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Topic: Abuse of discretion

	Abuse of Judicial Discretion
		Within the private sector, discretion may be exercised by private officials, such as agents, trustees or corporate officers, who are in principle subject to the supervision of the courts.
		However, judges have abused their discretion by adopting the practice of requiring pleadings to be submitted to them by the litigants in writing, and not allowing copies to be provided the jury, nor allowing the attorneys to make legal arguments in the presence of the jury.
		This is aided by a lack of civic education of the public concerning the duties of grand jurors, or by packing grand juries with cronies of the judicial establishment.
	www.constitution.org /abus/discretion/judicial/judicial_discretion.htm (1924 words)

	Appeal - Wikipedia, the free encyclopedia
		In order for the appeal to succeed, the appellant must prove that the lower court committed reversible error, that is, an impermissible action by the court acted to cause a result that was unjust, and which would not have resulted had the court acted properly.
		In cases where a judge rather than a jury decided issues of fact, an appellate court will apply an abuse of discretion standard of review.
		Under this standard, the appellate court gives deference to the lower court's view of the evidence, and reverses its decision only if it was a clear abuse of discretion.
	en.wikipedia.org /wiki/Abuse_of_discretion (628 words)

	Office of the Appellate Defender \| Illinois Standard Of Review Outliine (Site not responding. Last check: 2007-09-20)
		The "abuse of discretion" standard is the most deferential standard of review available, and is reserved for instances in which the reviewing court has no authority to substitute its judgement (i.e.
		Abuse of discretion exercised in favor of innocence and with preference for trial on the merits - Serna (2-97-0438) (Andrews).
		Abuse of discretion, but trial court should grant leave to withdraw plea that appears to have been based on a misapprehension of the facts or law, and where defendant has a defense worthy of consideration or the ends of justice would served by a trial - People v.
	www.state.il.us /defender/isro.html (1643 words)

	Bar Journal Article
		Yet, throughout the districts, the abuse of discretion standard has been applied to a variety of cases ranging from motions granting a continuance to orders to pay attorneys’ fees to review of a denial of a motion to bifurcate issues.
		abuse of discretion, yet she also found that the trial court’s ruling was “precipitously close to requiring reversal.” [citation omitted] This raises the unfortunate implication that this judge might have reached a different result by applying an unmodified abuse of discretion standard.
		Whether the standard is articulated as an “abuse of discretion” or as a “gross abuse of discretion,” the test remains the same: whether the trial court’s conclusions are unreasonable as shown by the evidence of record.
	www.floridabar.org /DIVCOM/JN/JNJournal01.nsf/76d28aa8f2ee03e185256aa9005d8d9a/f1455dcf539065028525700e0054914d?OpenDocument (2957 words)

	General Electric Company vs. Joiner (Site not responding. Last check: 2007-09-20)
		Abuse of discretion-the standard ordinarily applicable to review of evidentiary rulings-is the proper standard by which to review a district court's decision to admit or exclude expert scientific evidence.
		We have held that abuse of discretion is the proper standard of review of a district court's evidentiary rulings.
		We further hold that, because it was within the District Court's discretion to conclude that the studies upon which the experts relied were not sufficient, whether individually or in combination, to support their conclusions that Joiner's exposure to PCBs contributed to his cancer, the District Court did not abuse its discretion in excluding their testimony.
	www.junkscience.com /news/joinersc.htm (5265 words)

