2.5.2 MULTIPLESTANDARDS OFREVIEW IN THESAMECASE

One way to gain a clearer understanding of different standards of review is to identify which standards are used in which courts, and how multiple standards may occur in one case.

Motion standards of review and government action standards of review can be applied in trial courts, courts of appeals, and courts of last resort. Appellate standards of review can be applied only in courts of appeals and courts of last resort. It is not unusual, in fact, for an appellate court to apply all three types of standards in the same case.⁵⁵

For example, a trial court may grant a motion for summary judgment in a case in which the issue was the constitutionality of a state action. That trial court would have used a motion standard of review and a government action standard of review. The appellate court reviewing that case must use the appropriate (1) appellate standard of review to analyze whether the trial court properly applied the (2) motion standard of review and used the correct (3) government action standard of review. Because the appellate standard in that situation would almost certainly be de novo, the appellate court would, in essence, reapply both the motion standard of review and the government action standard of review as part of its de novo review of the decision below.

Although the use of the same term for three different meanings may be confusing, keep the distinguishing factors in mind: (1) Trial courts may not use appellate standards of review. Only courts of appeals and courts of last resort may use appellate standards of review when they review lower court decisions. (2) Any court (trial or appellate) may use a motion standard of review to decide, or to review the validity of a decision on, a motion. (3) Any court (trial or appellate) may use a government action standard of review to review actions by governmental entities or to review the validity of a court’s decision about the government action. The chart below will help you to understand these three different standards.

TYPE OF STANDARD OF REVIEW:

Type of court that may use this standard: MOTION STANDARD OF REVIEW⁵⁶ Trial court Intermediate court of appeals Court of last resort Example(s) of this type of standard:

What the court uses this standard to decide:

Whose decision the court is being asked to defer to: