In Re Litigation Relating to the Riot of September 22, 1991

No. 96-539

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

r THE MATTER OF LITIGATION RELATING TO THE

N

RIOT OF SEPTEMBER 22,1991, AT THE MAXIMUM

SECURITY UNIT OF THE MONTANA STATE PRISON.

APPEAL FROM: District Court of the Third Judicial Distnet,

In and for the County of Powell,

The Honorable Ted Mizner, Judge presidin

COUNSEL OF RECORD:

For Appellants:

John H. Maynard, Marcia Davenport; Browning, Kaleczyc, Berry &

Hoven, Helena, Montana

Norman C. Peterson, Assistant Attorney General, Agency Legal Serv~ces

Bureau, Helena, Montana

For Respondents:

William Boggs, Attorney at Law, Missoula, Montana

Michael D. Cok, Attorney at Law, Bozeman, Montana

Wendy Holton, Attorney at Law, Helena, Montana

Kerry N. Newcomer; Geiszler & Newcomer, Missoula, Montana

Scott C. Wurster; Attorney at Law, Kalispell, Montana

Submitted on Briefs: May 15, 1997

Decided: June 24, 1997

Filed: n

Justice Karla M. Gray delivered the Opinion of the Court

The individual defendants in numerous legal actions arising out of the 1991 riot at the

Montana State Prison appeal from an order of the Third Judicial District Court, Powell

County, denying their motions for summary judgment which were based on qualified

immunity. We dismiss the appeal, award sanctions and remand to the District Court for

determination of the amount of the sanctions and for further proceedings.

The dispositive issue on appeal is whether this Court has jurisdiction to consider the

appeal.

BACKGROUND

On September 22, 1991, a riot occurred at the Montana State Prison (MSP). Stated

briefly, maximum security inmates breached security devices and systems and took over the

Maximum Security Unit (Max). Scores of maximum scmrity ilimates were freed f r ~ l ithcir

l

cells and access was gained to inmates housed in the Max in "protective custody" for the

purpose of safeguarding them from perceived risks of harm from other inmates. Five

protective custody inmates were killed and attempts were made to kill eight others, some of

whom received serious injuries. Both external and internal investigations were undertaken

at the behest of the Montana Department of Corrections (Department), including the "Riot

at Max Report," also called the "Schwartz Report," and the "Gooch Report." The results of

the investigations generally were not favorable to the manner in which prison employees

operated the Max.

Substantial litigation ensued, including the negligence and civil rights cases

underlying this appeal. In these cases, brought by the estates of deceased protective custody

inmates and by surviving protective custody inmates, the State of Montana is the primary

defendant in negligence claims against employees at the MSP, on a respondeat superior

basis; individual supervisory employees and the Department are the defendants in civil rights

claims brought under 42 U.S.C. 5 1983. The thrust of the 5 1983 actions is the alleged

breach by the individual defendants of their constitutional duty to use reasonable care to

ensure the safety of incarcerated inmates. Both the plaintiffs and the defendants filed and

briefed numerous motions and the District Court heard oral argument.

On July 15, 1996, the District Court entered an Opinion and Order on Pending

Ivfotions. Among other rulings, the court derermined that the finai conclusions in the

Schwartz Report and the Gooch Report were admissible into evidence and that the authors

of those reports were qualified to testify as experts in their respective fields of prison

administration and personnel administration. The court also granted the plaintiffs' motion

for summary judgment on liability, concluding that reasonable minds could reach only one

conclusion--namely, that the defendants' breach of their duty to safely operate the Max

directly contributed to the riot and the resulting damages and injuries. Finally, the District

Court denied the individual defendants' motions for summary judgment on the 5 1983 claims,

which were based on qualified immunity. In the latter regard, it concluded that questions of

fact existed as to the defendants' knowledge of the substantial risk of ham1 to the protective

custody inmates in the Max at the time of the riot and the obviousness of the risk, and that

these questions relating to the reasonableness of the defendants' conduct must be resolved

by the trier of fact. The individual defendants appeal from the District Court's denial of their

qualified immunity-based motions for summary judgment.

