Judicial discretion refers to that area of law that empowers a trial court judge to make a decision in a legal matter that has no absolute answer in the written law. It describes the power of a court to make a choice from among two or more legally valid solutions. Discretion arises when the judge decides which way to resolve a case. This judgment of the trial court occurs in accordance with what is right and equitable given the circumstances and applicable laws. Such a judgment is not made arbitrarily but rendered in an effort to reach a just result, as sometimes occurs in stalking or sexual harassment complaints.

In administrative matters, judicial discretion is very broad. These matters include personnel hiring, courtroom procedures, and the like. In procedural matters, the ruling of a trial judge is presumed to be correct unless a statute or rule exists to the contrary. In substantive matters judicial discretion is very limited, as judges must apply the law to the facts and set forth a decision as a matter of right. Only when no law exists to apply to a specific set of facts does judicial discretion become necessary.

Judicial discretion occurs in every case that comes before the court unless certain circumstances make its use invalid. For example, when the court does not have jurisdiction over a certain matter, it thus has no authority to decide on that matter. Also, where the U.S. Constitution demands performance of certain actions, the court does not have the ability to choose among options. In addition, when statutes or rules are so clear in relation to the facts at hand that only one decision can be rendered, judicial discretion is not warranted.

The use of discretion is not optional but mandatory in any case where the exclusionary circumstances do not exist. The need for judicial discretion is evident when a decision cannot be asserted as a matter of right. When a situation exists in which no clear, absolute answer exists, a determination must be made. A final determination is needed to promote efficiency, fairness, and finality in the administration of justice.

An abuse of discretion is not the result of an unpopular decision and involves more than a mere error in judgment or law. Such abuse involves a higher court finding that the judge's decision was arbitrarily and unreasonably based.

When judicial discretion is properly exercised, the record will clearly show that the trial court considered all the facts of the case and reasoned its way to a conclusion. On appeal of this conclusion to a higher court, the reviewing court will invoke a three-pronged test. The reviewing court will determine if the issue before the trial court was properly determined as one of discretion, then look to see if the decision was one that a reasonable judge would make, and determine if the decision is consistent with applicable law. If the higher court finds that the trial court's decision meets these elements, then it will uphold the trial court's discretionary conclusion even if the higher court would have rendered a different opinion.

References:

1) Intermill, Jessica S. 2004. "Separation of Powers Doctrine and the Feeney Amendment: The Constitutional Case for Judicial Discretion in Sentencing." Hamline Law Review 27:392-426.

2) Molot, Jonathan T. 2007. "Ambivalence about Formalism." Virginia Law Review 93:1-57.

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