	A97-1102 (Site not responding. Last check: 2007-09-20)
		Indeed, the abuse of discretion standard was found to be intertwined with that of excessiveness at least as early as 1954 in Taylor v.
		Moreover, to the sentencing court and not to an appellate court is entrusted the power to impose sentences for the commissions of crimes against the State; the judgment of the sentencing court cannot be interfered with in the absence of an abuse of discretion.
		Nonetheless, and as a consequence of the three decisions cited above, the district court's power and discretion when reviewing sentences imposed by the county court is limited by the abuse of discretion standard and the now well-established law that a sentence within the limits set by the Legislature generally is not an abuse of discretion.
	www.nol.org /home/ncpa/ctopinio/A97-1102.htm (2172 words)

	law.com Law Dictionary
		Examples of "abuse of discretion" or judges' mistakes include not allowing an important witness to testify, making improper comments that might influence a jury, showing bias, or making rulings on evidence that deny a person a chance to tell his or her side of the matter.
		Sometimes the appeals courts admit the judge was wrong, but not wrong enough to have influenced the outcome of the trial, often to the annoyance of the losing party.
		In criminal cases abuse of discretion can include sentences that are grossly too harsh.
	dictionary.law.com /default2.asp?selected=2291&bold=\|\|\|\| (243 words)

	State v. Gutierrez, S-00-092, 260 Neb. 1008 (Site not responding. Last check: 2007-09-20)
		A decision whether to grant a continuance in a criminal case is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.
		An abuse of discretion takes place when the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result.
		A judicial abuse of discretion means that the reasons or rulings of the trial court are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition.
	www.nol.org /home/ncpa/ctopinio/S00-092.htm (2448 words)

	LII: lexicon: abuse of discretion (Site not responding. Last check: 2007-09-20)
		Abuse of discretion -- What does it mean?
		The standard of review used by appellate courts to review decisions of lower courts.
		A judgment will be termed an abuse of discretion if the adjudicator has failed to exercise sound, reasonable, and legal decision-making skills.
	straylight.law.cornell.edu /lexicon/abuse_of_discretion.htm (56 words)

	OSCN Found Document:In re THE WORKER'S COMPENSATION CLAIM OF SHRYACK
		Collateral issues are raised with respect to an abuse of discretion by the district court in refusing to remand the case to the Office of Administrative Hearings to receive evidence concerning an earlier injury to Shryack and in refusing to allow discovery of possible misconduct on the part of the hearing examiner.
		The district court did not abuse its discretion in refusing to remand the case to the Office of Administrative Hearings for additional evidence relating to a 1994 injury or in refusing discovery of possible misconduct of the hearing examiner.
		Under the circumstances, we hold that there was no abuse of discretion by the district court in not remanding the case for the taking of evidence on that issue.
	www.oscn.net /applications/oscn/DeliverDocument.asp?citeID=124186 (2963 words)

	admin lecture on abuse of discretion
		This official was given the practically unfettered discretion to decide if the boy was (a) under the age of sixteen and (b) the son of a non-prohibited immigrant.
		The flaw was that since the discretion was general (there were no guidelines in the empowering emergency regulation, subreg 3(6) of the 12 June 1986 Emergency Regulations), it was up to the Minister to decide which considerations were relevant and which irrelevant (at 867-68).
		Ulterior purpose cases are those where the discretion is left wide open and there are no factors prescribed by the legislature while relevant and irrelevant consideration cases are those where there are at least some factors provided by the statute.
	www.law.wits.ac.za /school/klaaren/clawgrds.htm (3845 words)

	Abuse of Discretion Offer in Compromise
		In reviewing for an abuse of discretion under section 6330(d)(1), generally we consider only arguments, issues, and other matters that were raised at the section 6330 hearing or otherwise brought to the attention of Appeals.
		Boudreau did not abuse her discretion in rejecting the offer in compromise and determining that respondent may proceed to collect the unpaid tax by levy, nor did she prematurely and improperly conclude the hearing.
		Boudreau abused her discretion when she did not accept a compromise based on petitioner's insistence that he could pay no more than approximately 4 percent of his uncontested tax liability and concluded that, under the circumstances, the use of the levy process was "no more intrusive than necessary." Sec.
	www.irstaxattorney.com /offer-in-compromise/abuse_of_discretion.html (6712 words)

