Correspondence from Karlan to Rodney

    MEMO

To: Lani

From: Chris

Re: FRCP Rule 52(a)

Note: This memo picks up where Pam Karlan's memo left off.
For background on Rule 52(a) see Karlan memo, especially pp I-1I,
I 9-40 .

A. Recent Supreme Court Cases Interpreting Rule 52(a). (Cases in
chronological order. )

1. Pullman-Standard v. Swint, 456 U.S. 273 (1982).

In Swint, BIack employees sued their employer, alleging that
the seniority system maintained

discrimi.natory, in violation of

found that the system was not

the Court of Appeals reversed.

the following question:

by the employer and the union was

Title VII. The District Court
intentiona-i-U discriminatory and

The Supreme Court granted cert on

"Whether a court of appeals is bound by the 'clearIy
erroneous' rule of FRCP 52(a ) in reviewing a districL
court's findings of fact, arrived at after a lengthy trj_a1,
as to the motivation of the parties who negiotiated a

whether the court below applied the
wrong Ieqal criteria in determining the bona fides of the
seniority system." (456 U.S. 276, emphasis added)

Note that a violation of Title VII could only be found if
the seniority system h,as intentionulry discrimj
adopted because of its raciallv c-l:=:,arate :r,i,e^ 

-_

natory; i.e. ,

ct. This is
obviously dif f erent than the "r:esul'-: " starrialcl c'f Section 2 VRA



2

and GinqIes. However, the district court in Swint found dis-

criminatory intent by looking at the "totality of circumstances"

and, in particular, four factors suggested by case law (see James

v. Stockham Valves e Fittinqs Co., 559 F2d 310 (1977)), which is

similar to the way discriminatory "resuIts" are to determined

under amended s.2 and according to the Senate Report (pp 28-30).

The Supreme Court reversed the decision of the Court of

Appeals. It explained:

"Rule 52(a) broadly requires that findings of fact not
be set aside unless clearly erroneous. It does not make
exceptions or purport to exclude certain categories of
factual findings from the obligation of a court of appeals
to accept a district court's findings unless clearly
erroneous. It does not divide facts into categories; in
particular, it does not divide findings of fact into those
that deal with 'ultimate' and those that deal with 'subsidi-
ary' facts.

The Rule does not apply to conclusions of 1aw. The
Court of Appeals, therefore was quite right in saying that
if a district court's findings rest on an erroneous view of
the law, they may be set aside on that basis. But here the
District Court was not faulted for misunderstanding or
applying an erroneous definition of intentional discrimina-
tion. It was reversed for arriving at what the Court of
Appeals thought was an erroneous finding as to whether the
differential impact of the seniority system reflected an
intent to discriminate on account of race. That question,
as vve see it, is a pure question of fact, subject to Rule
52(a)'s clearly-erroneous standard. It is not a question of
law and not a mixed question of law and fact.

The Court has previously noted the vexi-ng nature of the
distinction between guestions of fact and questions of
1aw. (cites omitted) Rule 52(a) does not furnish particular
guidance with regard to distinguishing law from fact. Nor
do we yet know of any other rule or principle that will
unerringly distinguish a factual findinE from a 1ega1
conclusion. For the reasons that follow, hotn'et'er, we hat'€'
1itt1e doubt about the factual nature of s.7C3(h)'s reguir-e-
ment that a seniority system be f re: Cl : -' -:rr r€'l-.r ::
discriminate.

Treating issues of intent as fact"oi I ci-.i-rS f or



3

trier of fact is commonplace. . . 'findings as to the
design, motive and intent with which men act' [are] pecul-
iarly factual issues for the trier of fact and therefore
subject to appellate review under RuIe 52.' (quoting from
U.S. v. Yel1ow Cab Co., 338 U.S. 338 (1949)" (456 U.S. at

The Supreme Court, however, specifically differentiates this

"pure question of fact" of the motive or intent to discriminate

from findings of discriminatory impact from which discriminatory

intent may 1ega1Iy be inferred that are questions of 1aw or mixed

questions of 1aw and fact. "We do assert, however, that under

s.703(h) discriminatory intent is a finding of fact to be made

by the trial court, it is not a question of law and not a mixed

question of law and fact of the kind that in some cases may allow

an appellate court to review the facts to see if they satisfy

some lega1 concept of discriminatory intent./19" 456 U.S. at 289

a n.19. Of course, what the Supreme Court is referring to here

is also not the s. 2 "resu1ts" standard; discriminatory results

are used to alIow the Court to infer discriminatory "intent."
That type of presumption or judicial inference is more clearly a

