For anyone who has been following the story of Arthur Allan Wolk, Esquire, it will come as no surprise that Attorney Wolk’s opposition to Amici, Eugene Volokh, Glenn Reynolds, Edward Whelen, and Marc Randazza, reads like a paranoid diatribe. It seems that a massive blogger conspiracy, with ties to incest, pedophilia, bestiality, and opposition to banking regulations, has taken up arms against a poor lawyer in an internet smear campaign. You can read the full text of the opposition here, if you are so inclined.
On a practical note, in between the ramblings on conspiracy theories, I noted a subtle legal issue in Attorney Wolk’s opposition that I thought warranted a bit of discussion. For one of his substantive thrusts, Wolk poopoos the Amici for bringing an argument in opposition to his appeal that was not raised at the trial level. Wolk cites numerous authorities for the principal that new arguments cannot be brought up at the appellate level. Now, in fairness, I didn’t check all of the cited cases, but each of the ones I did involved the appellant getting the smack down for raising arguments that the appellee wasn’t given the opportunity to develop at the trial level. I’m not 100% sure that Wolk’s argument holds up when the shoe is on the other hand.
By way of quick and simplified explanation, on appeal the appellant (Wolk, in this case) is the party that disagrees with the ruling of the lower court. The appellant’s opponent, i.e., the appellee, therefore agrees with the lower decision. Therefore, it’s the appellant who wants to tip the apple cart, while the appellee is fine with things as they are. Given the desired tendency towards finality of court decisions, and in the interest of judicial economy, the appellant is supposed to have a bit of an uphill battle, but the same is not necessarily true for the appellee. Ignoring for the purposes of discusion the fact that it was Amici who brought the new argument, I think that Wolk is wrong that new support cannot be introduced to prop up the lower court’s decision to dismiss his complaint.
See Colautti v. Franklin, 439 U.S. 379, 397 n. 16 (1979) (“Appellees, as the prevailing parties, may of course assert any ground in support of that judgment, ‘whether or not that ground was relied upon or even considered by the trial court.'” (quoting Dandridge v. Williams, 397 U.S. 471, 475 n. 6 (1970))); see also Fairview Township, York County v. United States Environmental Protection Agency, 773 F.2d 517, 525 n. 15 (3d Cir. 1985) (“It is well settled that ‘we [can] affirm the district court on any basis which finds support in the record.'” (citations omitted)); but see Airco Industrial Gases, Inc. v. Teamsters Health & Welfare Pension Fund of Philadelphia & Vicinity, 850 F.2d 1028 (3d Cir. 1988) (noting that if an appellee aspires to alter the trial court’s decision (either increasing its rights or decreasing those of its opponent), a cross-appeal is required)
Many thanks to John R. for providing the above-listed citations