	Discretion of zoning authority
		Despite negligence in enforcing and interpreting zoning and building codes: "It would be an abuse of discretion in the instant case and contrary to principles of equitable estoppel to retroactively enforce reinterpreted zoning laws or to assert previously waived building code infractions after funds had been loaned and construction nearly completed.
		Without an abuse of discretion, the grant or denial of a special use permit shall not be disturbed.
		Finally, in characterizing the type of discretionary abuse inviting judicial intervention, we observed that 'the essence of the abuse of discretion, of the arbitrariness or capriciousness of govern // mental action in denying a license application, is most often found in an apparent absence of any grounds or reasons for the decision.
	www.nevadaindex.com /discretion.htm (2446 words)

	Conflict of Interest
		Trial court did not abuse discretion in disqualifying counsel in felon in possession of firearm case where counsel had previously represented a codefendant in a related case and the government gave notice of intent to call the codefendant as a witness.
		Trial court did not abuse discretion in disqualifying counsel and granting mistrial in drug conspiracy case where counsel’s testimony was needed to rebut a government witness’ allegations that counsel had engaged in a plot to silence witnesses.
		Trial court did not abuse discretion because counsel, who was accused of potentially criminal misconduct, had "a strong incentive to conduct the trial in a manner that would minimize counsel’s own exposure" and defendant would be waiving the most relevant evidence in order to stay with conflicted counsel.
	www.capdefnet.org /hat/contents/constitutional_issues/conflict/conflict_right7.htm (9998 words)

	Abuse of discretion, not legal and factual sufficiency, is the standard of review in modification of disposition ...
		Abuse of discretion, not legal and factual sufficiency, is the standard of review in modification of disposition proceedings (99-4-22)
		Abuse of discretion, not legal and factual sufficiency, is the standard of review in modification of disposition proceedings
		Under the abuse of discretion standard, legal and factual sufficiency are not independent grounds for asserting error but are relevant factors for assessing whether the trial court abused its discretion.
	www.tjpc.state.tx.us /publications/reviews/99/99-4-22.htm (1396 words)

	Morris v. State (Griffen, J.)
		In a sexual abuse case, evidence of the victim's fear and repulsion after the attack was deemed relevant to the issue of consent.
		Because it was not an abuse of discretion to admit the evidence, we also hold that it was not an abuse of discretion to deny appellant's motion for a mistrial.
		It was not an abuse of discretion for the court to decline to immunize appellant from making thatchoice and facing its consequences.
	courts.state.ar.us /opinions/1996/ar95-556.html (1161 words)

	Converted WP file 23404c
		The abuse of discretion standard on Rule 35 motions continues the deference we have traditionally accorded trial courts in matters of sentencing." The majority concedes that our appellate review under Rule 35(b) is circumscribed.
		Although the majority suggests that the standard of review is an abuse of discretion, which was characterized by us recently as less than appellant friendly, by adopting this standard without elaboration it has another effect which is not salutary.
		To require this of our circuit courts is unreasonable, and would only lead to further docket congestion because of the time and resources that would necessarily have to be devoted to entertaining a motion for reduction of sentence in the same light and with the same panoply of rights associated with a sentencing hearing proper.
	www.state.wv.us /wvsca/docs/fall96/23404c.htm (1257 words)

	"Abuse Of Discretion" Defined & Explained
		ABUSE OF DISCRETION - When a court does not apply the correct law or if it rests its decision on a clearly erroneous finding of a material fact.
		The exercise of judicial discretion is difficult to attack on appeal, because the decision, by law, was left to the judge in the first place.
		Nevertheless, judicial discretion must be exercised fairly and impartially, and a showing to the contrary may result in the ruling being reversed as an abuse of discretion.
	www.lectlaw.com /def/a004.htm (223 words)

	Grave abuse of discretion - INQ7.net (Site not responding. Last check: 2007-09-20)
		It should not cover the professional qualifications of the teachers, the manner of their instruction and grading, and the academic policies they choose to adopt for the benefit of the students, the estimable record of the College, and the pride of its alumni.
		Discretion is defined as the ability to decide one way or the other and be right either way, but it is not that absolute.
		The case of Camacho vs. Coresis, 387 SCRA 628, is not in point, Father Aquino, as it did not involve a conflict between the administrative authorities and the faculty, as the San Beda case did.
	news.inquirer.net /opinion/index.php?index=1&story_id=63724 (785 words)

