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Ohio Northern University Law Review
2002
Article
*209 ABUSE OF DISCRETION: WHAT SHOULD IT MEAN UNDER OHIO LAW?
Mark P. Painter [FNa1]
Paula L. Welker [FNa2]
Copyright (c) 2002 Ohio Northern University Law Review; Mark P. Painter, Paula L. Welker
The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a
knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspirationfrom consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and
subordinated to “the primordial necessity of order in the social life.” Wide enough in all conscience is the
field of discretion that remains. [FN1]
As recognized by then New York Court of Appeals Justice Benjamin Cardozo, when a matter is committed to a
trial judge's discretion, that discretion is limited and must be exercised in a disciplined and rational manner. If the
trial judge does not exercise his or her discretion in a reasoned manner, the trial judge should be reversed on appeal.
Unfortunately, counsel and judges at all levels perceive a grant of discretion as immunity from reversal and treat it
as such.
To hide behind the refuge of discretion and avoid reversal, a trial judge may fail to provide his of her reasoning
process on the record. Consequently, lacking the grounds for a ruling, the appellate court is foreclosed from intelligently reviewing the trial judge's ruling for an abuse of discretion. [FN2] If the record is silent as to the trial judge's
reasons for a decision, appellate counsel is also impeded from effectively attacking the trial judge's exercise of discretion. [FN3]
Even when the trial judge does give the reasoning process for a decision, counsel rarely argues with conviction
that the appellate court should reverse for abuse of discretion. Instead of educating the reviewing court on the
“hows” and “whys” of the application of the abuse of discretion standard in *210 its client's particular case, counsel
argues that the trial judge's decision was an abuse of discretion diffidently, conceding defeat. This defeatist attitude
is assumedly premised on counsel's belief that the reviewing court will not scrutinize a determination left to the trial
court's discretion, but will take a “hands off” approach and merely affirm the decision.
Appellate counsel's attitude is understandable. The trial judge frequently is insulated from accountability because the reviewing court, instead of giving a reasoned explanation as to why the lower court did or did not abuse its
discretion, will hide behind formulaic language or merely state its conclusion without providing guidance for the
future.
This article focuses on review of a trial judge's discretionary decision making. We are not necessarily advocat-
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ing a new standard of review in cases where a trial court's discretion is guided by principles, rules and case law.
What we advance is that the abuse-of-discretion standard be applied in a meaningful way.
Discussing the function of a reviewing court, the first section sets out the different standards of review. In the
second section, we attempt to explain judicial discretion and its genesis. In the next section, we provide a historical
perspective of discretion by way of Ohio Supreme Court decisions. In the fourth section, we address abuse of discretion generally. Next, we trace the history of the Ohio Supreme Court's definition of abuse of discretion to the present. Last, we propose a more effective means of reviewing a trial judge's discretion for abuse and provide decisions
where the proposed abuse-of-discretion review was implemented.
I. Standards of Review
A standard of review is a short hand way of explaining the amount of deference a reviewing court will give to a
lower court's decision. [FN4] Review standards allow the legal process to work efficiently and fairly. [FN5] Some
commentators have defined “standard of review” in the context of power distribution within the judicial branch.
[FN6] Others have defined the phrase in relation to the appellant, characterizing the standard of review as setting
“the height of the hurdles over which an appellant must leap in order to prevail on [an] appeal.” [FN7] Still others
have explained “standard of review” as the *211 measuring stick applied by a reviewing court to an issue. [FN8]
One appellate judge believes that invocation of the standard of review is nothing more than a talisman, which allows
the appellate courts to “openly . . . tolerate a large margin of error in the trial court without ever making a close examination of the trial court's ruling.” [FN9] Another believes it is the most important of concepts because an appellate plan of attack depends on the applicable standard of review. [FN10] As one scholar explained, “[a]t the very
least, a standard of review seeks to clarify the scope of the case before an appellate court and to inform that court of
the parameters of its appellate function. At the very most, standards of review represent the substance and life of the
law.” [FN11]
Which standard of review a court uses depends on the issue raised on appeal. One standard of review is the
topic of this paper-abuse of discretion. Depending on the issue under review, a reviewing court also applies other
standards-“contrary to law,” [FN12] “clearly erroneous,” [FN13] “error as a matter of law,” [FN14] “plain error,”
[FN15] or “harmless error.” [FN16] In other situations, such as the review of a trial judge's grant of summary judgment, [FN17] or a trial judge's determination of subject-matter jurisdiction [FN18] or “reasonable suspicion” [FN19]
or “probable cause,” [FN20] the reviewing court conducts a de novo review. Under this standard, the reviewing
court reviews the law and the evidence without deference to the trial judge's judgment.
For the review process to be effective, it is essential that when applying a standard of review counsel's argument
on appeal and the reviewing court's analysis do more than indulge “in a form of automated verbiage or knee-jerk
terminology which has very little idea content.” [FN21] Whatever the appropriate *212 standard of review, to be of
use it must be woven into the facts and the substantive law; if it is not, it “is no more helpful than complete abdication.” [FN22]
II. Judicial Discretion
Discretion is an elusive concept that is “very difficult to analyze, because it operates so differently from person
to person and from situation to situation.” [FN23] Judicial discretion has been defined as “choice.” [FN24] Choice
occurs where, between “two alternatives or among a possibly infinite number,” there is “more than one possible
outcome, with the selection of the outcome left to the decisionmaker.” [FN25] However, “the concept of discretion
or choice defies uniform application [in] all situations.” [FN26]
Scholars recognize-although reviewing courts rarely do-that there are gradations of discretion, [FN27] which
require differing amounts of deference. [FN28] How much deference should be given to the trial judge's exercise of
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his or her discretion is directly related to why the trial court was given discretion in the first place. [FN29]
Some exercises of discretion “are so constricted by ‘guidelines' or ‘ways to decide’ that it is stretching the word
to even call them discretionary.” [FN30] An example of this type of discretion is found in cases where either by
statute or case law the trial judge is required to consider a list of factors and apply them to the facts of the case.
[FN31] Trial judges exercise limited discretion when they *213 admit or exclude relevant evidence, [FN32] grant or
deny continuances, [FN33] determine child-custody matters, [FN34] impose sanctions for failure to comply with
discovery orders, [FN35] deny mistrials, [FN36] and determine whether to sever multiple charges. [FN37]
Reviewing courts should afford less deference to trial court judgments in these situations because case law,
rules, or statutes have set out clearly established principles, rules, or factors to consider. Less deference is necessary
because a reviewing court is in just as good a position as the trial judge to determine whether the trial judge considered the principles, rules, or factors correctly, considered inappropriate factors or principles, or misapplied the law.
[FN38]
For example, whether to grant a continuance is left to the trial judge's discretion. [FN39] But, in exercising that
discretion, the Ohio Supreme Court has provided factors to be considered. [FN40] The trial judge should consider
(1) the length of the requested delay, whether other requests have been made and granted, (3) inconvenience to parties, witnesses, counsel, and the trial judge, (4) the legitimacy of the request, (5) the contribution of the moving party
to the necessity of the request, and (6) other unique, relevant factors. [FN41]
On the other end of the continuum are exercises of discretion that are almost unrestrained. A trial judge is vested
with discretion “in supervising his [or her] court, the progress of the trial, the litigation process, and the general operations of the judicial system . . . .” [FN42] This type of discretion is seemingly unfettered, and a trial court is rarely
reversed for abusing its discretion.
For example, trial judges can set their own pretrial scheduling orders in civil cases, establish rules about courtroom decorum and dress codes, prohibit cell telephones and beepers in their courtrooms, conduct voir dire, and allow note-taking by jurors during trial with little interference from a reviewing court. A trial judge's factual determinations based on the credibility of a witness and the weight he or she gives to evidence are also afforded wide deference by a reviewing court. [FN43] Deference is appropriate in those cases because the trial judge is in a better position than the reviewing court to make *214 those determinations. [FN44] The trial judge has not only the opportunity to observe first-hand the witnesses, the attorneys, and the litigants, but also has supervised the litigation from its
inception through trial. In other words, the trial judge has a better “feel for the case” than a reviewing court.
