Alot of attorneys have been there. You win or lose in the district court and face an appeal. You suddenly realize you did  not raise or strongly argue a facial challenge or a particular policy argument in the lower court, choosing other points that seemed stronger than what looked on the surface like a rabbit hole. After all, facial challenges to legislative acts rarely prevail.1In light of the lower court findings, or just a fresh look at the case on appeal, you realize a new argument might turn a loser into a winner – or might cost you the favorable decision below.

Will failure to fully develop the argument in the lower court be fatal?

Maybe not in every instance, according to Citizens United v. Federal Election Com’n.2

The general rule in the 10th Circuit is that “an appellate court will not consider an issue raised for the first time on appeal …”3 Issues inadequately briefed on appeal are deemed waived.4 These resorts to waiver seem like expedients that favor docket control or conservation of judicial resources over consideration of persuasive arguments that counsel might have made earlier. Sometimes the district or intermediate appellate court grants victory on a single claim, leaving other claims unanswered. It seems ungrateful, and slightly temerarious, to ask the court to also consider the additional arguments. Yet, if a single claim victory is threatened on appeal, there is no ready backup.

VIABLE FEDERAL QUESTIONS ALLOW ANY POLICY ARGUMENT
So, does failure to fully present, or even raise, issues leave you stranded? Maybe not. Citizens United brought both a facial challenge to a campaign finance reform statute5 (count 5) and an “as applied” challenge (count 3) until the plaintiff stipulated to dismissal of count 5.

The government argued that Citizens United waived its facial challenge, but Justice Kennedy’s majority opinion held that the Supreme Court has the authority to reconsider any of its previous decisions and ruled that parties can urge any argument in support of a claim properly before the court because parties are not limited to the same arguments they made below:

First, even if a party could somehow waive a facial challenge while preserving an as applied challenge, that would not prevent the Court from reconsidering Austin [v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)] or addressing the facial validity of §441b in this case. “Our practice ‘permit[s] review of an issue not pressed [below] so long as it has been passed upon...’” … [H]ere, the District Court addressed Citizens United’s facial challenge …

Second, throughout the litigation, Citizens United has asserted a claim that the FEC has violated its First Amendment right to free speech. All concede that this claim is properly before us. And “[o]nce a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below …” Citizens United’s argument that Austin should be overruled is “not a new claim.” Rather, it is – at most – “a new argument to support what has been [a] consistent claim: that [the FEC] did not accord [Citizens United] the rights it was obliged to provide by the First Amendment.” Ibid.

Third, the distinction between facial and as applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge. The distinction is both instructive and necessary, for it goes to the breadth of the remedy employed by the Court, not what must be pleaded in a complaint … The parties cannot enter into a stipulation that prevents the Court from considering certain remedies if those remedies are necessary to resolve a claim that has been preserved. Citizens United has preserved its First Amendment challenge to §441b as applied to the facts of its case; and given all the circumstances, we cannot easily address that issue without assuming a premise – the permissibility of restricting corporate political speech – that is itself in doubt. … (“[O]nce a case is brought, no general categorical line bars a court from making broader pronouncements of invalidity in properly ‘as applied’ cases”); id., at 1327 – 1328. As our request for supplemental briefing implied, Citizens United’s claim implicates the validity of Austin, which in turn implicates the facial validity of §441b.6

This may be an instance of an 800-pound gorilla sleeping anywhere it wants, because it seems the court was dead-set on reconsidering its prior precedents. Even so, taking the court at its word, once a public policy is implicated in a claim properly on appeal, parties are not limited to their arguments in the lower court.7

OKLAHOMA AND THE PUBLIC POLICY CASE
The Oklahoma Supreme Court’s treatment of public policy cases may also suggest that some bets are off.