	Trial Stages: Appeals: Standards of Review, Burdens, etc.
		Huberty, No. 99-0778 (abuse of discretion is the proper standard by which to review a decision to admit or exclude expert evidence; an appellate court will not reverse unless a ruling is manifestly erroneous).
		Matthews, No. 99-0487 (a military judge’s ruling on the admissibility of evidence will be overturned only if there is a clear abuse of discretion; a military judge abuses his or her discretion if the ruling is influenced by an erroneous view of the law).
		Monroe, No. 99-0536 (military judge’s ruling on a motion to suppress is reviewed for abuse of discretion; the judge’s fact-finding is reviewed under a clearly-erroneous standard, and his/her conclusions of law are reviewed de novo; the evidence is reviewed in the light most favorable to the prevailing party).
	www.armfor.uscourts.gov /digest/2000dig/IVG5.htm (2655 words)

	Jones Day - Publications - Third Extension of Exclusivity Not Abuse of Discretion
		A debtor’s exclusive right to formulate and solicit acceptances for a plan of reorganization during the initial stages of a chapter 11 case is an important element among the provisions in the Bankruptcy Code designed to facilitate the successful restructuring of an ailing enterprise.
		The extent of the bankruptcy court’s discretion on the exclusivity question was the subject of the bankruptcy appellate panels’ decision in In re Hoffinger Industries, Inc.
		Implicit in section 1121 is the recognition that other parties should be given an opportunity to direct the course of a reorganization if the debtor is unable or unwilling to do so after a reasonable period of time.
	www1.jonesday.com /pubs/pubs_detail.aspx?pubid=638603 (1364 words)

	SurfWax: News, Reviews and Articles On Abuse Of Discretion
		As ranking minority member of the subcommittee in 2005, he was outraged by the waiver lifting the restrictions, calling it an abuse of discretion and an affront to Congress and said that it made a mockery of the process and sent a terrible message.
		She labeled Roswell's rejection of the stadium a "gross abuse of discretion" and said it violated Fellowship's constitutional right to equal protection of the laws because the city had approved the two nearby stadiums.
		Repeatedly raising the sentence "was a gross abuse of discretion and a substantial overreaction to their efforts to protest his ruling.".
	www.lawkt.com /files/Abuse_Of_Discretion.html (5090 words)

	Juvenile Law Section Home Page
		On August 19, 2004, the Fort Worth Court of Appeals held that the juvenile court did not abuse its discretion in committing respondent to the TYC in view of the repeated offenses he committed and the chances he was given on probation.
		Furthermore, an abuse of discretion does not occur as long as some evidence of substantive and probative character exists to support the trial court's decision.
		A.D.B. also complains that the trial court abused its discretion by committing him to TYC because the evidence is factually insufficient to support the trial court's finding that reasonable efforts were made to prevent or eliminate the need to remove A.D.B. from his home.
	www.juvenilelaw.org /CaseSummaries2004/04-3-30.HTM (1778 words)

	Texas Judiciary - Court of Criminal Appeals Opinion #2053-01d
		The Court then stated that abuse of discretion was the appropriate standard of review, but the Court did not consider the inconsistencies that this standard would cause, nor did it address the possibility of a hybrid standard of review.
		He argued that a straight abuse of discretion standard would "most likely lead to inconsistent treatment of similarly situated claims" which would in turn "compromise the integrity of the judiciary in the eyes of the public."
		We have recognized that an abuse of discretion review is not necessarily appropriate in the context of application of law to facts when the decision does not turn on the credibility or demeanor of witnesses.
	www.cca.courts.state.tx.us /opinions/205301d.htm (4204 words)

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