"matter of Iaw" in that it is an application of a legal standard

to facts found by a trial court. However, it must be noted that

the Court specifically reserves the question of the applicability

of Rule 52(a) to "mixed questions of law and fact--i.e. questions

in which the hj,storical facts are admitted or established, the

rule of law undisputed, and the .issue is whether the f acts

satisfy the statutory stanoarc-r, cr to put it another wd)', whetLre:

the ruLe of law as ap,p-:=o i. r.'r€ estai:-:s;,:j facts is or rs, nc-

violated. " 456 U. S. at 2t9; ,: it ge=ri,:i, therefore, trrar s



4

must argue that findings of discriminatory "resu1ts" under s.2
are more like findings of intent then they are presumptions of
intent inferred from specific facts. ( "Oiscrimj-natory intent here

means actual motive; it is not a leqal presumption to be drawn

form a factual showing of something less than actual motive.
Thus a court of appears may only reverse a district court's
finding on discriminatory intent if it concrudes that the
finding is clearly erroneous under RuIe 52(a).', 456 U.S. at 2g}l

Fina11y, the s.c. in swint does away with the old ultimate
fact/subsidiary fact distinction: "whether an ultimate fact or
not, discri-minatory intent under s. 703(h) is a factual matter
subject to the clearly-erroneous standard of Rule 52(a).,'

Blackmun and Marshall dissented on the grounds that:
( 1 ) intent should not be required under Title VII; and

(2) the Court of Appeals met the'clearly erroneous'standard and

found regal errors with regard to the controlling 1egal princi-
ples.

In general, the S.C. in Swint seems to be expanding the

situations to which Rule 52(a)'s clearly erroneous standard
applies--i.e. it applies to cases involving findings of discrimi-
natory intent. However, it does not settle the question of
whether a s.2 decision under the results standard would be

considered a question of law or of fact, and leaves open a large
area of "mixed questions of ]aw and fact" that may alsc, no.. be

sub ject to Ru 1e 5 2 (a ) 's s:t andarcl c'f re-.riew.



5

2. Inwood Laboratories v fves Laboratories, 456 U.S. 844

(r982).

Inwood Labs involved the question of when "a manufacturer of

a generic drug . can be held vicariously liable for infringe-
ment of that tradmark by pharmacists who dispense the generic

drug." 456 U.S. at 846. The District Court concluded that no

trademark violation had occurred, but the Court of Appeals

reversed. The Supreme Court reversed the Court of Appeals.

The S.C. in Inwood Labs reaffirms that the Court of Appeals

in reviewing factual findings of the district court is bound by

RuIe 52(a) and Swint. 456 U.S. at 855. The Court also reiter-
ates that if the trial court bases its decision upon a "mistaken

impression of applicable lega1 principles" Rule 52(a) does not

apply. 455 U.S. at 855, n.15.

The Court concludes that the AppeIlate Court erred by

rejecting the District Court findings "simply because it would

have given more weight to evidence of mislabeling than did the

trial court . ." 456 U.S. at 856. "Determining the weight

and credibility of the evidence is the special province of the

trier of fact. Because the trial court's findings . were not

clearly erroneous, they should not have been disturbed." 456

U.S. at 856.

White and Marshall

the Court of Appeals (and

t,r-c,r9 leEal starr ciard for

P.ehng, j s'- concurred,

concurred in the

not the Dis'-ri-ct

a traden ar ir : : s€ .

but saicl '-,'.: the

reversal stating that
Court ) had applied the

case should have been



6

remanded to the Court of Appeals to determine whether the factual

findings were clearly erroneous.

I do not think this case adds much to the analysis of the

application of RuIe 52(a ) in section 2 cases, but it is interest-

ing to note that even when a S.C. decision is unanimous, the

members have substantive differences in their understandings of

the RuIe--i.e. the majority reverses because 52(a) was not

applied when the Court of Appeals reversed the District Court on

the facts of the case; White and Marshall concur asserting

that the Appellate Court itself applied the wrong legaI standard;

Rehnquist essentially agrees with White and Marshall but thinks

that under those circumstances, having corrected the Ct of

Appeals as to the lega1 rule to be applied, the case should be

remanded.

are a

3.

11

Citations in Shepard's to 455

cases remanded for consideration

4. Rogers v. Lodoe, 458 U.S. 613 (1982).

U. S.

in1
952, 9

ight of

55, 968, 969

Swint.

Rogers is the only

S.C. decisions that is a

course, a case applying the

instead applies the intent
it).

these post-Swint-RuIe-52 (a )

rights case. ft is not, of

standard of amended s. 2, but

Uebr e (or something close to

one of

vot i ng

resu 1 ts
test of

The : , Court in Roqers

Eurke County, Gd

found that the

was "maintained

at-large system

for invidious

ict

rof eiectii



7

purposes r '' i.e. to dilute the voting pot/rer of minorities in

violation of the 14th and 15th amendments. The Court of Appeals

affirmed the District Court, stating that the district court

anticipated UgDi]e in requiring proof of discriminatory purpose

and that its findings were not clearly erroneous.

The Supreme Court affirmed, concluding that the District

Court and Court of Appeals applied the correct 1egal standard.

