Which Way to go on Proposed Findings?

April 29, 2014 § 16 Comments

Compare the language:

This from the COA on April 8, 2014, in Burnham v. Burnham:

¶15. Usually, the scope of review of a chancellor’s findings is limited in domestic-relations cases. “The chancellor’s determinations will only be reversed when they were manifestly wrong [or] clearly erroneous, or when the chancellor applie[d] an incorrect legal standard.” Greenwood v. Young, 80 So. 3d 140, 145 (¶12) (Miss. Ct. App. 2012). “Questions of law are reviewed de novo.” Marin v. Stewart, 122 So. 3d 153, 156 (¶8) (Miss. Ct. App. 2013).

¶16. In the case at hand, the trial court essentially adopted the proposed findings of fact and conclusions of law [PFFCL] submitted by Dana. We have previously held that “[w]here 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[.]” Brooks v. Brooks, 652 So. 2d 1113,1118 (Miss. 1995) (citing OmniBank of Mantee v. United S. Bank, 607 So. 2d 76, 83 (Miss.1992)). Further, “the deference normally afforded a chancellor’s findings of fact is lessened.” Id. This does not mean that the appellate court is the fact-finder, nor does it change ourstandard of review. This means that the Court will take a closer look to make sure that our law is followed as interpreted by our courts. Chancellors are charged with the duty of being independent fact-finders, and the adoption of an opinion written by one of the attorneys is not the finding of the chancellor based on his independent reasoning, even though the chancellor may have a similar opinion.

And this from the MSSC in Bluewater Logistics LLC v. Williford, 55 So.3d 148, 157 (Miss. 2011):

I. This Court is not required to apply a different level of deference to the chancellor’s factual findings.

¶24. We review a chancellor’s legal conclusions de novo; that is, we reach our own conclusions as to the applicable law.FN2 But we ordinarily accept a chancellor’s factual findings unless—given the evidence in the record—we conclude that the chancellor abused his or her discretion, and no reasonable chancellor could have come to the same factual conclusions. FN3

FN2. Corporate Mgmt., Inc. v. Greene County, 23 So.3d 454, 459 (Miss.2009).

 FN3. Limbert v. Miss. Univ. for Women Alumnae Ass’n, Inc., 998 So.2d 993, 998 (Miss.2008) ( citing Hamilton v. Hopkins, 834 So.2d 695, 699 (Miss.2003)).

¶ 25. But as to our review of the factual findings in this case, Defendants argue we must apply a different and higher standard of review because the chancellor adopted, verbatim, the plaintiff’s proposed findings of fact and conclusions of law. That may be so, and probably is—Williford responds to the argument without denying it. But we cannot compare the two documents, because Williford’s proposed findings of fact and conclusions of law were not included in the record. Nevertheless, we shall address the issue.

¶ 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.

FN4. See, e.g., In re Estate of Grubbs, 753 So.2d 1043, 1046–47 (Miss.2000); Brooks v. Brooks, 652 So.2d 1113, 1118 (Miss.1995).

¶ 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.FN5 The dissent suggests that heightened scrutiny requires us to review a chancellor’s findings with “a heightened ‘sensitivity to the possibility of error….’ ” FN6 Yet our duty requires us in every case to be as careful and as sensitive to error as we can be, and we cannot condone a standard that allows us to be less sensitive to error in one case than in another.

FN5. Some possibilities include elevating the standard from “reasonable chancellor” to “very reasonable chancellor,” or from “manifest error” to “catastrophic error.”

 FN6. Dissent at ¶ 80 citing In re Estate of Grubbs, 753 So.2d 1043, 1048 (Miss.2000).

¶ 28. In Rice Researchers, Inc. v. Hiter, FN7 this Court provided the following interesting insight into the issue:

FN7. Rice Researchers, Inc. v. Hiter, 512 So.2d 1259 (Miss.1987).

Case complexities and crushing caseloads necessitate substantial reliance upon the submissions of trial counsel. Still, the judge is a judge and not a rubber stamp. He may not be able to afford the luxury of practicing his culinary art a la the Cordon Bleu. He should remember, however, that his oath precludes a McDonald’s approach to the judicial process. Where the trial judge wholly abdicates his judicial responsibilities—where, as it were, he abuses his discretion—we doubtless have authority to intervene. Here the Chancery Court quite properly requested that each party submit proposed findings of fact and conclusions of law. These submissions were considered at an adversary hearing. Thereafter, the Court considered RRI’s motion to amend findings. These steps, coupled with the fact that this case is quite complex (in spite of its simplicity), leave us convinced that the Chancery Court acted within its authority. As indicated above, however, our obligation of appellate deference to such findings is necessarily lessened.FN8

FN8. Id. at 1266.

