Standards of Review
By Justice John F. Reif

This discussion of standards of review was written to clarify the role of standards of review in appellate decision making. It covers not only the definition and examples of standards of review, but also explores the rationale for each standard and distinguishes standards of review from concepts such as scope of review and burdens of proof. This discussion is organized to answer the news story questions about standards of review — who, what, where, when, why and how.

WHO, WHAT, WHERE AND WHEN OF STANDARDS OF REVIEW

A good starting point for discussing standards of review is the relationship between trial and appellate courts, and the nature of an appeal. Professor Martha S. Davis, a noted academic authority on standards of review, points out that the relationship between trial courts and appellate courts is one of shared decision making in adjudicating a particular case. Professor Davis further notes that standards of review help define this relationship and delineate the powers they share with respect to particular decisions.1

A difference in the roles of the respective courts is seen in the very definition of an appeal. An appeal is a complaint to a superior court of an injustice or error committed by an inferior court, whose judgment or decision the court above is called upon to correct or reverse.2 Unlike a trial where the focus is upon the merits of the case, an appeal focuses upon the decision of the trial court to determine whether the trial court committed error in making the decision.

 A standard of review is the legal scale to be used by an appellate court in weighing a claim of error.3 More particularly, a standard of review provides the degree of deference the decision under review should receive.4

HOW STANDARDS OF REVIEW WORK

The U.S. Supreme Court has provided a simple and useful framework for examining standards of review. The Supreme Court has observed that “[f]or purposes of standard of review, decisions by judges are traditionally divided into three categories, denominated questions of law (reviewable de novo), questions of fact (reviewable for clear error), and matters of discretion (reviewable for ‘abuse of discretion’).”5

The Supreme Court has said that “[w]hen de novo review is compelled, no form of appellate deference is acceptable.”6 “[R]eview under the ‘clearly erroneous’ standard is significantly deferential, [because it requires] a ‘definite and firm conviction [on the part of the appellate court] that a mistake has been committed.’”7 While “[t]here is no exact measure of what constitutes abuse of discretion,”8 Professor Davis considers this standard to be “the most deferential standard of review.”9 This is the most deferential standard because an appellate court may strongly disagree with the trial court’s decision, and even articulate a better decision, but will not reverse if the trial court’s decision was one of the reasonable choices presented by the facts and law.

Under de novo review, where the appellate court shows no deference to trial court decisions on questions of law, the appellate court independently determines the question of law.10 In cases involving jurisdiction and constitutional violations, this independent review can involve weighing the evidence and redetermination of the facts.11 In other cases such as statutory construction and summary judgment, the independent review does not involve factual determinations.12

In reviewing factual determinations by a trial court, the appellate court shows deference to the trial court unless the trial court’s finding is clearly erroneous. “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.”13 A variation of this standard that is applied in equity cases states an appellate court may and will examine and weigh the evidence, but the findings of the trial court cannot be disturbed unless found to be against the clear weight of the evidence.14 Under these standards, the appellate court is to consider the evidence as a whole and must conclude to a strong degree of certainty that a finding was wrong before disturbing it.

In Oklahoma, trial court findings in cases of legal cognizance cannot be disturbed on appeal if supported by any competent evidence. Under this standard, the appellate court’s responsibility is to canvass the facts, not with an object of weighing conflicting proof to determine where the preponderance lies but only for the purpose of ascertaining whether the decision is supported by competent evidence.15 This standard is even more deferential than the federal clearly erroneous standard or the standard applicable to findings in cases of equitable cognizance.

Finally, appellate courts review trial court discretionary rulings for abuse of discretion. There is no single test or guiding principle that tells the reviewing court when the trial court has not properly exercised its discretion. As one federal court has said, “There is no exact measure of what constitutes abuse of discretion.”16

This same court further provided some helpful guidance on this subject by observing that judicial discretion is governed by the situation and circumstances of an individual case. This court concluded that an abuse of discretion occurs only when the “situation and circumstances clearly show... arbitrary action not justifiable in view of such situation and circumstances.”17

Another federal court has said that a trial court’s decision will not be disturbed as long as it is within the range of discretion afforded to a given determination and is not influenced by a mistake of law.18 In Oklahoma, to reverse a trial court on the ground of abuse of discretion, it must be found that the trial judge made a clearly erroneous conclusion and judgment against reason and the evidence.19

In all that has been said and written about discretion, it seems to boil down to the question of whether the trial court made a reasonable choice (not necessarily the best choice) within the bounds of the law and properly determined facts. It seems more appropriate to review discretion by a reasonableness/unreasonableness test.20 This standard is highly deferential and requires the reviewing court to sustain a decision unless it is so likely wrong that no reasonable person would reach the same conclusion.

