To: SB 260 Attorneys
From: Kristen Bell
Date: January 4, 2013
RE:
Use of “Great Weight” in other Areas of Law
I.
Use of “Great Weight” in California Law
A. Case law. The California Supreme Court has explained that giving “great weight” to
a finding means adhering to the finding unless “there is substantial evidence of countervailing
considerations which justify [a departure].” People v. Martin, 42 Cal. 3d 437, 448 (1986)
(explaining what it means to give “great weight” to a finding by the Board of Parole that a
sentence is disparate); People v. Javier A., 38 Cal. 3d 811, 819 (1985) (explaining what it means
to give “great weight” to a recommendation that a juvenile be placed in Youth Authority rather
than prison). A decision-maker does not give “great weight” to a finding merely by considering
it as one of several primary considerations. Martin, 42 Cal. at 448; People v. Martinez, 191 Cal.
App. 3d 1372, 1388 (Ct. App. 1987) (distinguishing between giving a finding “great weight” and
treating it as “one of ‘several primary considerations’”). Instead, a decision-maker gives “great
weight” to a finding by presumptively following it, and departing from it only upon finding
“substantial evidence of countervailing considerations of sufficient weight to overcome the
[finding].” Javier A., 38 Cal. 3d at 819; People v. Carl B., 24 Cal. 3d 212, 214-15 (1979).
Breaking this down, a decision-maker may not depart from a finding that is afforded “great
weight,” unless there is a countervailing factor that is both a) supported by substantial evidence
and b) of such significance that it deserves even greater weight. See Martin, 42 Cal. at 448-449
(error to depart from a finding that was to be given “great weight”).
California courts have adopted and apply a “great weight” standard in at least three
additional contexts. First, an appellate court reviewing a petition for habeas corpus must give
“great weight” to factual determinations made by a referee who presided over an evidentiary
hearing. See In re Hardy, 41 Cal. 4th 977, 993 (2007), and cases cited. Second, the construction
of a statute by officials charged with its administration is entitled to “great weight.” See Yamaha
Corp. of Am. v. State Bd. of Equalization, 19 Cal. 4th 1, 16 (1998). Third, when the Federal
courts of appeal have reached a consensus on a legal issue, that consensus is afforded “great
weight.” See Coral Const., Inc. v. City & Cnty. of San Francisco, 50 Cal. 4th 315, 329-30
(2010).
B. Statutes. The phrase “great weight” appears in four other sections of the California
Penal Code, and an additional eleven times in the California code. See Calif. Penal Code § 1208
(recommendation of court for work furlough shall be given great weight); Calif. Penal
Code § 1203.016 (recommendation of court for placement in home detention program shall be
given great weight); Calif. Penal Code § 1203.017 (same); Calif. Penal Code § 4011.10. See
also Calif. Business and Prof. Code § 809.05, 2335; Calif. Gov. §§ 11425.50, 53115.1, 56425,
56668.3, 76000.10; Calif. Harbor and Nav. Code § 525; Cal. Health & Safety Code §§ 18930,
102705; Calif. Water Code § 10605.1 No appellate court appears to have interpreted the phrase
“great weight” in these statutes. In only one instance does the statutory language lend insight
into the practical meaning of the phrase “great weight.” See Cal. Health & Safety Code § 18930
(“The commission shall give great weight to the determinations and analysis of the adopting
agency or state agency . . . Any factual determinations . . . shall be considered conclusive by the
commission unless the commission specifically finds, and sets forth its reasoning in writing, that
the factual determination is arbitrary and capricious or substantially unsupported by the
evidence”).
C. Bar Discipline. A “great weight” standard is employed in state bar discipline matters.
The Rules of the State Bar provide standards on sanctions for disciplining professional
misconduct, and those standards are “afforded great weight by the Supreme Court.” See State
Bar Procedural Standard § 1.1; In re Silverton, 36 Cal. 4th 81, 92 (2005).2 To give “great
weight” to the standards means that the Court “will accept a disciplinary recommendation that is
consistent with the Standards unless it has grave doubts about the propriety of the recommended
sanction.” See Lawhorn v. State Bar, 43 Cal. 3d 1357, 1366 (1987). A party opposing a
disciplinary recommendation bears the burden of showing that the recommendation is erroneous.