According to Professor Maurice Rosenberg, there are several reasons why a reviewing court might defer to a
trial judge's judgment. [FN45] These include judicial economy, maintenance of trial judges' morale, finality of disputes, the novelty of the situation, and the superiority of the trial court's position. [FN46] Professor Rosenberg acknowledges, however, that only the last two reasons are “good” reasons because they, at least, provide clues “as to
which trial court rulings are cloaked with discretionary immunity of some strength and which are not.” [FN47]
Rosenberg views as a good reason that situation where the issue is new or unique and judicial experience is necessary to the establishment of any rule. [FN48] In that situation, discretion is vested in the trial court because it is
impracticable to formulate a rule of decision either because the question or issue confronting the trial judge involves
“multifarious, fleeting special narrow facts that utterly resist generalization” or the issue or question “arises in a context so new and unsettled that the rule-makers do not yet know what factors should shape the result.” [FN49] Reviewing courts must rely on the trial judges to hear enough cases involving the “new and unsettled” issues and to
explain their decision-making process sufficiently, until the appellate courts are able to distill a consistent pattern of
analyses that finally allows them to “commit . . . to a prescribed rule.” [FN50]
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The other good reason for deference-superiority of the trial judge's position-follows if the issue raised involves
the trial judge having experienced the climate of the courtroom as opposed to the reviewing court's access to merely
the cold record. [FN51] Obviously, there is “a sound and proper reason for conferring a substantial measure of respect to the trial judge's ruling whenever it is based on facts or circumstances that are critical to decision and that the
record imperfectly conveys.” [FN52]
Judge Delores Sloviter, Circuit Judge of the Third Circuit of the United States Court of Appeals, explained that
the commitment to discretion involves *215 competing policy considerations: flexibility and individualized justice
versus consistency of treatment, predictability, and deprivation of effective review. [FN53] Consequently, it is only
when the issue under consideration is “dependent on [the trial court's] observation or familiarity with the course of
the litigation,” that appellate review should be limited by the trial court's discretion. [FN54]
Although reviewing courts frequently state that trial judges have discretion to decide the issues before them,
rarely do those decisions differentiate how that discretion should be used or how much deference the reviewing
court has given that discretion. As a result, the trial judge's discretion appears unlimited and the finding of any abuse
of that discretion improbable, if not impossible.
Where does the trial court obtain its discretion? Discretion may be inherent in the trial judge's role as supervisor
of the litigation and manager of his or her courtroom. [FN55] The ability of a trial court to exercise discretion may
be granted, knowingly or unknowingly, by the drafters of legislation and rules. [FN56] Frequently, courts interpret
the word “may” as used in statutes and procedural rules as a magic wand bestowing unlimited discretion on the trial
court. [FN57] Other discretionary-bestowing magic words include “in the interests of justice,” “on terms and conditions that are just,” and “if justice so requires.” [FN58]
Professor Rosenberg warns that a grant of discretion should not be presumed. [FN59] “Discretion is powerful
judicial medicine and draftsmen and judges should not be cavalier either in strewing it about or finding it implied.
Terms such as ‘may’ or ‘in the interest of justice’ should not be treated as synonymous with an explicit grant of review-restraining discretion.” [FN60] Accordingly, reviewing courts should look closely at the intent or policy behind legislation or rules to ascertain whether a statute or rule that uses discretionary-sounding language really grants
or limits a court's discretion.
*216 III. Ohio's Definition of Discretion
At one time the Ohio Supreme Court seemed to recognize two types of discretion: legal discretion and arbitrary
and uncontrolled discretion. Matters that rested in the sound discretion of the trial judge, that were to be determined
with a view to all the circumstances, were not reviewable on a writ of error. [FN61] Legal discretion was limited
discretion that had to be exercised in conformity with known rules, established practice, and precedent. [FN62] Although statutes might have used such words as “any order a court deems just and reasonable” or “in furtherance of
justice,” those words were not found to grant uncontrolled discretion, but, instead, constituted limitations on legal
discretion. [FN63]
In 1834, the Ohio Supreme Court recognized what it referred to as the “legal discretion” of a trial judge to grant
a new trial. [FN64] Without defining what constituted “legal discretion,” the court noted that it would be “extremely
difficult” to find error in such a decision. [FN65] In fact, for error to exist, the exercise of discretion would have to
be “manifestly erroneous.” [FN66]
Twenty-six years later, the court attempted to define discretion. [FN67] It said,
[i]n the conduct of a trial, very many matters must rest in the discretion of the court of original jurisdiction. If a matter complained of infringes upon no rule of law, and merely affects the mode or manner of arriv-
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ing at a determination, and not the right or merits to be decided, it is generally considered a matter of practice
within the discretion of the court, with which it would not be proper for a court of error to interfere. [FN68]
Seemingly, in matters that could be brought in on appeal (then proceeding in error), the range afforded a reviewing court was enlarged. [FN69]
In 1885, the Ohio Supreme Court concluded that the trial court abused its discretion by finding that a juror who
had formed an opinion based on material he had read and rumors he had heard, but who said he could render an
*217 impartial verdict, was competent to serve. [FN70] The statute governing the competency of jurors gave the
trial judge discretion to find such a juror competent. [FN71] The Ohio Supreme Court recognized that, although the
statute was constitutional, the discretion granted the trial judge could be used to evade the constitution. [FN72]
It determined that the latitude of discretion granted a court by a statute was limited by the constitution. [FN73]
The court concluded that such statutory discretion was “not absolute, or its exercise a finality. It is a sound legal
discretion and can be reviewed.” [FN74] The court determined that, although the trial judge followed the letter of
the law, he “overlooked [the statute's] principle, and confounded the impartiality required by the constitution with
the ability of the juror, not withstanding his prejudice, to render an impartial verdict.” [FN75] Chief Justice Johnson,
dissenting from that part of the majority's holding that the trial court abused its discretion stated, “[t]his discretion is
sound legal discretion, which this court cannot review, unless it is clear to the reviewing court that there has been a
manifest abuse of that discretion.” [FN76] The Chief Justice believed that the impartiality of a juror was a question
of fact and was best left to the trial judge who observed the juror. [FN77]
In Mount v. State, [FN78] the Ohio Supreme Court determined that after a jury was impaneled and the witnesses sworn, the state could not enter a nolle prosequi based on insufficient evidence without its operating as an
acquittal. In coming to that conclusion, the court refused to allow a defendant's destiny to be “controlled by no fixed
rule” or to have a defendant's fate “committed to an uncertain judicial discretion, too unlimited and too various to
furnish a just and safe guide, and which every cautious and prudent judge desires to avoid.” [FN79] Thus, it provided a fixed rule. [FN80]
The court recognized a distinction between legal discretion and absolute and uncontrolled discretion [FN81] and
cited to a South Carolina appellate decision, Reynolds v. State. [FN82] The Georgia Supreme Court had defined
legal discretion as “discretion that must be exercised in conformity to known rules. Arbitrary *218 discretion is but
another name for caprice, or favour. Under its exercise, the boldest may tremble, and the free be made slaves. It is
better therefore to act upon a fixed rule, even if it should now and then enable the guilty to escape, than to act without a rule, to the terror and danger of the innocent.” [FN83]
In Doty v. J.D. Rigour & Company, [FN84] the Ohio Supreme Court concluded that a statute that allowed
amendments to a trial court's record “in furtherance of justice” granted an exercise of legal discretion. [FN85] As
such, a supervising court will “carefully look to the circumstances and extent of its exercise. For, unless such discretion be cautiously and prudently exercised in the amendment of records, such amendments will rarely be found to
result in the ‘furtherance of justice.”’ [FN86]
In 1925, the Ohio Supreme Court in State v. Ferranto began to move away from the term “legal discretion,” and
to replace it with “judicial discretion,” which it defined as the power of a trial judge to “rule and decide as his best
judgment and sound discretion dictate . . . .” [FN87] The court recognized that discretion was incapable of an exact
definition and that there were different gradations of discretion. [FN88] “There are different kinds of discretion that
may be exercised by the trial court; there is a discretion in the right to decide as the court pleases, or in the decision
of what is just and proper under the circumstances, or according to the judgment of the court; . . .” [FN89]
In 1970, the court defined judicial discretion as
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the option which a judge may exercise between the doing and not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, and founded upon
the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case.
[FN90]
After 1970, the court rarely mentioned “legal discretion” in the context of judicial decision making. [FN91]
Lower courts in Ohio, however, continue to use “legal discretion” as a synonym for judicial discretion by saying that
judicial discretion is sound legal discretion. [FN92]
*219 IV. Abuse of Discretion
If “discretion” is such an elusive concept, how then can a reviewing court determine when discretion has been
abused? Commentators, practitioners, judges, and scholars have attempted to give some meaning to the amorphous
legal concept. One commentator explained, “[i]dentifying an abuse of discretion, for most appellate judges, is similar to identifying pornography: ‘I know it when I see it.”’ [FN93] Another commentator explained that appeals won
on abuse of discretion “are like the whooping crane not extinct, but exceedingly rare.” [FN94] To be overturned on
an abuse of discretion, a decision “must be eye-popping, neck-snapping, jaw-dropping egregious error.” [FN95]
Professor Rosenberg defined abuse of discretion as “the noise made by an appellate court while delivering a
figurative blow to the trial judge's solar plexus.” [FN96] He also stated that abuse of discretion
is used to convey the appellate court's disagreement with what the trial court has done, but does nothing
by way of offering reasons or guidance for the future. The phrase ‘abuse of discretion’ does not communicate
meaning. It is a form of ill-tempered appellate grunting and should be dispensed with. [FN97]
Professor Jon Waltz believes that the abuse-of-discretion standard “should be excised from the legal lexicon.”
[FN98] According to him, “‘[a]buse’ is a misnomer, carrying with it an implication of judicial perversity that is almost never justified or intended.” [FN99] Instead, reviewing courts use the term to mean, “either the discretion reposed in the lower court judge was not exercised in conformity with the applicable guidelines or the decision was
plainly against the logic and effect of the facts before the court.” [FN100]
Though the authors of this article might concur with these statements, the abuse of discretion rubric is too ingrained in the law to be dispensed. Perhaps we can better define it and limit it to its proper place as a standard with
*220 appellate review as the jurists discussed below have tried to do, but we fear it is here to stay.
Judge Henry J. Friendly of the United States Court of Appeals for the Second Circuit explained how the standard should be applied. He instructed that
[a]n appellate court must carefully scrutinize the nature of the trial court's determination and decide
whether that court's superior opportunities of observation or other reasons of policy require greater deference
than would be accorded to its formulations of law or its application of law to the facts. In cases within the
former categories, ‘abuse of discretion’ should be given a broad reading, in others a reading which scarcely
differs from the definition of error. Above all, an appellate court should consider whether the lawmaker intended that discretion should be committed solely to the trial judge or to judges throughout the system.
[FN101]
Judge Friendly explained that his definition of a broad interpretation of “abuse of discretion” means, “affording
expansive protection to the decision of the district court and limiting the scope of appellate review. By ‘narrow’ [he]
mean[t] narrowly protecting the decision of the district court and sustaining a wide scope of appellate review.”
[FN102]
In United States v. Criden, [FN103] Judge Sloviter provided guidance as to how a reviewing court should conduct an abuse of discretion review. [FN104] She recognized that a review for abuse of discretion consists of two
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types of review. [FN105] In the first type, great deference is paid to the trial judge's determination because the decision is necessarily based on first-hand observations or involves unsettled guiding principles. [FN106] In the second
situation, less deference is afforded. [FN107]
Judge Sloviter appreciated that before a reviewing court can determine whether the trial court abused its discretion, it is incumbent on the trial court to provide the reviewing court with the factors it considered and the weight he
or she gave to them. [FN108] When provided the necessary information, a reviewing court can then confine its “review of the exercise of discretion to its appropriate scope-i.e., whether the relevant factors were considered and *221
given appropriate weight . . . .” [FN109] Having the trial judge's reasoning process before it also “discourages reversal on the ground that the appellate judges might have decided differently had they been the original decisionmakers.” [FN110] According to Judge Sloviter, when determining whether the trial court abused its discretion, a reviewing court must decide whether the lower court used principled reasoning in exercising its discretion-did the trial
court consider the correct factors and did the trial court accord too little or much weight to the factors. [FN111]
Justice Stanley G. Feldman of the Arizona Supreme Court in State v. Chapple [FN112] identified two situations
where reviewing courts apply an abuse of discretion standard. [FN113] He explained,
[s]omething is discretionary because it is based on an assessment of conflicting procedural, factual or
equitable considerations which vary from case to case and which can be better determined or resolved by the
trial judge, who has a more immediate grasp of all the facts of the case, an opportunity to see the parties, lawyers and witnesses, and who can better assess the impact of what occurs before him. . . . Where, however, the
facts or inferences from them are not in dispute and where there are few or no conflicting procedural, factual,
or equitable consideration, the resolution of the question is one of law or logic. [FN114]
According to Justice Feldman, in the situation involving conflicting considerations, the trial judge has true discretion and a reviewing court should not second-guess the trial judge's decision. [FN115] But in the situation where
the issue is really based on law or logic, the reviewing court has a duty to closely examine what the trial judge decided and to substitute its judgment for the trial judge's, if appropriate. [FN116]
As the comments by Judge Friendly, Judge Sloviter, and Justice Feldman demonstrate, the abuse-of-discretion
standard has its place in the review process; however, for review to have any meaning a reviewing court “should
frame [its] review by issue, factors, reasoned analogy, and degree of discretion, providing general guidance on the
evolving concept of discretion as well as the specific application at hand.” [FN117] To enable a reviewing court to
provide a *222 principled review of a trial court's exercise of discretion, the trial court must provide the reviewing
court with the analysis by which it reached its decision. Failure to do so thwarts the review process because “the
focus of the reviewing court is supposed to be on the process used to reach the decision and not on the decision itself.” [FN118] Similarly, counsel, “should look to the body of caselaw on the issue involved to see what discretion
means in that context.” [FN119]
V. Ohio's Definition of Abuse of Discretion
We next turn to the history of the Ohio Supreme Court's definition of an abuse of discretion. In 1831, the Ohio
Supreme Court determined that before a matter left to the discretion of the lower court could be interfered with by a
higher tribunal, “a strong case of abuse must be presented . . . .” [FN120] Three years later, the court said that error
could lie in cases involving legal discretion where a lower court's exercise of discretion “would be so manifestly
erroneous,” but noted that such a situation “seldom occurs.” [FN121] In 1854, the court determined that a decision
left to the lower court's legal discretion could be reversed if it was “unauthorized by law” and to hold otherwise
would grant a trial court “absolute and uncontrollable, instead of legal, discretion.” [FN122]
A few years later, the court concluded that a trial judge's discretionary decision could not be reversed for error
“unless it clearly appear[ed], from all the facts and circumstances, that there ha[d] been an abuse of the discretion,
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operating to the prejudice of the party, in the final determination of the case . . . .” [FN123] In another case, decided
the same term, the court concluded that discretion was abused, not because of a difference of opinion between the
lower court and the reviewing court, but because the reviewing court determined that “the course pursued was not
only improper, but that it operated unjustly and injuriously to the parties.” [FN124] The court continued to define an
abuse of discretion as a decision “clearly and manifestly wrong” and in which the party has been prejudiced.
[FN125]
In 1892, the court moved from this more concrete definition of discretion and began its descent into amorphism.
In City of Alliance v. Joyce, [FN126] the court, quoting from a dissenting opinion of a New York Court of Appeals
decision, said that,
*223 [t]he exercise of an honest judgment, however erroneous it may seem to be, is not an abuse of discretion. Abuse of discretion, and especially gross and palpable abuse of discretion, which are the terms ordinarily employed to justify an interference with the exercise of discretionary power, implies, not merely error
of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency. [FN127]
This definition of abuse greatly enlarged the limits of discretion granted to the trial court.
