Trial Court Discretion and Review

Trial Court Discretion and Review

Rule 21(b) provides that, on the defendant's motion, the court may transfer the proceeding for the convenience of the parties, any victim, and the witnesses, and in the interest of justice. The decision therefore rests with the trial judge, and no showing entitles the defendant to the move.¹ Convenience transfers are accordingly treated as lying in the trial court's discretion, subject only to the bar on arbitrary or capricious action.² The reason for putting the decision there lies in what the balancing requires. The weight of any single factor, such as the burden a trial would place on a particular witness or the congestion of a particular docket, depends on facts about the case that the trial judge sees directly and a reviewing court meets only as a written record. If a reviewing court could redo the balance whenever it would have struck it differently, the word may would mean little, because every denied motion would become a second hearing before another court while a criminal case waited for trial.

Platt v. Minnesota Mining & Manufacturing Co. shows where the line falls. The trial judge there denied transfer, and among the considerations he weighed was a finding that selecting a fair and impartial jury in Minnesota would be difficult.³ The court of appeals struck that finding as an improper factor, then examined the record de novo, meaning afresh and without deference to the trial judge's weighing, and ordered the transfer to Minnesota.⁴ The Government did not challenge the striking of the jury finding, and it did not challenge the use of the extraordinary writ of mandamus to review the refusal to transfer. The Supreme Court therefore assumed without deciding that both were valid and confined itself to one question: whether the court of appeals erred in deciding the motion itself on the district court's record.⁵

The Court held that it did. The court of appeals had treated the jury finding as the most important item in the trial judge's mind, but the Supreme Court could not say so, because the weight Judge Platt gave that factor was a matter peculiarly within his own knowledge, and he had represented that it was one of a number of factors.⁶ The use of an inappropriate factor therefore did not empower the court of appeals to order the transfer. Its function was to determine the appropriate criteria and leave their application to the trial judge on remand.⁷ That division tracks two different kinds of question. Which considerations may enter a convenience decision is a question of law that a reviewing court can answer from the rule and the cases, and answering it corrects the error. How much those considerations weigh in a given case is the discretionary judgment the rule gives to the trial judge. Remand carries the corrected criteria to the judge who holds the facts, who may reach the same result or a different one once the improper factor is gone. The Court accordingly reversed and sent the case back with instructions to vacate the district court's judgment and reconsider the motion without reference to the ability of the United States to receive a fair and impartial trial in Minnesota.⁸

The narrowness of the extraordinary writ rests on the same logic. The Court described such writs as "reserved for really extraordinary causes," available to keep a lower court within its lawful authority or to make it act when it has a duty to, and it said the writ cannot be used "to actually control the decision of the trial court."⁹ A de novo review that ends in the appellate court's own transfer order does exactly that, because it exercises the discretionary function the rule commits to the trial judge. One caution follows from the posture of the case. Because the Government never contested mandamus, the Court assumed without deciding that it was an available means of review, so the decision cannot be read as a ruling on when mandamus lies against a refusal to transfer.¹⁰

The two poles are now easy to state. When a court of appeals finds that the trial judge relied on an improper factor, the proper course is to identify the correct criteria and remand for reconsideration. When the court of appeals instead re-weighs the whole record and orders the transfer itself, it has taken over the trial judge's function, which is what happened in Platt and what the Court reversed.¹¹

The hypothetical differs from Platt in that no improper factor appears, and even in Platt the improper factor gave the court of appeals no authority to decide the motion. Students lose points when they treat a reviewing court's power to correct a legal error as a power to order the transfer itself. The correction reaches the criteria, and the application stays with the trial judge.

The same allocation appears in civil practice, which a later section compares in full. In its forum non conveniens decision in Gulf Oil Corp. v. Gilbert, the Court declined to catalogue the circumstances that justify granting or denying relief and left much to the discretion of the court.¹³ Transfer between federal district courts under 28 U.S.C. § 1404(a) likewise rests with the transferor court, though the discretion is constrained by criteria the Supreme Court has set out.¹⁴ In the forum non conveniens setting, appellate review of the district court's balancing is for clear abuse of discretion, which leaves district courts considerable leeway.¹⁵