No. 96-539 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1997 

rN THE MATTER OF LITIGATION RELATING TO THE 

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 

Filed: 

Submitted on Briefs: May 15, 1997 

Decided: June 24, 1997 

n 
Justice Karla M. Gray delivered the Opinion of the Court 

The individual defendants in numerous legal actions arising out of the 199 1 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 fr~lil thcir 

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 wellestablished 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 summary judgment order insofar as that order determines whether 

or not the pretrial record sets forth a 'genuine' issue of fact for trial." Johnson, 11 5 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 immunitybased 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 2(2) of the Montana Constitution; Ruie 17, h4.R.App.P.; Plumb v. Fourth Jud. Dist. 

Court (Mont. 1996), 927 P.2d 101 1, 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 pretrial 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