To some extent, standards of review operate to limit appellate review. However, standards of review should not be confused with the scope of review. Standards of review limit how the appellate court reviews a trial court decision in terms of the deference to be shown such decision, while the scope of review limits what issues the appellate court may consider vis-à-vis the record in its review of a trial court decision.21

An example may be helpful to illustrate the difference. The scope of review on summary judgment is limited for both the trial court and appellate court to the record actually presented. Both the trial court and appellate court review the record actually presented to determine whether there is a controversy over any material fact or facts and, if not, whether reasonable minds could reach different conclusions from the undisputed facts. In order to grant a summary judgment, the trial court must decide there is no controversy over any material fact and that the moving party is entitled to judgment as a matter of law. This decision is reviewed by the appellate court under the de novo/no deference standard of review.

Care should likewise be taken not to confuse trial court burdens of proof and the standards of review for factual determinations. Burdens of proof specify the degree of certainty to which a fact must be proven in the first instance (i.e., at trial), while standards of review describe the degree of certainty an appellate court must entertain to conclude a mistake was made in finding a fact under the applicable burden of proof.22 As noted above, an appellate court must have “a definite and firm conviction” the trial court made a mistake in its fact finding.23

THE ‘WHY’ OR RATIONALE FOR DIFFERENT STANDARDS OF REVIEW

A particular standard of deference for appellate review normally reflects an accommodation of the respective institutional advantages of trial and appellate courts. The United States Supreme Court has discussed the respective institutional advantages of trial and appellate courts in explaining why the non-deferential de novo standard of review is applied to trial court rulings on issues of law:24

“District judges preside alone over fast-paced trials: Of necessity they devote much of their energy and resources to hearing witnesses and reviewing evidence. Similarly, the logistical burdens of trial advocacy limit the extent to which trial counsel is able to supplement the district judge’s legal research with memoranda and briefs. Thus, trial judges often must resolve complicated legal questions without benefit of ‘extended reflection [or] extensive information.’...”

“Courts of appeals, on the other hand, are structurally suited to the collaborative judicial process that promotes decisional accuracy. With the record having been constructed below and settled for purposes of the appeal, appellate judges are able to devote their primary attention to legal issues. As questions of law become the focus of appellate review, it can be expected that the parties’ briefs will be refined to bring to bear on the legal issues more information and more comprehensive analysis than was provided for the district judge. Perhaps most important, courts of appeals employ multi-judge panels ... that permit reflective dialogue and collective judgment.”

However, in areas of factual determinations, the exercise of discretion and resolution of mixed questions of fact and law, the Supreme Court has found the institutional advantage of the trial court (i.e. “the unchallenged superiority of the district court’s fact-finding ability”) to warrant deferential review.25

The U.S. Supreme Court has said such deference is justified for two reasons. The first reason is that the costs of providing for duplicative fact-finding proceedings by an appellate court outweigh the benefits.26 The second and more important reason is that, in the usual case, the trial court fact finder is in a better position to make judgments about the reliability of some forms of evidence than a reviewing body acting solely on the basis of a written record of that evidence.27

Professor Maurice Rosenberg considers the trial court’s institutional advantage of first-hand observation to be “the chief and most helpful reason for appellate court deference to trial court rulings,” particularly in regard to discretionary rulings.28 Professor Rosenberg calls this the “you are there” reason; that is, the trial judge was present to feel the “climate” of trial and smell the “smoke of battle.”29 Professor Rosenberg believes this advantage is “a sound and proper reason for conferring a substantial measure of respect to the trial judge’s ruling whenever it is based on facts or circumstances that are critical to decision and that the record imperfectly conveys.”30

Professor Davis points out that the need for discretion and attendant deference arises because “there are areas in which the trial court or agency must exercise a certain measure of judgment in reaction to its ‘on the scene’ presence at trial, or because [there are] no guidelines for deciding the issue, or because the issue is one that is so novel or vague that there is no way to measure the ‘correctness’ of the trial court’s decision.”31 Professor Davis identifies trial supervision, conduct of the parties and admission or rejection of evidence to be the “major” areas involving discretion.32

For the most part, the standard of review for a particular decision will either be found in a legislative provision addressing the issue or be settled by a long history of appellate practice.33 There are cases, however, where a district court is called upon to make determinations in order to apply a statute and a standard of review has not been provided by the statute or case law.34

In such cases, the U.S. Supreme Court has said the question of whether deference should be shown to the trial court determinations should be answered by 1) asking whether deference can be inferred from the statute, 2) considering whether deference has been shown in cases involving similar or related provisions, 3) assessing, as a matter of the sound administration of justice, which court (trial or appellate) is better positioned than another to decide the issue being reviewed, 4) evaluating the practicability or impracticability of formulating a rule of decision for the issue (i.e. is the issue so multifarious, or one with special narrow facts, that it resists generalization), and 5) judging the extent to which potential liability and consequences call for more intensive review.35

In deciding the appropriate standard of review to be applied in unsettled cases, Professor Davis also suggests that appellate courts give some weight to how the decision appears under common understanding of law and discretion. That is, does the decision appear to be discretionary (involving judgment, choice, sensitivity and presence) or is the decision, instead, informed by broader concepts that seem legal.36

Furthermore, in deciding the appropriate standard of review to be applied in unsettled cases, the choice of the highly deferential “abuse of discretion” standard does not foreclose consideration of the legal and factual basis of the trial court’s decision. Although rejecting the approach of dissecting a multifaceted issue into legal, factual and discretionary components (separately reviewable de novo, for clear error and for abuse), the U.S. Supreme Court does recognize that “[a] district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.”37

CONCLUSION

The long-term experience of the common law system has shown that efficient, economical and fair appellate review should not duplicate the trial court process, but instead, focus on the decision of the trial court and the procedure used to reach that decision.

