795 P.2d 1035 - McLin v. Trimble

*1044OPALA, Vice Chief Justice,

¶1dissenting.

¶2The court broadly pronounces today that the plurality’s opinion in Mitchell v. For-syth1— inasmuch as it is followed by the circuit jurisprudence — requires a prejudgment review of all nisi prius rejections of qualified privilege asserted by public officials in § 1983 actions.2 In an original proceeding to review the nisi prius order denying the petitioners’ claims of qualified immunity, the court holds that these petitioners did not violate clearly established law and are hence immune from § 1983 suit. In my view, no mandate to advance the review sought here is found in the Mitchell plurality’s opinion nor in the case law of the circuits. Even if we stood today under a federal-law command to afford immediate review of a denied § 1983 qualified-privilege plea, the evidentiary materials supplied in this case are not consistent with one petitioner’s (McLin’s) nonliability. I hence recede from the court’s opinion and from its across-the-board judgment of absolution.

¶3I

¶4THE PLURALITY VIEW IN MITCHELL IS NOT A MANDATE TO STATE COURTS

¶5The plurality’s opinion in Mitchell holds that qualified privilege in § 1983 actions is the functional equivalent of an immunity-from-suit defense. An immunity-from-suit plea presents an issue fit for pretrial resolution at nisi prius only when the facts tendered are undisputed and will support but a single inference which is consistent with nonliability,3 When the facts are in dispute, or are uncontroverted but raise conflicting inferences, a qualified-privilege plea tenders but a fact issue on the merits of a § 1983 defense. The submission of this defense to the trier is commanded in federal courts by the 7th Amendment, U.S. Const., and in state courts by Art. 2, § 19, Okl. Const.4

¶6A state court must apply only those norms of federal procedure which are obligatory to meet the minimum standards of U.S. fundamental law.5 Just because fed*1045eral courts afford prejudgment appellate review under an appealability rubric prescribed by them for that system or commanded by their supervisory authority— the U.S. Supreme Court6 — state courts need not follow suit.

¶7Even if this court decides today to follow the circuit jurisprudence voluntarily —i.e. sans the U.S. Supreme Court’s command— it should do so only (a) where an accelerated decision on the immunity-from-suit question is absolutely essential to free a § 1983 defense from some impermissibly imposed state procedural burden7 or (b) if pretrial review of a denied immunity guest were to be perceived as necessitated by some federal constitutional norm.

¶8Although the U.S. Constitution contemplates federal claims’ cognizance by state courts — unless the Congress, acting in the exercise of its Supremacy Clause powers, expressly withdraws this inherent authority — our dual sovereignty scheme does not require that in the prosecution of federal claims state and federal procedure be identical.8Not all departures from federal procedure must be viewed as fatal in the sense that they pose an obstacle to the prosecution or defense of a federal claim. Only when state procedure deprives a federal-claim litigant of a substantive-law right will federal law preempt conflicting state procedure in § 1983 actions.

¶9I cannot, at this stage of the U.S. law’s development, consider an accelerated pretrial review of § 1983 immunity-from-suit pleas to be a constitutional sine qua non in state-court systems. Neither would I view a state rejection of the accelerated-review jurisprudence of the circuits as an impermissible state-law barrier — within the meaning of the Supremacy Clause — to a meaningful opportunity for a § 1983 defendant to press effectively a meritorious qualified-privilege plea on undisputed facts consistent with his/her nonliability.

¶10Federal due process does not mandate that appellate remedy be afforded at any litigation stage.9I could join today’s pronouncement only if unavailability of pretrial appellate review for rejected immunity pleas could be viewed as depriving a § 1983 defendant of due process or as impairing his/her opportunity effectively to raise a *1046qualified-immunity defense. Because federal appellate procedure that affords pretrial review of some qualified-privilege claims is without any constitutional anchor — in either Due Process Clause or in the Supremacy Clause — I would not today extend its teachings to govern Oklahoma’s judicial system.

