Transportation Services Office

En Banc

Considerations for the En Banc Court

 

1. Role of En Banc Court

The court En Banc is Traffic Court’s “supreme court.” Parties who lost their case at either the ex parte or in personam level can “apply for cert” to the court En Banc. By applying for cert, the party lists the reasons she believes the lower court erred. The accepted reasons can change depending on the court rules. Unlike the right to an initial appeal, there is no right attached for an en banc proceeding. Rather, the Traffic Court officers have complete discretion in deciding which applications to accept and for what reasons they are accepting.

The En Banc court is not a trial court. This is not a “second chance” to re-try a case. The En Banc court does not re-weigh equities or re-find facts. Ayika (1992). Rather, the En Banc court determines whether the lower court decision was supported in fact and consistent with the law or policy goals of the court. Bratt (1979).

The En Banc court is also not a regulator of KU Parking policy. Hall (1988). The court does not have the authority to force Parking to change its procedures or laws. Instead, the court ensures that people parking on campus are treated equitably in light of KU Parking’s right to regulate parking. But the Court does have the power to label a parking regulation as over or under inclusive or that a rule's phrasing as applied to a particular fact scenario creates an ambigious parking situation. Mrkvicka (2019).

See also Scanlon, Drake (1978), Johnson (1978), Milligan (2003), McGowan (1992), and Hall (1988).

The burden of persuasion lies with the party who applied for cert. Milligan (2003) (note, this case uses imprecise language).

Petitions for cert are treated the same regardless of if they came from an ex parte decision or an IP decision. This is contrary to the Stagner (1992) case because of changing court rules.

The ability of the court En Banc to remand a case for a new trial comes and goes depending on the current court rules. As of 2016, remands are possible. However, an en banc court should not remand a case if the outcome at the new trial would not be any different. Cumberbatch (1992). See also Raee (1986) and Harmless Error (Due Process).

There is an option of “appealing” a case from the En Banc court. However, there is only one known case of this: Drake (1978). Drake was taken to the University Judiciary. The University Judiciary does not regularly entertain hearings out of the en banc court. Anyone who wishes to appeal to the University Judiciary or perhaps the formal court system needs to check their respective rules to see if it is possible and how it would be done. Feel free to contact the Chief or Associate Chief of Traffic Court for help in this process.

 

2. Bases for Petitions for Cert

The reasons the En Banc court will accept for hearing a case vary depending on the current court rules. The current grounds for a petition for cert are: the University can petition based off (1) procedural error, (2) perjury, or (3) clearly erroneous lower court decision; the Appellant can petition based off (1) misapplication of en banc decisions, (2) procedural error (due process), (3) compelling policy considerations, (4) clearly erroneous, and (5) inadequate representation. See Court Rules.

See also Jackson (2014) and Stonestreet (1992).

Appellants and the University can petition for cert if the lower court's decision was "clearly erroneous in light of the evidence." See Court Rules 10.1.1(c) and 10.1.2.(d). The University or Appellant would challenge the lower court's decision on the basis that the decision is implausible based on the evidence presented--meaning the finding of fact does not actually match what happened.

“Clearly Erroneous” is also a standard used by the en banc court when reviewing a lower court’s findings of fact or weighing of equities. For example: the lower court found that the appellant in fact over stayed the meter; the lower court found that the good faith of the appellant outweighed the unreasonableness of her actions; or the lower court found the appellant’s testimony unworthy of belief.

Clearly erroneous is a very deferential standard of review. Coe (2013). The en banc court is not meant to re-weigh equities or re-find facts. Therefore, an en banc court will only reverse a lower court’s findings of fact if no reasonable person could come to the same conclusion. Spohn (2006). It is not enough that the en banc justices disagree with the lower court. The en banc justices have to find that a reasonable judge could not have come to the same conclusion as the lower court. Araujo (2015).

See also Hughes (2011), Frederickson (1992), Dowell (2012), Cumberbatch (1992), Cray (1977), Robertson (1995), Massey (1977), Plumb (1995), Paden (2012), Paplham (1998), Brohammer (1988), and Borgmier (1979).

The lower court’s analysis and application of en banc precedent is reviewed de novo by the court En Banc. Rombold (2016). For example: the lower court applied the Holt standard instead of the McMahon standard in defining “blocking.” Misapplication of case law is a reason to reverse a lower court’s decision.

Note: it can be difficult sometimes to distinguish findings of fact to application of law. For example, with blocking: “The lower court found the appellant was blocking, per Holt standard, because the car next to her was unable to significantly impaired from leaving the parking space.” The finding that the other car was significantly impaired from leaving the parking space is a factual finding and would be reviewed under the clearly erroneous standard. Applying that factual finding to the Holt standard would be applying en banc precedent and would be reviewed de novo.

 

Compelling policy considerations are considered de novo by the court En Banc. Simmons (2014).

Procedural issues can lead to due process violations. These are reviewed de novo by the court En Banc. There is a two-prong test in determining whether a procedural issue warrants a reversal of a lower court’s decision. McGowan (1992). The first prong asks if there was a due process violation. The second prong asks, if there was a due process violation, was that violation outcome determinative? Callahan (2007).

There was a due process violation when a substantial right of the appellant’s (or University’s) was prejudiced in the case because of the procedures of the lower court. Coe (2013).

If a due process violation did not change the outcome of the case, then the violation was “harmless error” and the lower court’s holding will not be reversed. Dowell (2012).

See also Raee (1986), Wheeler (1998), Rombold (2016), Riepe (1998), Spohn (2006), Chaput (1978), Milligan (2003), Nickoley (1981), Schmitendorf (1980), Six (1980, and Hughes (2011).

See Inadequate Representation of Counsel. This is a type of due process consideration.