The Ninth Circuit Court of Appeals reformulated the issues Sineneng-Smith raised in district court and on an appeal of her conviction for violating a federal immigration statute, and invited three organizations to file amicus briefs and participate in further oral argument. (Slip op. at 5-7). The Supreme Court holds the Court of Appeals “departed so drastically from the principle of party presentation as to consitute an abuse of discretion.” (Id. at 3).
In our adversarial system of adjudication, we follow the principle of party presentation. As this Court stated in Greenlaw v. United States, 554 U. S. 237 (2008), “in both civil and criminal cases, in the first instance and on appeal . . . , we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” Id., at 243. In criminal cases, departures from the party presentation principle have usually occurred “to protect a pro se litigant’s rights.” Id., at 244; …. But as a general rule, our system “is de- signed around the premise that [parties represented by competent counsel] know what is best for them, and are responsible for advancing the facts and argument entitling them to relief.” Id., at 386 (Scalia, J., concurring in part and concurring in judgment)….
In short: “[C]ourts are essentially passive instruments of government.” United States v. Samuels, 808 F. 2d 1298, 1301 (CA8 1987) (Arnold, J., concurring in denial of reh’g en banc)). They “do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.” Ibid.
The principle is, of course, honored in Wisconsin, albeit sometimes in the breach, see, e.g., State v. Howes, 2017 WI 18, ¶95 & n.3 (Abrahamson, J., dissenting), rather than the observance, see, e.g., State v. C.L.K., 2019 WI 14, ¶¶18-22.
So how do you tell whether a court has gone off on its own frolic and detour in framing the issues in a case you’re litigating? The Court’s opinion doesn’t give much guidance. “The party presentation principle is supple, not ironclad,” the Court says. “There are no doubt circumstances in which a modest initiating role for a court is appropriate. See, e.g., Day v. McDonough, 547 U. S. 198, 202 (2006) (federal court had ‘authority, on its own initiative,’ to correct a party’s ‘evident miscalculation of the elapsed time under a statute [of limitations]’ absent ‘intelligent waiver’).” (Slip op. at 4). Sineneng-Smith’s case “scarcely fits th[e] bill” of one needing the court to take a role, much less one in which the court’s role was “modest.” (Id.) In addition, the opinion has an Addendum listing cases in which the Court itself called for supplemental briefing or appointment of amici, none of which “bear any resemblance to the redirection ordered by the Ninth Circuit panel in this case.” (Slip op. at 4 n.4). Since application of the principle is case specific, the facts of all these cases will be a starting point for thinking about whether a court has hijacked your case and whether to make a complaint about it.