It was not until 1925 that the Ohio Supreme Court tried again to define abuse of discretion. The issue before the
court in State v. Ferranto [FN128] was whether the trial court abused its discretion in accepting the defendant's
guilty plea after all the evidence had been presented and the state had made its closing argument. [FN129] Justice
Day looked to Bouvier's Law Dictionary first to define an abuse of judicial discretion. [FN130] It stated that an
abuse of discretion existed where the discretion was “‘exercised to an end or purpose not justified by, and clearly
against, reason and evidence.”’ [FN131] He also looked at definitions provided by other sources, including the failure of exercising a discretion that is discreet, circumspect, prudent and cautious. [FN132] Without appearing to
choose any specific definition, the court determined that the trial judge had not abused his discretion. [FN133] In a
decision in 1936, the court stated that an abuse of discretion was “a palpable perversion of judicial power.” [FN134]
One year later, the court, in determining whether a lower court abused its discretion in granting a new trial, defined an abuse of discretion as the exercise of discretion that is not sound and reasonable, and that is arbitrary or
capricious. [FN135] It stated that the abuse “must be clearly shown by the record, judged in the light of all the facts
and circumstances under which discretion was exercised.” [FN136]
Finally, in 1940, the Ohio Supreme Court in Steiner v. Custer [FN137] defined abuse of discretion in the manner that Ohio courts currently define the term. *224 In deciding whether the trial court abused its discretion in granting a new trial, the court held that “[t]he meaning of the term ‘abuse of discretion’ in relation to the granting of a
motion for a new trial connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary or
unconscionable attitude on the part of the court.” [FN138] In reaching this definition, the court relied on the 1910
second edition of Black's Law Dictionary. [FN139] It also concluded that State v. Ferranto had determined that an
abuse of discretion occurred when the trial court was “motivated by any unreasonable, improper or arbitrary consideration,” and that the State v. Ferranto definition was a less severe definition than the one provided in Steiner v. Custer. [FN140] The court later clarified that the abuse of discretion standard was inapplicable where a new trial is
granted on grounds that involve only a question of law. [FN141] In that case, the reviewing court must determine
whether the trial court erred as a matter of law. [FN142]
The court has since defined “arbitrary” as “‘without adequate determining principle; . . . not governed by any
fixed rules or standard,”’ . . . “unreasonable” as “‘irrational.”’ [FN143] It has more recently, and more reasonably,
defined “unreasonable” as a decision in which “there is no sound reasoning process that would support the decision.” [FN144]
The definition of abuse of discretion that the Ohio Supreme Court initially applied to a trial judge's granting of a
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motion for a new trial in Steiner v. Custer has subsequently been applied to almost all types of discretionary decisions, both procedural and substantive, and concerning criminal and civil matters. This includes decisions such as
the trial court's (1) apportionment of property in a divorce or termination of alimony, [FN145] (2) rulings on discovery issues, [FN146] (3) calling an individual as a witness of the court, [FN147] (4) limiting cross-examination of an
expert, [FN148] (5) dismissing an action with prejudice *225 under Civ. R. 41(B)(1), [FN149] (6) ruling on a motion for change of venue, [FN150] and (7) granting specific performance. [FN151]
Although the court clearly favors the Steiner v. Custer definition, it continues to struggle to define abuse of discretion. For example, in State v. Jenkins, [FN152] the defendant moved for a mistrial based on the trial court's limiting the time for closing argument to one and one-half hours. [FN153] While the court determined that no precise
rule could be laid down, it did provide factors for a reviewing court to consider when determining whether the trial
court abused its discretion in placing a time limitation on arguments. [FN154] Interestingly, it looked to the following definition of abuse of discretion applied by the Michigan Supreme Court in Spalding v. Spalding:
an abuse of discretion involves far more than a difference in . . . opinion . . . . The term discretion itself
involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an ‘abuse’ in reaching such determination, the result must be so palpably and grossly
violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of
judgment but defiance thereof, not the exercise of reason but rather of passion or bias. [FN155]
This same definition, along with the abuse-of-discretion definition enunciated in Steiner v. Custer, was used in
Huffman v. Hair Surgeon, Inc., [FN156] a case concerning the trial court's award of prejudgment interest. [FN157]
In Warner v. Waste Management, Inc., [FN158] the Ohio Supreme Court explained, “a mere analytical error
does not constitute an abuse of discretion. However, where the trial court completely misconstrues the letter and
spirit of the law, it is clear that the court has been unreasonable and has abused its discretion.” [FN159]
Under Ohio's definition of abuse of discretion, most abuse will be found under the “reasonableness” prong. This
prong, by its terms, requires a reviewing court to review the trial court's logic and to determine, regardless *226 of
the end result, whether the trial court engaged in a sound reasoning process. [FN160]
Because most cases involve the issue of whether the trial court used a sound reasoning process in reaching its
conclusion, it would seem there is little use to confuse the courts with the additional terms of “arbitrary” and “unconscionable.” It is highly likely that if a trial court failed to apply a sound reasoning process to determine an issue,
any discretion the court exercised necessarily would be arbitrary or unconscionable. Unfortunately, reviewing courts
frequently view “unreasonable, arbitrary, or unconscionable” as one and the same and, consciously or unconsciously, require outrageous or heinous conduct for reversal. Resultantly, reviewing courts are likely to neglect their
duty “to contain and confine the exercise of discretion within constitutional and statutory limitations and within
whatever guiding principles are set out by rules or custom.” [FN161] Too often, reviewing courts use the abuse of
discretion standard as an excuse for not reversing an obviously wrong decision by a trial court.
VII. How to Review for an Abuse of Discretion
Ohio's definition of abuse of discretion provides little guidance. Instead, the definition connotes almost unlimited discretion and very narrow review. While there are instances where greater deference is needed-supervision of
the courtroom or where guiding principles have not been fixed-the trial court's reasoning process should still be reasonable.
The terms unconscionable or arbitrary have no use in situations where the trial court had been provided legal
principles, standards, and rules to follow and where the trial judge is, in reality, making legal determinations. In
those situations the issue on review is whether the trial court's judgment is “untainted by legal error.” [FN162]
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Therefore, “[i]f the trial judge exercises a power of choice given him by law, and does so in a way that is lawful in
every respect, he has of course committed no legal error; and, it may not in such a case be concluded that he ‘abused
his discretion.”’ [FN163] An abuse of discretion occurs when the trial court (1) neglects or misapplies either the
rules or the law; (2) fails to consider factors provided by higher courts; (3) rules against logic as applied to the facts
of the case; or (4) bases its decision on irrelevant or impermissible factors. In these situations, great deference need
not be granted because the reviewing court is in as good a position as the trial court to say whether error was committed.
*227 As the Arizona Supreme Court explained in State v. Chapple, [FN164]
[w]here, however, the facts or inferences from them are not in dispute and where there are few or no
conflicting procedural, factual, or equitable considerations, the resolution of the question is one of law or
logic. Then it is our final responsibility to determine law and policy and it becomes our duty to “look over the
shoulder” of the trial judge and, if appropriate, substitute our judgment for his or hers. [FN165]
In Johnson v. United States, [FN166] Chief Justice Newman of the District of Columbia Court of Appeals set
forth a five-step analysis to determine whether a trial court abused its discretion. [FN167] The issue before the court
was whether the trial court abused its discretion in denying a motion to sever the trials of codefendants charged in a
ten-count indictment that included kidnapping, sodomy, armed robbery, assault with an intent to kill, and assault
with a deadly weapon. [FN168] The motion for severance was based on conflicting defenses and manifest antagonism among the defendants. [FN169]
This same analysis was adopted by Judge Powers, a Texas appellate judge, in Landon v. Jean-Paul Budinger,
Inc. [FN170] The issue in that case was whether the trial court abused its discretion in directing remittitur of $1,500
when a jury determined that a $6,000 award of attorney fees was reasonable and necessary and that amount was
supported by the evidence. [FN171]
Below is the five-step analysis the two courts used to determine whether the trial court abused its discretion.
1. Did the law commit the matter onappeal to the discretion of the trial court? The answer is found in
statutes, procedural rules, and the common law. If so, the reviewing court should state in its decision where
the grant of discretion is found. [FN172]
2. Did the trial court “recognize and purport to act in an exercise of the discretion committed to it by the
law?” [FN173]
3. Does the record on appeal provide sufficient facts to determine whether the trial court could have
acted rationally in *228 exercising its discretion? If there are not sufficient facts to make a rational decision,
the trial court abused its discretion. [FN174]
4. Did the trial court erroneously exercise its discretion? [FN175]
a. Did the trial court make a decision that it was “not within the range of choices permitted by law?”
[FN176]
b. Did the trial court arrive at its decision “in violation of any general rules of law?” [FN177]
c. Did the trial court err, “even though it complied with the law in all other respects, because its determination was legally unreasonable in the factual-legal context in which it was made?” [FN178]
i. Did the trial court fail to consider a factor shown in the evidence that was legally relevant? [FN179]
ii. Did the trial court consider any factor it was forbidden to consider? [FN180]
iii. Did the trial court exaggerate a legally relevant factor to an unreasonable degree? [FN181]
To adequately review a discretionary decision under this step of the analysis, it is important that the trial
court provide its reasoning in the record. [FN182]
5. If there is legal error, was the error prejudicial? [FN183]
Below are cases exemplifying the application of these guidelines.
A. Johnson v. United States
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In Johnson v. United States, the Court of Appeals of the District of Columbia affirmatively answered the question of whether the issue of severance of codefendants' trial was committed to the trial court's discretion. [FN184] It
explained where the grant of discretion was found. [FN185] Super. Ct. Crim. R. 8(b) allowed for joinder if defendants had been “charged with crimes arising from the same act or transaction or series of acts or *229 transactions.”
