Tuesday, June 19, 2018

Abuse of Discretion

Appellate courts review the actions (or inaction) of trial courts. That is axiomatic, and reasonably well understood by everyone in the litigation business. But, over the years, I have come to appreciate that many who understand that premise do not understand that courts perform that function (usually) using standards. Standards that have been made up over the years by courts, honed and refined, and then applied. That process of sticking to the same analysis, applying the standards consistently, is called Stare Decisis (Latin for "stand by things decided" or simply "let the decision stand").

As a basic premise, it is critical to remember that appellate courts make decisions collectively, while trial judges do so individually. A trial judge is called upon, often in the heat of the moment, to render decisions about the facts and law in a case. Appellate courts make decisions in more of a committee setting, in which multiple judges (called "panels") or even all of the judges on a court ("en banc") ponder issues and render collective decisions (based on the majority"). For the most part, those courts may take their time, research, debate, and consider decisions virtually indefinitely.

When a panel or court reaches a majority conclusion, one or more of the judge might nonetheless disagree, and author an explanation of that disagreement, called a dissent. One or more might similarly agree with the majority but nonetheless elect to write a separate explanation of their agreement, called a specially concurring opinion. 

There are various standards that courts use. In constitutional challenges, this is generally in two categories. A statute can be "facially unconstitutional" meaning that there is no possible construction of that statute in which it would comply with constitutional precepts or protections. The second is "as applied," in which the analysis is much more narrow. In "as applied," the question is whether some statutory construct affects an unconstitutional result in a particular case, for a particular challenger. Lawyers of imminent training and undeniable intellect struggle with this distinction. 

In the practice of law, the question of greatest importance may not be whether one's position is "right" or "wrong," however. The primary question may eventually devolve to whether there is an authority that can be reached in order to prevail. Justice Robert Jackson of the U.S. Supreme Court wrote in 1953 "We are not final because we are infallible, but we are infallible only because we are final." Brown v. Allen, 344 U.S. 443 (1953). That "we are final" is more readily comprehensible with the highest court in the land, but perhaps less so with lower courts. 

The fact remains, however, that appellate finality can occur in the American system well short of the U.S. Supreme Court. Lower courts may enjoy a similar posture of being seemingly "infallible" not because it is final as a matter of law, but because it is final as a matter of fact. That is, there may remain appellate bodies above it capable of reviewing a decision, but unwilling to do so. And thus, a court might wander from the two constitutional constructs cited, "facial" and "as applied," and create its own standard in a particular case. See Bass v. General Development, 374 So.2d 479 (Fla. 1979), a Florida Supreme Court creation of its own constitutional review analysis. 

But, outside the constitutional analysis, trial decisions in Florida are generally subject to three "standards" of appellate review: (1) the competent substantial evidence standard, (2) de novo review, and (3) abuse of discretion. The three are the foundation of the vast majority of appellate review. 

The first simply asks if there is any appropriate (competent and substantial) evidence that would support a factual finding. If the dispute is over whether a worker did or did not slip and fall at work, there might be 100 witnesses that were watching and deny a fall occurred, but there is one witness that testifies s/he saw the fall. The appellate court does not "re-weigh" the evidence ("is 100 more persuasive than 1?"), but asks simply is there competent evidence that the fall occurred. If the one witness was found credible, then the appellate court will likely sustain a trial judge or jury's reliance on that one witness. Reversal occurs under this standard when the appellate court can discern no competent evidence supporting the trial tribunal finding. 

The second, "de novo" means literally to "start anew," that is to begin again. This standard is applied by the courts not to factual issues (discussed above) but to interpretations of the law. In determining what a statute says or means, or how multiple statutes interact with each other, an appellate court reviewing is in a position at least on par with the trial court. That analysis is not dependent upon credibility determinations, and therefore appellate courts afford no deference to the trial judge's legal interpretation. As an aside, many believe the appellate court is actually better postured for such decisions as it has access to more resources (clerks) and a virtually unlimited time in which to analyze, debate, and render a decision. 

The last is "abuse of discretion." That phrase has been defined in Florida as "A court abuses its discretion when no reasonable person could reach the same conclusion.” Verkruysse v. Fla. Carpenters Reg'l Council, 27 So.3d 157, 159 (Fla. 1st DCA 2010).. This is derived from the Florida Supreme Court in Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980), explaining
Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. (Emphasis added).
Perhaps the critical portion of that Supreme Court quote is the last sentence: "If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion" If reasonable people could disagree, then the trial judge's interpretation must be affirmed; if reasonable people disagree, then it cannot be abuse of discretion. This is strong language from Florida's highest court. 

This returns us to the post title "Abuse of Discretion" and the second paragraph of this post in which is explained the "dissenting opinion." An appellate judge writes a dissenting opinion to express disagreement with the majority opinion of the appellate court. Can an appellate judge dissent from a decision holding the trial court abused its discretion (a conclusion that "no reasonable person could reach the same conclusion")?

An appellate holding that the trial judge abused discretion, is a conclusion that the trial judge is not a "reasonable person." The trial judge reached a decision, and to find "abuse of discretion, the appellate court must conclude no "reasonable" person would take that view. And, if one of the appellate judges dissents, then arguably the court's holding is that the dissenting judge is likewise not "reasonable."

Arguably, the inverse is also true. In the event an appellate court reviews using this "abuse of discretion" standard, and the majority holds the trial court did not abuse discretion, then a dissenting opinion is effectively one or more judges concluding the majority judges are not "reasonable." When one devolves to using a subjective standard like "reasonable," to measure legal interpretation, perhaps the slope is merely too slippery at the outset?

In Florida, this scenario has been demonstrated literally dozens, perhaps hundreds, of times. In the example of a majority finding no abuse of discretion and a dissenting opinion in opposition, see Ray v. Thomson-Kernaghan & Co. Ltd., 761 So.2d 1197 (Fla 4th DCA 2000). For an example of the appellate court reversing on the conclusion that the trial court abused its discretion, but with an appellate judge dissenting, see Amaran v. Marath, 34 So.3d 88 Fla. 3rd DCA 2010).

Some would likely argue that such an outcome is both illogical and inappropriate. They would contend that any determination of abuse of discretion would necessarily have to be unanimous, or would be inextricably and inexplicably internally inconsistent. Others would perhaps have some other explanation based upon the emotion of individualism and the merit of dissent (note that others could strongly argue that the unanimity requirement perhaps respects that dissent more than the alternative). 

Is ignoring the plain language of the abuse of discretion standard an appropriate judicial practice? Should an appellate court be true to that standard, or continue to infer that its own judges are not "reasonable?" Does the practice continue because it is right, or because no superior court is willing to undertake the task of either better defining this standard or explaining the obvious and apparent contradiction it expresses? Is the practice of non-unanimous abuse of discretion rulings right, or does it merely exist because the courts making those decisions are essentially, factually, last?

Might one even conclude that a non-unanimous holding of abuse of discretion is itself, an irrational and unreasonable, internally inconsistent, conclusion. Is a non-unanimous holding an abuse of discretion, simply an abuse of discretion itself?




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