ABUSE OF DISCRETION STANDARD OF REVIEW—A “DAUNTING TASK” TO OVERCOME

Colorful Language from Second District Decision and Famous Quotations Highlight the Deferential Nature of This Review Standard.

            As we have repeatedly seen, most California fee awards are reviewed under the deferential abuse of discretion standard, especially such components as fee reasonableness, fee amount, and “prevailing party” status.  Unless an interpretation of a statute is involved or the lower court used the wrong legal standard in making a discretionary call, the de novo review standard does not come into play.

            To show how deferential the abuse of discretion standard actually is, we quote colorful language from one of our favorite decisions in the area, Estate v. Gilkison, 65 Cal.App.4^th 1443, 1448 (1998), authored by Justice Yegan of the Second District, Division Six:

"An attorney who prosecutes an appeal from an order addressed to the trial court’s sound discretion is confronted with more than a daunting task.  This is an uphill battle which, absent unusual circumstances, may be equated with confederate General John Bell Hood’s attempt to capture ‘Little Round Top’ at the battle of Gettysburg in the Civil War.   General Hood  did not succeed."

            One San Diego County Superior Court judge has questioned this analogy, because he noted that Hood’s division came precariously close to capturing Little Round Top and turning the flank of the Union army.  Instead, he believed a more apt analogy is the Confederate attack on Union artillery positions at Malvern Hill in 1862 or the Union assault on Marye’s Heights during the Battle of Frederickburg, where “[n]either came close to succeeding.”  (See Judge William S. Dato, “Building Blocks of An Appeal,” North County Lawyer, Vol. 23, No. 9 (Sept. 2006), p. 19 n. 3.)

            Gilkison went on to observe that judicial discretion implies the absence of an arbitrary determination, implying the exercise of discriminating judgment within the bounds of reason after a consideration of all known material facts together with essential legal principles.  On appeal, Justice Yegan explained, the test is whether the trial court exceeded the bounds of reason; an appellate court will not overturn a discretionary call simply because it has a different opinion.  A flawed discretionary order must reflect a prejudicial miscarriage of justice.  However, there was more warning for trial court attorneys handling the appeal of a discretionary call they lost—Justice Yegan noted that they may have “tunnel vision” and “would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice.”  The attorney handling the appeal in Gilkison was eventually sanctioned $1,000, payable to the court clerk, for bringing a frivolous appeal of a discretionary order.

            Now for some fun.  Here are some older famous quotations on the subject of “discretion,” with thanks and acknowledgment to McNamara, 2,000 Famous Legal Quotations (Lawyers Co-operative Pub. Co.1967), “Discretion,” pp. 162-164.  Enjoy.

•   “Reasonable”—that irrepressible, vague and delusive standard which at times threatens to engulf the entire law, including the  Constitution itself, in a sea of judicial discretion.  BLACK, J., dissenting in Green v. United States, 35 U.S.165, 197 (1958).
• The discretion of a Judge is the law of tyrants:  it is always unknown.  It is different in different men.  It is casual, and depends upon constitution, temper, passion.  In the best it is oftentimes caprice; in the worst it is every vice, folly, and passion, to which human nature is liable.  LORD CAMDEN, C.J., Hindson v. Kersey (1765).
•   Sir John Fineux, sometime Chief Justice of the King’s Bench, was often heard to say,  “Who so taketh from a Justice the order of his discretion, taketh surely from him more than half his Office.”  CAMDEN, Remains Concerning Britain:  Wise Speeches (1674).
• The writer of this opinion has known a popular judicial officer grow quite angry with a suitor in his court, and threaten him with imprisonment, for no ostensible reason, save the fact, that he wore an overcoat made of wolf skins!  Moreover, it cannot safely be denied that mere judicial discretion is sometimes very much interfered with by prejudice, which may be swayed and controlled by the merest trifles—such as the toothache, the rheumatism, the gout, or a fit of indigestion, or even through the very means by which indigestion is frequently sought to be avoided.  PETERS, J., Ex Parte Chase, 43 Ala.303, 310 (1869).