¶11II

¶12TODAY’S DECISION ON THE QUALIFIED-PRIVILEGE DEFENSE DOES NOT REST ON UNDISPUTED FACTS FROM WHICH BUT A SINGLE INFERENCE MAY BE DRAWN

¶13The court rests its pronouncement of the petitioners’ nonliability solely on the instruments attached to the amended application for assumption of original jurisdiction. The petitioners’ brief does not inform us that this paperwork constitutes all the evi-dentiary material that was before the trial court when it denied summary relief. Even if we were to follow Mitchell, I could not conclude that the content of the instruments supports but a single inference that is consistent with defendant McLin’s nonli-ability under § 1983, based on his qualified-privilege defense.

¶14The prisoner-plaintiff in this § 1983 suit10 underwent neck and back surgery three days before he was transported with several other prisoners back to the Lexington correctional facility. While still recuperating from surgery, the prisoner was picked up at the hospital. In the course of the trip the driver [defendant McLin] is alleged to have been in a hurry to return to Lexington. He drove in a reckless fashion. Coming upon a stop sign, McLin slammed on his brakes, throwing nearly all the prisoners “from one seat into another”.11 Then realizing he was already out into the middle of the intersection, McLin quickly accelerated, “throwing [them] ... into the back of the seat.” The prisoner, who believed he had reinjured his neck in that episode of erratic driving, asked for medical attention. His request went unheeded, and the driver continued to speed back to the facility, taking a shortcut route, making several sharp turns and hitting potholes. When the prisoner asked McLin to slow down or quit hitting the brakes, the driver gave no response other than to “laugh and pay no attention to [his request] ... and go right on with what he was doing.”

¶15Given the prisoner’s impaired health status, this scenario raises in my view a fact issue — i.e., whether the driver’s conduct had occasioned “great discomfort ... mindlessly, with indifference to the prisoner’s humanity.”12 Because conflicting inferences may be drawn from these undisputed facts, I would not today uphold McLin’s qualified-privilege plea by granting him summary relief.

¶16Ill

¶17IF THE U.S. SUPREME COURT WERE TO MANDATE FOR THE STATE COURTS THE MITCHELL PRETRIAL REVIEW REGIME, THE STATUS OF REVIEWABLE DECISIONS SHOULD BE BROUGHT UNDER THE SAME STATE-LAW FINALITY RUBRIC AS THAT DE-

¶18 *1047FINED IN WYBRANT13

¶19If the U.S. Supreme Court were to hold in the future that, whenever a qualified privilege — resting on undisputed facts that are consistent with nonliability — is unsuccessfully pressed in a state-court § 1983 claim, an immediate appellate review is federally mandated, I would then bring the new remedy under the same state-law finality rubric as that pronounced in Town of Ames v. Wybrant.14 Wybrant holds that a nisi prius prejudgment order must be deemed “final” in the § 95315 sense if its rendition represents an essential prerequisite for the court’s assumption of adjudicative power over the case at hand. The court should not today distort (or disturb) the symmetry of this state’s appealability regime by imposing an unwarranted and self-generated exception to Rule 1.50,16 which prohibits, across the board, appeals from summary judgment denials.

¶20In sum, confronted by no more than a “faint signal” from the Mitchell plurality’s opinion, and by circuit jurisprudence that is not binding on state-court systems,17 I would not adopt today the norm of mandatory pretrial review of rejected qualified immunity pleas in § 1983 actions. Neither Mitchell nor the extant circuit jurisprudence calls for the corrective relief afforded by the court in this case. Even if the petitioners’ pleas were properly before us for review, I would, on this record, hold the evidentiary material to be unsupportive of defendant McLin’s quest for summary judgment on his qualified-privilege defense against one prisoner’s § 1983 claim based on a violation of his 8th Amendment right.

¶21. 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 [1985], a plurality opinion by White, J., in which Burger, C.J., and Blackmun and O'Con-nor, JJ., joined.

¶22. 42 U.S.C. § 1983.

¶23. Mitchell v. Forsyth, supra note 1, 472 U.S. at 528 n. 9, 105 S.Ct. at 2817; see also (Brennan, J., concurring in part and dissenting in part), 472 U.S. at 550, 105 S.Ct. at 2828.

