An Adversary System Without Adversaries

It's a ritual, played out with slight variations in appellate courts throughout the country every day. We get out turn, they get theirs.  From the back and forth, after hearing and considering both sides, out of the conflict, comes what passes for justice.  It's how the system, imperfect though nobody's figured out a better one, works.  In the words of a 1969 opinion by the Ohio Supremes (and probably most other courts at one time or another),

Ours is an adversary system of jurisprudence.

And so, there was a death penalty case in the Ohio Supreme Court.  As counsel do, we filed the notice of appeal.  we made sure that the record, papers and transcripts, was sent down from Toledo to Columbus for timely filing.   We wrote our brief made umpteen copies, one of us loaded it in the car and drove down to Columbus to deliver it personally.  And we sat back to wait for the state to file its brief.  

Which was rejected.  The prosecutor counted the days wrong, the copier broke, the package got lost in the mail.  At this remove, I don't honestly remember.  And it doesn't matter.  Because it's the Ohio Supreme Court where deadlines is deadlines by god.  Where you're not even allowed to ask for more than a single, 10-day extension of time to file a brief. 

The prosecutor asked the court to reconsider.  Nope.

And since the rules say that a party that doesn't file a brief can't participate in oral argument, the prosecutor asked the court for special permission to speak at argument.  Nope.

And so I had 30 minutes to myself, to argue, to make my case.  With nobody on the other side. Which of course isn't supposed to happen.  After all,

Ours is an adversary system of jurisprudence.

It wasn't a one-off.  2013, State v. Pariag, Pariag had been charged with low level offenses.  The charges were dismissed.  He wanted the record of the dismissed charges sealed.  The trial court said sure.  The state appealed.  The court of appeals sided with the trial court.  Pariag went home.  The state asked the Ohio Supreme Court to hear the case.  Pariag was done.  His lawyer was done.  It's not even clear that Pariag knew.  It's certain he didn't respond.  The Ohio Supremes agreed to hear the case.  Only the prosecutor filed a brief.  Only the prosecutor appeared for argument.  The Ohio Supremes interpreted Ohio law just as the prosecutor wanted them to.*

Yesterday, State v. Brown, a case asking whether a probate court had authority to issue a search warrant.  Trial court said no and suppressed the evidence.  State appealed.  Court of appeals said no, but golly, the cops certainly acted in good faith, so the evidence comes in.  Supreme Court agreed to hear the case.  Court of appeals was right.  Probate judges do not have authority to issue search warrants so the search was unconstitutional.  

As for good faith?  Well, nobody asked that the ruling reconsidered, so the evidence, derived from an unconstitutional search, comes in.  But wait, why didn't anyone ask?  Because there was nobody on the other side.  Brown wasn't there.  No lawyer for his side.   No brief.  Nothing.

Of course,

Ours is an adversary system of jurisprudence.

Except when it's not. 

For the most part, the Ohio Supreme Court can cherry pick the cases it wants to hear.  It's supposed, by its own rules, to pick cases of "public or great general interest."  That is, it's supposed to be deciding stuff that matters.  That's true, also, of the categories of case it's required to hear.

You might think that the court would say, something like

We can't make those decisions, can't decide whether to hear a case, unless both sides weigh in with their views about why we should or shouldn't.  And we certainly can't decide important questions of public or great general interest in this, "our adversary system of jurisprudence," with no adversaries.

You might think that.  You'd be wrong.  

The court could appoint counsel to argue the other side.  It doesn't.  it's perfectly content to hear from only one side and then rule.  It shouldn't.  It's fundamentally wrong.  Regardless of the whether it gets the case right, that's not our system.  The one we believe in because it's the best way to get the right result.

But hey, they make the rules.  And they're apparently happy.

Law of Rule.

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*Disclosure:  After the opinion came out, and working with other organizations, we tracked Pariag down, he agreed to representation, and the Ohio Supremes were asked to reconsider.  They refused. I was counsel on an amicus brief in support of reconsideration.