Also known as: discretionary · judicial discretion
Written by attorneys · grounded in primary & secondary sources — see below
Authority granted to a decision-maker to choose among permissible options based on judgment and circumstances rather than mechanical application of rules. The power permits flexible responses to varying facts while remaining bounded by legal standards and review for abuse.
Deborah Dunn serves as trustee of a discretionary trust benefiting her nephew. A creditor of the nephew seeks to force a distribution to satisfy a judgment. The trustee refuses because the trust instrument leaves distributions to her judgment. The creditor cannot compel payment even though the trustee could have chosen to distribute.
Diana Delgado converts a piece of equipment belonging to Dustin Donovan under a reasonable but mistaken belief of ownership. Donovan sues for conversion damages. Delgado tenders return of the equipment before judgment. The court exercises discretion to reduce the damages award by the value of the returned chattel.
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Daniel Diaz serves on the board of a homeowners association. The board adopts a new design-control rule limiting exterior paint colors. Dolores Diaz challenges the rule as unreasonable. The board must demonstrate that it exercised its discretionary rulemaking power reasonably when adopting the restriction.
Damian Decker stands trial for robbery. The prosecution calls a witness who has a juvenile adjudication for theft. Decker seeks to cross-examine the witness about the adjudication to show bias. The trial court must decide whether to permit the inquiry under its discretion to protect confrontation rights.
Duffy Construction and Drake Logistics form a closely held corporation. Their shareholder agreement eliminates the board and vests management decisions directly in the shareholders. The agreement restricts the discretion otherwise held by directors under corporate law.
Dillon Energy creates a trust for the benefit of its employees. The trustee may distribute income according to an ascertainable standard of health and education needs. A creditor attempts to reach trust assets. The trustee's discretion remains protected because it is expressed through a distribution standard.
A creditor generally cannot compel a distribution from a trust even if the trustee has abused discretion or the trust uses a distribution standard. The protection applies whether or not the trust contains a spendthrift clause.
The court may diminish damages when the conversion occurred in good faith under a reasonable mistake and the chattel's value to the owner is not substantially impaired. The decision rests in the court's discretion.
The board must act reasonably when exercising discretionary powers such as rulemaking, enforcement, and design control. Members challenging the action bear the burden of proving a breach of that duty.
Shareholders may agree to eliminate the board or restrict its powers. The agreement remains effective among the shareholders and the corporation despite conflicting with other corporate statutes.
…once completed is made forever. The requisites to be performed by the Secretary are ministerial ascertained by law and he has no discretion. In contemplation of law they are as if done. These justices exercise part of the judicial power of the United States and ought therefore to be independent. The applicants conceive…