In re D.L.B., ___ N.J. Super. ___ (App. Div. 2021); Valarezo-Tirado v. Attorney General of the United States of America, ___ F.4th ___ (3d Cir. 2021). It is a fundamental rule that courts must provide findings and reasons for their decisions. Litigants deserve to know why they won or lost, and reviewing courts (if cases go on appeal) need to know what decision they are reviewing. In the last two days, these two cases, one from the Appellate Division and one from the Third Circuit, re-emphasized the importance of findings and reasons for decision.
In re D.L.B. was a case under New Jersey’s “red flag law,” formally known as the Extreme Risk Protective Order Act of 2018. Under that statute, a court has the power to remove firearms from a person who “poses a significant danger of bodily injury to . . . self or others by possessing such weapons. N.J.S.A. 2C:58-24(b). This appeal arose out of the Law Division’s denial of a law enforcement officer’s petition for a final extreme risk protective order (“FERPO”) that would have required D.L.B. to surrender her firearms.
The State appealed that ruling. In his opinion yesterday, Judge Ostrer reversed the Law Division’s decision. Though recognizing that “the scope of appellate review of a trial court’s fact-finding function is limited,” Judge Ostrer cited Rule 1:7-4(a) for the proposition that a trial court must “find the facts” in rendering its opinion:
“A reviewing court may ‘expect’ that a trial court’s fact-findings will adequately address the ‘disputed issues’ among the parties. N.J. Div. of Youth & Fam. Servs. v. H.P., 424 N.J. Super. 210, 230 (App. Div. 2011). A judge’s fact-finding must explain ‘how and why the ultimate conclusion was drawn.’ Ibid. ‘Failure to make explicit findings and clear statements of reasoning ‘constitutes a disservice to the litigants, the attorneys, and the appellate court.'” Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting Curtis v. Finneran, 83 N.J. 563, 569-70 (1980)); see also J.D. v. M.D.F., 207 N.J. 458, 488 (2011) (remanding where trial court entering FRO ‘did not sufficiently articulate findings and conclusions consistent with the statutory standards’).”
Here, there were a number of things that the Law Division did not address in its opinion. There were guidelines for a FERPO, but the court did not fully address the guideline on which the petitioning law enforcement officer relied. Nor did the Law Division address or sufficiently explain its view of a number of pieces of evidence, including testimony, a bodycam recording presented by the petitioning officer, and the officer’s written report. “Absent consideration of this evidence, and findings on these critical issues, the court’s determination that D.L.B. did not pose a danger to self or others rested on an incomplete foundation.” The panel reversed the Law Division and remanded “for more complete findings upon review of the relevant evidence, including all of the information the State is required to provide the court in accordance with [the relevant] Guidelines.”
In Valarezo-Tirado, the Third Circuit, speaking through Judge McKee, made the same point in a very different context today. The appeal there was from the reinstatement by an Immigration Judge (“IJ”) of a prior order of removal. “The IJ affirmed a Department of Homeland Security (DHS) asylum officer’s determination that Valarezo-Tirado did not have a reasonable fear of torture as required for relief under the Convention Against Torture (CAT) or a reasonable fear of persecution as required for asylum and withholding of removal.”
Valarezo-Tirado appealed on several grounds. One of those grounds was that the IJ had deprived Valarezo-Tirado of his right to counsel. Judge McKee did not accept that argument. But Valarezo-Tirado succeeded with his other key contention: “the IJ’s conclusion that he did not have a reasonable fear of torture was not supported by reasonable, substantial, and probative evidence on the record as a whole.”
Somewhat like Judge Ostrer in D.L.B., Judge McKee emphasized that a reviewing court employs an “extraordinarily deferential standard [and] we uphold the IJ’s findings if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole.” But the IJ offered only a “less-than-terse explanation of her denial of CAT relief,” so that there was ” no way of determining what evidence, if any, the IJ relied upon. An IJ must support her factual determinations with specific, cogent reasons such that her conclusions flow in a reasoned way from the evidence of record.”
Citing prior cases (citations I’m omitting here), Judge McKee said that “[t]he IJ’s failure to provide a citation or reference to anything in the record leaves us guessing at the evidence she relied upon and gives us [nothing] to review. We cannot give meaningful review to a decision in which an IJ does not explain how it came to its conclusion.”
Courts of first instance have heavy caseloads, which leads to the temptation to skip over or abbreviate findings and reasons. Judge McKee recognized that IJ’s caseloads had increased “exponentially.” Nonetheless, he said, “we cannot allow incredibly difficult logistics to give license to IJs to skirt their responsibilities. This includes the obligation to inform the petitioner of the reasons for the IJ’s decision and provide an adequate explanation of the decision that does not require us to parse through the testimony in search of evidence that supports it. A two-sentence recitation on a bullet-point form will rarely, if ever, provide sufficient reasoning for a decision. A decision, such as the one here, that does not refer to record evidence will never suffice.” Accordingly, the panel vacated the IJ’s decision and remanded for further proceedings.