Pettifogging Technicality And Miscarriage Discretion: A.B., Petitioner (SJC-June 11, 2018)

The First Circuit has remarked that appellate waiver or forfeiture of issues or contentions not raised in lower court proceedings or sufficiently on appeal is a principle that cannot be brushed aside as a “pettifogging technicality or a trap for the indolent.” National Assoc. of Soc. Workers v. Harwood, 69 F. 3d 622, 627 (1st Cir. 1995). The need for preservation requires “zealous fidelity.” Id. Yet the power and discretion of courts to address, in both civil and criminal matters, errors or issues not previously raised or preserved remains. This discretion, as noted by Justice Black over 80 years ago, is necessary as the “[o]rderly rules of procedure do not require sacrifice of the rules of fundamental justice.” Hormel v. Helvering, 312 U.S. 552, 557 (1941). Indeed, of long standing vintage is the recognition that they are “circumstance in which [an appellate court] is justified in resolving an issue not passed on below, as where the proper resolution is beyond any doubt or where ‘injustice might otherwise result.’” Singelton v. Wulff, 428 U.S. 106, 121 (1976)(Blackmun, J.).

Although this discretion applies to both civil and criminal proceedings, there is a marked distinction between the two proceedings as well as unevenness in application. Just recently, the Supreme Judicial Court suggested that there was a conflict as to whether there was discretion to review a failure to raise an argument in a sexual dangerous person (“SDP”) proceeding. R.B., Petitioner (SJC-Slip Opinion) (June 11, 2018).  It referenced that no review is the usual rule as to civil proceedings while there remains review in criminal proceedings under the long-standing “substantial risk of miscarriage of justice standard.” Commonwealth v. Alphas, 712 N.E. 2d 575 (Mass. 1999). It went on to hold that SDP proceedings, although technically civil, involve significant liberty interests and, as such, it was appropriate to provided default review under the criminal substantial risk of miscarriage of justice standard. The Court proceeded to find there was no “substantial risk of miscarriage of justice” in the admission of a 24 year old psychological report.

Recognizing the applicable default standard of review and otherwise adopting the miscarriage of justice standard as the governing standard for unpreserved errors or arguments in SDP proceedings is certainly logical. As the Court noted, SDP proceedings involve significant liberty interests, namely the prospect of involuntary commitment. Further, the duel purposes behind waiver (i.e., finality and judicial efficiency) were noted not to be fully served in SDP proceedings due to the potential that the defendant could raise an ineffective assistance of counsel claim for the failure to preserve the issue.

Of interest, however, is the SJC’s seeming suggestion that in civil cases there is no such default review. To be sure, such review is provided only sparingly in civil cases but it does nonetheless exist. Under federal practice for instance, there is such review under the “plain error” standard with another line of cases identifying varying circumstances justifying review. These circumstances include: (1) whether the failure to raise the issue deprived the lower court of “useful fact-finding;” (2) whether the new issue is of “constitutional magnitude;” (3) whether the omitted argument is “highly persuasive,” particularly where the failure to address it “threatens a miscarriage of justice;” (4) whether there is any special prejudice or inequity to the opposing party if the issue is addressed; (5) whether the omission was inadvertent as opposed to deliberate; and (6) whether the omitted issue “implicates a matter of great import.” Harwood, 902 F. 2d at 627-28.  

Massachusetts practice is similar with a pock of such cases spread over time. In fact, as earlier as 1833, the SJC referenced the Court’s discretionary authority in terms of both “plain” and “manifest” error with Chief Justice Shaw writing that the court had “the general authority, to prevent the injurious consequences proceeding from accident and misfortune” and that “we know no limit to the power of the Court so to interpose, where the plain and manifest dictates of justice require it.” Cutler v. Rice, 31 Mass. 494, 495 (1833); Bond v. Bond, 89 Mass. 1, 6 (1863); see also Commonwealth v. Dascalakis, 140 N.E. 2d 470 (1923)(noting power to correct unpreserved errors in both civil and criminal proceedings). To be sure, Massachusetts decisions on the civil side routinely declare that an issue or argument on appeal was not raised below and thus cannot be considered. Yet, there is also precedent referencing and applying a default standard of review otherwise expressed in various terms including “no plain error which would result in manifest injustice,” “loss of fundamental justice,” “inconsistent with substantial justice,” or “where injustice might otherwise result.” See e.g., Michnik-Ziberman v. Gordon’s Liquor, Inc., 453 N.E. 2d 430, 433 (Mass. 1983); Normand v. Dir. Of Office of Medicaid, 933 N.E. 2d 658, 995 (Mass. App. Ct. 2010);  Cruz v. Comm’r of Pub. Welfare, 478 N.E. 2d 1262, 1264 (1985). Massachusetts courts have likewise proceeded to allow review of unpreserved errors or arguments “where injustice might otherwise result because of a limited and imperfect opportunity to present [the issue below]”; “when it is necessary to reach such an issue in order to provide guidance to the lower courts,” particularly where the result is unchanged; when the issue is important to the public interest has been raised; and where the issue is novel.” See Weigand, Raise or Lose: Appellate Discretion and Principled Decision-Making, 17 Suff. J. of Trial & App. Adv. 179, 212-213 (2012)        

It is this long-standing precedent that makes the Supreme Judicial Court’s remarks in R.B. Petitioner of some note. The failure to raise or preserve below will likely doom any review on appeal in a civil case yet the circumstances of exception remain. Stated differently, while the substantial risk of miscarriage of justice standard is alive and well in criminal cases, plain or manifest error or injustice as well as exceptional circumstances discretion is well entrenched as to civil cases. As such, while not a pettifogging technicality, there remains a default standard of discretionary review if properly presented and articulated consistent with the high standard and burden demanded by “manifest injustice” or “exceptional circumstances.”

For the practitioner it is imperative to appreciate the extreme difficulty in overcoming the lack of preservation. Indeed, it is likely determinative and must be part of the appellate assessment. Yet it is also true that there will be times where it is fair to consider, evaluate and invoke this discretion where appropriate. It remains for the appellate court to articulate, when properly raised, why there is or is not plain or manifest error or applicable exceptional circumstances.