In addition, the Court stated:

We are also unconvinced that we should disturb the
District Court's finding that the at-1arge system in Burke
County was being maintained for the invidious purpose of
diluting the voting strength of the black population. In
White v. Regester (cite) we stated that we were not inclined
to overturn the District Court's factual findings, 'repre-
senting as they do a blend of history and an intensely loca1
appraisal of the design and inrpact of the Bexar County
multimember district in the light of past and present
reality, political and otherwise. ' (cites ) Our recent
decision in PuIIman-Standard v. Swint (cite), emphasizes the
deference FRCP 52 requires reviewing courts to give a trial
court's findings of fact. 'Ru1e 52(a) broadly requires that
findings of fact not be set aside unless clearly erroneous.
It does not make exceptions or purport to exclude certaj-n
categories of factual findings The Court held that
the issue of whether the differential impact of a seniority
system resulted from an intent to discrirninate on racial
grounds'is a pure question of fact, subject to RuIe 52(a)'s
clearly erroneous standard The Swint Court also
noted that issues of intent are commonly treated as factual
matters . .We are of the view that the same clearly-
erroneous standard applies to the trial court's finQjrg it
this case tf,.t tn. "l:i"tg" "y=tm

ut's findings of fact to
be clearly erroneous, and this Court has frequently noted
its reluctance to disturb findings of fact concurred in by
two lower courts We agree with the Court of Appeals
that on the record before uSr none of the factual findings
are clearly erroneous." 458 U.S. at 622-23

The Supreme Court then goes on to relate the

findings which include evidence of bloc vot

Dis*,rtct Ccurt
: -^ - L . . -fll 9, a.[:-::.ri Of



8

minorities elected ( "the fact that none have ever been elected is

important evidence of purposeful exclusion" ), historical denial

of votj-ng rights (e.g. due to use of pol l taxes ) , segregated

schools, unresponsiveness of elected officials to the needs of

the BIack community, depressed socio-economic status of minori-

ties. These numerous findings, similar (or identical) to those

required under amended s.2 (and derived from the same case law)

led the District Court to conclude that the at-Iarge election

system was being maintained for invidious purposes. Affirming,

the S. C. stated:

"None of the District Court's findings underlying its
ultimate finding of intentional discrimination appears to us
to be clearly erroneous; and as we have saidr w€ decline to
overturn the essential finding of the District Court, agreed
to by the Court of AppeaIs, that the at-large system in
Burke County has been maintained for the purpose of denying
blacks equal access to the political processes in the
county. As in White v. Regester the District Court's
findings were 'sufficient to sustain Iits] judgment
and on this recordr w€ have no reason to disturb them." 458
U. S. at 627 .

This opinion seems to me to be ri.ght in line with Swint.

Both are cases where the plaintiffs had to prove intentional

discrimination and in both cases the S.C. affirmed the District
Court's findings regardj-ng discriminatory intent. Both of these

cases stregthen our argument that Rule 52(a)'s clearly erroneous

standard should apply to the decision 1n Ginqles in that the

district court is cal1ed on in all three cases to find similar

types of facts. However, these cases oo rlot prevent the S.C. in

Ginqles from ruling that Rule 52(a) ooes rjct i.r:r,1\'becaus: the

"fact" found in Swrnt and Rooers was v.':: ei.-



9

"intent" or "purpose" was present and not whether there was a

discriminatory "result." In my opinion, discriminatory "results"
should all the more be a question of "fact" if discriminatory

"intent" is, but (see below) these cases are very unpredictable.

5. Brown v. Socialist Workers '74 Campaiqn Committee, 459

u.s. 87 (1982).

Brql{n again raises the question of what is a question of

fact, what a question of law and what a mixed question of law and

fact. In Brown a three iudqe district court held that an Ohro

campaign contribution and expense reporting Iaw violated the 1st

amendment as applied to the SWP, "a minor political party which

historically has been the object of harassment by government

officials and private parties." 459 U.S. at 88. The S.C. affirm-

ed.

According to the S.C.:

"It]he District Court properly applied the Buckley Iv.-
Valeol test to the facts of this case. The District Court
found 'substantial evidence of both governmental and private
hostility toward and harassment of SWP members and support-
ers. '" 459 U. S. 99 .

This finding was based on evidence of specific incidents such as

threatening phone ca11s, harassment of a party candidate, and FBI

surveillance. From this evidence,

"It]he District properly concluded that the evidence of
private and Government hostility toward the SWP and its
members establishes^ a reasonable [rrobabilitl' tliat disclos-
ing the narres of cdtributors ano reci pients w j I I sub ject
them to threats, harasslrrent I ?r,C t': i I : s:e I s. "

"n. 19 Af ter reviewing the e'.::lt:.. , r,i ti,c a : jcable 1aw,
tfre circunr-

! .::-.{the District Court concludei: IT ]r,.' !ota i iti'



10

stances establishes that, in Ohio, public disclosure that a
[Erson is a member of or has made a contribution to the SwP
would create a reasonable probability that he or she would
be subjected to threats, harassment, or reprisals."