In Burns v. Cline,8 Justice Combs makes this point in footnote 1 of his concurring specially opinion. In public law controversies, the Oklahoma Supreme Court has wide ranging authority to resolve disputes and is not constrained by the claims of the parties if the record supports other claims that can be sustained by the court:

In public law controversies, this Court is free to decide a case on all dispositive issues, regardless of whether they were tendered below. Ashikian v. State ex rel. Okla. Horse Racing Comm’n, 2008 OK 64, ¶17 n.45, 188 P.3d 148; Davis v. GHS Health Maint. Org., Inc., 2001 OK 3, ¶¶25-26, 22 P.3d 1204; Simpson v. Dixon, 1993 OK 71, ¶26 n.55, 853 P.2d 176. Accordingly, this Court is not limited to Appellant’s claim concerning Okla. Const. art. 5, §57 if the record compels a conclusion that SB 642 is unconstitutional on other grounds. See Simpson, 1993 OK 71, ¶26.

“Public law controversies” may be broader than challenges to the constitutionality of a statute. The Ashikian case challenged an order of racing stewards suspending the plaintiff for failure to pay a stall rental bill when the hearing notice was sent by certified mail to the plaintiff’s Texas address, but not forwarded. Ashikian tendered the past due balance, obtained a reversal of the stewards’ order of suspension from the district court and was granted reasonable attorney fees and costs. The Supreme Court reversed the fee order in an opinion by Justice Opala citing the public law controversy doctrine even as it noted, “The issue was neither urged, briefed, nor supported by any authority for its award before the trial court or COCA. Ashikian asserts that because the state failed to address this issue before the trial judge, it is too late to raise it on certiorari.”9

Similarly, Davis v. GHS Health Maint. Org. involved a question of exhaustion of administrative remedies before bringing an action challenging a bad-faith failure to make full payment for disputed medical expenses for a penile implant for the plaintiff. Justice Kauger, writing for the majority, addressed the sufficiency of the statement of appeal rights in the denial notice even as she noted, “Although the notice issue was not artfully argued, the question was raised in the trial court and on appeal.”10 This proved to be no restraint on the court’s ruling because it determined, “… when public law issues are presented, the Court may, on review, resolve them by application of legal theories not tendered below … Further, when public law issues are involved we have addressed matters dispositive of a cause sua sponte.”11

Simpson v. Dixon12 was an election dispute. Justice Opala applied Art. 3, §5 and Art. 5, §46 of the Oklahoma Constitution as a basis to ensure “[U]niformity in the conduct of elections for a corruption free canvass …” The respondent’s “ … failure explicitly to press for the applicability … is no impediment to our sua sponte invocation of the controlling constitutional commands. The public law character of the controversy leaves us totally free to change or modify the legal underpinnings for the respondent trial judge’s decision.”13 Note 55 provides additional citations:

In public law cases we are free to apply that theory which correctly disposes of the dispute. Reynolds v. Special Indem. Fund, Okl., 725 P.2d 1265, 1270 (1986); Burdick v. Independent School Dist., Okl., 702 P.2d 48, 54 (1985); McCracken v. City of Lawton, Okl., 648 P.2d 18, 21 n. 11 (1982); Application of Goodwin, Okl., 597 P.2d 762, 764 (1979); Special Indemnity Fund v. Reynolds, 199 Okl. 570, 188 P.2d 841.8. 842 (1948).

So when you think you might be dead in the appellate water, keep paddling. If you can couch an argument as public policy, you may still make port with a limited, or even nonexistent, record.

ABOUT THE AUTHOR
Micheal Salem is a solo practitioner from Norman. His practice areas are federal constitutional law and civil rights, including First Amendment law. He re-ceived a Bachelor of Science in electrical engineering (1971), a master’s in public administration (1975) and a J.D. (1975) all from OU. He is the recipient of the Oklahoma Courageous Advocacy Award (1984), Golden Quill Award (2010), Fern Holland Courageous Lawyer Award (2013) and Joe Stamper Distinguished Service Award (2016) from the Oklahoma Bar Association.

1. U.S. v. Salerno, 107 S.Ct. 2095, 2100, 481 U.S. 739, 745 (1987) (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”).
2. Citizens United v. Federal Election Com’n 558 U.S. 310, 130 S.Ct. 876 (2010).
3. Hicks v. Gates Rubber Co., 928 F.2d 966, 970 (10th Cir. 1991). Hicks notes narrow exceptions:

Exceptions to this rule are rare and generally limited to cases where the jurisdiction of a court to hear a case is questioned, sovereign immunity is raised, or when the appellate court feels it must resolve a question of law to prevent a miscarriage of justice. [Farmers Ins v.] Hubbard, 869 F.2d [565] at 570 (10th Cir. 1989); Stahmann Farms, Inc. v. United States, 624 F.2d 958, 961 (10th Cir.1980). The failure to raise the issue with the trial court precludes review except for the most manifest error. Gundy v. United States, 728 F.2d 484, 488 (10th Cir.1984).

