Thinking out loud here, but maybe what you do is get a friendly organization to ask to file an amicus brief. Roswell could've asked the Georgia Municipal Association to raise this issue.
Anyway, I haven't thought it through, but the sua sponte review option adds a wrinkle to preservation problems.
Following up on T-Mobile.... This week's issue-preservation case is this tangle from the 7th Circuit:
www.courtlistener.com/opinion/1086...
1. Hangzhou doesn't argue on appeal that Kangol waived its waiver-of-service objection, but the court sua sponte raises waiver-of-waiver, and finds it.
...
T-Mobile's 2010 application for a cell tower site in Roswell is now closer in time to the Telecommunications Act of 1996 than it is to the latest court decision on it (which isn't remotely final).
www.courtlistener.com/opinion/1086...
Roswell won on an issue the 11th Circuit raised sua sponte. Which got me wondering:
If you're representing Roswell, and realize mid-appeal that you didn't preserve a potentially winning issue, how might you suggest that the appellate court raise the issue itself?
Probably the usual way is just to brief it and hope that the appeals court ignores your failure to preserve. This probably works sometimes.
You could maybe send a letter to chambers admitting that you didn't preserve, and suggesting that the court raise sua sponte. But this strikes me as too cute.
2. The court affirms the DC's holding that Hangzhou waived an Illinois post-judgment procedure argument by raising it only in a reply.
3. The court holds Kangol waived the argument that emailing links isn't transmitting a "document" by not raising it in the DC.
Do I have that straight?
Despite finding these arguments waived, the court addresses the merits of each and says they have none. This might help the attorneys, who can show their clients they didn't screw up, but it doesn't make for clean jurisprudence.
"Even if" is unavoidable in briefs, maybe better avoided in opinions.
Two arguments Hangzhou does raise on appeal are held premature. But the court's basis for reversal -- that the Hague Convention prohibits email service in China -- might also be premature, right? If the DC finds the Convention doesn't apply.
This is how you end up with seven enumerations of error.
Do courts ever say, "this argument would've won if it had been preserved, but it wasn't; too bad??"
I feel like I've seen this, but it's rare.
I see Bluesky has found its thing to be pissed off about for three hours