¶24. The right to trial by jury depends on whether a § 1983 claim for damages may be characterized as “legal” in the 7th Amendment sense. There can be no doubt that § 1983 actions create tort liability, with damages measured by the ex delicto standards of the common law. Memphis Community School Dist. v. Stachura, 477 U.S. 299, 305-307, 106 S.Ct. 2537, 2542-2543, 91 L.Ed.2d 249 [1986]. Cf. Curtis v. Loether, 415 U.S. 189, 194, 94 S.Ct. 1005, 1009, 39 L.Ed.2d 260 [1974], where the Court holds that because a Title VIII action for damages sounds in tort, it is "legal” for 7th amendment purposes; but the right to trial by jury in Title VII cases remains unsettled. Lytle v. Household Manufacturing Inc., 494 U.S. -, -, 110 S.Ct. 1331, 1335, n. 1, 108 L.Ed.2d 504 [1990], For other recent 7th Amendment jurisprudence, see Tull v. U.S., 481 U.S. 412, 417-425, 107 S.Ct. 1831, 1835-1839, 95 L.Ed.2d 365 [1987]; Granfinanciera, S.A. v. Nordberg, 492 U.S. -, -, 109 S.Ct. 2782, 2790, 106 L.Ed.2d 26 [1989].

¶25Perez-Serrano v. DeLeon-Velez, 868 F.2d 30, 32-33 [1st Cir.1989], holds that in a § 1983 action for both damages and injunctive relief the liability issue is for the jury; of similar import is Santiago-Negron v. Castro-Davila, 865 F.2d 431, 440-441 [1st Cir.1989].

¶26The terms of Art. 2, § 19, Okl. Const., provide in pertinent part:

"The right of trial by jury shall be and remain inviolate ...”

¶27Since in this state-court case the plaintiff's right to trial by jury is governed not by the 7th Amendment, U.S. Const., but by Art. 2, § 19, Okl. Const., it is not amiss to call attention to Wetsel v. Independent School Dist. 1-1, Okl., 670 P.2d 986, 990-991 [1983], holding that where the duty claimed to have been breached rests on a standard that is not legally fixed but may be characterized as variable because it shifts with the circumstances of the case, the parameters of duty remain undefined as a matter of law and the presence or absence of offending conduct tenders an issue for jury resolution. Ponca City Ice Co. v. Robertson, 67 Okl. 86, 169 P. 1111, 1113 [1917]; City of Cushing v. Stanley, 68 Okl. 155, 172 P. 628 [1918]; Sand Springs Ry. Co. v. Cole, Okl., 279 P.2d 938, 942-943 [1955]; Lee v. Darden, Okl., 421 P.2d 845, 848 [1966]; Federer v. Davis, Okl., 434 P.2d 197, 198-199 [1967].

¶28.By force of the Supremacy Clause, Art. 6, cl. 2, U.S. Const., state courts are bound by the U.S. Supreme Court’s jurisprudential exposition of *1045federal law. See United States v. Home Federal S.& L. Ass’n of Tulsa, Okl., 418 P.2d 319, 325 [1966]; Dean v. Crisp, Okl.Cr., 536 P.2d 961, 963 [1975]; see also Walker v. Maruffi, 105 N.M. 763, 737 P.2d 544, 547 [App.1987],

¶29A plurality’s opinion is not precedential or binding — not even for the federal-court system. See United States v. Friedman, 528 F.2d 784, 788 [10th Cir.1976], citing Hertz v. Woodman, 218 U.S. 205, 30 S.Ct. 621, 623, 54 L.Ed. 1001 [1910]; United States v. Pink, 315 U.S. 203, 216, 62 S.Ct. 552, 558, 86 L.Ed. 796 [1942]; see also in this connection, Davis & Reynolds, Juridical Cripples: Plurality Opinions in the Supreme Court, 1974 Duke L.J. 59; Note, Plurality Decisions and Judicial Decisionmaking, 94 Harv.L.Rev. 1127 [1981]; Note, The Precedential Value of Supreme Court Plurality Decisions, 80 Colum.L. Rev. 756 [1980].

