2.6 SUMMARY
Whether the facts alleged plausibly give rise to an entitlement to relief
Whether it’s appropriate to grant or deny a motion
N/A GOVERNMENT ACTION STANDARD OF REVIEW
Trial court Intermediate court of appeals Court of last resort
Strict scrutiny Heightened scrutiny Rational basis APPELLATE STANDARD OF REVIEW
Intermediate court of appeals Court of last resort De novo Clearly erroneous Abuse of discretion
Whether certain government action is constitutional
The decision of a government actor Whether to affirm, reverse, or vacate a decision of a court below
The decision of a lower court
The type of court that hears your case and the standard of review that the court applies can each make a significant difference in the way that you structure your arguments.
Even if the applicable standard is not controversial, you must keep that standard in mind as you conduct your research and write your brief. Be sure to update your research so that you are confident about the standard itself and its judicial gloss. In your brief, be sure to connect the standard explicitly to the legal or factual conclusions that you ask the court to accept. If the standard raises substantive or factual issues, you may well need to address those issues in depth within your argument.It is likely that most of the appellate cases you argue will be reviewed under a de novo standard. However, do not make this decision on automatic pilot. Carefully consider the record, the issues, and the relevant appellate standards of review so that you can make an informed decision about which standard applies to your case.
Chapter Two Review
1. Because oral argument is rare, lawyers must write motion and appellate briefs that can persuade a clerk as well as a judge. 2. Courts of last resort are usually not required to accept cases for review, and their decision is focused less on whether the court below committed an error and more on whether the case will have an impact on the law.
3. Courts use the phrase “standard of review” in three contexts: a. to describe the level of deference an appellate court gives to the trial court decision (the appellate standard of review); b. to describe the rules the trial court follows when deciding to grant or deny a motion (the motion standard of review); c. to describe the level of deference a trial or appellate court applies when reviewing the constitutionality of state or federal law (the government action standard of review). 4. The appellate standard of review is the framework for the whole argument, and it may have a significant impact on substance and structure Therefore, advocates must identify the expected standard so they can frame their argument with the standard in mind, argue for a different standard, or both. a. An appellate court will overturn a finding of fact only if it believes the finding was “clearly erroneous.” b. An appellate court will overturn a trial judge’s procedural decisions only if it believes the judge committed an “abuse of discretion.” c. An appellate court will overturn a legal decision merely if it disagrees with the decision. It applies a “de novo” standard to those decisions. d. Appellate courts apply different standards of review to jury verdicts and decisions of administrative bodies. 5. Motion standards describe the framework for the court’s decision, and may also dictate which side has the burden of proof and what presumptions the court will apply when it looks at the pleadings or evidence. They are particularly significant for dispositive motions like the motion to dismiss and the motion for summary judgment. 6. The government action standard of review tells the court how closely it must scrutinize the government standard that has been attacked: the court may apply “strict scrutiny” or “heightened scrutiny,” or it may allow the law to stand as long as the legislative body had a “rational basis” for the law. 7. Advocates must understand how the different standards function and when they are used; it’s not unusual for one case to require an appellate court to use all three types of standards of review.1 See, e.g., Tenn. R. App. P. 3; Fed. R. App. P. 3. 2See, e.g., Ohio Sup. Ct. Prac. R. 5.01 (discussing “appeals of right”); 5.02 (discussing “jurisdictional appeals”); 5.03 (discussing “certified-conflict cases”); and 5.04 (discussing certification of questions of state law from federal courts). See also U.S. Sup. Ct. R. 10 (governing certiorari). 3The Rules of Practice of the Ohio Supreme Court, for example, describe eight different kinds of cases that the court may hear, including “Appeals of Right.” Ohio Sup. Ct. Prac. R. 5.01. The court also hears “Jurisdictional Appeals,” which are discretionary and require a supporting memorandum that must contain “[a] thorough explanation of why a substantial constitutional question is involved, why the case is of public or great general interest, or, in a felony case, why leave to appeal should be granted.” Ohio Sup. Ct. Prac. R. 5.02(A), 7.02 (C) (2). 4See generally U.S. Sup. Ct. R. 10. 5See, e.g., Ohio R. App. P. tit. II, R. 3; Fed. R. App. P. 3. Appeals of certain criminal appeals may have to meet different standards. Interlocutory appeals are governed by the guidelines in 28 U.S.C. §1292. See also In re United States, 138 S. Ct. 443, 445 (2017) (noting that on remand, the district court may consider whether to certify a ruling for interlocutory appeal under §1292(b)); Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978) (describing court discretion). Of course, states may have different rules as to various kinds of appeals. E.g., Shearer v. Hafer, 177 A.3d 850, 861 (Pa. 2018) (quashing an appeal as an “unauthorized interlocutory appeal”); Commonwealth v. Harris, 32 A.3d 243, 250 (Pa. 2011) (allowing interlocutory appeals of orders that would reveal privileged information, and noting that “Pennsylvania law permits interlocutory appeals by permission, but under a somewhat different standard than the federal system”). 628 U.S.C. §1291. 729 U.S.C.
