The Wyoming Supreme Court, when reviewing workers’ compensation findings by administrative fact-finders, sometimes employs the formulation that it will uphold such findings if they are “not against the overwhelming weight of the evidence.” See e.g. the very recent decision in Jensen v. Wyoming WCD,378 P.3d 298 (Wy. 2016). I’ve done a little research this morning and discovered that besides Wyoming only Missouri appears to use this standard of review in workers’ compensation cases. Mississippi courts use the standard quite a bit when reviewing jury findings in criminal cases, and Texas uses the standard when reviewing jury findings in civil cases. So far as I can tell on first inspection, only five states have used the standard in the last three years in any capacity, and several states appear to have used the standard in the early part of the 20th century but no longer do. What interests me about the standard is that it “sounds” significantly more deferential to administrative agencies than the way I think about the “substantial evidence” standard that is typically utilized in judicial review of administrative fact finding. (The well-known federal substantial evidence standard is located in APA 706(2)(E)).
Wyoming workers’ compensation guru George Santini pointed me to the likely origin of the “not against the overwhelming weight of the evidence” standard in Wyoming. In Laramie School District No. 1 v. Spiegel,549 P.2d 1161 (Wy. 1976), the Wyoming Supreme Court said:
The test as to whether or not there is substantial evidence has been said to be
‘. . . whether the administrative decision finds reasonable support in substantial evidence, whether the evidence reasonably tends to support the findings, or, it has been indicated, whether the decision is not clearly contrary to the overwhelming weight of the evidence.’ 2 Am.Jur.2d Administrative Law s 688.
The Court went on in that case to find that the decision of the agency in question had not been supported by substantial evidence (upholding the same conclusion of the District Court below).
Here is the problem that I have with the Wyoming Supreme Court’s tendency (as I see things) to use the “not against the overwhelming weight of the evidence” standard as seemingly untethered from the “substantial evidence” standard: it seems to return us to a time, prior to the enactment of the federal APA and the famous Universal Camera decision, when courts would simply focus on evidence presented by the agency and, if there was “more than a mere scintilla” of such evidence, uphold the agency. The movement of administrative law since has been towards “whole record review” and inspection of the inherent reasonableness of agency fact finding. The purpose of whole record review is to determine whether there is
a rational or logical basis for the finding. This must mean evidence in the case and in the context of the case. To abstract out of a case that part of the evidence which can be made to support a conclusion is to imagine an abstract case, a case that was never tried…Evidence which may be logically substantial in isolation may lose its logical relevance, even its claim to credibility, in context with other evidence. The rationality or substantiality of a conclusion can only be evaluated in the light of so much of the situation as is made to appear. (emphases supplied).
Jaffe, Judicial Review: Question of Fact,69 Harv. L. Rev. 1020, 1027 (1956).
Agency decisions anciently were upheld under substantial evidence doctrine if supported by “any” evidence. I am concerned that the Wyoming standard is in practical operation precisely equivalent to the old standard. I intend to take this topic up in a full length article next summer.