Academic journal article Journal of Appellate Practice and Process

Fiat Lux: Tracing a Standard of Review for Class-Certification Orders

Academic journal article Journal of Appellate Practice and Process

Fiat Lux: Tracing a Standard of Review for Class-Certification Orders

Article excerpt

And you may ask yourself Well... How did I get here? (**) 


Trial judges are comforted by the usual standard of review, which is--in plain English--that their decisions are assumed to be right, if only in the sense that the appellant usually has the burden of showing otherwise. Doctrines of harmless error and others tend to focus on the result below and, if the record supports the result, urge affirmance. The record might be barren, it might reveal a trial judge's incorrect rationale, but if the result is otherwise supportable, the trial judge is usually affirmed. (1)

But there are a few situations in which appellate courts focus on the reasons provided and will reverse if the reasons do not support the result or the reasoning is wrong--even if the result has support in the record. I came across this in California state law, as I was having a look at the standards of review of decisions to certify (or not to certify) class actions. This is the class-certification standard, distinguished from the usual rule:

Under ordinary appellate review, we do not address the trial court's reasoning and consider only whether the result was correct.... But when denying class certification, the trial court must state its reasons, and we must review those reasons for correctness.... We may only consider the reasons stated by the trial court and must ignore any unexpressed reason that might support the ruling. (2) 

We might call this the Rule of Stated Reasons. (3) It will be the focus of this article, but we begin by looking at two other rules from which the Rule of Stated Reasons must be differentiated.

A. Background: The Routine Rule

We must distinguish a different rule, which applies generally, including in the certification context: "A certification order generally will not be disturbed unless (1) it is unsupported by substantial evidence, (2) it rests on improper criteria, or (3) it rests on erroneous legal assumptions." (4) This rule is ordinary. It is routine to reverse if there is no factual support for a decision or the trial judge gets the law wrong. It is not this Routine Rule I am interested in here, although as we will see later, some courts rely on the Routine Rule as if it necessarily justified the Rule of Stated Reasons. It does not, however, for one may have the former without the latter.

B. Background: The Rule of Intendments

There is a third rule of review, also seemingly routine, that we should also distinguish: "We must '[p]resum[e] in favor of the certification order... the existence of every fact the trial court could reasonably deduce from the record.'" (5) This third rule is part of the broader and usual standard, which, if one enjoyed the sound of old fashioned words, one might call the Rule of Intendments. (6) Under this broad rule, when the record is silent, the order is generally affirmed. (7) In the certification context, the more general, broader Rule of Intendments is not effective. If nothing "illuminates the court's thinking" on the reasons for the determination, the case is reversed and remanded. (8) The Rule of Intendments does not apply. (9)

C. Our Primary Concern: The Rule of Stated Reasons

What then, is this narrower Rule of Stated Reasons that applies in the certification context? It is not clear; but it may just mean that when a judge does explain himself or herself in a way that suggests reliance on facts, the appellate court will indulge the trial court ruling if there is any basis in the record to do so.

I began by briefly outlining the various standards of review because the opinions that develop the Rule of Stated Reasons ultimately dissolve into the distant mists of the past, sometimes doing so by conflating the Rule of Stated Reasons with these other standards of review.

The Rule of Stated Reasons is an oddity, and has been repeatedly called out as different from the usual approach. …

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