Normally, an appellate court will “limit appellate review to issues raised by the parties because those legal issues are joined after full adversarial briefing.” The Supreme Court of North Carolina has cautioned that “[a]ddressing issues that the parties never raised, preserved, and asserted on appeal is harmful for several reasons.” One of those reasons is the “party presentation principle”: parties—not judges—are usually tasked with defining the issues, claims, defenses, and arguments in an adversarial legal system.
At the same time, an appellate court can generally affirm a lower court’s decision if it was right for any reason. For example, in 1989 the Supreme Court said that if a lower court decision “can be sustained on any grounds, it should be affirmed on appeal. If the correct result has been reached, the judgment will not be disturbed even though the trial court may not have assigned the correct reason for the judgment entered.” This type of language—that a decision should be affirmed even when the lower court did not give the correct reason—has been repeated many times. As just some examples:
- 1956: “When the case reached this Court, the question for review and decision was whether the ruling of the court below was correct, and not whether the reason given therefor or the ground on which it professed to be based is sound or tenable.”
- 1957: “The rule is that a correct decision of a lower court will not be disturbed because a wrong or insufficient or superfluous reason is assigned.”
- 1958: “If the correct result has been reached, the judgment should not be disturbed even though the court may not have assigned the correct reasons for the judgment entered.”
There is some tension between the party presentation principle and the “right for any reason” doctrine. A couple of examples show why. If an appellee raises an argument on appeal that was not decided below, must the appellate court affirm on that ground when at all possible? Or should an appellate court remand for the lower court to consider the issue in the first instance? If no party raises a particular argument, but the appellate court becomes aware of it sua sponte, can (and should) the appellate court affirm on that ground? Does the appellate court have to?
The Supreme Court of North Carolina appears to have recently answered these questions.
In State v. Lingerfelt, the Court of Appeals affirmed the trial court’s order denying a defendant’s petition to be removed from the sex offender registry. One judge dissented. On review based on the dissenting opinion, the Supreme Court held that the defendant’s petition for removal was barred by the law of the case because the defendant had not appealed from an earlier denial. The State did not assert this argument at the Court of Appeals—so, naturally, the defendant argued that the issue had been abandoned.
And yet, the Supreme Court disagreed because the State was the appellee. While appellate review is limited for arguments presented by the appellant, Lingerfelt concluded that the same principle “does not apply to the arguments of the appellee.” The Supreme Court said that “[a] reviewing court is not constrained to uphold a lower court ruling solely on the legal grounds presented by the appellee.” The Court went on:
Instead, appellate courts must affirm lower court rulings if there is any legal ground to do so, even if the appellee did not raise that legal issue in its briefing.
Notice the word “must.” Does that mean that an appellate court has to consider all potential arguments for affirmance? What if the appellee expressly abandons an argument? Where does the party presentation principle fit in here?
Notably, not all jurisdictions follow the same rule. Some state appellate courts, for example, will not address new arguments on appeal even when they are raised by an appellee. Others have framed the issue as one of discretion. And the U.S. Supreme Court has occasionally cautioned courts about the dangers of deciding cases on legal issues not raised by the parties (or, at least, the appellants).
Of course, one thing remains clear: no party should rely on the appellate court identifying unstated arguments and should instead both preserve them below and affirmatively raise them in appellate briefing. After all, as the Supreme Court of North Carolina clarified in a case decided the same day as Lingerfelt, “when an appellee fails to raise an argument that supports affirmance, that party runs the risk that this Court will not address the argument on its own initiative.”
Moreover, the procedural quandary was not dispositive in Lingerfelt because the Supreme Court asked for supplemental briefing on the law-of-the-case issue and then had a second oral argument before issuing its opinion. The Court even noted that “the better practice in this circumstance is to direct the parties to address the legal issue the appellee omitted through supplemental briefing.”
Nevertheless, as far as I am aware this was the first time our Supreme Court announced such a strong rule.