Last week, baseball fans were treated to the odd spectacle of Alex Rodriguez at long last returning from off-season hip surgery to play a major league baseball game on the very day that Major League Baseball (MLB) announced that it was suspending him for the balance of the current season and all of next season as punishment for his violation of rules forbidding the use of performance-enhancing drugs. Unlike a baker’s dozen of other players, who accepted their respective fifty-game suspensions, Rodriguez will appeal his heftier “sentence”—and pursuant to the Joint Drug Prevention and Treatment Program created by MLB and the players’ union, he is therefore entitled to continue to play until his appeal is resolved.
Does that sound peculiar? It shouldn’t. Trial courts in the United States frequently employ the same procedure: Even after coming to a judgment, they suspend that judgment pending appeal. Indeed, as I shall explain in this column, the case for permitting A-Rod to play pending appeal is stronger than the case for suspending other sorts of judgments. And as I shall also explain, the decision whether to suspend a judgment pending appeal can be complicated and controversial—as the recently concluded Proposition 8 litigation illustrates.
Distinguishing Among Criminal Cases, Civil Damages Cases, and Cases for Injunctive Relief
Under what circumstances should a trial court stay its ruling pending appeal? The answer depends partly on the kind of case at issue.
A criminal defendant who is found guilty and was being held without bail before trial will almost invariably remain in custody, even pending appeal. After all, if the defendant was considered too dangerous or too much of a flight risk to remain at large before he was convicted, the conviction only underscores the need for continued detention.
What if the defendant was free on bail before his conviction? Courts will sometimes permit him to remain free on bail even after conviction, so long as his appeal presents a substantial chance that the conviction will be reversed. The exact standards differ somewhat from state to state and within the federal system, but the basic principle is the same: A conviction increases the likelihood that any particular defendant will flee, and the conviction eliminates the relevance of the Eighth Amendment’s prohibition on excessive bail, but for some number of defendants, the considerations that supported bail before and during the trial continue to support bail during the appeal.
Civil cases present a different set of issues. If a defendant is found civilly liable but has plausible grounds for appeal, the defendant may wish to delay full satisfaction of the judgment while pursuing the appeal. The traditional means of balancing the defendant’s right to pursue the appeal and the plaintiff’s entitlement to the judgment is for the defendant to post a so-called “supersedeas” bond. Here too, the precise mechanisms vary by jurisdiction, but the pertinent Federal Rule of Civil Procedure is fairly typical in granting the trial court judge considerable discretion in setting the terms under which to stay a civil judgment pending appeal.
In practice, however, the decision whether to stay a judgment pending appeal is more straightforward in a case for monetary damages than it is in a case for injunctive relief. If the trial judge finds for the plaintiff and orders the defendant to pay $100,000.00 in damages, then the plaintiff can be protected by ordering the defendant to post a $100,000.00 supersedeas bond pending appeal. By contrast, the whole premise of injunctive relief is that monetary damages will not make the plaintiff whole, and so a bond—even though it ensures the defendant’s eventual compliance with the injunction if it is affirmed on appeal—leaves the plaintiff without a remedy for some considerable time.
The Proposition 8 Litigation as an Illustration
The recently concluded litigation involving California’s Proposition 8 nicely illustrates the complexities that can arise when a court stays injunctive relief pending appeal. Prop 8—which defined marriage in California to exclude same-sex marriage—was adopted in November 2008. The complaint challenging it as unconstitutional was filed in May 2009. After extensive pre-trial proceedings and a trial in January 2010, the district court invalidated Prop 8 in an opinion issued in August 2010. The intervenors—the sponsors of Prop 8, who had defended its constitutionality at trial—then asked the district judge to stay his ruling pending appeal. He refused, finding that the intervenors were unlikely to prevail on appeal and finding further that the plaintiffs, who were being unconstitutionally denied the right to marry, were entitled to their remedy forthwith.
But just four days later (still in August 2010), the court of appeals granted a stay pending appeal. Even though the appeals court would eventually affirm the district court’s ruling (on somewhat different grounds), the stay of the order remained in effect until June 28 of this year—after the Supreme Court ruled that the sponsors of Proposition 8 had lacked standing to appeal in the first place. Thus, same-sex couples in California were denied the right to marry for nearly three extra years as a consequence of the stay pending appeal.
Justice delayed is justice denied, so was the Ninth Circuit’s August 2010 decision to grant a stay pending appeal erroneous? Not necessarily.
Although the U.S. Supreme Court ultimately found that the Prop 8 sponsors lacked appellate standing, the Court divided 5-4 on that question, without reaching the merits. Thus, at least in retrospect, it is hard to say that the district judge correctly determined that the Prop 8 sponsors lacked a good chance of success on appeal. They came very close on standing, and no one really knows what the Supreme Court would have said had it reached the merits.
The district court was technically right back in August 2010, when it said that the Prop 8 sponsors had failed to show how a stay was necessary to prevent irreparable injury—or frankly, any injury—to them. But that was not really the right question.
The best reason for the stay pending appeal was the risk of chaos that would have ensued if Prop 8 were ultimately upheld on the merits. Had that happened, and had there been no stay in place pending appeal, then thousands of same-sex couples would have been in a kind of limbo. They would have gotten married on the strength of the district court ruling, only to see that ruling overturned. Would their marriages have remained valid?
The California Supreme Court addressed a variant of that issue in 2009, when it held that same-sex couples who married between May 2008—when the California Supreme Court found a state constitutional right to same-sex marriage—and November 2008—when Prop 8 took away that right—remained lawfully married. Prop 8 only applied prospectively, the court said.
But the California Supreme Court was construing its own precedent and a state enactment. In the hypothetical world in which: a) the district court invalidated Prop 8; b) no stay of that ruling was issued pending appeal; c) thousands of same-sex couples married; and d) the judgment was then reversed, thus validating Prop 8—no court would have had the authority to “grandfather” in the couples that got married pending appeal. The effect of a federal court judgment is a question of federal law, not state law, and so the California courts could not validate these marriages, while as a matter of federal law, a subsequently reversed judgment has no binding effect.
Accordingly, the Ninth Circuit had a good reason for staying the district court’s judgment pending appeal—even though doing so had the very unfortunate effect of delaying California same-sex couples’ right to marry by nearly three years.
A-Rod’s Strong Case to Play Pending “Appeal”
So what about A-Rod? In light of the foregoing considerations that apply to other kinds of cases, does it make sense for the rules to afford him an automatic stay of his suspension while he pursues his appeal?
The short answer is yes, for a very simple reason. Although news reports indicate that there is very strong evidence that Rodriguez used multiple banned substances and affirmatively tried to interfere with MLB’s investigation of performance-enhancing drugs, the suspension is the result of an inquisitorial, rather than an adversarial, proceeding. The “appeal” to a panel of arbitrators that A-Rod is now pursuing is actually more akin to a trial than it is to an appeal, in the sense that the term is used within the judicial system.
Unlike Barry Bonds, who was tried for the crimes of perjury and obstruction of justice, Alex Rodriguez does not face criminal charges. Thus, the presumption of innocence does not apply to him. Nonetheless, even when only civil penalties are at stake—and a suspension from playing baseball is analogous to a civil penalty—defendants ordinarily do not have to comply with a plaintiff’s demand unless and until they are found liable. A-Rod’s continued appearance in a Yankees uniform may dishonor baseball, but it would dishonor our notions of fair play even more if he were to be forced off the field without first having his day in court.