§160(e), (f). 8Fed. R. App. P. 34(a)(2). 9 See Table B-1, U.S. Courts of Appeals––Cases Commenced, Terminated, and Pending, by Circuit and Nature of Proceeding, During the 12-Month Period Ending December 31, 2017 (Excludes Federal Circuit), http://www.uscourts.gov/statistics-reports/caseload-statistics-data-tables? tn=&pn=78&t=537&m%5Bvalue%5D%5Bmonth%5D=12&y%5Bvalue%5D%5Byear%5D=2017. See also Patricia M. Wald, 19 Tips from 19 Years on the Appellate Bench, 1 J. App. Prac. & Proc. 7, 9 (1999) (estimating that 60 percent of cases nationwide are decided without oral argument). 10For the sake of clarity, I use the label appellate standards of review to refer to these standards. However, as noted below, many courts use the label standard of review to refer to appellate standards of review, motion standards of review, and government action standards of review. 11For an interesting discussion of the policies behind certain appellate standards of review, see Michael R. Bosse, Standards of Review: The Meaning of Words, 49 Me. L. Rev. 367, 374-84 (1997). 12See, e.g., Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436 (2001); Ornelas v. United States, 517 U.S. 690, 698 (1996); United States v. Gasca-Ruiz, 852 F.3d 1167, 1172 (9th Cir.), cert. denied, 138 S. Ct. 229 (2017) (noting that “concerns with ensuring uniformity... ordinarily weigh in favor of de novo review”). 13See generally Bosse, supra note 11, at 383, 397. 14See, e.g., Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 434 (2001) (Court used de novo standard to review a district court determination of the constitutionality of a punitive damages award). 15 The United States Supreme Court frequently addresses standard of review issues. See, e.g., McLane Co. v. E.E.O.C., 137 S. Ct. 1159, 1170 (2017), as revised (Apr. 3, 2017) (“a district court’s decision to enforce an EEOC subpoena should be reviewed for abuse of discretion, not de novo”); Brown v. Plata, 563 U.S. 493, 517 (2011) (deciding appropriate standard of review of a three-judge district court opinion deciding legal and factual issues relating to prison overcrowding); Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 434 (2001) (finding that de novo review, rather than abuse of discretion, was appropriate standard of review for district court determination of the constitutionality of a punitive damages award); Ornelas v. United States, 517 U.S. 690 (1996) (holding that determinations of “reasonable suspicion” and “probable cause” should be reviewed de novo by appellate courts). Seegenerally Bosse, supra note 11, at 374-84 (discussing Ornelas), and Kelly Kunsch, Standard of Review (State and Federal):
A Primer, 18 Seattle U. L. Rev. 11, 25 (1994). 16Anderson v. City of Bessemer City, 470 U.S. 564, 574, 575 (1985). 17E.g., United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); Brown v. Plata, 563 U.S. 493, 517 (2011); J.
L. v. Mercer Island Sch. Dist., 592 F.3d 938, 949 (9th Cir. 2010). 18Parts & Elec. Motors, Inc. v. Sterling Elec. Inc., 866 F.2d 228, 233 (7th Cir. 1988). 19Note that all federal (and most state) jury findings, which may be hard to separate into distinct questions of law and fact, are usually reviewed under the “substantial evidence” standard per the Seventh Amendment to the United States Constitution, which provides that “no fact tried by a jury shall be otherwise re-examined in any Court of the
United States, than according to the rules of the common law.” Those “rules of the common law” generally provide that such a finding must have only a “reasonable basis in the law” and have “warrant in the record.” NLRB v. Hearst Publications, 322 U.S. 111, 131 (1944). Commentators have noted that courts are extremely reluctant to find that there is not “substantial evidence” to support a jury finding. Kunsch, supra note 15, at 43. See also United States v.