O'Connor, Rehnquist and Stevens concurred in part and dissented

in part. They concurred in the judgment with respect to the

disclosure of campaign contributors and that the "broad concerns"

of Bucklev v Valeo applied to the disclosure of the recipients of

campaign expenditures, but dissented from the conclusion that the

SWP had sustained its burden of showing that "there is a reason-

able probability that disclosure of recipients of expenditures

will subject the recipients themselves or the SWP to threats,

harassmentt ot reprisals." 459 U.S. at I07. In Part II of their

opinion the dissenters state:

"Turning to the evidence in this case, it is important to
remember that, even though proof requirements must be
flexibIe, Buckl"y, supra ., the minor party carries the
burden of production and persuasion to show that its First
Amendment interests outweigh the gove.rnmental interests.
Additionally, the application of the Budey standard to the
historical evidence j-s most properly characterized as a
m
the record independently to determine if it supports the
conclusion of unconstitutionality as applied./8"

"n.8 See Pullman-Standard . The majority does not
clearly articulate the standard of review it is applying.
By determining that the District Court 'properly concluded
the evidence established a reasonable probability of
harassment, ante at 100 . the majority seems to applv an
independent review standard. "

It is important to remember that the characterization of the

question in this case as a "mixed questi-on of law and fact" and

therefore independently reviewable by a! appellate court, is

by the dissent. However, the histol-:-cai €- -cence r: i - ei on to

prove 'reasonable probability of harasSrrr€l,'r seems srli.l iar to the



I1

historical evidence of discrimination in s. 2 voting rights
cases. Also, in both cases intent is not required to be proved.

Because this law/fact questi-on seems quite arbitrary, the easiest

way to distinguish this caser or at least the dissent's inter-
pretation of the case, is by noting that it is a constitutional-
1y-based lst amendment question--see Bose beIow. In addition,
perhaps there is some difference between a test that looks at
whether dj-scriminatory results have occurred in the past ( fact
question) and one that looks to see whether there is a "reason-

able probability" that harassment wilI occur in the future ( legal

conclusion from the facts ) .

6. National Football Leagure v. North American Soccer

League, 459 U.S. 1074, L075 (198?)

Denial of cert; Rehnquist dissented from the denial and

cited Swint.

7. Minnesota State Board for Community Colleges v. Knight,

52 U.S.L.w. 4204 (Feb 2l , 1984 ) .

Kniqht involved the question of whether a law restricting
the ability of public employees to "meet and confer" with their
public employers only through an exclusive representative
violates the 1st and 14th amendment rights of employees not

members of the exclusive representative. A three judge court

found that speech and associationaJ- rights were denied non-member

faculty. The S. C. reversed .

t i:at :In his dissent, Stevens rc:.: ih:ee judge court



L2

found I'that under the statute 'the weight and significance of

individual speech interests have been consciously derogated in

These findingsfavor of systematic,

may not be set aside

PuIlman (cite), and

or the Court. " 52 U

official expression

unless clearly erroneous

in any event are not chal

.S.L.w. at 4214-L5.

, see Inwood (cite),

Ienged by appellants

This case is an example of what is beginning to look like a

trend in the S.C.'s use of Rule 52(a): if invoking the clearly

erroneous standard will make a case come out the way the majority

desires, it is used; if not, the majority will decide the case

and write the opinion without reference to it. A functional,

rather than theoretical, approach to the rule. In this case the

majority states :
"The District Court erred in holding that appellees had been
unconstitutionally denied an opportunity to participate j-n
their public employer's making of policy the scheme
violates no provision of the Constitution." 52 U.S.L.W. at
42IA.

This statement is vague: was it an error of law, the incorrect

application of a constitutional principle? or was it "clear

error" in their fact finding? And why was the case not remanded

if the lower court applied the wrong legal standard? It seems

from the majority opinion that perhaps this is a mixed question

of fact and 1aw --the application of a 1ega1 (constitutional)

standard to facts found by the trial court. Another possibility

is that the Court generally sees itself as having greater freedom

to re\--i: ', cc)nstitutional questions, and even the facts in

const:t. - -:.t.iaI cases.



13

8. Lvnch v. Donnelly, 52 U.S.L.W. 4317 (March 5, I984).

The S.C. uses (or ignores) Rule 52(a) in Lvnch much as it
did in Knight. The issue in Lynch was "whether the Establishment

Clause of the First Amendment prohibits a municipality from

including a creche, or Nativity Scene, in its annual Christmas

disp1ay." 52 U.S.L.W. at 4318. In Lvnch, the District Court

found that the munj-cipality-sponsored creche violated the
Establishment CIause, and the Court of Appeals affirmed that
decision. The S.C. reversed.

In the majority opinion the Chief Justice cites examples of

the religiousity of our society to explain why the Court does not

take "a rigid, absolutist view of the Establ ishment CIqr9g/e. " 52

U.S.L.W. at 4320. The Court states:

"The District Court inferred from the religious nature
of the creche that the City has no secular purpose for the
display. In so doing, it rejected the City's claim that its
reasons for including the creche are essentially the same as
its reasons for sponsoring the display as a whoIe. The
District Court plainlv erred by focusing almost exclusively
on the creche. I,lhen viewed in the proper context of the
Christmas Holiday season, it is apparent thatr on this
record, there is insuf f icient evidence to establish tTatTE
inclusion of the creche is a purposeful or surreptitious
effort to express some kind of subtle governmental advocacy
of a particular religious message The creche in the
display depicts the historical origins of this traditional
event long recognized as a National HoIiday. (cites omitted)

The narrow question is whether there is a- secular
purpose f or pawtuiket's display of the creche . d" 

"-fp-yis sponsored by the City to celebrate the Holiday and to
depict the origins of that Holiday. These are legitimate
secu 1 ar purposes . THe Di strict Court's inference, drawn
fron, the religious nature of the creche, tnEffiE city has
no secular purpose was, ."-
52 U.S.L.w. at 4320-21.

Substance of this passage aside, the question is c)r, w},a.



14

basis is the S.C. reversing the two lower courts? The S.C.

states that there was "insufficient evidence" and that the

"inference" drawn by the district court was clearly erroneous--

these seem to me to be issues of fact for which clearly erroneous

is the proper standard. (Were the findings "cIearIy errone-

ous" or is it just that the District Court "rejected" the City's

claim and the S.C., if it were sitting as the trier of fact,

would have weighed the evidence differently? Even at its best,

clearly erroneous is a very subjective standard. ) But the Court

a I so states that the district court focused on the wrong ques-

tion--that it should have asked "whether there is a secular

purpose"--which to me seems like an application of the h,rong

1ega1 standard, a question of law. (ena if this is sor shouldn't

the Court have remanded the case for consideration of the facts

by the Appellate Court according to the correct lega1 standard?

As I understand it, a remand is not necessary only if the facts

lend themselves to only one 5-nterpretation, in which case the

appellate court can review the facts and a remand would be a

waste of judicial resources.) In addition, this is a good

example of the Court ostensibly using the clearly erroneous rule

yet overturning the District Court findings when there seems to

me to be at Ieast two egually plausible interpretations of the

facts. It is these situations, in particular, that the clearly

erroneous rule i-s supposed to protect the trial court's decision,

even though had the appellate court sat as the trial cc,'.:-- ()n thi..

case it would have decided differently.



15

In her concurrence, O'Connor asserts:

"r conclude that pawtucket's display of the creche doesnot have the effect of communicating endorsement of christi-anity.
The District court's qu.bsidiarv f indinqs on the ef f ecttest are consistent with tffitre court foundas facts that the creche has a religious content, tha:ETwETilnot be seen as an insignificani part of the display,that its religious content is not neutralized by- thesettirg, that the display is celebratory and not instruc-tional, and tf,"l the citlr did not seek to counteract anypossible religious message. These findings do not implythat the creche communicates government approval of christi-anity. tt] The District courC also found]-ho*ever, in.t thegovernment was understood to place its imprimatur on thereligious content of the creche. But whet-her a governmentactivity communicates endorsement of religion is not aquestion of simql1 historica.l. fqqt. Althou-qh. evidentiarvsubmissions may rretp@- qq ed classifi##;

commu,ni cate an i
uqstron to be answered on the bEEiE-E icial interpreta-tion o"f socia l f acts

concernj-ng the effect of pawtucket
\^ras l-n error aS a matter of law.,'

display of its creche
U.S.L.W. at 4324.

c

42

So while the majority hord that the facts found by the trial
court were "clearIy erroneousr" o'connor believes that the
District Court found the facts correctly but applied the wrong
1egal standard to them. Again, there is Iittle agreement even

within the S.c., and even between Justices who agree on a result,
as to what is a matter of fact and what of 1aw. Although r
believe o'Connor's approach the better of the two, r do not
understand her unsupported reference to',raciaI or sex-based
crassifications Itnat] communicate an invidious message,, as
questions of 1aw. An "invidious messager" r assume, would be

discriminatory intent, but the cou:-t has clearly said that the
guestion of discriminatol-) jr:._; -- ls d a-:,r:st.r-cD of fact (see.

Swint ) . In addition, if t j,. t'+: L jr€, Cci: .-- a ccept s O 'Connor 's



I6

view of the "judical interpretation of social factsr" it could

definitely hurt us in Ginqles. A new category of "social facts"
would give the S.C. free reign--since a "social fact" is somehow

different (and more like a rule of law) than a case-specific fact
and can be determined by the appellate court.
response the dissent 52 U.S.L.W. at 4331-33. )

(But see in

In dissent, Brennan, Marshall, Blackmun and Stevens take

exception to both the ma jority's and O'Connor's view:

"In sum, considering the District Court's careful
findings of fact under the three-part analysis called for by
our prior cases, I have no difficulty concluding that
Pawtucket's display of the creche is unconstitutional./ll"
n.11 "The Court makes only a half-hearted attempt, see ante

. to grapple with the fact that Judge Pettine's detailed
findings may not be overturned unless they are shown to be
clearly erroneous. FRCP 52 (a ) . See Pullman (cite ) . In my
viewr petitioners have made no such showing in this case.
Justice O'Connor's concurring opinion properly accords
greater respect to the District Court's findings, but I am
at a loss to understand how the court's specific and well-
supported finding that the City sras understood to have
placed its stamp of approval on the sectarian content of the
creche can, in the face of the Lemon test, be dismissed as
simply an "error as a matter of 1aw."

9. Bose Corportation v Consumers Union of United States, 80

LEd 2d 502 (1984).

In Bose, the court considered the question:

"Does Rule 52(a) of the FRCP prescribe the standard to be
appli-ed by the Court of Appeals j-n its review of a District
Court's determination that a false statement was made with
the kind of ' actua 1 mal i ce ' described in NYT v Su 1t i-van? "-
(cite omitted) B0 LEd 2d ar- 508

The case cori cerrrcil "r:'o.iuct ::s;ala!elrrent" anC

found fcr tirr. ;-.i;:

t he i':

Ie\/€ f--.

a*. Court

-:;reeinc:: . Tl.. l:,-r t cf Appeal s



with the district court that

aging and false, but on its

"actual maIice." The Court

standard did not apply to

determination:

(1979) we referred in passing to actual ma

fact. " ) In addition, this is a rather trivial

could have been overturned even under the

standard.

L7

the comrnent in question was dispar-

own review of the record finding no

of Appeals held that Rule 52(a)'s

its review of the "actual malice"

"it stated that it'must perform a de novo review, independ-
ently examining the record to ensure that the district court
has applied properly the governing constitutional law and
that the plaintiff has indeed satisfied its burden of
proof. "' 80 LEd 2d at 5I1.

Based on its oh,n review, the Court of Appeals did not find

evidence that the statement was published "with knowledge that it

was false or with reckless disregard of whether it rdas false or

not. "

Since the S.C. has stated that "intent" is a question of

fact to which RuIe 52la) is applicable, one might guess that

"maIice" would also be a fact question. The S.C. notes this in

n. I 5 at 51 5 ( "Indeed, in Herbert v Lando, 44I U.S. 153, 170

Iice as "ultimate
case that probably

clearly erroneous

But according to Stevens, the appellate court must be

"faithful to both RuIe 52(a) and the rule of independent review

applied in N.Y.T. v Su11ivan." 80 LEd2d at 515. He states that

the conflict between the two rules i-e "i'cre apparent than real"

bec': - s'' tc, ce.ie: l.,r;e if somet.hinq r s c -' ' l'. erroneous under Rule

T€:l u o:.. - --uiie entire record .



18

80 LEd 2d at 516. Converselyr the independent review rule allows

the tria1 judge's opportunity to observe demeanor "to be given

its due." 80 LEd 2d at 5I5. This attempt at reconciliation seems

incorrect: The standard of review under 52(a) is "cIearIy
erroneousr" while the standard of review under "the constitution-

aIly-based rule of independent review" is "de novo." In addition,

RuIe 52(a) applies to facts while a rule described as "constitu-
tionally based" seems more a rule of law.

The next few paragraphs of Stevens' opinion (at 516-517) is

dicta on Rule 52, fact finding, and the difference between "1ive

cases" and "paper cases." He states, "The same clearly erroneous

standard applies to findings based on documentary evidence as to

those based entirely on oral testimony . but the presumption

has lesser force in the former situation than in the Iatter." In

16 he quotes from Baumgarten v U.S., 322 U.S. 665 (1944)z

'The conclusiveness of a 'finding of fact' depends on the
nature of the materials on which the finding is based

Thus, the conclusj-on that may appropriately be drawn
from the whole mass of evidence is not always the ascer-
taj.nment of the kind of 'fact' that precludes consideration
by this Court. ( cites ) Particularly is thi
decision here for review cannot escape broa SOC].A
iudqments-- iuoqments lvrng close to oprnj-on reqardinq the
whole nature of one Government and the duties a rmmun]' t1 es
of citizenship.'

Again, much of this seems incorrect--the idea that the clearly

erroneous standard is a presumption of varying strength, etc.--

but it does give the Court a lot of leeway in their interpreta-

tlcn and applicatior, of i
'.:a irf :erence be:.v'-e-

-1.-: =';,=I^}Ci=Dt feV-te\+ :-U.'-'

r e 5?. Stevens goes on to state that
. c-=:erIv erroneous rule and the
--i);-- "t'lre rule of independent review



I9

assigns to judges a constitutional responsibilitv that cannot be

delegated to the trier of fact ." 80 LEd 2d at 5I5. To

distinguish Gingles from Bose--GinqIes is a statutory case,

involving no constitutional question and so not inviting a

constitutionally based standard of review. Generally, the Court

has allowed greater appellate review of constitutionally based

cases (see Karlan memo pp ) tn his opinion, Stevens emphasizes

the special role of the Court in consitutional and, in partic-
uIar, Ist amendment cases:

"The reguirement of independent appellate review
reiterated in NYT v Sullivan is a rule of federal constitu-
tional law It reflects a deeply held conviction thatjudges--ano particularly members of this Court--must
exercise such review in order to preserve the precious
liberties established and ordained by the Constitution

" 80 LEd 2d at 523.