[FN186] Super. Ct. Crim. R. 14 allowed for severance if joinder would be prejudicial. [FN187] The reviewing court
also cited to case law that established that abuse of discretion was the standard of review for the trial court's decision. [FN188]
Because the trial judge stated that justice dictates that the defendants stay together, and “justice” is one of those
words that recognizes a choice among alternatives, the court concluded that the record demonstrated that the trial
court recognized that it had discretion and purported to exercise that discretion. [FN189]
The reviewing court also determined that the record contained sufficient facts for the trial court to make a rational decision. [FN190] The trial court knew that a codefendant had threatened another codefendant because that
codefendant's testimony would contradict his alibi testimony and that the codefendants had conflicting defenses.
[FN191]
As to the next step of the analysis, the court determined that the trial court erroneously exercised its discretion.
[FN192] The trial court stated, “I suggest that's why you prosecute two people caught in the automobile at the same
time. One hangs the other.” [FN193] According to the reviewing court, the trial judge concluded that the fact that
the defendants had irreconcilable defenses was no reason to sever the cases. [FN194] The reviewing court cited to
case law that held that severance was proper where there were irreconcilable defenses and the danger of the jury
being misled into a guilty verdict from the existence of conflicting defenses. [FN195] It concluded that “the trial
court effectively negated the guiding legal principles which constrained its discretionary choice. Having failed to
apply the proper legal principles to its discretionary choice, the ruling of the court constituted error.” [FN196]
In the final step of its analysis, the reviewing court determined that the error was prejudicial because the trial
court applied the wrong legal principles. [FN197] The defendant's fear that the codefendant would become a star
witness for the state when he testified in his own defense actually happened. [FN198]
*230 B. Landon v. Jean-Paul Budinger, Inc.
In Landon, the Texas Court of Appeals determined that the discretion is committed to the trial judge to order
remittitur of attorney fees where the jury award was in excess of just compensation. [FN199] The court explained
that Tex. R. Civ. P. 328 authorized trial courts to order remittiturs where the damages were manifestly too large and
that case law allowed remittitur as to attorney fees. [FN200] The reviewing court also determined that the trial judge
purported to exercise its discretion by ordering the remittitur requested. [FN201]
In the next step of its analysis, the reviewing court looked at the factual context in which the trial judge made
his decision to determine whether the discretion was exercised in a rational manner. [FN202] The court presumed
that the trial judge determined the motion for remittitur based on the record of the underlying proceedings and his
personal observations and appraisal of the trial. [FN203] The evidence below consisted of the number of hours spent
by the attorney and the reasonable hourly rate for the kind of work involved. [FN204] The reviewing court concluded that it was unable to say that the trial judge could not have rationally made its decision from the evidence and
his observations. [FN205]
The reviewing court next determined whether the trial judge erroneously exercised its discretion. [FN206] It
stated that there was no contention that the trial court violated any law or rule and found that the decision was within
the trial judge's legal alternatives. [FN207] The reviewing court then examined whether the trial judge's determina-
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tion was “legally unreasonable in the factual-legal context in which it was made.” [FN208] The court explained the
factors to be considered to determine the reasonableness of attorney fees. [FN209] But the trial record failed to reveal what the trial judge considered in arriving at its decision. [FN210] Because there was no legal duty to state its
reasoning, the appellate court presumed “the trial court considered only the legally relevant factors and that it did not
omit or exaggerate any of them, but orchestrated and *231 evaluated them in a rational manner.” [FN211] The reviewing court did not reach the final step of the analysis because it concluded there was no legal error. [FN212]
The Texas Court of Appeals recognized the problem with the trial court's failing to state its reasoning process
on the record. [FN213] It deemed the problem to be one for the Texas Supreme Court to address by requiring the
trial judge to state its reasons on the record. [FN214] Under Tex. R. App. P. 81(b)(1), a trial judge's decision is reversible if it prevents a party from making a proper presentation to an appellate court. [FN215] Ironically, because
of a Texas Supreme Court case that held the fact a trial judge gave no reason for its remittitur order was irrelevant,
[FN216] it was not legal error for the trial judge to fail to provide the reasons behind his remittitur order even though
the failure prevented a proper presentation to the reviewing court. [FN217]
We note in passing that an Ohio Common Pleas Court judge put the problem in more practical terms. [FN218]
If a trial judge fails to set forth his or her reasoning the “chances of being affirmed are better than if the record is
spelled out.” [FN219] There is no incentive for the trial judge to allow his or her reasoning process to be scrutinized
by a reviewing court when he or she can arguably engage in no analysis and hide behind the “presumption of regularity” doctrine. But the presumption-of-regularity fiction is a topic for another article.
C. Reese v. State
In Reese v. State, [FN220] the trial judge determined that a photograph of a murder victim in her casket holding
her fetus was admissible during the punishment phase of the defendant's capital murder case. [FN221] The defendant had killed both the pregnant victim and a neighbor when they intervened during an altercation between the defendant and his girlfriend. [FN222] At the time the victim was murdered, her unborn child was also killed. [FN223]
The fetus had *232 been removed after the victim's death. [FN224] It was unknown when the fetus was removed,
but the defendant had not removed it. [FN225]
The reviewing court gave the following description of what the eight-inch-by-ten-inch color photograph depicted.
The coffin contained a lining made of white textured material. A spray of white flowers was placed next
to the coffin. The coffin was open, and the victim was lying in it with one of her hands and her face showing.
The victim's dress was white with gold and white buttons. She wore gold earrings and a gold bracelet. Her
hair had been fixed with spiral curls. Magenta lipstick had been applied to her lips, eye makeup had been applied to her eyelids, and blush had been applied to her cheeks. . . . The unborn child was placed next to his
mother with only his face . . . showing. The unborn child is miniature in form and his face is only a fraction of
the size of his mother's hand. . . . The unborn child in the photograph appears tiny, innocent, and vulnerable.
[FN226]
The issue on appeal, even assuming the photograph had some relevance, was did the trial court abuse its discretion by admitting the photograph because its probative value was substantially outweighed by its unfair prejudicial
value. [FN227]
While not explicitly using the five-step analysis explained, supra, the reviewing court's analysis can be gleaned
from its decision. [FN228] The Texas Court of Criminal Appeals determined that case law committed the determination of relevancy to the trial court and that evidence may be admitted during the penalty phase on any matter the trial
judge deems relevant to future dangerousness and mitigation. [FN229] The appellate court “assumed” that the photograph was relevant because it arguably showed the foreseeable consequences of the defendant's acts and his vio-
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lent or vicious nature. [FN230] It next examined whether there was an abuse of discretion under Tex. R. Evid. 403evidence is improperly admitted where “its probative value is substantially outweighed by the danger of [its] unfair
prejudice.” [FN231]
The appellate court determined that the weighing of probative value against unfair prejudice is committed to the
discretion of the trial court, *233 apparently relying on the permissive language of Tex. R. Evid. 403 and case law.
[FN232] The trial court purported to exercise its discretion by admitting the photograph over the defendant's objection. [FN233]
The record on appeal provided enough facts to determine whether the trial court acted rationally in exercising its
discretion. [FN234] The trial court admitted the contested color photograph of mother and fetus. [FN235] Other
photographs of the crime scene and the autopsies of the mother and the other victim had been admitted during the
guilt-phase of the trial. [FN236]
The next question was whether the trial court erroneously exercised its discretion. [FN237] The appellate court
cited to the following factors that a trial court should consider during a Tex. R. Crim. Evid. 403 analysis: (1) how
probative is the evidence, (2) what is the potential for the evidence to impress the jury in an irrational, but indelible
way; (3) how much time does the proponent need in order to develop the evidence; and (4) does the proponent need
the evidence. [FN238]
It also provided relevant criteria weighing in favor of prejudice as gleaned from case law. [FN239] The criteria
included whether (1) the ultimate issue was seriously contested by the opponent, (2) there was other convincing evidence to establish the ultimate issue for which the contested evidence was relevant, (3) the probative value of the
evidence was compelling, and (4) a jury charge to consider the evidence only for its proffered purpose would have
been effective. [FN240] The court explained,
when the record reveals one or more such relevant criteria reasonably conducing to a risk that the probative value of the tendered evidence is substantially outweighed by unfair prejudice, then an appellate court
should conclude that the trial court acted irrationally in failing to exclude it, and thus abused its discretion.