See Kaplan v. State Bar, 52 Cal. 3d 1067, 1071 (1991). See also Black v. State Bar, 7 Cal. 3d
676, 684 (1972).3
II.
Use of “Great Weight” in Federal law.
In federal case law, a “great weight” standard has been applied in at least four contexts as
explained below: (1) social security determinations, (2) motions for new trial, (3) statutory
construction, and (4) interpretation of treaties.
“Great weight” also appears in regulations. See e.g., Cal. Code Regs. Tit. 22, § 4304-8,
“Specific Application of Rules for Determination of Employment Status to Circumstances in the
Security Dealer’s Industry” (some factors are to receive “great weight” in contrast with other
factors that receive “light weight,” “medium weight,” and “high weight”).
2
Section 1.1 of The Rules of the State Bar states:
1
“The Standards are based on the State Bar Act and the longstanding decisions of the
California Supreme Court, which maintains inherent and plenary authority over the practice of
law in California. Although not binding, the Standards are afforded great weight by the Supreme
Court and should be followed whenever possible. The Supreme Court will accept a disciplinary
recommendation that is consistent with the Standards unless it has grave doubts about the
propriety of the recommended sanction. If a recommendation is at the high end or low end of a
Standard, an explanation must be given as to how the recommendation was reached. Any
disciplinary recommendation that deviates from the Standards must include clear reasons for the
departure.”
The phrase “great weight” also appears in State Bar Rule 5.155, which provides that in review
of disciplinary matters, the “findings of fact of the hearing judge are entitled to great weight.
3
First, in determining a person’s eligibility for disability benefits under Title II of the
Social Security Act, an administrative law judge must give “great weight” to the opinion of a
treating physician. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). The Ninth Circuit has
explained that giving “great weight” to this opinion means that the “ALJ may not reject treating
physicians’ opinions unless he ‘makes findings setting forth specific, legitimate reasons for
doing so that are based on substantial evidence in the record.’” Id. at 1286, quoting Magallanes
v. Bowen, 881 F.2d 747, 751 (9th Cir.1989); Winans v. Bowen, 853 F.2d 643, 647 (9th
Cir.1987)).
Second, a federal court may grant a motion for new trial on the basis of insufficiency of
evidence “only if the verdict is against the ‘great weight’ of the evidence or ‘it is quite clear that
the jury has reached a seriously erroneous result.’” Venegas v. Wagner, 831 F.2d 1514, 1519
(9th Cir. 1987).
Third, when an agency has developed a longstanding construction of a statute, and
Congress has acquiesced to it, the administrative construction is entitled to “great weight.”
Saxbe v. Bustos, 419 U.S. 65, 74 (1974). In this context, the Supreme Court of the United States
has explained that the “great weight” given to the administrative construction is strong enough to
alter the plain meaning of statutory language. See id. (administrative construction may add a
“qualification to what is on its face unqualified statutory language”).
Fourth, in interpreting a treaty, the Department of State meaning given to the terms of the
treaty by the Department of State is “entitled to great weight.” Cornejo v. Cnty. of San Diego,
504 F.3d 853, 860 (9th Cir. 2007).
Research on federal statutes and regulations was not helpful. “Great weight” is
mentioned in four statutes and two regulations, but there is no judicial interpretation of the
meaning of the phrase in any of these statutes or regulations.
III.
Use of “great weight” in the law of other states.
A broad search on the use of “great weight” in other states was conducted, but is not
summarized here. Below are the two instances in which “great weight” is used in a way that is
likely to be helpful in arguing for a forceful interpretation of that phrase.
In Florida, a sentencing judge was required to give “great weight” to the sentence
recommended by the jury in a capital case. The Florida Supreme Court explained that this meant
that “[i]n order to sustain a sentence of death following a jury recommendation of life, the facts
suggesting a sentence of death should be so clear and convincing that virtually no reasonable
person could differ.” Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975). See also Sochor v.
Florida, 504 U.S. 527, 550 (1992) (analyzing this standard).
In a different context, the Wisconsin Supreme Court has explained that the “ ‘clearly
erroneous’ and ‘great weight’ and ‘clear preponderance’ standards are interchangeable because
they are essentially the same test.” See State v. Thomas, 605 N.W.2d 836 (Wisc. 1999).