Vexed and Perplexed: Reviewing Mixed Questions of Law and Fact on Appeal, 0318 COBJ, Vol. 47, No. 3 Pg. 24

Position:Vol. 47, 3 [Page 24]

47 Colo.Law. 24

Vexed and Perplexed: Reviewing Mixed Questions of Law and Fact on Appeal

Vol. 47, No. 3 [Page 24]

The Colorado Lawyer

March, 2018



This article discusses the different standards appellate courts have applied in reviewing trial court decisions on so-called "mixed questions of law and fact"—questions that raise intertwining legal and factual issues.

Mixed questions of law and fact have long confounded appellate judges and advocates. The U.S. Supreme Court has remarked on "the vexing nature of the distinction between questions of fact and questions of law."1 The Tenth Circuit likewise has acknowledged being "perplexed" and "inconsistent" in determining the appropriate standard for reviewing certain mixed questions of law and fact.2 And the Colorado Supreme Court has resolved that appellate courts "may take a number of different approaches" when confronted with mixed questions.3

This article describes the varying approaches appellate courts have taken in addressing mixed questions of law and fact and attempts to develop a workable approach for resolving such questions.

Appellate Review Standards

The standard of review is critical to any appeal. It provides the framework for the appellate court's consideration of the issues—the lens through which the court weighs the choices made by the trial court and determines how much deference to apply to those choices. For similar reasons, it also provides a guideline for would-be appellants in deciding whether to take an appeal, what issues to raise on appeal, and how to present those issues, because appellants have a much better chance at obtaining relief when the applicable review standard is less deferential to the trial court's decision.

Generally, appellate courts apply de novo review when considering questions of law, such as issues of standing, interpretation of a statute or contract, dismissal of claims on a motion to dismiss or for summary judgment, or sufficiency of the evidence to support a verdict.4 Under this standard, the reviewing court gives no deference to the lower court's decision, but decides the issue independendy, applying the same legal standards as applied in the trial court.5

By contrast, appellate courts apply clear error review when considering questions of fact, such as the factual findings underlying a trial court's rulings on subject matter jurisdiction, motions to suppress, Batson challenges, sentencing, and trials to the court.6Under this standard, the reviewing court defers to the lower court's factual findings, reversing them only if they lack factual support in the record or if, upon review of all the evidence, the reviewing court is "left with a definite and firm conviction that a mistake has been made."7

Appellate courts also review discretionary decisions, such as rulings on discovery disputes, continuances, and evidentiary issues, for an abuse of discretion.8 This very deferential standard generally considers whether the trial court's decision was "arbitrary, capricious, or whimsical, or results in a manifestly unreasonable judgment" or "exceeded the bounds of permissible choice in the circumstances."9 But sometimes, determining whether a decision was arbitrary, unreasonable, or beyond the bounds of permissible choices will depend on whether the underlying issue it resolved was legal or factual in nature. To the extent that discretionary decisions rest on legal or factual issues, the de novo or clear error standards may apply, as the appellate courts have held that" [a] trial court necessarily abuses its discretion if it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence."10

Mixed Questions of Law and Fact

Frequently, however, the legal and factual issues in a case overlap, making it difficult to classify a particular issue as one purely involving law or fact. The U.S. Supreme Court has characterized such mixed questions of law and fact this way: "[T]he historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the [relevant] statutory [or constitutional] standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated."11 The Colorado Supreme Court has explained that "[a] mixed question of law and fact involves the application of a legal standard to a particular set of evidentiary facts in resolving a legal issue."12 For instance, in the last few years Colorado's federal and state appellate courts have recognized the following issues (among others) as raising mixed questions of law and fact:

■ waiver of a personal jurisdiction defense,13

■ reasonableness inquiries under the Fourth Amendment,14

■ suppression of statements by the accused,15

■ whether a defendant's actions were taken under color of state law for § 1983 purposes,[16]

■ piercing the corporate veil,17

■ whether an accommodation is reasonable under the Americans with Disabilities Act,18

■ termination of parental rights,19

■ judgments following a bench trial,[20] and

■ claims for ineffective assistance of counsel.21

In each of these cases, the trial court applied the law to the facts it found to determine whether the applicable legal standard had been satisfied. And in each case, the appellate court recognized that reviewing the trial court's decision presented elements of both law and fact.

This is not to say that the courts are in uniform agreement on what types of issues present mixed questions of law and fact.22 The courts occasionally disagree about when a question becomes a "mixed" one, as opposed to one purely involving law or fact. In one case addressing such a disagreement, the U.S. Supreme Court expressed that "the appropriate methodology for distinguishing questions of fact from questions of law has been, to say the least, elusive" and the Court "has yet to arrive at 'a rule or principle that will unerringly distinguish a factual finding from a legal conclusion,'" aside from a few guiding principles—for instance that the fact "that an issue involves an inquiry into state of mind is not at all inconsistent with treating it as a question of fact" and that "an issue does not lose its factual character merely because its resolution is dis positive of the ultimate constitutional question."23

Nor are the courts uniform in their approach to resolving mixed questions of law and fact. Even where the appellate courts agree that an issue presents a mixed question, they often diverge in their approach to reviewing that issue. One commentator has noted that" [t]here is no uniform standard for reviewing mixed questions of law and fact."24 Others similarly have stated that "there is neither a general rule nor a consensus among the courts as to which standard of review should be applied when considering mixed questions of fact and law," as opinions on the issue are "largely ad hoc and inconsistent."25

The varying methods that have evolved for resolving mixed questions generally can be categorized into four approaches: the predominance approach, the bifurcated approach, the sliding scale approach, and the presumptive standard approach.

The Predominance Approach

Under the predominance approach, a court presented with a mixed question of law and fact will apply either a de novo or a clearly erroneous standard of review to the entire question, based on whether the question is primarily legal or primarily factual in nature. The U.S. Supreme Court seems to espouse this approach. In a series of decisions, it held that the review standard applied to mixed questions depends on whether the trial court or the appellate court is "better positioned" to decide the issue and whether "probing appellate scrutiny [will or] will not contribute to the clarity of legal doctrine."26

The Tenth Circuit has more expressly adopted this approach, describing it as follows: "Where the mixed question involves primarily a factual inquiry, the clearly erroneous standard is appropriate. If, however, the mixed question primarily involves the consideration of legal principles, t hen a de novo review by the appellate court is appropriate.”27Several other federal circuits have also adopted or applied this approach.28

Thus, for example, the Tenth Circuit has established alternative standards for reviewing a decision on entitlement to attorney fees under 42 U.S.C. § 1988’s prevailing party provisions where a claim is resolved without a judicial determination, depending on whether the decision rests primarily on factual or legal grounds. If a decision rests on the first element to establishing entitlement to fees—whether the plaintiff's lawsuit caused the defendant to...

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