Utah Standards of Appellate Review
| Publication year | 1994 |
| Pages | 9 |
Norman H. Jackson, Judge
FOREWORD
Your success as an appellate advocate will depend in large measure upon your grasp of standards of appellate review. However, as I discovered early in my appellate practice, there is no ready reference where the standard of review for a particular issue can be located. Accordingly, one of my first acts as an appellate judge was to ask my law clerk, Annina Mitchell,[1] to begin compiling a summary of standards of review. That summary, occasionally revised, has been in circulation to court of appeals personnel for several years. Although the unpublished summary bears only my initials, it was recently cited as legal authority in an appellant's brief. Accordingly, I have decided to publish a revised, expanded, and updated version of the summary in the Bar Journal as an aid to members of the Bar. I appreciate the editor's willingness to assist me in this effort.
I remember that attorney Bill Fowler's primer on bankruptcy, published by the state bar, was of great worth to me as I ventured into that field of law. My hope is that this publication will be of similar value to those who venture into appellate advocacy. Hopefully, it will guide the advocate in the right direction as he or she wrestles with these thorny standards. The document can have long-term usefulness simply by "shepardizing" the legal citations set forth. View it as a ready reference providing the means to answer your standard of review questions, rather than as an article to be digested during a single reading.
OUTLINE OF CONTENTS
INTRODUCTION
ILLUSTRATION—Standards of Appellate Review at a Glance
1. Appeals from Trial Courts
A. Challenging Findings of Fact
1. Introduction
2. Marshaling Requirement
3. Civil Bench Trial
a. Clearly Erroneous Standard
b. Marshaling Cases
c. Examples of Fact Questions
d. Adequacy of Trial Court's Factual Findings
4. Civil Jury Trial Verdict
a. Substantial Evidence Standard
b. Marshaling Cases
c. Examples of Jury Fact Questions
5. Criminal Bench Trial
a. Clearly Erroneous Standard
b. Marshaling Cases
c. Examples of Fact Questions
d. Adequacy of Trial Court's Factual Findings
6. Criminal Jury Trial Verdict
a. Sufficiently Inconclusive or Inherently Improbable Standard
b. Marshaling Cases
c. Examples of Jury Fact Questions
B. Challenging Discretionary Rulings
1. Introduction
a. ILLUSTRATION— Pena's Pasture
2. Challenging Discretionary Rulings in Civil Cases
a. Examples of Pretrial Discretion
b. Examples of Discretion, Exercised During Trial
c. Examples of Post-Trial, Discretion
3. Challenging Discretionary Rulings in Criminal Cases
a. Examples of Pretrial Discretion
b. Examples of Discretion Exercised During Trial
c. Examples of Post-Trial Discretion
C. Challenging Conclusions of Law
1. Introduction
2. Areas of Application
3. Challenging Conclusions of Law in Civil Cases
a. Correction of Error Standard
b. Examples of Conclusions of Law
4. Challenging Conclusions of Law in Criminal Cases
a . Correction of Error Standard
b. Examples of Conclusions of Law
D. Challenges in Divorce Cases
1. Challenging Findings of Fact
a. Clearly Erroneous Standard
b. Marshaling Cases
c. Examples of Fact Questions
d. Adequacy of Trial Court's Factual Findings
2. Challenging Discretionary Rulings
a. Abuse of Discretion Standard
b. Examples of Questions Within the Trial Court's Discretion
3. Challenging Conclusions of Law
a. Correction of Error Standard
b. Examples of Conclusions of Law
E. Challenges to Evidentiary Rulings
1. Introduction
2. Specific Standards of Review
a. Challenges to the Relevancy of Evidence—Rules 401-412
b. Challenges to Witnesses— Rules 601-615
c. Challenges to Expert Testimony—Rules 701-706
d. Challenges to Hearsay Rulings—Rules 801-806
3. Additional Challenges to Evidentiary Rulings Within the Trial Court's Discretion
F. Challenges to Collateral Proceedings
1. Contempt
2. Rule 11 Sanctions
II. Appeals From State Administrative Agencies
A. Pre-UAPA Challenges
B. UAPA Challenges
1. Review of Informal Agency Proceedings
2. Review of Formal Agency Proceedings
ILLUSTRATION—Standards of Review for State Administrative Agency Proceedings
a. Challenging Findings of Fact
i. Substantial Evidence Standard
ii. Marshaling Cases
iii. Examples of Fact Questions
iv. Adequacy of Agencies' Factual Findings
b. Challenging Discretionary Rulings
i. Challenging Agency's Interpretation and Application of Statutes
(a) Explicit Discretion
(b) Implied Discretion
ii. Challenging Rulings Contrary to Agency's Rule
iii. Challenging Rulings Contrary to Agency's Prior Practice
iv. Challenging Agency's "Arbitrary and Capricious" Action
c. Challenging Conclusions of Law
i. Interpretation of General Law
ii. Interpretation of Agency Specific Law
iii. Challenges to the Constitutionality of a Statute or Rule
iv. Challenges to Agency's Jurisdiction
v. Challenges to Agency's Failure to Decide All Necessary Issues
vi. Challenges to Agency's Procedure or Decision Making Process
vii. Challenges to a Decision Making Body
d. Appeals from the State Tax Commission
CONCLUSION
INTRODUCTION
Standards of review are central to the decision making of appellate courts. They set the power of the lens through which appellate judges examine each issue. For a quick overview, please study the illustration "Standards of Appellate Review at a Glance." I have diagrammed three lenses of varying power demonstrating that the appellate process is reduced to three types of review:
