MAKAR, J.
The State's motion for rehearing does not challenge our holding that reversal of the defendants' convictions is required because of the unconstitutional search of their home. Instead the State raises two points of appellate practice, one requiring little discussion, the other more elaboration.
The State's motion begins by saying our opinion should be clarified because it "implies that the
But the State's motion insists upon much more. The State claims we are required under the tipsy coachman doctrine to consider an issue, such as its "closely-associated" with the front door theory, raised for the first time at oral argument. The doctrine is a "longstanding principle of appellate law [that] `allows an appellate court to affirm a trial court that `reaches the right result, but for the wrong reasons' so long as `there is any basis which would support the judgment in the record.'"
First, a foundational principle of appellate review is that "if a claim is not raised in the trial court, it will not be considered on appeal."
Here, not only was the "closely-associated" argument not made or developed below, nothing in the record supports it: no testimony on the topic was offered, no photos of the window or door were entered in evidence, no documents were presented that addressed the matter, and the trial court made no factual findings on the issue. Indeed, the State points us to no case that has ever addressed such an issue. As such, this case is a poor vehicle for the State's argument that the tipsy coachman doctrine should apply to the new issue it raised at oral argument.
That said, although first principles dictate that we ought not consider arguments outside the scope of the briefing process, here we chose to very briefly discuss the issue the State first raised at oral argument, saying we could envision situations where a window configuration might be incorporated into a door's design and become relevant under privacy analysis; but we were not required to do so. The State suggests we were, directing us to four
Basic principles of due process suggest that courts should not consider issues raised for the first time at oral argument. Doing so deprives appellants of the opportunity to have responded to the arguments in their reply briefs, and unfairly limits their ability to do so in the fleeting minutes of their reply arguments. As Judge Posner has noted, "it would not be quite cricket" for an appellate court to decide a case on a new issue raised for the first time at oral argument because, among other reasons, appellees might be "lulled into thinking" the appellants are "fighting the claim on other grounds."
As an ancillary justification for its position, the State points out that appellate courts sometimes affirm decisions where the State has waived its right to file an answer brief. The inference to be drawn is that appellate courts must shoulder the work of appellees that fail to brief issues (or raise new issues at oral argument). In support of this claim, the State cites two cases, neither of which advances its cause. First, the criminal case it cites involves an instance of this Court criticizing the State for filing a waiver of its answer brief when the brief was required.
Second, the State cites
On a broader point, that an appellate court may choose to issue an affirmance in a case where the State does not file a brief does not make the judicial practice of doing so compulsory; affirmance may be warranted for any number of reasons unrelated to a tipsy coachman analysis (failure to preserve an issue for review being the prime example). Courts issue per curiam affirmances with regularity without briefing from appellees; no one suggests that doing so supports a compulsory judicial duty to do the work of the absent appellees. Imposition of such a broad duty would come close to requiring the judiciary to act as an advocate for appellees who choose not to provide briefs, argument, or other advocacy. It would also tread closely to separation of powers concerns where executive branch actors (such as the State) are involved.
We think the better approach—and one that other jurisdictions embrace
In conclusion, we clarify our opinion in part, but reject the broader claim that an appellate court must consider issues the State as appellee raises for the first time at oral argument. We stop short of saying never. Rare or unusual instances may arise where an appellate court chooses to consider an argument made for the first time on appeal by an appellee, perhaps because the appellant conceded the issue, because the court allowed for post-argument briefing on the matter, and so on. But we find no basis for recognizing an inflexible principle that a court must do so. We fully recognize our obligation to ensure that justice is served by careful review of each case that comes before us; but this obligation does not relieve the State, or any other litigant, from the orderly administration of justice that disfavors raising new issues at oral argument. Based on the foregoing, the State's motion for rehearing is granted in part and denied in part.
LEWIS, C.J., and THOMAS, J. CONCUR.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.
(footnotes omitted).
(Footnotes omitted); 2A Fed. Proc., Laws. Ed.