Does this Court have jurisdiction to consider this appeal?

The defendants present a number of arguments relating to asserted errors by the

District Court in denying their motions for summary judgment. The plaintiffs, however, raise

the threshold issue of whether we have jurisdiction to entertain the appeal. We conclude that

the appeal is premature and, as a result, we do not have jurisdiction to consider it.

This Court's jurisdiction is set forth in Article VII, Section 2 of the 1972 Montana

Constitution. Specifically, Article VII, Section 2(l j, vests us with appellate jurisdiction and

Article VII, Section 2(3), authorizes us to make rules governing appellate procedure.

The Montana Rules of Appellate Procedure, duly adopted by this Court, govem

appeals to this Court from Montana district courts. Rule I(b)(l), M.K.App.P., expressly

provides that an appeal may be taken from a final judgment entered in an action in a district

court. A final judgment is one wherein a final determination of the rights of the parties has

been made; any decree which leaves matters undetermined is interlocutory in nature and not

a final judgment for purposes of appeal. Kirchner v. W. Mont. Mental Health Ctr. (1993),

261 Mont. 227,229,861 P.2d 927,929 (citations omitted). Although the defendants do not

address the matter, it is inarguable that the District Court's order denying the defendants'

motions for summary judgment left matters unresolved. Moreover, it has long been the law

in Montana that an order denying a motion for summary judgment is not a final judgment.

See Brown v. Midland Nat. Bank (1967), 150 Mont. 422,429,435 P.2d 878,881-82. Thus,

it is clear that the defendants' appeal to this Court is not an appeal from a final judgment.

Nor is the defendants' appeal authorized by subsection (2) or (3) of Rule l(b),

M.R.App.P. Those subsections expressly authorize appeals from specified interlocutory

orders; however, orders denying summary judgment are not included in the delineated orders

from which an appeal can be taken. See Rules 1@)(2) and (3), M.R.App.P.

Pursuant to the Montana Rules of Appellate Procedure, therefore, the defendants'

appeal is premature. A premature appeal must be dismissed for lack of jurisdiction.

Kirchner v. Western Montana Mental Hith. (19953,272 Mont. 110, i 12-13, 899 P.2d 1102,

1104; Kirchner, 861 P.2d at 929; In re Marriage of Rex (1982), 199 Mont. 328,330,649 P.2d

460,46 1.

The defendants do not address Montana law regarding the appealability of the District

Court's order denying their motions for summary judgment based on qualified immunity in

any fashion. Rather, they contend that "the record is ripe for appeal" and that federal

authority establishes the appealability of at least a portion of the District Court's order. We

address the contentions in turn.

We observe, initially, that the defendants cite to no authority in support of their "ripe

for appeal" contention. The reason, of course, is that no such authority exists. The fact

that, in the defendants' view, the current record "may easily be reviewed by this Court" is

irrelevant to the issue of whether the District Court's order denying motions for summary

judgment is appealable at this time, thus vesting jurisdiction in this Court to entertain the

appeal. Indeed, the defendants' suggestion that a record "ripe for appeal" or "easily

reviewable" somehow renders an order entered on that record appealable--carried to its

logical extreme--would totally nullify Rule 1, M.R.App.P., by allowing interlocutory appeals

of virtually all interlocutory orders; this is so because the records on which district courts are

requested to enter such orders presumably also are "ripe." In short, the defendants'

contention in this regard is totally without merit.

Nor is the defendants' assertion of federal authority regarding the appealability of an

unfavorable order on a motion for summary judgment based on qualified immunity in a i)

1983 action well taken. As background to our discussion of the defendants' position in this

regard, we briefly set forth recent federal decisional history regarding the appealability of

orders denying qualified immunity in 5 1983 civil rights actions.