[FN241]
Specifically regarding photographs of a victim, the reviewing court stated that it should consider the number of
photographs, the size, detail, and gruesomeness of the contested photograph, as well as whether the photograph *234
was color or black and white, the body was naked or clothed, and whether the body had been altered since the crime.
[FN242]
The reviewing court determined, for the sake of argument, that the first factor of the Tex. Evid. R. 403 analysis,
the probativeness of the photograph, weighed heavily in favor of the state. [FN243] It also found that the third factor, the time to present the evidence, weighed in favor of the state. [FN244] The reviewing court determined that the
second factor, the potential to impress the jury in an irrational yet indelible manner, weighed in favor of the defendant. [FN245] The facts depicted in the photograph were not relevant to the penalty phase special issues and created
the danger of the jury decision being based on emotion and not relevant evidence. [FN246] As to the fourth factor,
the proponent's need for the evidence, the reviewing court concluded that the factor weighed heavily in favor of the
defendant. [FN247] The state had other photographs that would have served the same purpose as the contested photograph, the death of the victim was not in dispute during the penalty phase, and the death of the fetus was not a fact
of consequence in dispute. [FN248]
Holding that the unfair prejudice of the photograph substantially outweighed its probative value, the reviewing
court concluded that the trial judge abused his discretion. [FN249] Obviously, the appellate court determined that
the trial court erred because “its determination was legally unreasonable in the factual-legal context in which it was
made.” [FN250]
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Finally, the reviewing court determined that the error was prejudicial because there was “no fair assurance that
the error did not influence the jury, or had but a slight effect.” [FN251] The court based its conclusion on the state's
admission that it was attempting to inflame the jury's passions, that it offered only the contested photograph during
the penalty phase of defendant's trial, and that it used and emphasized the photograph during its closing arguments.
[FN252] Consequently, the jury went into deliberations thinking about the unborn child. [FN253]
As the foregoing cases illustrate, when a reviewing court engages in a meaningful analysis of a trial judge's exercise of his or her discretion, the *235 abuse of discretion standard has more substance than that currently afforded
under Ohio law. To merely say that a decision is or is not “unreasonable, arbitrary, or unconscionable” provides
little guidance to the trial court or to practitioners. As one of the authors of this paper stated in his dissent in State v.
Neeley, [FN254] a reviewing court should not shrug off its analysis in one sentence. [FN255]
Neeley concerned the use of a videotape of the victim's body as demonstrative evidence. [FN256] The trial
judge had admitted fourteen “gruesome” photographs, including pictures of the “maggot-ridden remains of the victim's face.” [FN257] The videotape depicted the same, although the jury could actually watch the maggots move.
[FN258] The majority's analysis consisted of a statement that the reviewing court was unpersuaded that the jury's
viewing of the videotape prejudiced the defendant because, like the photographs, the videotape depicted where and
how the victim's body was found. [FN259] This conclusion begs the question: if the passive form of evidence that
has been judged as “gruesome” by the appellate court has already been admitted fourteen times, how can the videotape be more probative than prejudicial? Without a complete analysis, the reviewing court's mere conclusion fails to
educate or enlighten either appellate counsel or the trial judge. Too often, Ohio appellate courts simply rubber stamp
obviously wrong rulings by the trial court under the “abuse of discretion” rubric.
VIII. Conclusion
We think that the term “abuse of discretion” is misleading and allows erroneous decisions to wear the cloak of
judicial authority. But that term is ingrained in the lexicon of the legal system. As stated by Justice Feldman's comment in State v. Chapple, [FN260] “the law would be better served if we were to apply a different term, but since
most appellate judges suffer from misocainea, we will no doubt continue to use the phrase ‘abuse of discretion.”’
[FN261]
Thus, if we are to use the abuse of discretion standard of review, we must find a way to make it work. To work,
the standard has to be applied consistently to similar situations and both practitioners and judges have to understand
its underlying meaning. It cannot continue to be used by both *236 lower courts and reviewing court as a means to
avoid rigorous analysis and to avoid difficult issues. It cannot continue to be seen by practitioners as another word
for “affirm.”
If appellate courts would use the analysis used by the reviewing courts above when determining whether the
trial judge abused its discretion, the trial judge would have a better understanding of how to exercise its discretion in
any given case. Practitioners would be better educated as to how to argue discretionary matters on appeal. Both
lower and reviewing courts could be more consistent in their decisions. Of course, this would require the trial court
to actually provide its reasoning for its decision. Just as having the trial court's analysis before it would require the
reviewing court to actually review the reasoning process exercised by the trial court and to actually determine
whether the trial court's decision was based on a sound reasoning process.
To ensure that discretion is not abused, the trial court must provide its reasoning process on the record. Reviewing courts, in turn, must assure that the discretion granted trial judges is not abused or misused; that it is exercised
within the bounds of legal standards, principles, and rules. They must rigorously examine the law granting the discretion and the limitations placed upon the discretion to determine whether it was properly exercised. Without that,
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the abuse of discretion standard of review is meaningless no matter what “unrefined, variable, subjective, and conclusory” words the reviewing court applies to the trial court's transgression. [FN262]
[FNa1]. Mark P. Painter, Judge, Ohio First District Court of Appeals, 1995-; Adjunct Professor of Law, University
of Cincinnati College of Law, 1990-; Judge, Hamilton County Municipal Court, 1982-95; B.A., University of Cincinnati, 1970; J.D., University of Cincinnati College of Law, 1973.
[FNa2]. Paula L. Welker, Esq., a 1988 magna cum laude graduate of Southern Illinois University School of Law, is
currently a law clerk for Judge Painter and a lecturer on Law, University of Cincinnati, College of Law. She has also
practiced as a litigation associate with a major Cincinnati law firm and has served as an Ohio assistant attorney general.
[FN1]. Benjamin N. Cardozo, The Nature of the Judicial Process 141 (1921).
[FN2]. See Woodruff v. Woodruff, 217 N.E.2d 264 268-69 (Ohio Ct. Com. Pl. 1965).
[FN3]. See id.
[FN4]. Martha S. Davis, Standards of Review: Judicial Review of Discretionary Decisionmaking, 2 J. App. Prac. &
Process 47 (2000).
[FN5]. Michael R. Bosse, Standards of Review: The Meaning of Words, 49 Me. L. Rev. 367, 397 (1997).
[FN6]. W. Wendell Hall, Standards of Review in Texas, 29 St. Mary's L.J. 351, 356 (1998); Martha S. Davis, A
Basic Guide to Standards of Judicial Review, 37 S.D. L. Rev. 469, 469 (1988).
[FN7]. Ronald R. Hofer, Standards of Review Looking Beyond the Labels, 74 Marq. L. Rev. 231, 232 (1991).
[FN8]. Hall, supra note 6, at 357 (citing John C. Godbold, Twenty Pages and Twenty Minutes Effective Advocacy
on Appeal, 30 SW. L.J. 801, 810 (1976)).
[FN9]. Hon. Mary M. Schroeder, Appellate Justice Today: Fairness or Formulas, Fairchild Lecture, 1999 Wis. L.
Rev. 9, 10 (1993).
[FN10]. Jacques L. Warner, Jr., Ruminations from the Bench: Brief Writing and Oral Argument in the Fifth Circuit,
70 Tul. L. Rev. 187, 189-90 (1995).
[FN11]. Bosse, supra note 5, at 398.
[FN12]. See State v. Krutz, 502 N.E.2d 210, 212 (Ohio 1986).
[FN13]. See State v. Johnson, 723 N.E.2d 1054, 1073 (Ohio 2000).
[FN14]. See Pasqualone v. Pasqualone, 406 N.E.2d 1121, 1128 (Ohio 1980).
[FN15]. See State v. Tibbetts, 749 N.E.2d 226, 240-41 (Ohio 2001).
[FN16]. See State v. Esparaza, 660 N.E.2d 1194, 1196-97 (Ohio 1996).
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[FN17]. Anderson v. Highland House Co., 757 N.E.2d 329, 331 (Ohio 2001).
[FN18]. Crestmont Cleveland P'ship v. Ohio Dep't of Health, 746 N.E.2d 222, 228 (Ohio App. 2000).
[FN19]. Ornelas v. United States, 517 U.S. 690, 691 (1996).
[FN20]. Id.
[FN21]. Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 Syracruse L. Rev. 635,
659 (1971) [hereinafter Rosenberg, Judicial Discretion].
