Wednesday, February 02, 2011

Judicial amnesia?

MSSC Justice Jess Dickinson, for the Court in Joel v. Joel, July 1, 2010:
¶ 15. We recognize the following exception to the Ferrara v. Walters rule:
Where the chancellor adopts, verbatim, findings of fact and conclusions of law prepared by a party to the litigation, this Court analyzes such findings with greater care, and the evidence is subjected to heightened scrutiny. Because the chancellor erred in adopting FN3 the litigant's findings of facts and conclusions of law in the case sub judice, the deference normally afforded a chancellor's findings of fact is lessened.[FN4]
¶ 16. The FFCL proposed by the Joels and the one eventually entered by the court were essentially the same. So we must apply the Brooks v. Brooks heightened-scrutiny standard of review.

¶ 17. Heightened scrutiny requires that “the deference afforded the findings of fact is lessened ...,” and we “must view the challenged findings and the record as a whole ‘with a more critical eye to ensure that the trial court has adequately performed its judicial function.’ ”
Justice Jess Dickinson, for the Court in Bluewater Logistics, LLC v. Williford, Jan. 27, 2011:
¶ 26. When a chancellor adopts verbatim, or nearly verbatim, a party's proposed findings of fact, our precedent provides that we should apply “heightened scrutiny” FN4 to the chancellor's findings of fact. This rule is fairly well-settled and accepted. Yet our precedent provides little guidance as to how we are to comply with our duty to “heighten” our scrutiny--which could be read to require us to review a case more carefully or, perhaps, to apply a different, more stringent standard to our review of the facts.

¶ 27. But our duty already requires us carefully to scrutinize every case, so we reject the former. And as to the latter, if “heightened scrutiny” requires us to abandon the reasonable-chancellor standard and apply a different, higher standard, we find no caselaw or other authority explaining that different standard, or suggesting how it should be applied.
So the question is, I guess, what did Justice Dickinson -- and the majority -- do in Joel that they had forgotten how to do in Williford?

Whatever it was, Chief Justice Waller hadn't forgotten it, as his separate opinion in Williford shows. First, he points out that Dickinson and the Court are reaching out to decide an issue not before them:
Bluewater asserted on appeal in Issue I that this Court does not have to give deference to the chancellor's factual findings as the chancellor had adopted verbatim Williford's proposed findings of fact and conclusions of law. The discussion need go no further, as whatever Williford submitted to the trial court is not in the record. Notwithstanding the procedural bar, the majority then goes on to disregard our precedent on the “heightened-scrutiny” standard of review for certain limited decisions that are appealed to this Court. Bluewater did not provide the part of the record needed for us to determine whether a less deferential standard of review would be more appropriate. Miss. R.App. P. 28. All that we have is speculation that the chancellor did something (adopted Williford's findings verbatim) that is not supported in the appellate record before this Court. Therefore, we should find no merit in its argument without further discussion on the subtleties of standards of review.
Regardless, Waller manages to remember how this standard works:
Heightened scrutiny refers to appellate review with a heightened “sensitivity to the possibility of error....” In re Estate of Grubbs, 753 So. 2d 1043, 1048 (Miss. 2000). In other words, the Court still defers to the chancellor's findings but with a closer examination of the record. See id.

¶ 81. I agree with the majority that we must carefully review cases and remain sensitive to errors. Maj. Op. ¶ 27. No one disputes that. However, the issue is what deference chancellors should be afforded in their factual decisions when the record calls into question the independent findings our trial judges are obligated to make. Deferring to a chancellor's factual findings does not mean that we intend to neglect our judicial function. See Ralph Walker, Inc. v. Gallagher, 926 So. 2d 890, 893 (Miss. 2006).
Factual findings by a chancellor are given extremely deferential review -- the chancellor was there and the appellate court was not. But it should not be so mysterious to the Williford Court that where those findings are drafted by one party, it's reading not the chancellor's findings, but one party's view of what the chancellor should have seen. That draft may look right to the chancellor -- weeks or months after the hearing -- and it should not be dismissed out of hand, but the "jaundiced eye" referred to in some case law is appropriate.