By 1985, the United States Circuit Courts of Appeals had divided on the issue, with

the First, Eighth and District of Columbia Circuits holding that such orders were appealable

and the Third, Fifth and Seventh Circuits holding that they lacked jurisdiction over

interlocutory appeals of qualified immunity rulings. C' Krohn v. United States (I st Cir.

1984), 742 F.2d 24; Evans v. Dillahunty (8th Cir. 1983), 711 F.2d 828; McSurely v.

McClellan (D.C. Cir. 1982), 697 F.2d 309; with Forsyth v. Kleindienst (3rd Cir. 1984), 729

F.2d 267; Kenyatta v. Moore (5th Cir. 1984), 744 F.2d 1179; Lightner v. Jones (7th Cir.

1985), 752 F.2d 1251.

The United States Supreme Court resolved the division among the Circuit Courts over

the appealability of interlocutory decisions denying qualified immunity to 5 1983 defendants

in Mitchell v. Forsyth (1985), 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411. There, the

federal district court had denied the defendant's motion for summary judgment based on

qualified immunity, concluding that the defendant's actions violated clearly established law,

and the Third Circuit held that the order was not appealable. Mitchell* 105 S.Ct. at 281 1

(citations omitted).

The Supreme Court began its analysis by observing that 28 U.S.C. 5 1291, the federal

statute delineating the appellate jurisdiction of the Circuit Courts, vested those courts with

jurisdiction only from "final decisions" of the federal district courts. Noting that a decision

which was "final" within the meaning of 5 1291 did not necessarily mean the last order

which could possibly be made in a case, the Supreme Court focused on its collateral order

doctrine, under which a district court decision is appealable if it falls within

"that small class which finally determine claims of right separable from, and

collateral to, rights asserted in the action, too important to be denied review

and too independent of the cause itself to require that appellate consideration

be deferred until the whole case is adjudicated."

Mitchell, 105 S.Ct. at 2814 (quoting Cohen v. Beneficial Industrial Loan Corp. (1949), 337

U.S. 541, 546,69 S.Ct. 1221, 1225,93 L.Ed. 1528, 1536).

The Supreme Court then applied its decisional law interpreting the federal appellate

jurisdiction statute to the appealability of the federal district court's denial of the defendant's

motion for summary judgment on the basis of qualified immunity. Reiterating the well-

established standard of qualified immunity articulated in Harlow v. Fitzgerald (1982), 457

U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396, that a 5 1983 defendant is entitled to immunity

as long as his or her actions do not violate "clearly established statutory or constitutional

rights of which a reasonable person would have known," the Supreme Court held that an

order denying a claim of qualified immunity is an appealable "final decision" under 5 1291

to the extent the denial turns on an issue of law, even though it is not a final judgment in the

case. Mitchell, 105 S.Ct. at 2814,2817. Statedmore narrowly, the Mitchell Court concluded

that the Circuit Courts have jurisdiction to entertain an appeal from a federal district court's

denial of qualfied immunity where the basis for the denial is that clearly established law

proscribed the defendant's alleged actions. Mitchell, 105 S.Ct. at 2816.

The Supreme Court again addressed the appealability of decisions denying qualified

immunity in 5 1983 actions in Johnson v. Jones (1995), -U.S. -, 115 S.Ct. 2151,132

L.Ed.2d 238. The issue was whether the Circuit Courts have jurisdiction to entertain an

appeal from an order denying qualified immunity on the basis that the evidence created a

genuine issue of fact requiring trial; in that context, the Supreme Court revisited 5 1291, the

Coben collateral order doctrine and Mitchell. Johnson, 115 S.Ct. at 2154-56. The Supreme

Court affirmed the Seventh Circuit's conclusion that a decision denying qualified immunity

because sufficient evidence existed to create a genuine issue of fact requiring trial was not

appealable, holding that a defendant entitled to invoke a qualified immunity defense "may

not appeal a district court's summaryjudgment order insofar as that order determines whether

or not the pretrial record sets forth a 'genuine' issue of fact for trial." Johnson, 115 S.Ct. at

2159.

