assert this argument in its appellate brief or raise it during oral argument.  Rather, it solely contended that the community caretaking exception to the Fourth Amendment applied.”   The State added that it “does not believe that the specific articulable facts included in this record established reasonable suspicion of the crime of disorderly conduct.”  Lest there be any doubt, the State closed its brief by stating that “the decision of the majority of the Court of Appeals should be reversed.”

In a unanimous opinion filed on 1 May 2020, the Supreme Court reversed and remanded the Court of Appeals opinion.  The matter was “determined on the record and briefs without oral argument.”  The Supreme Court’s straightforward opinion reviewed the inferred facts and concluded that no reasonable suspicion existed to justify the initial stop.

Think about what happened here.  Recall that the State, to its credit, candidly acknowledged the limited basis of its appeal and conceded that it had never argued the theory on which the Court of Appeals relied.  Even so, the Supreme Court, without discussion, followed and analyzed the reasonable suspicion argument that the State did not argue but the Court of Appeals embraced.  The original blog post in this chain discussed cases where the reviewing court found that the trial court reached the right result while using the wrong rationale.  Here, in a bit of a twist on that earlier post, the Supreme Court found that the Court of Appeals reached the wrong result but had based that result upon a misapplication of the right rationale.

Various permutations of this process are not hard to find.  Another prime example where a reviewing court decided issues neither briefed nor argued is Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998).  In that case, the Supreme Court abolished the distinction between invitees and licensees in premises liability case.  This result came as a surprise to the litigants, none of whom had advocated for such a significant jurisprudential shift.

Similar events can be found in the Big Leagues.  Ever-vigilant Beth has pointed me to United States v. Evelyn Sineneng-Smith, U.S. Supreme Court case number 19-67, issued this month, reversing a Ninth Circuit opinion.  Writing for a unanimous Court, Justice Ginsburg remanded the case “for an adjudication of the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel.”  Ouch.  RBG noted the issue addressed in this post when she added “A court is not hidebound by the precise arguments of counsel, but the Ninth Circuit’s radical transformation of this case goes well beyond the pale.”  Ouch again.

Often, these appellate gyrations may be a practical necessity.  Trial courts and litigators need to know the bases for the reviewing courts’ decisions.  That’s why we have written opinions.  The reviewing courts’ obligation to oversee the state’s jurisprudence and reach sound conclusions will sometimes lead it to a rationale that those below did not see coming.  It only makes sense for the ultimate reviewing court to be explicit in those rationales.  As Beth and Matt’s treatise notes, the ultimate responsibility for jurisdictional oversight lies with the jurisdiction’s court of last resort, though intermediate reviewing courts also have a role.  Elizabeth Brooks Scherer & Matthew Nis Leerberg, North Carolina Appellate Practice and Procedure, § 2.05[4].

Unanswered is the question how far a reviewing court may (or must) go to reach a “correct” result.  Ellis illuminates the risks inherent in a court’s decision to reach what it sees to be the right outcome.  The Court of Appeals majority found for the State on a legal basis that the State deliberately had not argued on appeal and later explicitly rejected when in the Supreme Court.  In other words, the Court of Appeals majority reached beyond the issues briefed for a result it thought correct, but no one else did, including the beneficiary of the court’s reaching.

Litigants and trial judges would surely like to know the limitations, if any, on the reviewing court’s ability to look beyond the issues the parties have chosen to present.  The process illustrated here in Ellis can be frustrating for those involved in a case who were giving it their best effort but were unexpectedly second-guessed by the reviewing court.

Should the parties be notified and given the opportunity to be heard when the reviewing court is considering a theory that no one argued?  While that sounds sensible, implementing it would be a jolt to the cultures of both of North Carolina’s appellate courts, at least as existed when I was there.  The judges and justices rarely discussed cases before they were calendared, so the panels did not know the outcome and rationale of a case until the judges or justices discussed it in conference and voted on the resolution.  Only then could supplemental briefing be ordered if the court was considering going in a direction unanticipated by the parties.

What are the lessons from this case?  For one, if you are of a mind to tell a trooper or officer that they are Number 1, use your index finger.

Has something like this ever happened to you?  Can you recall any opinions where the appellate courts admitted that they were deciding the appeal based on a theory not argued in any of the appellate briefs?  Or where the reviewing court went off on a frolic of its own sub silentio?   Tell us in the comments below.

–Bob Edmunds