Resolving an issue of appellate review that’s important in circumstances “ ‘ “where particularly important individual interests or rights are at stake,” ’ ” the Supreme Court in Conservatorship of O.B. today holds that when the heightened clear-and-convincing-evidence standard of proof applies at trial, it also affects the way an appellate court assesses the evidence. [Disclosure: Horvitz & Levy filed an amicus curiae brief in this case.]
The court’s unanimous opinion by Chief Justice Tani Cantil-Sakauye says “an appellate court must attune its review for substantial evidence to the heightened degree of certainty required by” the standard of proof. Here’s the rule: “the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the fact was true.” But, the court cautions, an appellate court must “not reweigh the evidence itself.”
Besides the conservatorship case before it, the court notes a number of other contexts in which proof must be by clear-and-convincing evidence, including parental rights, involuntary commitment, deportation, punitive damages (see here), the withdrawal of life-sustaining care, the forced administration of psychiatric medication to inmates, certain defamation cases, and the denial of bail (see here). Additionally, the court states that the rule it announces “harmonizes with the firmly established rule in criminal cases that the prosecution’s burden of proving a defendant’s guilt beyond a reasonable doubt affects how an appellate court reviews the record for substantial evidence.”
The court reverses the Second District, Division Six, Court of Appeal. Because until today there was, as the court says, “a significant split of authority among the Courts of Appeal,” the court disapproves 21 Court of Appeal decisions. The court also takes some responsibility for the split — saying it had “in the past sent mixed signals regarding the issue” — and it disapproves language in eight of its own opinions.
[Update: For a more comprehensive analysis of the opinion, see here in Horvitz & Levy’s California Punitive Damages blog.]