[FN22]. Hall, supra note 6, at 357.
[FN23]. Steven Alan Childress & Martha S. Davis, 2 Standards of Review § 15.8, at 296 (1986) [hereinafter Standards of Review].
[FN24]. Rosenberg, Judicial Discretion, supra note 21, at 636.
[FN25]. 2 Standards of Review, supra note 23, § 7.6, at 23.
[FN26]. Hall, supra note 6, at 365.
[FN27]. See Maurice Rosenberg, Appellate Review of Trial Court Discretion, 79 F.R.D. 173, 176-179 (1975) [hereinafter Rosenberg, Appellate Review].
[FN28]. Rosenberg, Judicial Discretion, supra note 21, at 650.
[FN29]. See 2 Standards of Review, supra note 23, § 15.8, at 296.
[FN30]. Martha Davis, A Basic Guide to Standards of Judicial Review, 33 S.D. L. Rev. 468, 481. For example, several Ohio appellate courts initially reviewed prison sentences imposed by trial courts under Ohio's felony-sentencing
statutes under an abuse-of-discretion standard when the statutes were first enacted in 1996. The statutes provide factors for the trial court to consider before imposing its sentence. In October of 2000, the legislature explicitly mandated that abuse of discretion was not the reviewing standard to be used by appellate courts. Ohio Rev. Code Ann. §
2953.08(G)(2) (Anderson Supp. 2000). Instead, the court can modify the trial court's sentence if it “clearly and convincingly finds” one of two enumerated situations. The legislature's amendment made clear that it did not intend for
the trial court to have unbridled discretion in sentencing.
[FN31]. A recent Ohio Supreme Court case, somewhat confusingly, concluded that the factors to be considered in
Ohio's sexual-predator statute, Ohio Rev. Code Ann. § 2950.09(B)(2) (Anderson Supp. 2000), were mandatory, but
did not limit the trial court's discretion because the trial court has discretion to determine the weight he or she will
assign each factor or guideline. See State v. Thompson, 752 N.E.2d 276, 278 (Ohio 2001) (paragraph one of the
syllabus).
[FN32]. State v. Sage, 510 N.E.2d 343, 344 (Ohio 1987) (paragraph two of the syllabus).
[FN33]. Curtis v. Chiaramonte, 371 N.E.2d 839, 840 (Ohio 1978).
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[FN34]. See Bechtol v. Bechtol, 550 N.E.2d 178, 180 (Ohio 1990).
[FN35]. Toney v. Berkemer, 453 N.E.2d 700, 702 (Ohio 1983).
[FN36]. See State v. White, 709 N.E.2d 140, 150 (Ohio 1999).
[FN37]. See State v. Coleman, 707 N.E.2d 476, 484-85 (Ohio 1999).
[FN38]. See supra notes 32-37.
[FN39]. Curtis, 371 N.E.2d at 840.
[FN40]. See State v. Unger, 423 N.E.2d 1078, 1080 (Ohio 1981).
[FN41]. Id.
[FN42]. Davis, supra note 30, at 480.
[FN43]. See Rosenburg, Judicial Discretion, supra note 21, at 660.
[FN44]. See id. at 663-65.
[FN45]. Id. at 660-65.
[FN46]. Id.
[FN47]. Id. at 662.
[FN48]. Rosenburg, Judicial Discretion, supra note 21, at 662.
[FN49]. Id.
[FN50]. Id.
[FN51]. Id. at 663-65.
[FN52]. Id. at 664 (emphasis in original).
[FN53]. United States v. Criden, 648 F.2d 814, 818 (3rd Cir. 1981).
[FN54]. Id.
[FN55]. See Rosenburg, Judicial Discretion, supra note 21.
[FN56]. See id. at 653.
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[FN57]. The Ohio Supreme Court in Dorrian v. Scioto Conservancy Dist., 271 N.E.2d 834, 837 (Ohio 1971), recognized that “may,” is generally construed as discretionary. It noted that the word, in some contexts, could be construed as mandatory.
[FN58]. See, e.g., Brkic v. City of Cleveland, 653 N.E.2d 1225, 1228 (Ohio 1995); State v. Jackson, No. 99-L-134,
2001 WL 409542 (Ohio App. Apr. 20, 2001); Swift v. Swift, No. 99-T-0165, 2000 WL 1239908 (Ohio App. Sept. 1,
2000).
[FN59]. Rosenberg, Judicial Discretion, supra note 21, at 657.
[FN60]. Id.
[FN61]. See Legg v. Drake, 1 Ohio St. 286, 289 (1853). Contra Dobbins v. State, 14 Ohio St. 493, 503 (1863) (Ohio
Supreme Court bound to review every order or judgment that may have affected injuriously the legal rights of an
accused and the facts upon which the orders and judgments were founded).
[FN62]. Dobbins, 14 Ohio St. at 500.
[FN63]. See Doty v. J.D. Rigour & Co., 9 Ohio St. 526, 533 (1859); In re Wells County Road, 7 Ohio St. 16, 20
(1857).
[FN64]. See Hurley v. State, 6 Ohio 399, 404-05 (1834).
[FN65]. See id. at 404.
[FN66]. See id. at 405.
[FN67]. See Gandolfo v. State, 11 Ohio St. 114, 118 (1860).
[FN68]. Id. at 118.
[FN69]. Id.
[FN70]. Palmer v. State, 42 Ohio St. 596 (1885).
[FN71]. Id. at 604.
[FN72]. Id.
[FN73]. See id.
[FN74]. Id.
[FN75]. Palmer, 42 Ohio St. at 605.
[FN76]. Id. at 606-07 (Johnson, C.J., concurring).
[FN77]. Id.
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[FN78]. 14 Ohio 295 (1846).
[FN79]. Id. at 303.
[FN80]. See id.
[FN81]. See id.
[FN82]. 3 Ga. 53 (1847).
[FN83]. Id. at 69-70.
[FN84]. 9 Ohio St. 526 (1859).
[FN85]. Id. at 533.
[FN86]. Id.
[FN87]. See State v. Ferranto, 148 N.E. 362, 364 (Ohio 1925) (internal quotation omitted).
[FN88]. Id.
[FN89]. Id.
[FN90]. Krupp v. Poor, 265 N.E.2d 268, 269 (Ohio 1970).
[FN91]. See Ohio Sav. Bank v. Ambrose, 563 N.E.2d 1388 (Ohio 1990); Sternberg v. Bd. of Trustees of Kent St.
Univ., 308 N.E.2d 457 (Ohio 1974).
[FN92]. See Dean d/b/a/ E.W.D. Constr. v. Aufdencamp, No. WD-88-44, 1989 WL 103347, at *1 (Ohio App. 6th
Dist. Sept. 8, 1989)
[FN93]. Hall, supra note 6, at 360.
[FN94]. Roger Badeker, Wide as a Church Door, Deep as a Well: A Survey of Judicial Discretion, 61 J. Kan. B.A.
33, 33 (1992).
[FN95]. Id.
[FN96]. Rosenberg, Appellate Review, supra note 27, at 180.
[FN97]. Rosenberg, Judicial Discretion, supra note 21, at 659.
[FN98]. Jon R. Waltz, Judicial Discretion in the Admission of Evidence Under the Federal Rules of Evidence, 79
Nw. U.L. Rev. 1097, 1103 (1984-1985).
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[FN99]. Id. at 1103-04.
[FN100]. Id. at 1104.
[FN101]. Hon. Henry J. Friendly, Indiscretion about Discretion, 31 Emory L.J. 747, 784 (1982).
[FN102]. Id. at 764, n.62.
[FN103]. See United States v. Criden, 648 F.2d 814 (3rd Cir. 1981).
[FN104]. See id.
[FN105]. See id. at 817-18.
[FN106]. See id.
[FN107]. See id. at 818.
[FN108]. See Criden, 648 F.2d at 819.
[FN109]. Id.
[FN110]. Id.
[FN111]. See id.
[FN112]. 660 P.2d 1208 (Ariz. 1983).
[FN113]. Chapple, 660 P.2d at 1224 n.18.
[FN114]. 660 P.2d at 1224 n.18.
[FN115]. See id.
[FN116]. See id.
[FN117]. 1 Standards of Review, supra note 23, § 4.1, at 231.
[FN118]. Davis, supra note 4, at 83.
[FN119]. Id.
[FN120]. Avery v. Ruffin, 4 Ohio St. 420, 424 (1831).