The Ninth Circuit recently followed Mitchell and Johnson, holding that it had

jurisdiction to review the federal district court's decision that the defendants'

alleged conduct violated clearly established law, but the collateral order

doctrine does not provide appellate jurisdiction to review the district court's

decision that genuine issues of material fact exist for trial.

Armendariz v. Penman (9th Cir. 1996), 75 F.3d 1311, 1317. As a result, the Ninth Circuit

dismissed the appeal to the extent it raised issues of whether genuine issues of material fact

exist, but addressed and reversed the federal district court's decision regarding whether the

defendants' alleged conduct violated clearly established law. Armendariz, 75 F.3d at 1328.

In the case presently before us, the individual defendants advance Mitchell and

Johnson as authorizing the appealability of at least the "legal portion" of the District Court's

order denying summary judgment, that is, the portion of the denial of summary judgment

relating to whether their alleged conduct violated clearly established law. They point out that

the Ninth Circuit has followed those Supreme Court opinions.

The flaws in this argument are both clear and inescapable, however. First, the

Supreme Court cases interpret the appellate jurisdiction of the federal circuit courts of

appeals under 3 1291, the federal statute governing that jurisdiction, and its own cases

thereunder. However, the federal jurisdictional statute is unrelated to the sources of this

Court's appellate jurisdiction wbich, as set forth above, are the Montana Constitution and the

Montana Rules of Appellate Procedure duly adopted thereunder by this Court. Nor have we

adopted a collateral order doctrine in interpreting Rule l(b)(l), M.R.App.P., as the Supreme

Court has done in interpreting the federal appellate jurisdiction statute. As discussed above,

the sources of this Court's appellate jurisdiction do not vest us with jurisdiction to entertain

an appeal from an order denying motions for summary judgment which were based on

qualified immunity.

Moreover, with regard to the defendants' reliance on Armendariz, it is hardly

surprising that the Ninth Circuit would foilow the Supreme Court's interpretations of fne

federal appellate jurisdiction statute; it is duty bound to do so. We are not so bound, since

our appellate jurisdiction rests on Montana law.

We note that other state courts have addressed the appealability of orders such as the

one at issue here in light of the Supreme Court's decisions. Some courts have concluded that

they either should or must be bound thereby. See, e.g., Anderson v. City of Hopkins (Minn.

1986), 393 N.W.2d 363 (accepting the Mitchell Court's reasoning in construing its own

appellate junsdiction, without determining whether Mitchell mandates such a result); McLin

v. Trimble (Okla. 1990), 795 P.2d 1035 (concluding that, while Mitchell is a mandate to state

courts, the Supremacy Clause cannot create jurisdiction in a state appellate court where it

does not otherwise exist and, as a result, exercising its original jurisdiction). Other state

courts have rejected the proposition that Mitchell (or its progeny) has any effect on their state

appellate procedure. See, e.g., Klindtworth v. Burkett (N.D. 1991), 477 N.W.2d 176

(concluding that state appellate jurisdiction sources dictate the outcome of the appealability

issue and, on that basis, dismissing an appeal from an order denying a qualified immunity-

based summary judgment motion); Noyola v. Flores (Tex. App. 1987), 740 S.W.2d 493;

Civil Service Emp. Ass'n v. Moritz (Ohio App. 1987), 529 N.E.2d 1290.

As noted above, the defendants in this case advanced no arguments pursuant to which

their appeal was properly before us under Montana law. Similarly, they advance no

arguments under which we either should, or must, be bound by the Supreme Court's Mitchell

and Johnscln holdings with regard to the appealability of the order at issue here. Since the

defendants have failed to do so and, as a result, have failed to establish that we have

jurisdiction over this appeal, we decline to address the question further.

