Standard of Review (state and Federal): a Primer
| Publication year | 1994 |
Table of Contents
I. Introduction.......................................... 12
II. Definitions........................................... 13
III. Historical Antecedents................................ 15
A. Common Law.................................... 15
B. Early Development................................ 16
C. Modern Practice.................................. 18
IV. Policy Reasons for Deference to Lower Tribunal Decisions............................................ 19
V. Characterization...................................... 21
A. Distinction Between Law and Fact................. 21
B. Discretionary Functions........................... 23
VI. Appellate Review of Particular Decisions............... 24
A. Review of Findings of Fact........................ 24
B. Exceptions to General Rules in Fact-Finding........ 25
C. Review of Fact-Finding by Administrative Tribunals........................................ 26
D. Review of Issues of Law.......................... 27
E. Review of Mixed Questions of Law and Fact....... 27
1. Federal Review of Mixed Questions............ 27
2. Washington State Review of Mixed Questions... 28
F. Review of Jury Findings........................... 28
G. Review of Procedural/Evidentiary Questions....... 29
H. Review of Administrative Decisions................ 30
1. Federal Review of Administrative Actions....... 31
2. Washington Review of Administrative Actions .. 31
VII. The Standards........................................ 34
A. Abuse of Discretion............................... 34
B.
C. Clearly Erroneous................................. 38
D. Arbitrary or Capricious........................... 40
E. Substantial Evidence.............................. 42
F. Other Standards.................................. 45
VIII. Conclusion........................................... 46
I. Introduction
It would be difficult to name a significant legal precept that has been treated more cavalierly than standard of review. Some courts invoke it talismanically to authenticate the rest of their opinions. Once they state the standard, they then ignore it throughout their analysis of the issues. Other courts use standard of review to create an illusion of harmony between the appropriate result and the applicable law. If an appellate court wants to reverse a lower tribunal, it characterizes the issue as a mixed issue of law and fact, thereby allowing
Standard of review has been virtually ignored by legal scholars.(fn1) The phrase does not even appear in any of the major law dictionaries. Yet, as a concept, it is essential to every appellate court decision. It is to the appellate court what the burden of proof is to the trial court. Ironically, although no trial judge would think of sending a case to the jury without an instruction on the burden of proof, appellate judges often omit the standard of review when they discuss whether or not to overrule a trial court's determination.
The one exception to the general lack of analysis in standard of review lies in the area of administrative law. This exception is apparently the result of a clumsy codification of common law principles. Unfortunately, the discourse over administrative law has borne little fruit. To quote Professor Kenneth Culp Davis: "Probably more than 500 pages a year are devoted to detailed statements about scope of review of administrative action; most of that verbiage is harmless, for neither the judges nor the readers of opinions take it seriously. Whether the verbiage about scope of review is helpful is doubtful, for it is typically vague, abstract, uncertain, and conflicting."(fn2)
Despite Davis' assessment of the value of such analysis, this article discusses standard of review. The discussion is not limited to review of administrative actions, but rather covers standard of review as it is applied to all lower tribunal findings.
This Article will define standard of review, trace its origins and evolution, and discuss how the appropriate standard of review is determined. A brief discussion of each standard will follow the general discussion. Finally, suggestions will be made for analyzing standard of review problems. The main point is that standards of review are and should be flexible.(fn3) Courts must recognize this and must look to the policies behind a standard when they select and apply it in a particular case.
II. Definitions
The terms "standard of review" and "scope of review" are often used interchangeably. They will be used here as two separate concepts, although they are interrelated and often confused.(fn4) Scope of review is often used in a way that includes both scope of review and standard of review as those terms are defined in this article. The two, however, should be distinguished. "Scope of review" best delineates the range of issues which are subject to appellate review in a given case. It answers the question: Can the issue be reviewed? The scope of appellate review for trial court decisions in Washington is governed by the court rules;(fn5) in federal courts, it is governed by statute.(fn6) "Standard of review," by contrast, operates only after an issue has been determined to lie within the court's scope of review. Standard of review is based on and defines how much deference the lower tribunal's decision will be accorded. It answers the question: What is necessary to overturn the decision? Typically, standards of review have been derived from common law although they may have later been codified, as the standards contained in the Administrative Procedure Act have been.(fn7)
Precise definition of standard of review is virtually impossible, because each standard evolved independently. As a result, different standards measure different variables. Thus, while the burden of proof can always be defined in terms of quantum (how much evidence is necessary to establish a fact), no similar measure is common to all standards of review. Standards range from quantum ("substantial evidence"), to point of view
Furthermore, the different standards look to different components of the decision-making process in their analysis. For instance, "substantial evidence" looks to the evidence in the lower tribunal's record in support of the finding.(fn8) By contrast, "abuse of discretion" looks to the decision-maker and his or her actions or inactions.(fn9)
Because each standard examines different components, most standards cannot accurately be characterized as higher or lower than others. Without doubt, some standards are broader than others
Within this context, the following will at least provide a working definition:
One way to add understanding to this rather stark definition is to study the origin and evolution of standard of review.
III. Historical Antecedents
Nothing that could properly be called an appeal was known at early English common law before its fusion with equity in 1875.(fn13) Instead, the remedy for a dissatisfied litigant was to bring an entirely new action against the judge or jury in the original case.(fn14) This so-called "attaint" was a quasi-criminal procedure.(fn15) The focus of the inquiry was on the decisionmakers' actions or inactions within the context of the trial.(fn16) If the decisionmakers had decided in error, they would be punished according to the nature of their error.(fn17) Incidentally, the verdict of the second tribunal was substituted for that of the first.(fn18)
The writ of error ultimately replaced the writ of attaint.(fn19) It, too, was considered an entirely new proceeding, rather than a continuation of a previous one.(fn20) The writ of error was an examination of the record of the original proceedings by a second court.(fn21) By the mid-1700s, it had become the primary means of reviewing a lower tribunal decision at common law.(fn22) The rules of pleading required that the challenged errors appear on the formal record of the case.(fn23) Thus, the common law knew...
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