WASHINGTON — In a case that could have a significant impact in civil litigation against government officials who claim qualified immunity, the Supreme Court heard arguments Monday over whether a denial of a summary judgment motion can be appealed after a trial verdict.
The plaintiff, Michelle Ortiz, claimed that she was sexually assaulted while serving a one-year sentence at an Ohio correctional facility and that the two defendants — a prison case manager and investigator to whom she reported the first incident — failed to take adequate steps to protect her from a second assault the following night.
The defendants moved for summary judgment, citing qualified immunity, but the motion was denied. The defendants did not file an interlocutory appeal.
The case went to trial and Ortiz was awarded $300,000 in compensatory and $350,000 in punitive damages. The defendants did not move for judgment notwithstanding the verdict, nor did they file a motion for a new trial.
The defendants then appealed the denial of summary judgment three years earlier. The 6th U.S. Circuit Court of Appeals reversed the verdict, finding the defendants were entitled to qualified immunity.
In the Supreme Court on Monday, David E. Mills, a solo practitioner in Cleveland, argued on Ortiz’s behalf that the 6th Circuit not only erred by taking up the summary judgment review, but also in ruling on the issue of qualified immunity since such a determination is inherently fact-based.
“Denial of summary judgment is not reviewable on appeal after trial, especially where the decision depends on whether the evidence on the merits of the claim is sufficient to cross the legal line for liability,” Mills said.
Justice Samuel Alito wondered if the facts and prosecutorial history of the case actually matched the question presented.
“This is what troubles me about this case,” Alito said. “The 6th Circuit referred to summary judgment in its opinion [but] it seems to me the 6th Circuit actually reviewed the evidence at trial and determined that the defendants were entitled to judgment as a matter of law. So I don’t know if this case actually presents the question on which cert was granted.”
“I think that you are exactly right,” Mills said. “I think that highlights the fundamental problem of reviewing summary judgment after the trial.”
Chief Justice John G. Roberts Jr. questioned Mills’ assertion that qualified immunity rulings are so inherently fact-based as to be improper for summary judgment consideration.
“You can have a collateral order appeal of denial of summary judgment,” Roberts said. “In other words, you can consider qualified immunity without knowing how the facts are going to come out at trial, which is why we allow you to have an appeal before trial.”
“The court still has to understand, if it’s going to enter judgment, what the conduct was,” Mills said.
Justice Antonin Scalia disagreed.
“It doesn’t have to know what [the conduct] was,” Scalia said. “It assumes it to be what the plaintiff claims it was. … It’s never going to be any better for the plaintiff than what you assumed at the summary judgment stage.”
Ohio Solicitor General Benjamin C. Mizer argued that it was proper for the 6th Circuit to review the entire trial record, including the issue of qualified immunity, which was properly raised and preserved.
“I don’t think its word choice was perfectly clear, but I think other phrases in the … opinion make clearer that what it was doing was viewing the full trial record,” Mizer said.
Mizer said that the defendants would have had to appeal the summary judgment in an interlocutory appeal based only on issues of pure law, not issues of fact.
But Roberts expressed concern about a ruling creating such a distinction.
“[It is] already very difficult and complicated to sort out,” Roberts said. “Wouldn’t it be easier if we just said, ‘Here’s the rule from now on: you’ve got to renew them all in a [Rule] 50(b) motion?’”
“[It] would create even more difficulties,” Mizer said.
A ruling is expected by the end of the term in June.