[FN121]. Hurley, 6 Ohio St. at 405.
[FN122]. Poage v. Ohio, 3 Ohio St. 229, 240 (1854).
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[FN123]. Holt v. State, 11 Ohio St. 691, 691 (1860).
[FN124]. Gandolfo, 11 Ohio St. at 118.
[FN125]. Dille v. Lovell, 37 Ohio St. 415, 418 (1881).
[FN126]. City of Alliance v. Joyce, 30 N.E. 270 (Ohio 1892).
[FN127]. Id. at 273-74 (quoting People v. N.Y. Cent. R. Co., 29 N.Y. 418, 431).
[FN128]. 148 N.E. 362 (Ohio 1925).
[FN129]. Id. at 364.
[FN130]. Id.
[FN131]. Id. at 365.
[FN132]. Id. at 364-65.
[FN133]. Ferranto, 148 N.E. at 367.
[FN134]. Calvert v. Calvert, 199 N.E. 473, 476 (Ohio 1936).
[FN135]. See Wagner v. Long, 11 N.E.2d 247, 251 (Ohio 1937), overruled on other grounds by Klein v. BendixWestinghouse Automotive Air Brake Co., 234 N.E.2d 587 (Ohio 1968).
[FN136]. Wagner, 11 N.E.2d at 251.
[FN137]. 31 N.E.2d 855 (Ohio 1940).
[FN138]. Steiner, 31 N.E.2d at 855 (paragraph two of the syllabus).
[FN139]. The seventh edition of Black's Law Dictionary defines abuse of discretion as “[a]n adjudicator's failure to
exercise sound, reasonable, and legal decision-making” or as “[a]n appellate court's standard for reviewing a decision that is asserted to be grossly unsound, unreasonable, or illegal.” Black's Law Dictionary 10 (7th ed. 1999).
[FN140]. See Steiner, 31 N.E.2d at 857.
[FN141]. See Rohde v. Farmer, 262 N.E.2d 685 (Ohio 1970).
[FN142]. See id.
[FN143]. See Sandusky Properties v. Aveni, 473 N.E.2d 798, 800 (Ohio 1984).
[FN144]. AAAA Enter. v. River Place Community Urban Redevelopment Corp., 553 N.E.2d 597, 601 (Ohio 1990).
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[FN145]. See Conner v. Conner, 162 N.E.2d 852 (Ohio 1959); Blakemore v. Blakemore, 450 N.E.2d 1140 (Ohio
1983).
[FN146]. See Tracy v. Merrill Dow Pharmaceuticals, 569 N.E.2d 875 (Ohio 1991).
[FN147]. See State v. Adams, 404 N.E.2d 144 (Ohio 1980).
[FN148]. See Calderon v. Sharkey, 436 N.E.2d 1008 (Ohio 1982).
[FN149]. See Pembaur v. Leis, 437 N.E.2d 1199 (Ohio 1982).
[FN150]. See State v. Maurer, 473 N.E.2d 768 (Ohio 1984).
[FN151]. See Aveni, 473 N.E.2d 798.
[FN152]. 473 N.E.2d 264 (Ohio 1984).
[FN153]. Id. at 264.
[FN154]. See id. at 313.
[FN155]. Id.
[FN156]. 482 N.E.2d 1248 (1985).
[FN157]. Huffman, 482 N.E.2d at 1248.
[FN158]. 521 N.E.2d 1091 (Ohio 1988).
[FN159]. Warner, 521 N.E.2d at 1099 n.10.
[FN160]. See AAAA Enter., 553 N.E.2d at 601.
[FN161]. Davis, supra at note 30, at 481.
[FN162]. Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 936 (Tex. App. 1987).
[FN163]. Id.
[FN164]. 660 P.2d 1208 (Ariz. 1983).
[FN165]. Id. at 1224 n.18.
[FN166]. 398 A.2d 354 (D.C. App. 1979).
[FN167]. Id. at 354.
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[FN168]. Id.
[FN169]. Id.
[FN170]. See 724 S.W.2d 931; see also Hall, supra note 6.
[FN171]. Landon, 724 S.W.2d at 937.
[FN172]. See id. at 937; Johnson, 398 A.2d at 363.
[FN173]. See Landon, 724 S.W.2d at 938; Johnson, 398 A.2d at 363.
[FN174]. See Landon, 724 S.W.2d at 938; Johnson, 398 A.2d at 364.
[FN175]. See Landon, 724 S.W.2d at 939; Johnson, 398 A.2d at 365.
[FN176]. Landon, 724 S.W.2d at 939; Johnson, 398 A.2d at 365.
[FN177]. Landon, 724 S.W.2d at 393.
[FN178]. Id.
[FN179]. See Landon, 724 S.W.2d at 939-40; Johnson, 398 A.2d at 365.
[FN180]. See Landon, 724 S.W.2d at 939-40; Johnson, 398 A.2d at 365.
[FN181]. See Landon, 724 S.W.2d at 940.
[FN182]. See Landon, 724 S.W.2d at 940; Johnson, 398 A.2d at 366.
[FN183]. See Landon, 724 S.W.2d at 941; Johnson, 398 A.2d at 366.
[FN184]. Johnson, 398 A.2d at 354.
[FN185]. Id.
[FN186]. Id. at 367.
[FN187]. Id.
[FN188]. See id.
[FN189]. See Johnson, 398 A.2d at 368.
[FN190]. See id.
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[FN191]. See id. at 359-60.
[FN192]. See id. at 368.
[FN193]. Id.
[FN194]. See Johnson, 398 A.2d at 368.
[FN195]. Id.
[FN196]. Id.
[FN197]. Id.
[FN198]. Id.
[FN199]. See Landon, 724 S.W.2d at 937-38.
[FN200]. See id. at 937.
[FN201]. See id. at 938.
[FN202]. Id.
[FN203]. See id.
[FN204]. See Landon, 724 S.W.2d at 934
[FN205]. See id. at 939.
[FN206]. Id.
[FN207]. See id.
[FN208]. Id.
[FN209]. Landon, 724 S.W.2d at 940.
[FN210]. Id.
[FN211]. Id. at 941.
[FN212]. Id.
[FN213]. Id.
[FN214]. See Landon, 724 S.W.2d at 940.
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[FN215]. See id. at 941.
[FN216]. See Flanigan v. Carswell, 324 S.W.2d 835 (Tex. 1959).
[FN217]. See Landon, 724 S.W.2d at 940.
[FN218]. Woodruff, 217 N.E.2d 264.
[FN219]. Id. at 268.
[FN220]. 33 S.W.3d 238 (Tex. Crim. App. 2000).
[FN221]. Id. at 238.
[FN222]. Id. at 246.
[FN223]. Id. at 239.
[FN224]. Id.
[FN225]. Reese, 33 S.W.3d at 239.
[FN226]. Id. at 242.
[FN227]. Id. at 239.
[FN228]. Id.
[FN229]. Id. at 240.
[FN230]. See Reese, 33 S.W.3d at 240.
[FN231]. Id.
[FN232]. See id.
[FN233]. Id.
[FN234]. Id. at 242.
[FN235]. Reese, 33 S.W.3d at 242.
[FN236]. Id.
[FN237]. Id. at 240.
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[FN238]. Id. at 240-41.
[FN239]. Id. at 241.
[FN240]. See Reese, 33 S.W.3d at 241.
[FN241]. Id.
[FN242]. Id.
[FN243]. See id. at 241-42.
[FN244]. See id. at 242.
[FN245]. See Reese, 33 S.W.3d at 242.
[FN246]. See id.
[FN247]. Id. at 242-43.
[FN248]. See id. at 242.
[FN249]. Id. at 243.
[FN250]. Landon, 724 S.W.3d at 939.
[FN251]. Id.; Reese, 33 S.W.3d at 244.
[FN252]. Landon, 724 S.W. at 939.
[FN253]. See id.
[FN254]. See State v. Neeley, 758 N.E.2d 745, 766 (Ohio App. 2001) (Painter, P.J., dissenting).
[FN255]. Id. at 767 (Painter, P.J., dissenting).
[FN256]. Id. (Painter, P.J., dissenting).
[FN257]. Id. at 761.
[FN258]. Id.
[FN259]. Neeley, 758 N.E.2d at 761.
[FN260]. See Chapple, 660 P.2d at 1224 n.18.
[FN261]. Id.
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[FN262]. See Landon, 724 S.W.2d at 935.
29 Ohio N.U. L. Rev. 209
END OF DOCUMENT
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