SCOTUS discusses standard of review for mixed questions of law and fact

By Wisconsin State Public Defender
Mar 15, 2018

On March 5, 2018, the Supreme Court decided U.S. Bank N.A. v. Village at Lakeridge, USSC No. 15-1509, 2018 WL 1143822, a bankruptcy case that we note here solely because it addresses a narrow issue that can matter to appellate litigators, civil and criminal: What is the standard of appellate review of mixed questions of law and fact? The answer: Well, it “depends,” though less so in the kind of constitutional questions criminal litigators often face.

For all their differences, both parties rightly point us to the same query: What is the nature of the mixed question here and which kind of court (bankruptcy or appellate) is better suited to resolve it? See Miller v. Fenton, 474 U.S. 104, 114 (1985) (When an “issue falls somewhere between a pristine legal standard and a simple historical fact,” the standard of review often reflects which “judicial actor is better positioned” to make the decision).… Mixed questions are not all alike. As U.S. Bank suggests, some require courts to expound on the law, particularly by amplifying or elaborating on a broad legal standard. When that is so—when applying the law involves developing auxiliary legal principles of use in other cases—appellate courts should typically review a decision de novo. See Salve Regina College v. Russell, 499 U.S. 225, 231–233 (1991) (discussing appellate courts’ “institutional advantages” in giving legal guidance). But as Lakeridge replies, other mixed questions immerse courts in case-specific factual issues—compelling them to marshal and weigh evidence, make credibility judgments, and otherwise address what we have (emphatically if a tad redundantly) called “multifarious, fleeting, special, narrow facts that utterly resist generalization.” Pierce v. Underwood, 487 U.S. 552, 561–562 (1988) (internal quotation marks omitted). And when that is so, appellate courts should usually review a decision with deference. See Anderson v. Bessemer City, 470 U.S. 564, 574–576, 105 S.Ct. 1504, 1511–1512, 84 L.Ed.2d 518 (1985) (discussing trial courts’ “superiority” in resolving such issues).4 In short, the standard of review for a mixed question all depends—on whether answering it entails primarily legal or factual work.

4 Usually but not always: In the constitutional realm, for example, the calculus changes. There, we have often held that the role of appellate courts “in marking out the limits of [a] standard through the process of case-by-case adjudication” favors de novo review even when answering a mixed question primarily involves plunging into a factual record. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 503 (1984); see Ornelas v. United States, 517 U.S. 690, 697 (1996) (reasonable suspicion and probable cause under the Fourth Amendment); Hurley v. Irish–American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 567 (1995) (expression under the First Amendment); Miller v. Fenton, 474 U.S. 104, 115–116 (1985) (voluntariness of confession under the Fourteenth Amendment’s Due Process Clause).

(Slip op. at 8). For more commentary, see Scotusblog’s page on the case.

H/t to Bill T. for directing us to the decision.