Off the Road. Or Not?

In November 2007, an article titled "Off the Record," which was co-authored by one of this article's authors, was published in this Journal.1 It began by saying "[e]very good appellate lawyer knows that an appeal is constrained by the record formed below."2 It quoted a 1988 decision of the First District reprimanding a lawyer who sought to "amend" the record to include matters not before the trial court, and declaring in this regard that the fact "an appellate court may not consider matters outside the record is so elemental there is no excuse for an attorney to attempt to bring such matters before the court."3

It is a new world today, however, and we appellate lawyers had better recognize that. Appellate courts not only are not sanctioning lawyers for seeking to supplement the record with matters not in the record below, appellate courts are granting such motions and adding such materials to the appellate record.4

Even more, appellate courts themselves are raising matters not presented to the trial court. We recently watched an appellate argument in a child custody dispute where the panel directly questioned the father's counsel about his failure to pay support or try to see his child during the pendency of his appeal. That is intuitively important to an appeal seeking visitation rights, but it was not a matter before the trial court when it made the ruling at issue on appeal.

This is not an issue unique to family law appeals. Circuit Judge Richard A. Posner complained in his Reflections on Judging5 that "[a]ll too often, the facts that are important to a sensible decision are missing from ... the judicial record."6 Recognizing that reality, the entire September 2015 edition of Appellate Issues, published by the ABA's Council of Appellate Lawyers, was devoted to various aspects of the inquiry in "The Appellate Record: Adequate or Not?"7 That excellent resource includes articles on "Appellate Judicial Notice in a 'Google Earth' World," "Judges and the Internet: Does the Record Still Matter?," and a wonderful war story about the "Red Tie Guy."8

This article addresses some of the same general issues and discusses some developments in the law in this regard. But it also focuses more specifically on what is happening with regard to the appellate record in Florida appellate courts today. Agreeing with the authors of "Appellate Judicial Notice in a 'Google Earth' World," we urge adoption of their recommendations for rule changes that would provide appellate lawyers and appellate judges with more clarity and certainty regarding appropriate reliance on facts that are "off the record." Hopefully such changes also would enhance the ability of appellate courts to make "a sensible decision" based on all of the "important facts" for such a decision.

1. The Information Superhighway, AKA the Internet.

   Opinions issued in the last few weeks of the 2015-2016 term of the United States Supreme Court were replete with citations to facts derived from the internet. In Utah v. Strieff,9 the Supreme Court upheld the use of evidence obtained in a search without a warrant to do so, based on an outstanding warrant on an unrelated matter the officer relied upon. In dissent, Justice Sotomayor cited repeatedly to various statistics obtained from the internet with respect to outstanding warrants, including numbers and geographic data.10 Justices Kagan and Ginsburg cited some of her citations in their separate dissent.11

   In a passionate discourse on the "disproportionate" impact on persons of color of "the humiliations of . . . unconstitutional searches," Justice Sotomayor also cited a number of books dating back to 1903 showing that "[f]or generations, black and brown parents have given their children the 'talk' . . . all out of fear of how an officer with a gun will react to them."12 No justice questioned this fact, or any of the other facts she recited based on extrarecord sources. Extrarecord materials were the subject of a back-and-forth exchange between Justice Kennedy and Justice Alito in the Supreme Court's June 23, 2016, decision in Fisher v. University of Texas at Austin.13 In his opinion for the divided 4-3 Court, Justice Kennedy wrote the following:

   At no stage in this litigation has petitioner challenged the University's good faith in conducting its studies, and the Court properly declines to consider the extrarecord materials the dissent relies upon, many of which are tangential to this case at best and none of which the University has had a full opportunity to respond to. See, e.g., post, at 45-46 (opinion of ALITO, J) (describing a 2015 report regarding the admission of applicants who are related to "politically connected individuals'').14

   In dissent, Justice Alito vehemently disagreed with that observation, asserting that the report was "highly relevant" and had been discussed by the respondent university both at the certiorari and the merits stage. He said "the Court's purported concern about reliance on 'extrarecord materials,' ante, at 14, rings especially hollow in light of its willingness to affirm the decision below, which relied heavily on the Fifth Circuit's own extrarecord Internet research."15 Sure enough, the Fifth Circuit had relied on demographics developed from its internet searches of both governmental statistics and scholarly research.16

   Just one week later, Justice Alito complained in his dissenting opinion in Whole Woman's Health v. Hellerstedt, joined by Chief Justice Roberts and Justice Thomas, that the Court had "brushe(d) off" statistical evidence as " 'outside the record,' " even though "it was filed with this Court by the same petitioners in litigation closely related to this case."17 Justice Alito pointed to decisions holding that the Court " 'may properly take judicial notice of the record in that litigation between the same parties who are now before us.' "18 A few footnotes later, he snidely observed as follows:

   The Court also gives weight to supposed reductions in "individualized attention, serious conversation, and emotional support" in its...