Ellefson, 419 F.3d 859, 862-63 (8th Cir. 2005) (“We may reverse a jury’s verdict only if ‘no reasonable jury could have found the accused guilty beyond a reasonable doubt.’”) (citation omitted). See also Vetter v. McAtee, 850 F.3d 178, 185 (5th Cir. 2017) (“our standard of review with respect to a jury verdict is especially deferential”).20 Brown v. Plata, 563 U.S. 493, 517 (2011) (applying a deferential standard to a mixed question of law and fact because, in the Court’s opinion, “the mix weigh[ed] heavily on the ‘fact’ side” (citations omitted)). 21Ornelas, 517 U.S. at 695. 22See generally Ornelas, 517 U.S. at 697; United States v. Arvizu, 534 U.S. 266, 275 (2002). 23U.S. Bank Nat’l Ass’n ex rel. CW Capital Asset Mgmt. LLC v. Vill. at Lakeridge, LLC, 138 S. Ct. 960, 967 (2018). 24See, e.g., Kunsch, supra note 15, at 34-35. 25Kunsch, supra note 15, at 35 (citing Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 Syracuse L. Rev. 635, 655 (1971)). See also In re Terrorist Bombings of U.S. Embassies in E. Afr. v. Odeh, 552 F.3d 93, 135 (2d Cir. 2008) (noting use of phrase “the court may” in rule of criminal procedure as signal that abuse of discretion is appropriate standard of review). 26Freeman v. Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988). 27McLane Co. v. E.E.O.C., 137 S. Ct. 1159, 1166-67 (2017), as revised (Apr. 3, 2017). 28Id. (citations omitted). 29See, e.g., Kunsch, supra note 15, at 40-41; see also, e.g., Metro-N. Commuter R.R. Co. v. United States Dep’t of Labor, 886 F.3d 97, 106 (2d Cir. 2018). That court defined “substantial evidence” as “more than a scintilla, but less than a preponderance.” Id. (citation omitted). 30See generally Cooper Indus., 532 U.S. at 434 (noting that court below erred when applying an abuse of discretion standard rather than the de novo standard); Ornelas, 517 U.S. at 698-99 (noting that court below erred when it applied a deferential appellate standard of review). See also United States v. Benitez Alvarado, 622 F. App’x 215, 217 (4th Cir. 2015) (“[t]he parties do not agree on the appropriate standard of review”). 31 See, e.g., Anderson’s Sixth Circuit Federal Practice Manual ch. 7 (Lexis/Nexis Matthew-Bender, Inc. 2017) (updated annually). 32For an interesting discussion of using policy concerns to drive the discussion of appellate standard of review, see Bosse, supra note 11, at 374 et seq. If the appropriate appellate standard of review is controversial, you can and should justify your argument with references to policies served by choosing the standard you favor. See Section 5.1.2 in this text for guidance on presenting rule-choice arguments. 33See Section 8.4.9, addressing where to include the appellate standard of review in your brief. 34Pa. R. of App. Proc. 2111(a). 35Fed. R. App. Proc. 28(a)(8)(B). 36Kan. Sup. Ct. R. 6.02(a)(5). Of course, the appellee’s brief should reflect any disagreement as to the appropriate standard of review. See, e.g., Kan. Sup. Ct. R. 6.03(a)(4) (“Each issue shall begin with citation to the appropriate standard of appellate review; appellee shall either concur in appellant’s citation to the standard of appellate review or cite additional authority.”). 37E.g., F. V. v. Barron, 286 F. Supp. 3d 1131, 1139 (D. Idaho 2018) (using the heading “Standard of Review for Summary Judgment Motions”). See also, e.g., David F. Herr, Jeffrey W. Stempel & Roger S. Haydock, Motion Practice (6th ed., Wolters Kluwer 2017), for detailed information on motion practice in litigation. 38E.g., Johnson v. Mao, 174 F. Supp. 3d 500, 510 (D.D.C. 2016) (discussing “the legal standard applicable to Rule 56 motions for summary judgment”); His Healing Hands Church v. Lansing Hous. Comm’n, 233 F. Supp. 3d 590, 594 (W.D. Mich. 2017) (using “Motion Standard” as a section heading); Coastal Ctys. Workforce, Inc. v. LePage, 284 F. Supp. 3d 32, 41 (D. Me. 2018) (referring to the “pleading standard”). 39See generally Herr, Stempel & Haydock, supra note 37, at chs. 5-6. See also Loc. Civ. & Crim. R. U.S. Dist. Ct. S. Dist. Ohio § III, R. 7.1 (noting presumption that motions will be decided without oral argument and that counsel must apply to the court for permission to present an oral argument on a motion). 