Arguably, this reasoning is not at all applicable to s.2 cases

and Ginqles; however, there may be some risk that the Court will
talk about voting rights generallv as a Constitutional right and

therefore subject to greater review.

Fina11y, Stevens states many of the well-worn principles of

Rule 52(a) concerning the difficulty of distinguishing fact from

}aw. 80 LEd 2d at 517. In n. 17 he states:

"A finding of fact in some cases is inseparable from
the principles through which it was deduced. At some point,
the reasoning by which a fact is'found'crosses the 1j-ne
between application of those ordinary principles of loqic
and common ex.per_aere which are ordinarilv entrusted to the_:fr-nder of fact into the realm of a legal rule upon which the

-

reviev,'.r lrs court must exercise its own independent judgment.
Where *-i-,€ I i ne i-c, drawn vari-es accordi-ng to the na ture of
tl'i€ s ::---ii:e lau at issue, Reqardin Ln larqel

lr=ll;:::: - i:'; :.c+- c,n f uture CaSeS an uture conduct--are too



20

of fact. "

I don't know what Stevens was thinking about here but I hope it

wasn't Voting Rights. This footnote is so vague I don't exactly

know how to rebut it, but again it opens a door to the Court that

they may or may not choose to walk through. Again, discrimina-

tory "resu1ts" seems a factual, not a 1ega1 question--but perhaps

not one for which principles of ordinary "1ogic and common

experience" are sufficient.

In dissent, Rehnquist, O'Connor and, separately,

that "in the interest of protecting the lst amendment

rejects the 'clearly erroneous' standard of review

FRCP 52(a) in favor of a'de novo'standard of rev

'constituti-onal facts' surrounding the 'actual malice

White note

, the Court

mandated by

ew for the

determina-

tion. 80 LEd 2d at 526. (llote that "constituti-ona1 facts" here

are treated somewhat similarly to "social facts" in Lvnch). The

dissent states:

"in my view the problem results fromtthe Court's
attempt to treat what is here, and in other contexts always
has been, a pure question of fact r &s something more than a
fact--a so-ca11ed 'constitutional fact. ' B0 LEd 2d'aL 527 .

The dissent believes that malice is a determination regarding the

state of mind of a particular person at a particular time--a

historical fact--and appropriate for determination by the trial

court:

" f continue to adhere to the view expressed .in Pul lman-
S+-andard v Swint (cite ) that Rule 52(a ) 'does not make exceptions
cjr purport to exclude certain categories of factual findings fron,
-::= oL,iiga+-ion of a court of appeals to accept a district cour*.'s
-:ri:-ngs unless clearly erroneous.' There is no reason tc de:r-,a:-:
. rt;r- that rule here, and I would therefore reverse and r€yl):,'-
-.;rs case to the Court of Appeals so that it may apF,rl tr,'-



2l

'clearly erroneous' standard of review to the factual findings of
the District Court."

10. Anderson v Citv of Bessemer, 84 LEd 2d 518 (1985).

The Court in Anderson returns to the use of the clearly

erroneous as in Swint; like Swint, Anderson involved a finding of

discriminatory intent under TitIe VII. The District Court found

that the petitioner had met her burden of establlshing that she

had been denied the position of Recreation Director because of

her sex. The Fourth Circuit reversed concluding that three of

the District Court's crucial findings hrere clearly erroneous and

that the District Court erred in finding sex discrimination. The

S.C. reversed the Court of Appeals.

The question in this case is not whether Rule 52(a) applies-

-clearly it does due to the precedent of Swint--but whether the

Court of Appeals applied the clearly erroneous standard correct-

Iy. 84 LEd 2d at 528 ( "Because a finding of intentional discrim-

ination is a finding of fact . .") the Court begins b)'

citing the Gvpsum definition of when a fact finding is clearly

erroneous (see Karlan memo). In addition, it states:

"This standard plainly does not entitle a revj-ewing court to
reverse the finding of the trier of fact simply because it
is convinced that it would have deci-ded the case different-
1y. The reviewing court oversteps the bounds of its duty
under RuIe 52 if it undertakes to dupli-cate the role of the
lower court. 'In applying the clearly erroneous standard to
the findings of a distri-ct court sitting without a jury,
appellate courts must constantly hat,e :-n nind that tneir
functi-on is not to decided factuaI issues oe novo.' Zerrth
Radio Corp v Hazeltj-me Research, lnc. 3!i: -..'. iil( (lL::,.
If the district court's account of th: €\.-i.r{r -'
in I ight of the record viewed in its e:--- - i -- --

appeals may not reverse it even though coi-.'.'- -:--:-1. -,--!,.lrd L -t1e J L



22

been sitting as the trier of fact, it would have weighed the
evidence differently. When there are two permissible views
of the evidence, the factfinder's choice between them cannot
be clearly erroneous. U.S. v Ye1low Cab Co 338 U.S.338
(1949) see also Inwood Lab v Ives Lab 456 U.S. 844 (1982).