¶ 29. The Hiter Court’s “less deference” standard, the Brooks Court’s “heightened scrutiny” standard, and the dissent’s “heightened sensitivity” standard all suggest that this Court—if not completely, then to some unspecified degree—must become the finder of fact, imposing (again, to some degree) our own view of the facts. But that would be a tricky — given that we never saw or heard the witnesses.

¶ 30. One thing is clear. Applying a “heightened-scrutiny” or “lessened-deference” standard would require us to abandon the traditional standard (accepting a chancellor’s factual findings that the evidence supports), and employ some different standard. And although the new standard of review has been named (“heightened-scrutiny” or “less-deference”), this Court has yet to explain how it is to be applied.

[4] ¶ 31. While it is true that the United States Supreme Court has adopted various levels of scrutiny for particular kinds of cases—for instance, “intermediate-scrutiny” review of gender-based classifications FN9—the Court explains the difference in each level, and provides a specific test for its application.FN10

FN9. Craig v. Boren, 429 U.S. 190, 218, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976).

FN10. Intermediate scrutiny in gender-based discrimination cases requires that the challenged law or policy further an important government interest in a way that is substantially related to that interest. Id.

¶ 32. If we are to adopt and apply a “heightened-scrutiny” standard, simple fairness and justice requires us to publish that standard—in more than name—to the bench and bar. And because that has not been done—and because we decline to do it today—we shall continue to apply the familiar abuse-of-discretion standard to a trial judge’s factual findings, even where the judge adopts verbatim a party’s proposed findings of fact. And should a party suspect and suggest that the judge’s factual findings are somehow tainted or untrustworthy, we hold that the party—upon proper proof—may seek a new trial.

¶ 33. In the case before us today, we find not one sliver of evidence that the chancellor’s factual findings were untrustworthy or suspect. His bench opinion discussed his factual findings. And at the hearing on post-trial motions, he engaged in lengthy discussions with counsel concerning his view of the facts. Finally, his factual findings—whether or not identical to those submitted by the plaintiff—were supported by substantial evidence. So we are unable to say he abused his discretion, and this issue is without merit.

I could have sworn that Bluewater Logistics signalled an end to the “heightened scrutiny/less deference” concept, but that’s apparently not how the COA sees it.

With all due deference to the COA, I am of the opinion that this statement from Burnham is a non sequitur: “Chancellors are charged with the duty of being independent fact-finders, and the adoption of an opinion written by one of the attorneys is not the finding of the chancellor based on his independent reasoning, even though the chancellor may have a similar opinion.” But what if the PFFCL is not only similar to, but entirely, accurately refIects my own conclusions? If the PFFCL submitted by one of the attorneys matches my conclusions on the facts and my opinion of the law, then why does it not reflect my independent reasoning? Does a change in words used to express the reasoning change the reasoning from dependent to independent, even when the conclusions and rationale are the same?

What about a situation where the trial judge is persuaded by the argument of counsel and adopts her legal reasoning and applies it in the case? Is that an impropriety that justifies heightened scrutiny or less deference?

I am with Justice Dickinson on this. Lawyers may not like it because it looks like the judge favored one side over the other, but actually that’s what the appearance is whenever the judge rules for one side over the other. It’s the nature of the thing. And, besides, if the high court wants to outlaw verbatim adoption of one side’s PFFCL because it could give an appearance of impropriety, that would be logical. But to conclude that adoption of one side’s PFFCL does not reflect the judge’s independent reasoning, thus justifying and triggering heightened scrutiny and less deference, does not make sense to me.

§ 16 Responses to Which Way to go on Proposed Findings?

  • […] The old rule that, if a trial judge in a ruling adopts one party’s proposed findings of fact and conclusions of law verbatim, her ruling is subject to less deference and greater scrutiny was abolished several years ago in the Bluewater Logistics case. I’ve posted about it here and here. […]

  • […] Back in April of last year I pondered the COA’s decision in Burnham v. Burnham, which affirmed the chancellor’s rulings on child support and equitable distribution in a divorce, but subjected his findings to “heightened scrutiny” and “less deference” because he adopted one side’s proposed findings of fact and conclusions of law verbatim. That post is here. […]

  • Dave Pumford says:

    Bluewater was briefed front and center – and incorporated into the standard of review. It was ignored or overlooked. I agree on the “dissent without written opinion” Never have understood that.

  • thusbloggedanderson says:

    More positively, if the average of 50+ merits ops a year per COA judge is too burdensome, then let’s split the COA into a Court of Civil Appeals and a Court of Criminal Appeals, with cert from either to the MSSC. Even that slight degree of specialization would assist, and the caseload would be cut roughly in half (assuming 10 judges per court).