In reviewing trial court decisions, appellate courts usually work from a record of the trial court proceedings without the benefit of first-hand observation of the people involved and events that take place. This physical removal from the environment that yields the decision(s) being reviewed dictates a certain amount of deference should be shown the decision maker who was present. The various standards of review discussed above attempt to articulate the deference appellate courts have shown to different decisions and the reasons for the degree of deference shown.

1. Martha S. Davis, A Basic Guide to Standards of Judicial Review, 33 S.D.L. Rev. 468, 480 (1980).
2. Black’s Law Dictionary 124 (Rev. 4th ed. 1968).
3. Unified School District No. 500 v. Robinson, 940 P.2d 1 (Kan. 1997)(syllabus 3).
4. Id. at 4.
5. Pierce v. Underwood, 487 U.S. 552, 558, 108 S. Ct. 2541, 2546.
6. Salve Regina College v. Russell, 499 U.S. 225, 237, 111 S. Ct. 1217, 1224 (1991).
7. Concrete Pipe and Products of California Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 623, 113 S. Ct. 2264, 2280 (1993).
8. N.L.R.B. v. Guernsey-Muskingum Electric Cooperative Inc., 285 F.2d 8, 11 (6th Cir. 1960).
9. Davis, supra note 1.
10. Salve Regina, 499 U.S. at 231, 111 S. Ct. at 1221.
11. Bomford v. Socony Mobil Oil Co., 1968 OK 43,&& 19-20, 440 P.2d 713, 719 (jurisdiction); Bose Corp. v. Consumers Union, 466 U.S. 485, 104 S. Ct. 1949 (1984) (constitutional question).
12. Arrow Tool & Gauge v. Mead, 2000 OK 86, & 6, 16 P.3d 1120, 1122-23 (statutory construction); Carmichael v. Beller, 1996 OK 48, & 2, 914 P.2d 1051, 1053 (summary judgment).
13. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542 (1948).
14. Mooney v. Mooney, 2003 OK 51, & 27, 70 P.3d 872,878; Mueggenborg v. Walling, 1992 OK 121, & 7, 836 P.2d 112, 114.
15. Parks v. Norman Municipal Hospital, 1984 OK 53, & 12, 684 P.2d 548, 552.
16. Guernsey-Muskingum, 285 F.2d at 11.
17. Id.
18. United States v. McNeil, 90 F.3d 298, 300-01 (8th Cir. 1996).
19. Abel v. Tisdale, 1980 OK 161, & 20, 619 P.2d 608, 612.
20. Concrete Pipe, 508 U.S. at 621-23, 113 S. Ct. at 2279-80.
21. Unified School District, 940 P.2d at 1 (syllabus 3).
22. Concrete Pipe, 508 U.S. at 622-23, 113 S. Ct. at 2279.
23. United States Gypsum Co., 333 U.S. at 395, 68 S. Ct. at 542.
24. Salve Regina, 499 U.S. at 231-32, 108 S. Ct. at 1221.
25. Id. at 233, 108 S. Ct. at 1222.
26. Concrete Pipe, 508 U.S. at 623, 113 S.Ct. at 2280.
27. Id.
28. Maurice Rosenberg, Appellate Review of Trial Court Discretion, 79 F.R.D. 173, 183 (1978).
29. Id.
30. Id.
31. Martha S. Davis, Standards of Review: Judicial Review of Discretionary Decisionmaking, 2 Journal of Appellate Practice and Process 47, 49 (Winter, 2000).
32. Id.
33. Pierce, 487 U.S. at 557-58, 108 S. Ct. at 2546.
34. Id.
35. Id. at 559-62 , 108 S. Ct. at 2547-49.
36. Davis, supra note 30, p. 66.
37. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S. Ct. 2447, 2461 (1990).

About The Author

Justice John Reif of Skiatook was appointed to the Oklahoma Supreme Court by Gov. Brad Henry in October 2007. He has served in the state judiciary for 26 years. Before joining the Supreme Court, Justice Reif served as a member of the Oklahoma Court of Civil Appeals for 23 years.  He has also served as a special district judge and an assistant district attorney in Tulsa County.  He earned a law degree and a bachelor’s degree at the University of Tulsa.

Standards of Review
Published 79 OBJ 34 (January 12, 2008)