The matter of what questions may be addressed for the first time on appeal is within our discretion and decided on a case by case basis. Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877 (1976); Cavic v. Pioneer Astro Indus., 825 F.2d 1421, 1425 (10th Cir. 1987). In determining whether an exception is warranted, we are mindful of the policies behind the general rule. The facilitation accorded appellate review by having the district court first consider an issue is important. City of Waco, Texas v. Bridges, 710 F.2d 220, 228 (5th Cir. 1983), cert. denied, 465 U.S. 1066, 104 S.Ct. 1414 (1984). In addition, our respect for the district court means “the policy of declining to consider an argument not raised below is strongest where the district judge was not aware of the argument.” Richerson v. Jones, 572 F.2d 89, 97 (3d Cir. 1978). It is also unfair to the opponent if one party is allowed to argue an issue not raised in the trial forum. We think such a practice leads to unfair surprise in the appellate court and would, if allowed, require us to frequently remand for additional evidence gathering and findings. The need for finality in litigation and conservation of judicial resources counsels against exceptions. Rubin v. Manufacturers Hanover Trust Co., 661 F.2d 979, 996 (2d Cir. 1981). Hicks 928 F.2 at 970-71.

4. Utahns for Better Transp. v. U.S. Dept. of Transp., 305 F.3d 1152, 1175 (10th Cir. 2002). More fatally, “[e]ven a capital defendant can waive an argument by inadequately briefing an issue.” Williams v. Trammell, 782 F.3d 1184, 1208 (10th Cir. 2015).
5. Bipartisan Campaign Reform Act of 2002, 2 USC 431, Public Law 107–155 (“BCRA” or “McCain-Feingold”).
6. Citizens United, 558 U.S. at 330-31 (emphasis added). As of March 5, 2017, Westlaw notes there are 44 cases which cite West Headnote 1 of Citizens United. (“Supreme Court would consider contention of nonprofit corporation … though nonprofit corporation raised the contention for the first time before the Supreme Court”). Most of these appear to be election cases.
Headnotes 7 - 10 deal with excerpts quoted in this Practice Pointer, and the number of cited cases varies: Headnote 7 (“Nonprofit corporation did not waive, for purposes of direct review by Supreme Court … though in the district court the corporation had stipulated to the dismissal of the count in its complaint asserting the facial challenge and had proceeded on another count asserting an as applied constitutional challenge … ”)(110 cases); Headnote 8 (“The Supreme Court’s practice permits review of an issue not pressed below, so long as it has been passed upon.”) (1 case); Headnote 9 (“Once a federal claim is properly presented on appeal, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below.”) (6 cases); Headnote 10 (“The distinction between facial constitutional challenges and as applied constitutional challenges goes to the breadth of the remedy employed by the court, not what must be pleaded in a complaint.”) (85 cases). Cases citing these headnotes might be mined for more public policy exceptions.
7. Except when they are; see, Leonard v. Texas, 580 U.S. ___, 137 S.Ct. 847, 850 (2017), No. 16-122, cert. den. March 6, 2017, statement of Thomas, J., respecting denial: “Unfortunately, petitioner raises her due process arguments for the first time in this Court. As a result, the Texas Court of Appeals lacked the opportunity to address them in the first instance. I therefore concur in the denial of certiorari. Whether this Court’s treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail.” (slip op. at 6).
8. Burns v. Cline 2016 OK 99, 382 P.3d 1048 (Sept. 4, 2016).
9. Ashikian, 2008 OK 64, ¶17 n.45.
10. Davis v. GHS, 2001 OK 3, ¶25.
11. Davis v. GHS, 2001 OK 3, ¶¶25, 26.
12. Simpson v. Dixon 1993 OK 71, 853 P.2d 176.
13. Simpson v. Dixon, 1993 OK 71, ¶26.