    • Larry says:

      I’ll accept your figures, but my perception was that it was closer to 5-6 opinions per month, which is a lot considering that one is supposed to review the record, analyze, and come to a correct conclusion accurately following the law. Even at 50 and a few, that’s 4 plus some per month, which is quite a load, IMO.

      • thusbloggedanderson says:

        Judge, I’m going off the annual reports, which I tabulated a while back. According to the 2012 report, the COA issued 505 merits ops that year, which was fewer than in 2011 but more than in 2010. It IS quite a load.

      • thusbloggedanderson says:

        And I should’ve added, they don’t just draft opinions. 250 motions for rehearing in 2012, for instance. So now I feel a little sorry for them. OTOH “I was really busy, so I didn’t decide your case correctly” leaves something to be desired.

        The first step to fixing a problem is saying “hey, here’s a problem.” Is there a problem at the COA? If we say “no,” then nothing’s going to get fixed.

      • Larry says:

        I agree that something needs to be fixed, but not sure what the sure fix would be.

  • Suzy says:

    TBA, it doesn’t appear that ALL TEN overlooked it. The vote line shows a disagreement.

    • thusbloggedanderson says:

      Thanks, Suzy – that touches on another grievance!

      LEE, C.J., IRVING, P.J., ISHEE AND ROBERTS, JJ., CONCUR. CARLTON
      AND MAXWELL, JJ., CONCUR IN RESULT ONLY WITHOUT SEPARATE
      WRITTEN OPINION. BARNES, J., CONCURS IN PART AND IN THE RESULT
      WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., AND FAIR, J.,
      CONCUR IN PART AND DISSENT IN PART WITHOUT SEPARATE WRITTEN
      OPINION.

      Which “parts” did Barnes, Griffis, and Fair concur with? Were they the same parts? It would be nice to know what part of the op garnered an actual *majority*. The MSSC does this too, but it needs to be abolished. If you can’t write a sentence or two about what part you join or why you join only in result, then how rationally are you voting?

      Regardless, either they brought the Bluewater Logistics problem to Judge James’s attention, and she ignored them, or no one brought it to her attention, which is worse.

  • dave pumford says:

    Failure to follow bluewater precedent is one of the issues currently pending on rehearing.

  • thusbloggedanderson says:

    What to blame this on? Given the job struggle, the pick of law clerks should be good. The courts have been hiring more from MC lately, I hear, but while UM is a better school, there are still plenty of bright kids graduating from MC Law.

    But this is too egregious to blame on clerks. Or on Judge James, tho I doubt she’s on top of anyone’s list of the smartest sitting COA judges. The other judges have a duty to at least read the op they’re signing, and the Bluewater Logistics case made too much noise to be overlooked by TEN appellate judges.

    Seems to me that something is wrong at the COA and the chief judge needs to show some leadership in fixing it. It’s not just this op; anyone who follows the court should have examples in mind. Step one: how about reading through the MSSC handdowns every Thursday? Step two: read Judge Primeaux’s blog!

    • Larry says:

      In all fairness, I don’t see how anyone could do the COA judges’ jobs. I religiously read handdowns and try to retain what I read, BUT I seldom read any Circuit Court decisions, and I never read any criminal decisions unless someone points me to an evidentiatry point with some value in civil matters. So I only read and keep up with a fraction of the case law. The COA judges, on the other hand, are expected to keep up with that entire body of law, and, at the same time, churn out an unbelievable number of opinions a year, each of which is expected to be completely true to the record and all precedent. I just don’t see how they do it.

      Even knowing that, though, it’s hard for trial judges and practitioners to harmonize these dueling decisions. We want to know what the law is and follow it, but it’s hard to know sometimes what is the right direction. I have said that COA opinions should never be published until cert is finally denied by the MSSC. At least that way, some ricochet cases would be eliminated. Maybe.

      • thusbloggedanderson says:

        All points well taken, but OTOH, computer-aided legal research has made the appellate judge’s job easier than it may ever have been.

        As for the practical problem, I would think that if there’s a MSSC op and then a later COA op contrary thereto, the MSSC controls.

      • Dave Pumford says:

        I agree. Wait until mandate issues to publish opinions. That may not be a bad idea in both appellate courts.

      • thusbloggedanderson says:

        Define “publish.” Once a decision’s released online, it can come to the attention of potentially interested parties who may be able to grasp what’s wrong and file amici briefs with the movant for rehearing (indeed, may be able to talk the loser into seeking rehearing). The more openness, the better.

        But IIRC, a decision not being final until the mandate issues, it’s not binding authority on the trial courts until that happens.

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