Appellate Courts as First Responders: The Constitutionality and Propriety of Appellate Courts' Resolving Issues in the First Instance
Steinman, Joan, Notre Dame Law Review
In designing court systems in this country, all of the states and the federal government have created trial courts and one or more levels of appellate courts. Legal professionals, litigants, and the people of this country in general typically conceive of appellate courts as courts of review, courts that review decisions made by trial court judges, by decision makers in administrative agencies, or occasionally by arbitrators. We view it to be the role of trial judges and juries, administrative agencies, and arbitrators--not appellate courts--to make the initial findings of fact, reach the initial conclusions of law, apply the law to the facts in the first instance, and exercise discretion as to issues, raised in the foundational proceeding, whose resolution is not dictated by rules of law. We then see it as the function of courts of appeals acting as such to re-examine fact-findings, conclusions of law, applications of law to fact, and exercises of discretion under appropriate standards of review. (1) We generally expect courts of appeals to affirm, reverse, or vacate the judgment of lower courts or other tribunals, but not to act as a court of first instance in finding facts, stating the law, or exercising other judicial functions. (2)
Appeals courts sometimes review for clear error, and sometimes review for abuse of discretion. When reviewing agency action they may review for arbitrary and capricious action or for substantial evidence. (3) Even when review is de novo, so that the appeals court is giving no deference to the lower tribunal's conclusion, that earlier conclusion is being reviewed. The appeals court does not merely announce what a correct understanding of the law is. A lower court has taken the first stab at the issue, and the appeals court concludes that the trial court judge (or other decision maker) (4) either erred or reached the correct, or an acceptable, answer. (5) The appeals court has the benefit of the lower court's thinking and is passing judgment upon the lower court's determination.
We traditionally defend the division of function between trial and appellate courts on functional and institutional grounds. Despite some evidence that our beliefs about the relative superiority of particular decision makers are not always accurate, (6) as a society we generally believe and historically we generally have believed that trial courts--judges and juries--have advantages in making fact findings, so we allow appellate courts to review fact-findings but only to avoid severe aberrations, violations of duty, and clear errors that would result in injustice to the parties. We make the review deferential to give effect to our belief that judges and jurors who were firsthand witnesses to the testimonial evidence and arguments usually have a superior ability to accurately find the facts. (7) For reasons of consistency and in deference to trial court experience and expertise in fact-finding, we take the same tack, making review deferential--although perhaps not to exactly the same degree--even when all of the evidence is documentary or is otherwise available to appellate court judges in the same form in which it was presented to the trier of fact. Technological advances that can put appellate judges in shoes that very much resemble those of jurors and trial judges raise questions about whether appellate courts should defer to judges and juries as they traditionally have done, but thus far, and for the most part, appellate courts have remained deferential. (8)
Appellate courts utilize varying degrees of deference when reviewing matters that are within the district courts' discretion, depending on the reasons that discretion is afforded and sometimes based upon other policy considerations.
Finally, appellate judges typically are authorized and expected to review questions of law de novo because, as a society, we believe that appellate judges have advantages over trial judges in deciding what the law is or should be. …