Conference on Clinical Legal Education

May 18–22, 2002
Pittsburgh, Pennsylvania

Teaching Appellate Advocacy

Supplementing the Pro Se Record with a Brandeis Brief

Margaret Z. Johns
University of California, Davis

Garcia v. Henry: Reply Brief Excerpt

The Department of Corrections erroneously classified our client as a sex offender. We argued that this designation caused him atypical and significant hardship and therefore required due process protections. Because the trial court record was not well developed, in our opening brief we cited scholarly studies to establish the psychological consequences and physical dangers that result from the sex offender designation. The Department argued that these studies could not be considered by the court of appeal. This is an edited excerpt of our reply.

Bibliography

Critics have argued that the submission of a Brandeis brief on appeal poses significant problems. Unlike the introduction of expert testimony in the trial court, a Brandeis brief is not subjected to any vetting process. Certainly, scholarly research is not dispassionate and is subject to distortion. The court is not given the scholarly materials themselves, but only the advocate’s selective summary. Many question the ability of appellate judges to properly evaluate social and other scientific studies. This bibliography identifies some useful articles about these issues.

No. 99-15277

BENITO ARENCIA GARCIA,

Plaintiff/Appellant,

v.

IVALEE HENRY, et al.,

Defendants/Appellees.

Reply Brief of Appellant Benito Arencia Garcia

Margaret Z. Johns
Supervising Attorney
University of California, Davis
School of Law
400 Mrak Hall Drive
Davis, California 95616
Telephone: (530) 752-8022

Laura Batie
Certified Law Student
Rebekah Young
Certified Law Student

Argument

The District Court's Dismissal Of Plaintiff's Due Process Claim Should Be Reversed

Defendants' refusal to correct Mr. Garcia's erroneous R-suffix designation has led to a host of adverse consequences. An inmate classified as a sex offender cannot be housed in a facility without perimeter gun towers. See Cal. Code Regs. tit. 15, § 3375.2(a)(2)(2001). Additionally, such inmates cannot be assigned to a program or work detail outside any security perimeter unless under constant and direct supervision. Id. Most importantly, however, Mr. Garcia's physical safety and psychological well-being are seriously jeopardized every day he retains his sex offender classification. These consequences are especially egregious given that Mr. Garcia has been mistakenly labeled a sex offender. These consequences impose atypical and significant hardships on Mr. Garcia in relation to the ordinary incidents of prison life. Accordingly, Defendants' actions in mislabeling Mr. Garcia as a sex offender cause the deprivation of a liberty interest that requires procedural protection. See Sandin v. Conner, 515 U.S. 472 (1995).

Instead of challenging the merits of Mr. Garcia's case, Defendants have attacked the state of the record on appeal. First, Defendants argue that the studies establishing the dangers of being classified as a sex offender were not presented below and, therefore, cannot be considered on appeal. . . .

A. Under the Federal Rules of Evidence, the court may consider scholarly studies presenting legislative facts about the consequences and dangers of designating a prisoner as a sex offender.

In addition to cases, statutes, procedural rules, and administrative regulations -- the traditional sources of legal authority -- courts may also turn to science, empirical studies, social and psychological theory, history and current events when developing a rule of law. Ellie Margolis, Beyond Brandeis: Exploring the Uses of Non-Legal Materials in Appellate Briefs, 34 U.S.F. L. Rev. 197, 198 (2000). When used for the purpose of developing a rule of law, these sources are commonly known as legislative facts. Id.

Indeed, at the turn of the twentieth century, Louis Brandeis established the value of turning to extra-legal sources when he submitted his brief supporting shorter work hours for women in Muller v. Oregon, 208 U.S. 412 (1908). Margolis, Beyond Brandeis, 34 U.S.F. L. Rev. at 203. In Muller, Louis Brandeis assembled a substantial body of medical and social science research documenting the debilitating effect on women of working long hours. He presented this material to the United States Supreme Court in his brief defending Oregon's limits on the number of hours women could work. See Muller, 208 U.S. at 416. See also Brief for the Defendant in Error (No. 107), reprinted in 16 Landmark Briefs and Arguments of the Supreme Court Of the United States: Constitutional Law 63 (Philip B. Kurland & Gerhard Casper eds., 1975). In the decades since Muller, social science studies have continued to play a significant role in deciding major constitutional cases, particularly in the area of wage and hour law. John Monahan & Laurens Walker, Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law, 134 U. Pa. L. Rev. 477, 517 (1986).