1. Review of factual findings, paying great deference to the trial court or administrative agency;
2. Review of the exercise of discretion, paying some degree of deference; and
3. Review of conclusions of law, paying no deference.
See Ruggero J. Aldisert, Opinion Writing 53-54 (1990) [hereinafter Aldisert]; Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above, 22 Syracuse L. Rev. 635, 646 (1971).
Judge Aldisert observes, "[a] clear understanding of the scope of review for each point in a brief should be a minimum requirement for meeting the proposed standard of advocacy competence." Aldisert at 53. Since 1990, Rule 24(a)(5) of the Utah Rules of Appellate Procedure has required attorneys to include in briefs the standard of appellate review for each issue with supporting authority. See also Utah R. App. P., Form 8, Checklist for Briefs, Content Requirement 5. This standard of review requirement should not be ignored. Its purpose is to focus the briefs, thus promoting more accuracy and efficiency in processing appeals. Christensen v. Munns, 812 P.2d 69, 73 (Utah App. 1991); see State v. Price, 827 P.2d 247,250 (Utah App. 1992).
For the serious appellate advocate, I recommend careful study of the following Utah appellate opinions: State v. Pena, 869 P.2d 932 (Utah 1994); State v. Thurman, 846 P.2d 1256 (Utah 1993); State v. Ramirez, 817 P.2d 774 (Utah 1991); State v. Sykes, 840 P.2d 825 (Utah App. 1992); State v. Vigil, 815 P.2d 1296 (Utah App. 1991). These cases reveal how Utah standard of review "law" is developing. Further, they discuss the concerns and policy considerations in maintaining a proper balance between trial court discretion and appellate court deference.
One item of utmost importance to the appellate advocate is the requirement that issues be preserved for appeal. As a general rule, appellate courts will not consider an issue raised for the first time on appeal. Ong Int'l (U.S.A.), Inc. v. 11th Ave. Corp., 850 P.2d 447, 455 (Utah 1993); State v. Brown, 853 P.2d 851, 854 n.l (Utah 1992); Espinal v. Salt Lake City Bd. of Educ, 797 P.2d 412, 413 (Utah 1990); State v. Gibbons, 740 P.2d 1309, 1311 (Utah 1987); York v. Shulsen, 875 P.2d 590, 593 (Utah App. 1994); Wade v. Stangl, 869 P.2d 9, 11 (Utah App. 1994); Ashcroft v. Industrial Comm'n, 855 P.2d 267, 268 (Utah App.), cert. denied, 868 P.2d 95 (Utah 1993); Sukin v. Sukin, 842 P.2d 922, 926 (Utah App. 1992). If appellants have failed to properly preserve an issue for appeal, they have waived that issue. State v. Brown, 856 P.2d 358, 359 n.l (Utah App. 1993) (Rule 12(d) of the Utah Rules of Criminal Procedure provides that "[f]ailure of the defendant to timely raise defenses or objections or to make requests which must be made prior to trial or at the time set by the court shall constitute waiver thereof); Ashcroft, 855 P.2d at 268 (defendant waived the issues of sufficiency of evidence and adequacy of findings because he failed to properly preserve them for appeal).
Appellants are required to present all issues to the trial court or administrative agency through appropriate filings, or they must properly present objections to asserted errors during trial proceedings in order to provide an opportunity for correction at that time. See Brown, 856 P.2d at 359; Broberg v. Hess, 782 P.2d 198, 201 (Utah App. 1989). The trial court is considered '"the proper forum in which to commence thoughtful and probing analysis'" of issues. Brown, 856 P.2d at 360 (quoting State v. Bobo, 803 P.2d 1268, 1273 (Utah App. 1990)). By not arguing an issue or presenting pertinent evidence before the trial court, the appellant denies the trial court the opportunity to make findings of fact and conclusions of law relevant to the issues raised or objections to evidence. Id. (citing LeBaron & Assocs., Inc. v. Rebel Enters., Inc., 823 P.2d 479, 483 n.6 (Utah App. 1991)); accord State v. Rangel, 866 P.2d 607, 611 (Utah App. 1993) (trial court should be allowed first opportunity to address claim that it has erred); Ashcroft, 855 P.2d at 268 (by raising issue at administrative level, either administrative law judge or...
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