In other words, a majority of the Court (Pierce, to his credit, joined Waller) is willing to shrug and act like Gomer Pyle when handed a bill of goods. It's not enough to say, as the Court smilingly does, that every case is special and scrutinized, because the Court loves all its cases. The fact, plain as the nose on one's face, is that the Court's basis for deference is undercut by the verbatim adoption of factual findings. In particular, credibility determinations, or the weight attributed to some evidence over other evidence, are hugely important, and the Court should not play dumb about the difference between the judge's making that determination himself and signing onto an interested party's determination.

Think of it like this. Two cases are tried to a jury. In one, the jury deliberates in a nearby room immediately after the trial, and comes back with its verdict. In the other, the jurors go home, get on with their lives, and a few weeks later they receive in the mail proposed findings from the opposing parties, which they are free to sign onto, revise, or discard in favor of their own draft. In our example, the jury signs onto one side's PFF verbatim. Are we really supposed to think that the latter verdict is due the same deference as the former? As the Windows Phone commercial has it: "Really?"

... TBA wonders what a chancellor would think of Williford. [UPDATE: I had forgotten that Pierce was a chancellor; interesting that the only chancellor on the MSSC bench concurred w/ Waller.]

... And in comments, we find out! Many thanks to the good judge, whose thoughts I will address in more detail later; for now, I observe only that if every chancery judge were as conscientious as Judge Primeaux, then I would not worry about verbatim adoption of findings.

1 comment:

  1. So many issues to address and so little time, but I'll make a couple of points and raise some questions ...

    -- I have never understood the heightened scrutiny rule as to ffcl. If the chancellor believes that one side's ffcl exactly captures what he or she heard and concludes, does it matter? The rule seems to assume that the chancellor has abandoned his own thought process and analysis if he adopts one side's ffcl, which I think is a non sequitur.

    -- Chancellors must make extensive written findings of fact to support their conclusions, but juries have no such requirement. There is no such requirement for the finder of fact in a jury trial. How do we know whether what a jury decides is supported by substantial evidence if they don't tell us in detail what is the basis for their decision? But, you say, appellate courts have always scrutinized jury verdicts against the evidence at trial. Fine and true. If we can make that determination for a jury verdict without specific findings, why can't we do the same for a non-jury trial?

    -- Are chancellors' decisions really given deferential review, or is that concept more of an historical view that has yielded to a more interventionist appellate role? Early in my career, it was common to discourage a client who wished to appeal from chancery on the basis that it was rare for a chancellor's decision to be overturned. A lawyer told me not long ago that he routinely advises clients to "roll the dice and appeal," because you have a good chance that you get a COA judge who likes to assume the role of chancellor. That is probably an overstatement, but it captures the sense of what I'm trying to say.

    -- I have had more than one trial lawyer comment that what they read in the appellate court's opinion as to facts bore little resemblance to the evidence at trial. Does this mean that lawyers who write briefs are loading them up with "facts" that were never presented to the chancellor at trial? And if it does mean that, then are the appellate judges not reading the trial record? If Justice Waller is right, and there is nothing in the williford record to support the findings of the majority opinion, what does that tell us?

    -- Is our body of case law, with as many COA and SC opinions as we have, getting so large that we can no longer manage it? In my experience, I read an opinion and say to myself, "wait a minute; that holding contradicts the [insert name here] decision from 1987," and yet the new decision does not overrule, explain, distinguish, or even cite the earlier decision. Is it a lack of time devoted to research by staff? Is it that there are too many cases on appeal (which could be reduced by exercising true deference to chancellors' findings)? Could it be that our body of case law is becoming so unwieldy that it is getting more difficult to distinguish what is and what is not precedent?

    I am certainly not trying to pick a fight here, but these are some important issues in our jurisprudence. They affect how lawyers try their cases, how judges decide them, and the decision whether and how to appeal. They shape people's actions because they set policy. The body of our case law needs to be the beacon, not the obscuring fog.