WASHINGTON (CN) – The Supreme Court on Monday considered a technical civil procedure case concerning whether a party can appeal an order denying summary judgment after trial if the party chose not to appeal before trial.
The case involved Michelle Ortiz, an Ohio inmate, who sued two employees for constitutional and civil rights violations, who then responded by filing a motion for summary judgment based on qualified immunity. Their motion was denied and the case went to trial. When Ortiz won, the defendants appealed the order denying summary judgment, and the 6th Circuit then reversed the denial.
David Mills, arguing for Ortiz, said the defendants were required to either immediately bring interlocutory appeal to preserve their right to appeal after trial or, at the end of the trial, invoke a rule allowing them to preserve their right to challenge the summary judgment denial on appeal, but they did neither.
Chief Justice John Roberts said Mills’ argument would require anyone asserting qualified immunity to choose whether their claim for qualified immunity rests entirely on law or if it relied on some facts, and must take either a collateral or interlocutory appeal.
“That’s kind of a tough choice to put them to, isn’t it?” Roberts asked.
“They have an absolute right to take that immediate appeal and they chose not to,” Mills said.
Roberts told the defendants’ attorney Benjamin Mizer that if he won and courts were required to determine whether claims for qualified immunity were based on law, which can be appealed despite the case having gone to trial, or based on a mix of facts and law, which could not be appealed after trial, the result would be more confusion for the courts.
“Going forward it just creates an awful lot of difficulty that we don’t need to buy into,” Roberts said. He said it was already difficult to sort out whether claims were appealable as part of the collateral order. “Now, what you want us to do is take that difficulty and continue it on in terms of when you can appeal and when you can’t,” Roberts said.
“It’s a mess,” Scalia said to Mizer, who proposed allowing a post-trial to assess whether or not a party asserting qualified immunity is doing so on a legal or factual and legal basis. “It’s very hard to sort those things out. Why should we double the difficulty?”