Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Tuesday, March 3, 2020

Make the Standard of Review Work for You

Black’s Law Dictionary defines “Standard of Review” as, “The criterion by which an appellate court exercising appellate jurisdiction measures the constitutionality of a statute or the propriety of an order, finding, or judgment entered by a lower court.”[1] But the standard of review is more than that. The applicable standard of review may determine whether a case is appealed and if so, what issues are raised. And the standard of review may determine whether the trial court’s judgment is affirmed or reversed.[2] Judge Patricia Wald of the United States Court of Appeals for the D.C. Circuit has said, “Appellate courts have to decide what the ‘standard of review’ is, and that standard more often than not determines the outcome.”[3] Given the importance of the standard of review, appellate advocates should seek to convince the court to apply the standard of review that is most likely to lead to success for their client.

In any appeal, appellate counsel will spend hours deciding whether to appeal and if so, what issues to raise. Appellate counsel will devote considerable time and resources to researching the substantive law applicable to the case, reviewing the record, and drafting the brief. But how much time do we spend thinking about the standard of review and how we can make the standard of review work for our client? Is the standard of review section of the brief just copied from an earlier brief? If so, are we missing a chance to shape the standard of review and find arguments for a less deferential standard of review (or more deferential standard of review if you’re appellee’s counsel) that might help us win our client’s case? What if we could turn an issue that is, at first blush, reviewed for an abuse of discretion into one the court reviews de novo? That’s what happened in West Branch Local School District Board of Education v. West Branch Education Association.[4]

West Branch involved the non-renewal of a teacher’s contract.[5] The West Branch Local School District Board of Education and the West Branch Education Association were parties to a collective bargaining agreement that included a grievance and arbitration procedure.[6] A grievance was defined as a claim that there had been a violation, misrepresentation, or misapplication of the terms of the collective bargaining agreement.[7]

The collective bargaining agreement also contained a teacher evaluation procedure that superseded the evaluation procedure in the Ohio Revised Code.[8] In April 2013 the school board notified a teacher that it intended to non-renew her teaching contract and gave her a statement of reasons for the non-renewal.[9] The school board gave the teacher a hearing on her non-renewal and then voted to non-renew her teaching contract.[10]

The Association thought the school board had violated, misrepresented, or misapplied the collective bargaining agreement’s teacher evaluation procedures, so it filed a grievance.[11] The school board's superintendent denied the grievance and the association then submitted a request for arbitration.[12] That prompted the school board to file a lawsuit to enjoin the association from going to arbitration.[13] The trial court granted a permanent injunction in favor of the school board.[14] The association appealed the trial court’s judgment.[15]

The issue on appeal in West Branch was whether the trial court erred in granting a permanent injunction--a decision that would generally have been reviewed for an abuse of discretion.[16] The association, however, argued that the court of appeals should review the trial court’s judgment de novo.[17]  The association contended that the substantive legal issue that led to the permanent injunction involved the application of the terms of a contract—the collective bargaining agreement.[18] The association said that the terms of the collective bargaining agreement were unambiguous, so the application of the contract was a question of law, and questions of law are reviewed de novo.[19] The court of appeals agreed, reviewed the contract issue de novo, and reversed the trial court’s judgment,[20] a result that would have been unlikely had the court of appeals reviewed the trial court’s judgment for an abuse of discretion.

 

[1] Standard of Review, Black's Law Dictionary (11th ed. 2019).

[2] Timothy J. Storm, The Standard of Review Does Matter: Evidence of Judicial Self-Restraint in the Illinois Appellate Court, 34 S. Ill. U. L. J. 73, 74 (Fall, 2009).

[3] Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. Chi. L. Rev. 1371, 1391 (1995).

[4] 35 N.E.3d 551 (Ohio 7th Dist. Ct. App. 2015).

[5] Id. at 553.

[6] Id. at 552.

[7] Id. at 555.

[8] Id. at 555-58

[9] Id. at 552.

[10] Id.

[11] Id. at 553.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id. at 554-59.

https://lawprofessors.typepad.com/appellate_advocacy/2020/03/make-the-standard-of-review-work-for-you.html

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