Moreover, some of the most significant and controversial cases of the twentieth century have relied on social science research. For example, in Brown v. Board of Education, 347 U.S. 483, 495 (1954), the Court held that segregation in public schools violated the Equal Protection Clause of the Fourteenth Amendment. In so holding, the Court relied on empirical studies to support its finding that segregation of African-Americans "generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." Id. at 494. The Court, referring to the studies as "modern authority," cited them in a footnote, much as it would list case citations supporting a proposition of law. Id.

Thus, empirical research, which in 1908 the Muller Court had said "may not be, technically speaking, authorities," had by 1954 in Brown come to be described, and used, as "modern authority." Monahan & Walker, Social Authority, 134 U. Pa. L. Rev. at 484. Because the use of legislative facts is allowed, it should be considered a tool in a lawyer's arsenal which, like all such tools, should be used to advocate a client's position when appropriate. According to prominent evidence scholar Professor Kenneth Davis, it is both unrealistic and harmful to limit the realm of facts available to judges. See Kenneth Culp Davis, Judicial Notice, 55 Colum. L. Rev. 945, 952 (1955). Indeed, as Professor Davis explained, "No judge can think about law, policy, or discretion without using extrarecord facts." Kenneth Culp Davis, Judicial Legislative and Administrative Lawmaking: A Proposed Research Service for the Supreme Court, 71 Minn. L. Rev. 1, 7 (1986).

This view is reflected in the Federal Rules of Evidence. In 1975, the drafters of Rule 201 drew extensively upon Professor Davis's writings. See Fed. R. Evid. 201(a) advisory committee note. Rule 201, establishing the standards for judicial notice, adopted Davis's distinction between legislative facts and adjudicative facts. Id. Adjudicative facts are the facts of the particular case. Legislative facts, on the other hand, are facts involved in deciding questions of law or policy. Id.

Rule 201 consciously preserves the tradition of the Brandeis brief by distinguishing between adjudicative facts and legislative facts. Specifically, under Rule 201, a court’s consideration of adjudicative facts outside of the record is subject to the restrictions imposed by the rules for judicial notice. Fed. R. Evid. 201(a) and advisory committee note. But the advisory committee stated that judicial access to legislative facts should not be restricted by "any limitation in the form of indisputability, any formal requirements of notice other than those already inherent in affording opportunity to hear and be heard and exchanging briefs, and any requirement of formal findings at any level." Id. Instead, the committee noted, judicial use of legislative facts should be governed by judicial methods of determining domestic law, in which the judge is "unrestricted" in his investigation and conclusion. Id. Therefore, the advisory committee rejected any formal restraint on a court’s consideration of legislative facts. Margolis, Beyond Brandeis, 34 U.S.F. L. Rev. at 204. Accordingly, there is no procedural bar to introducing non-legal, extra-record material pertaining to legislative facts in support of appellate arguments, even when it has not been introduced in the trial court. Id. at 205.

In fact, Supreme Court justices have often used non-legal material, such as social science research, to establish or criticize a rule of law. For example, in considering whether a prayer at graduation violated the First Amendment, the Court relied on psychological studies supporting the “common assumption that adolescents are often susceptible to pressure from their peers towards conformity and that influence is strongest in matters of social convention.” Lee v. Weisman, 505 U.S. 577, 593 (1992). In writing for the majority, Justice Kennedy relied on three psychological studies to support this proposition. Id. See also, e.g., United States v. Leon, 468 U.S. 897 (1984) (opinion of Justice White citing sociological field research to support good faith exception to Fourth Amendment exclusionary rule); Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982) (opinion of Justice O'Connor citing sociological surveys to establish unconstitutionality of state statute that excluded males from enrolling in state-supported nursing school); Ballew v. Georgia, 435 U.S. 223 (1978) (opinion of Justice Blackmun citing psychological studies to establish unconstitutionality of five-member juries in state criminal trials); United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (opinion by Justice Powell citing epidemiological and demographic research to support the constitutionality of fixed checkpoint stops of vehicles at borders); Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) (opinion of Chief Justice Burger using behavioral studies to support the constitutionality of state obscenity statute).