One final note with regard to the individual defendants' appeal is appropriate. The

defendants' notice of appeal from the District Court's denial of their motions for summary

judgment was filed on August 15, 1996. In the notice, the defendants request that "[iln the

event the Montana Supreme Court deems applicable or preferable a procedure other than an

appeal, Defendants respectfully request the Montana Supreme Court treat their notice of

appeal as an application to invoke the designatedprocedure." This appears to be a suggestion

that we should determine for the defendants whether some procedure other than an appeal

is appropriate here and, if so, then somehow convert their notice of appeal, and briefs on

appeal, into documents appropriate to such an alternative procedure. It is not this Court's job

to do so. A notice of appeal filed by counsel on behalf of a party is precisely that; it is a

notice that the party is bringing an appeal pursuant to the Montana Rules of Appellate

Procedure. It is the party's obligation to support the appeal jurisdictionally, procedurally and

on the merits. Correspondingly, it is not for this Court to be an advocate for a represented

party by negating the judgments made by counsel as to the proper procedural mechanism

for bringing a matter before this Court. Moreover, as counsel is aware, alternative means of

proceeding before this Court arise under a jurisdictional source separate from that governing

an appeal and are governed by different rules and requirements. See, e.g., Article VII,

Section 22 of the Montana Constitution; Ruie 17, h4.R.App.P.; Plumb v. Fourth Jud. Dist.

()

Court (Mont. 1996), 927 P.2d 1011, 53 St.Rep. 1187. We cannot, and will not, cavalierly

disregard such matters on behalf of a party or construct the arguments by which the party

might seek alternative review by this Court. Suffice it to say that this appeal has delayed for

nearly a year litigation regarding the riot which occurred six years ago and we have

addressed it as it was presented.

We hold that the appeal from the District Court's order denying the defendants'

qualified immunity-based motions for summary judgment must be dismissed.

As a final matter, the plaintiffs have requested sanctions under both federal standards

and Rule 32, h4.R.App.P. While their request is supported by substantive arguments, we

need not address those arguments.

Under Rule 32, M.R.App.P., we may award appropriate damages as a sanction where

we are "satisfied from the record and the presentation of the appeal in a civil case that the

same was taken without substantial or reasonable grounds[.]" As discussed above, the

defendants advanced no arguments pursuant to which we would, or arguably might, have had

jurisdiction to entertain their appeal. If no arguments were available to support the

appealability of the order at issue, the appeal is frivolous and should not have been filed. If

arguments were available, the defendants were obliged to make them; they did not.

We will not permit parties to unnecessarily delay litigation, especially litigation of the

magnitude and importance of the litigation underlying this appeal, with impunity. Indeed,

one of the concerns regarding appealability of orders like the one at issue here is that

appealability may permit 5 1983 defendants to

ossify civil rights litigation. Defendants may defeat just claims by making suit

unbearably expensive or indefinitely putting off the trial. A sequence of pre-

trial appeals not only delays the resolution but increases the plaintiffs' costs,

so that some will abandon their cases even though they may be entitled to

prevail. Although it is important to protect public officials from frivolous

claims and burdens of trial, it is also important to curtail the outlay and delay

of litigation, so that victims of official misconduct may receive the vindication

that is their due.

Vates v. City of Cleveland (6th Cir. 1991), 941 F.2d 444,449 (citations omitted).

On the basis of the presentation of this appeal, we are satisfied that it was taken

without substantial and reasonable grounds. Therefore, we award the plaintiffs reasonable

attorney fees and costs incurred in defending this appeal and reasonable delay damages under

Rule 32, M.R.App.P., to be determined by the District Court.

This appeal is dismissed and the case remanded to the District Court for determination

of the amount of the Rule 32, M.R.App.P., damages awarded herein and for further

proceedings.

We concur:

Justices