Wide as a Church Door, Deep as a Well: a Survey of Judicial Discretion

Publication year1992
CitationVol. 61 No. 03 Pg. 33
Kansas Bar Journals
Volume 61.


Journal of the Kansas Bar Association
Vol. 61, March/April, 1992


Roger W. Badeker[FNa1]

Copyright (c) 1992 by the Kansas Bar Association; Roger W. Badeker

Incredulous and stung by the decision just announced by the court, you have retired to the corridor to confer with your client. She, also, is upset and asks you about grounds for appeal. Your first thought is about abuse of judicial discretion.

Think again. Although appeals are sometimes won on abuse of discretion, such cases are like the whooping crane-not extinct, but exceedingly rare. Abuse of discretion must be eye-popping, neck-snapping, jaw-dropping egregious error.

The test for abuse of discretion has been consistently applied by the Kansas Supreme Court. The most recent statement occurred in Falls v. Scott, in which the court said:

The test on appellate review ... is whether no reasonable person would agree with the trial court. If any reasonable person would agree, appellate courts will not disturb the trial court's decision. [FN2] Commenting further, the court made it clear the party claiming abuse bears the burden of proving it. [FN3]

Frequently the appellate courts cite Stayton v. Stayton, a 1973 divorce case alleging abuse based on the support and property division decisions of the trial court. There, in addition to the statement cited above, the court said:

Judicial discretion is abused when the judicial action is arbitrary, fanciful or unreasonable ... All judicial discretion may thus be considered as exercisable only within the bounds of reason and justice in the broader sense, and only to be abused when it plainly overpasses those bounds. [FN4] The party alleging abuse must also demonstrate that there has been prejudice to his or her cause. This common thread appears in most of the cases which deal with abuse. Thus, the challenger not only bears the burden of proof, but also must show unreasonableness plus prejudice.

Multiple Allegations of Abuse

Criminal appeals provide the greatest number of examples of allegations of abuse of discretion. It is normal for such an appeal to contain multiple allegations of abuse, starting with pre-trial motions and ending with sentencing. Rarely is the trial court overturned. There is no doctrine of "cumulative abuse." It is quality that counts.

State v. Mayberry is typical of the quest to find abuse. The syllabus contains 16 items, seven of which raise the issue of abuse. Even though the trial court denies the defendant's motion for change of venue, refuses his request for funds to pay for expert services, qualifies jurors objectionable to the defendant and admits gruesome photographs; there is no abuse of discretion. [FN5]

Another multiple allegation case runs to twenty-seven pages and alleges abuse on everything from bail to sentencing. A particularly persuasive argument appears to have been made regarding denial of a request for a change of venue based on pre-trial publicity. Finally, the defendant argued a violation of due process rights on a theory of cumulative error. The supreme court finds all of the defendant's claims without merit and affirms the judgment. [FN6]

The Topeka trial of Thomas McNaught on a charge of DUI received extensive publicity before and during the trial. In spite of the notoriety, the defendant was denied a change of venue. The media coverage included courtroom coverage of the trial-photo, audio, and television. In addition, the court denied the defendant's motion to prohibit spectators from wearing MADD and SADD buttons in the courtroom. No error was found in the conduct of the trial. [FN7]

*34 Even when the high court is openly critical of the trial court, it will not necessarily find abuse. In State v. Pioletti, the defendant cites as abuse the trial court's handling of voir dire, its jury instructions, and its failure to grant a mistrial for jury misconduct and sentencing. While the opinion criticizes the handling of voir dire as "... characterized by rambling, repetitive judicial statements that should not have been made ...", "it finds "no reversible error or prejudice to the defendant has been shown." [FN8]

Warming to the task of instructing the trial court, this same opinion uses four and one-half pages discussing the trial court's instructions to the jury which have varied from the standard PIK instructions. Summing up its discussion of the instructions, the supreme court admonishes the court below:

The instructions herein were not well done.... More seriously, they are another example of this particular trial judge's long-established conduct of refusing to use PIK instructions or follow PIK recommendations.... It is difficult to conceive of what motivation lies behind this trial judge's persistence in creating problems by refusing to follow PIK. [FN9] Despite the trial court's flawed performance, the judgment is affirmed. The opinion is unanimous.

Abuse in Evidentiary Matters

Evidentiary questions are frequently appealed hoping to establish abuse. Gruesome photographs are a popular issue, although not a successful one. Violent crimes require grisly photos to be admitted in evidence since they "serve to illustrate the nature and extent of wounds." [FN10] Evidence, once admitted, is almost always held to be within the discretion of the court as even a cursory review of the relevant headings in Kansas Digest will reveal.

Under certain circumstances, the court may even go outside the evidence in making a decision and be upheld. In deciding the property division in a divorce case, the trial court "considered books and...

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