No. 96-539 IN THE SUPREME COURT OF THE STATE OF MONTANA 1997



### rNTHE 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 ofthe Third Judicial Distnet, In and for the County ofPowell, 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 

## nJustice Karla M. Gray deliveredthe Opinion ofthe Court

The individual defendantsin numerous legal actions arising out of the 1991riot 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 determinationof the amount of the sanctions and for further proceedings. The dispositive issue on appeal is whether this Court hasjurisdiction to considerthe 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 SecurityUnit (Max). Scoresofmaximum scmrity ilimates were freed fr~lil thcir cells and access was gained to inmates housed in the Max in "protectivecustody" 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 investigationswere undertaken

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

at Max Report," also called the "Schwartz Report," and the "Gooch Report." The results ofthe 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 supervisoryemployees and the Department are the defendantsin 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 incarceratedinmates. 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 summaryjudgment 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 contributedto the riot and the resulting damages and injuries. Finally, the District Courtdeniedthe individual defendants' motions for summaryjudgment on the 

## 5 1983claims,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 ofham1to the protective custody inmates in the Max at the time ofthe riot and the obviousness ofthe risk, and that these questions relating to the reasonableness ofthe defendants' conduct must be resolved by the trier offact. The individual defendants appeal from the District Court's denial oftheir qualified immunity-based motions for summaryjudgment. Does this Court havejurisdiction to consider this appeal? The defendants present a number of arguments relating to asserted errors by the District Courtin denying their motions for summary judgment. Theplaintiffs, however, raise the threshold issue ofwhether we have jurisdiction to entertainthe appeal. We conclude that the appeal is premature and, as a result, we do not havejurisdiction 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 appellatejurisdiction 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 ofthe rights ofthe parties has been made; any decree which leaves matters undetermined is interlocutory in nature and not a finaljudgment 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 finaljudgment. 

### 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 arenot 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, 861P.2d at 929; In re Marriage ofRex (1982), 199 Mont. 328,330,649 P.2d 460,46 1. The defendants do not address Montana law regarding the appealabilityofthe 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 ofthe District Court's order. We address the contentions in turn.We observe, initially,that the defendants cite to no authorityin 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 totallynullify Rule 1,M.R.App.P.,by allowinginterlocutory appeals ofvirtually all interlocutoryorders; this is sobecause 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 ofthe 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 ofAppeals 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 (Ist 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 SupremeCourtresolved the divisionamong the Circuit Courts over the appealabilityofinterlocutorydecisions denying qualifiedimmunity to 

## 5 1983defendants 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 summaryjudgment 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 Courtbegan its analysisby observing that 28 U.S.C. 

## 5 1291, the federal statute delineatingthe appellate jurisdiction ofthe Circuit Courts,vested those courts with jurisdiction only from "final decisions"ofthe 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 possiblybe made in a case, the SupremeCourt 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 ofright separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent ofthe cause itselfto require that appellate consideration be deferreduntil the whole case is adjudicated."Mitchell, 105S.Ct. at 2814 (quoting Cohen v. Beneficial Industrial Loan Corp. (1949), 337 U.S. 541, 546,69 S.Ct. 1221, 1225,93L.Ed. 1528, 1536). The SupremeCourt then applied its decisional law interpreting the federal appellate jurisdiction statuteto the appealability ofthe federal district court's denial ofthe defendant's motion for summary judgment on the basis of qualified immunity. Reiterating the wellestablished standard of qualified immunity articulatedin 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 oflaw, even though it is not a finaljudgment in the

case. Mitchell, 105 S.Ct. at 2814,2817. Statedmorenarrowly,theMitchell 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, 105S.Ct. at 2816. The Supreme Court again addressedthe appealabilityof 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 genuineissue of factrequiring trial; in that context, the Supreme Court revisited 

## 5 1291, the

### Cobencollateral 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 existedto create a genuine issue of fact requiringtrial was not appealable,holding that a defendant entitled to invoke a qualified immunity defense "may not appeal a district court's summary judgment order insofarasthat order determineswhether

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 ofmaterial fact exist for trial. Armendarizv. 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 genuineissues ofmaterial fact exist,but addressed and reversed the federal districtcourt's decision regarding whether the defendants' alleged conductviolated clearly establishedlaw. 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 "legalportion" ofthe District Court's order denying summary judgment, that is, the portion of the denial of summary judgment relating to whether their alleged conductviolated clearly established law. They point outthat 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, arethe Montana Constitution and the Montana Rules ofAppellate 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 ofthis 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 sobound, since

our appellate jurisdiction rests on Montana law. We note that other state courts have addressed the appealability of orders such asthe

one at issue here in light ofthe Supreme Court's decisions. Somecourts have concluded that they either should or must be bound thereby. See, e.g.,Anderson v. City ofHopkins (Minn. 1986), 393 N.W.2d 363 (accepting the Mitchell Court's reasoning in construing its own appellatejunsdiction, without determining whether Mitchell mandates such a result); McLinv. Trimble (Okla. 1990),795 P.2d 1035 (concluding that, while Mitchell is amandate to state courts, the Supremacy Clause cannot createjurisdiction in a state appellate court where it does not otherwise exist and, as a result, exercising its originaljurisdiction). 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, dismissingan 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 argumentspursuant to which their appeal was properly before us under Montana law. Similarly, they advance no arguments under which we either should,or must,be boundby the SupremeCourt's Mitchell and 

### Johnscln holdings with regard to the appealabilityof the order at issue here. Sincethe defendants have failed to do so and, as a result, have failed to establish that we have jurisdiction over this appeal, we declineto 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 oftheir 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 ofappeal as an applicationto invokethe designatedprocedure." This appears tobe 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 appropriateto such an alternativeprocedure. It is not this Court'sjob

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 isthe party's obligationto 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 ariseunder ajurisdictional source separate from that governing

an appeal and are governed by different rules and requirements. 

### See, e.g., Article VII, Section 

### 2(2) ofthe 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-basedmotions for summary judgment must be dismissed.As a final matter, the plaintiffshave requested sanctionsunder 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 advancedno argumentspursuant to which we would, or arguably might,have had jurisdiction to entertain their appeal. If no arguments were available to support the appealability ofthe order at issue, the appeal is frivolous and shouldnot 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 litigationof 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 appealabilitymay permit 

## 5 1983 defendants to ossify civil rights litigation. Defendantsmay defeat just claimsby making suit unbearably expensiveor indefinitely putting offthe trial. A sequence ofpretrial appeals not only delaysthe 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 oftrial, it is also important to curtail the outlay and delay oflitigation, sothat 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 defendingthis appeal and reasonable delay damages under Rule 32, M.R.App.P., to be determinedby the District Court. This appealis dismissed and the caseremanded 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