Although the context of this language is a case where there was

no guestion that Rule 52(a) applied and so it is not directly
applicable to Gingles where we are arguing that Rule 52(a) should

appIy, the reasons cited seem equally true for the argument

that Rule 52(a) should apply as to how to apply it once it does.

The Court goes oDr in direct contradiction to Bose, to state

that trial court findings are equally protected whether based on

"paper" or "1ive" evidence:

"The rationale for deference to the original finder of
fact is not limited to the superiority of the trial judge's
position to make determinations of credibility. The trial
judge's major role is the determination of fact, and with
experience in fu1 fi I I ing that role comes expertise.
Duplication of the trial judge's efforts in the Court of
Appeals would 1ike1y contribute only negligibly to the
accuracy of fact determination at a high cost in diversion
of resources. In additionr the parties to a case on appeal
have already been forced to concentrate their energies and
resources on persuading the trial judge that their account
of the facts is the correct one; requiring them to persuadei
three more judges at the appellate 1evel is requiring too I i<much. As the Court has stated in a different context, the i

trial on the merits should be'the'main event' . . .rather:
than a 'tryout on the road. " I,gainwright v Sykes 433 U.-c. 72
(1977). For these reryof f actual f indings under
the .f"

Again, this discussi-on is helpful and applies equally to the

question of why the facts found by the tri-a1 judge in Ginqles

should be regarded just as that--facts-- and not as "socia1 " or

"constitutional" f acts to t=. :i"r.r i: uni.:- :::i'-her standal'C.

(ln addltion, it would be rr.:rr. - - : -:-,-.,::-:.- - - :rjscrrminatol'.



23

intent--which are more difficult to prove and more 1ike1y just

unknowable (see legislative history)--were re protected than

findings of discriminatory results, since the results standard

was designed to be more a fact-based inquiry, and easier to

establish than intent. )

The S.C. concludes that the 4th Circuit "improperly conduct-

ed what amounted to a de novo weighing of the evidence in the

record" rather than just determining if the District Court's view

h,as plausible. "The question we must answer, however, is not

whether the 4th Circuit's interpretation of the facts was clearly

erroneous, but whether the District Court's finding was clearly

erroneous." 84 LEd 2d at 530. FinaIIy, the S.C. disclaims any

superior knowledge of what was in the minds of the defendants:

"Even the trial judge, who has heard the witnesses directly
and who is more cJ.osely in touch than the appeals court with
the milieu out of which the controversy before him arises,
cannot always be confident that he 'knows' what happened.
Often, he can only determine whether the plaintiff has
succeeded inpresenting an accountof the facts that is more
like1y to be true than not. Our task--and the task of
appel late tribunals qenerallv-
m

B. Some General Conclusions

The strongest argument in favor of applying Rule

52(a)'s clearly erroneous standard in s.2 VRA cases is Rogers.

Rogers is a vot:-ng rights case, though one using an intent

standari, and tne proof reeuirei for Ro.qers rs t,et-- sinilar to

(thougil sl-c,:,t1.' -.:3S oeri-,al: --r:, ECcorCing to ti;l -r-slative

history) tr,a" i.r:-::t.tej 1r, G:rci.es. AIso, Rog.Si=' e- , c^: rzes the



24

Iocal nature of the fact finding in voting rights cases ( see

above p.7) and relies on Swint. [llote that if this approach is
taken, someone should look at the standard of review in other
voting rights cases, something I did not have time to do.I

Similarly, Swint and Anderson are discrimination cases <'-/
wherethec1ear1yerroneouSstandardhasbeenused.Thatthese

?..

cases were "intent" cases while Ginqles is a "results" case ,'-

should be a strength and not a weakness, since discriminatory t '

results are somehow more "factua1" or knowable than intent. On

the other hand, I think the S.C. has been very inconsistent in
its application of the clearly erroneous standard, and without an

exact precedent it is hard to predict what they wil] ho1d.

Brown, Knight, Lynch, and Bose can be distinguished as

constitutionally based cases, while Ginqles is a statutory case.

Iliote that this assumes that the Court will not simply character-

ize "voting rights" as a constitutionally-protected right,
despite the statutory c1aim. Perhaps someone knows the answer to
this or can do some research on the question. ]

Final1y, it seems to me that the Court uses the fact/1aw

distinction in a very arbitrary way depending on how they wish

the case to come out. This is especially true when they talk
about "constitutional facts" or "social facts" which can be

reviewed by appellate courts. Perhaps the best arguments to
ccunter this tenderrcy are the judicial ecc)ilom): arguments from,

, i.\