40Of course, these are not the only kinds of motions that require briefing or that are decided based upon so-called standards of review. See, e.g., Zimmer US Inc. v. Mire, 188 F. Supp. 3d 843, 847 (N.D. Ind. 2016) (noting a party’s argument that a court had applied a “preliminary injunction standard of review” to a preliminary injunction motion). 41Unlike other motions, dispositive motions may dispose of the case by creating a final appealable order. See, e.g., Herr, Stempel & Haydock, supra note 37, at ch. 4 (detailing the differences between motion practice and appellate advocacy). 42Motions for summary judgment or partial summary judgment may often be used strategically in this way. E.g., Herr, Stempel & Haydock, supra note 37, at ch. 16 (discussing when to use motions for partial summary judgment). 43E.g., Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 44Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (citation omitted). 45Edward A. Hartnett, Taming Twombly, Even After Iqbal, 158 U. Pa. L. Rev. 473, 474 (2010). 46Id. at note 7. 47Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). See generally Herr, Stempel & Haydock, supra note 37, at ch. 16. 48Celotex v. Catrett, 477 U.S. 317, 322-23 (1986). See also Thomas v. Kidani, 267 P.3d 1230, 1235 (Haw. 2011); Wing v. Anchor Media, Ltd. of Tex., 570 N.E.2d 1095 (Ohio 1991). 49There may be some overlap of motion standards of review. For example, under Ohio law, Ohio Rule of Civil Procedure 50 regulates both motions for a directed verdict and motions for judgment notwithstanding the verdict, and the two motions share the same standard of review: The court must issue a directed verdict when, “after construing the evidence most strongly in favor of the party against whom the motion is directed, [the court] finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party.” Civ. R. 50(A)(4). See, e.g., Austin v. Chukwuani, 80 N.E.3d 1199, 1204 (Ohio Ct. App. 2017) “Civ. R. 50 sets forth the standard of granting a motion for directed verdict.... The same standard applies to a motion for JNOV”). 50 For example, in the past, federal courts deciding motions to dismiss under Fed. R. Civ. P. Rule 12(b)(6) frequently cited a 1957 case, Conley v. Gibson, 355 U.S. 41 (1957). Citations to Conley have largely been replaced by citations to both Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 51Because most states have enacted state civil rules using language almost identical to federal Rule 12(b)(6) and other federal rules, some students writing briefs to a state court will mistakenly cite to the federal rule or to federal cases articulating the standard. Be sure you are citing authority from the appropriate jurisdiction. 52Herr, Stempel & Haydock, supra note 37, at ch. 16. 53As noted above, courts may use the phrase legal standard or pleading standard to refer to a motion standard of review. 54E.g., Trustees of Indiana Univ. v. Prosecutor of Marion Cty., Indiana, 289 F. Supp. 3d 905, 932 (S.D. Ind. 2018) (noting that a “rational basis standard of review applies”); Kolbe v. Hogan, 849 F.3d 114, 134 (4th Cir.), cert. denied, 138 S. Ct. 469 (2017) (considering whether to apply an “intermediate scrutiny standard of review”); O Centro Espirita Beneficiente Uniao Do Vegetal v. Duke, 286 F. Supp. 3d 1239, 1266 (D.N.M. 2017) (discussing “strict scrutiny standard of review”). 55E.g., Hughes v. City of Cedar Rapids, Iowa, 840 F.3d 987, 996-97 (8th Cir. 2016) (court applied a de novo standard to its review of a decision granting a motion to dismiss; it used the rational basis to find that a traffic camera ordinance did not violate equal protection rights); Windsor v. United States, 699 F.3d 169, 176, 181 (2d Cir. 2012) (applying de novo standard of review to review a decision granting summary judgment to plaintiff and deciding to apply heightened scrutiny to determine whether taxation statute unconstitutionally denied spousal deduction to surviving spouse of same-sex marriage), aff’d, 570 U.S. 744, 775 (2013). 56As noted above, courts also use the terms legal standard and pleading standard.