Civil Case Appellate Standards of Review (and a Very Few Unavoidable Related Propositions of Law), Updated and Revised (Current through August 3, 2007)

Authors

Alan G. Gless, Fifth Judicial District of NebraskaFollow

Date of this Version

8-3-2007

Document Type

Article

Comments

Copyright (c) 2007, Alan G. Gless.

Abstract

Why would a district court judge write about or revise an appellate court judge’s work on appellate standards of review and related propositions of law in civil cases? Well, two reasons – a change in legal mind set and fifteen years’ worth of changes in appellate practice. First, and foremost, when Judge Irwin collected in a single work his 1992 Standards of Review and Propositions of Law, Civil, he was the first in recent Nebraska legal history to do so. Those of us who have used his work owe him our thanks; his contribution was invaluable to both the bench and bar of that time.

At that time, the Nebraska Court of Appeals had just commenced operation. Up until that year, the district courts, in reality, had been Nebraska’s only intermediate courts of appeals from the county courts, but weren’t yet conceptualized as intermediate courts of appeals when hearing appeals from county courts. That district courts weren’t yet seen as sitting as intermediate appellate courts when hearing appeals from county courts was a historical carry over from earlier times.

In 1972, the legislature reorganized the county courts and increased their jurisdiction, making them a major trial court, abolished all the various local courts (such as the justice of the peace courts, police courts, etc.) and relocated their jurisdiction in the county courts, and, transferred exclusive juvenile jurisdiction from the district courts to the county courts (outside of Douglas, Lancaster, and Sarpy Counties). Until 1972, appeals from county courts and the other local courts were tried de novo in the district courts (unless someone committed the tactical error of taking the judgments of the county courts and local courts to the district courts by petition in error). LB 1032 (1972) changed that scenario, but the mind set that district court was just a trial court that retried county court cases when appealed hung on for some time after 1972.

The Nebraska Supreme Court and the Nebraska Court of Appeals both have worked diligently to change that pre-1972 mind set. The supreme court and court of appeals continuously have taught that, when hearing appeals from county courts, the district courts act in the capacity of intermediate appellate courts. The Nebraska Supreme Court and the Nebraska Court of Appeals both have emphasized that, when acting as intermediate appellate courts, the district courts must apply the proper appellate standards of review.

District courts conducting first level Administrative Procedure Act judicial reviews of agency actions behave more closely to their traditional trial court roles, but still must apply appellate standards of review. On appeal from the district courts’ APA judicial reviews, different appellate standards of review may apply. In hearing error proceedings, another form of appellate review district courts perform at the first review level, the district courts must apply a different set of appellate standards of review than they apply in APA cases. Thus, district court judges must be aware of and appreciate the operation of the applicable appellate standards of review at the district court level. Counsel and appellate litigants must be aware of and appreciate the operation of the applicable appellate standards of review at all appellate levels.

The second, and likely more obvious, reason one would update and revise Judge Irwin’s 1992 work lies in the evolution in Nebraska’s civil appeals practice in the fifteen-plus years since he wrote; nearly a revolution in some areas. We’re pushing up against the end of Thomas Jefferson’s idea of a generation (roughly a period of nineteen years) since Judge Irwin wrote. Major changes have occurred in some areas of civil appellate practice. Major very recent changes have occurred in civil trial practice which inevitably require more changes in civil appellate practice.

What use should readers make of both editions of this collection? Judge Irwin did not offer analysis in the printed version of his edition nor do I in mine. This document should be used as a finding, or access, tool to locate the information collected herein, information which is difficult to locate in the digests and online research tools. Judge Irwin used an alphabetical arrangement; I have retained that organizational approach. This tool cannot be considered a complete collection of all of the civil appellate standards of review, no short collection could, but it does include many of the most frequently encountered standards.

Readers seeking analysis may want to consult: DAVID A. DOMINA, THE ROLE OF THE TRIAL JUDGE IN NEBRASKA APPELLATE JURISDICTION (2006); & Daniel L. Real, Appellate Practice in Nebraska: A Thorough, Though Not Exhaustive, Primer in How to Do it and How to Be More Effective, 39 CREIGHTON L. REV. 29 (2005)(and articles cited therein); and, STEVEN ALAN CHILDRESS & MARTHA S. DAVIS, FEDERAL STANDARDS OF REVIEW (3d ed. 1999).