Thus, the writings and studies of social science experts on legislative facts are often considered and cited by the Court with or without introduction into the record or consideration by the trial court. Dunagin v. City of Oxford, Miss., 718 F.2d 738 (5th Cir.1983). Accordingly, an appellate court is not confined to the record of evidence presented to the trial court. It may, for example, consider additional sources referred to in appellate briefs or conduct its own independent library research. Robert Keeton, Legislative Facts and Similar Things: Deciding Disputed Premise Facts, 73 Minn. L. Rev. 1, 31 (1988). Indeed, with respect to legislative facts, higher courts owe no deference to a trial court and may make their own determinations of such facts. Id. at 41. While parties may fear the misuse of non-legal information introduced at the appellate level, there is no reason to believe that judicial decisions will be better for ignoring available information and failing to consider the real world implications of a legal rule. See Michael Saks, Judicial Attention to the Way the World Works, 75 Iowa L. Rev. 1011, 1015 (1990).

Moreover, research used in the creation of a rule of law -- for example, studies on the effects of school segregation on self-esteem, the effects of exposure to pornography on anti-social behavior, or, as is the case here, the effects of a sex offender classification on an inmate's prison experience -- has the same kind of future-oriented generality that case precedent possesses. See Monahan & Walker, Social Authority, 134 U. Pa. L. Rev. at 491. While the studies inform the deliberations on specific disputes in which they are introduced, they also apply to many other disputes which will arise and be litigated in the future. Id.

Indeed, this is precisely why appellate courts have a special need to resort to facts not found in the record. When the question before the court is not merely the rights of the parties, but the interests of others who may be affected by the rule the court adopts to govern the case, it would be foolish for the court to rely only on the limited and case-specific evidence the parties have chosen to present below. 21 Fed. Prac. & Proc. Evid. § 5102 citing Kenneth Karst, Legislative Facts in Constitutional Litigation, 1960 Sup. Ct. Rev. 75, 109.

In this case, the need for supplementing the adjudicative facts with legislative facts is compelling. In deciding whether designating a prisoner as a sex offender requires due process protections, this court should consider not only the specific facts of this case, but the body of scholarly research establishing the dangerous consequences of imposing the sex offender label. Beyond the risks to Mr. Garcia, the safety of scores of other inmates is at stake.

Thus, Defendants' argument that the studies cited by Mr. Garcia contain inadmissible hearsay and opinion testimony is inapposite here because the studies present legislative facts, not adjudicative facts. Moreover, contrary to Defendants' contention, studies documenting the consequences of a prisoner being labeled as a sex offender may be considered for the first time on appeal. Admittedly, it may be preferable to remand the action to the trial court for further proceedings to allow it to consider the previously unexamined information. See Cal. Prac. Guide Fed. 9th Cir. Civ. App. Prac. Ch. 4-D, P. 4:2221.1. However, in deciding the proper disposition of this case, this court may properly consider the legislative facts presented through scholarly works.

In sum, the studies at issue may be considered on appeal. Indeed, for nearly 100 years, appellate courts have looked to scholarly materials to inform their reasoning and craft their opinions. As noted above, the United States Supreme Court has relied on non-legal information in some of the most significant cases of this century. Thus, this court may rely on such information in the present case.

 Bibliography

Scott Vaughn Carroll, Lee v. Weisman: Amateur Psychology or An Accurate Representation of Adolescent Development. How Should Courts Evaluate Psychological Evidence? 10 J. Contemp. Health L & Pol’y 513 (1993).

Peggy C. Davis, There is a book out . . . An Analysis of Judicial Absorption of Legislative Facts, 100 Harv. L. Rev. 1539 (1987).

John Frazier Jackson, The Brandeis Brief - Too Little, Too Late; The Trial Court as a Superior Forum for Presenting Legislative Facts, 17 Am. J. Trial Adv. 1 (1993).

George D. Marlow, From Black Robes to White Lab Coats: The Ethical Implications of a Judge’s Sua Sponte Ex Parte Acquisition of Social and Other Scientific Evidence during the Decision Making Process, 72 St. Johns L. Rev. 291(1998).

John Monahan & Laurens Walter, Social Authority; Obtaining, Evaluating and Establishing Social Science in the Law, 134 U. Pa. L. Rev. 477 (1986).

Michael Rustad & Thomas Koenig, The Supreme Court and Junk Social Science: Selective Distortion in Amicus Briefs, 72 N.C. L. Rev. 91 (1993).

Dennis J. Turner, Judicial Notice and Federal Rule of Evidence 201 - A Rule Ready for Change, 45 U. Pitt. L. Rev. 181 (1983).