¶30. The U.S. Supreme Court exercises supervisory jurisdiction over lower federal courts. See, e.g., Sherman v. United States, 356 U.S. 369, 381, 78 S.Ct. 819, 825, 2 L.Ed.2d 848 [1958]; Humphreys v. State, Okl.Cr., 512 P.2d 197, 199 [1973],

¶31Thus far, the U.S. Supreme Court’s "clear signal” for review of a rejected prejudgment qualified-immunity plea has targeted only the federal judicial system. See Adams v. Jasinski, 473 U.S. 901, 105 S.Ct. 3518, 87 L.Ed.2d 646 [1985], where a federal court’s dismissal of a prejudgment qualified-immunity plea appeal was vacated and the case remanded "in light of Mitchell v. Forsyth_" (Emphasis in original.) A like command has yet to be beamed at state courts. The Adamssignal may have been unnecessary. At the time of Mitchell, the circuits appear to have already developed independent jurisprudence running along a track parallel with the Mitchell plurality. See Floyd v. Farrell, 765 F.2d 1, 2-3 [1st Cir.1985],

¶32. In Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123 [1988], Wisconsin's statutory law was deemed to be an impermissible obstacle in the path of a § 1983 plaintiff. The Court held that state-law barriers cannot stand when they impair the prosecution of a federal claim. A recent opinion in Howlett v. Rose, — U.S. -, 110 S.Ct. 2430, 110 L.Ed.2d 332 [1990], clearly demonstrates the same principle. There, the Court pronounced that state-law immunities may not be used to hinder the prosecution of a state-court § 1983 suit.

¶33. Yellow Freight System, Inc. v. Donnelly, 494 U.S. -, -, 110 S.Ct. 1566, 1568, 108 L.Ed.2d 834 [1990]; Tafflin v. Levitt, 493 U.S. -, -, 110 S.Ct. 792, 795, 107 L.Ed.2d 887 [1990].

¶34. Lindsey v. Normet, 405 U.S. 56, 77, 92 S.Ct. 862, 876, 31 L.Ed.2d 36 [1972].

¶35. The prisoner based his § 1983 claim on McLin’s violation of his Eighth Amendment right to be free from cruel and unusual punishment.

¶36. Excerpts from the prisoner’s deposition testimony were attached to the petitioners' amended application to assume original jurisdiction. It is not known whether the deposition was on file in the trial court. Abstracts from an unfiled deposition may not be used as evidentiary material without a stipulation by the parties. See Hulsey v. Mid-American Preferred Ins. Co., Okl., 777 P.2d 932, 935-936 [1989].

¶37. This is the test the court applies today to govern § 1983 claims grounded on the 8th Amendment. It is a standard followed in a single federal circuit. Jackson v. Cain, 864 F.2d 1235, 1243 [5th Cir.1989].

¶38The degree of care that should be exercised under the "mindless cruelty” test for 8th Amendment claims is not defined by fixed legal standards; the parameters of duty are variable in that they shift with the circumstances. See Wetsel v. Independent School Dist. 1-1, supra note 4, for explanation of the variable-standard norms of liability. Whether defense proof does in this case demonstrate privileged conduct vis-a-vis the recovering prisoner while he was en route to the destination must be measured by the variable standards that define offending conduct (mindless cruelty) in the 8th Amendment sense. Under Art. 2, § 19, Okl. Const., "mindless cruelty” presents here an issue clearly for the jury.

¶39. 203 Okl. 307, 220 P.2d 693, 696 [1950].

¶40. Supra note 13. Although a trial court’s determination of the right to condemn is not stricto sensu a final order — since a jury trial on the condemned property’s value may be necessary— we held in Wybrant that, because the right to condemn is an essential prerequisite for assumption of the court’s adjudicative power in condemnation, an order upholding the right to condemn is to be treated as final under 12 O.S.1981 §§ 952 and 953.

¶41. The pertinent terms of 12 O.S.1981 § 952(b) are:

"(b) The Supreme Court may reverse, vacate or modify any of the following orders of the district court, or a judge thereof:

(1) A final order; … ”

¶42The terms of 12 O.S.1981 § 953 are:

"An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment, is a final order, which may be vacated, modified or reversed, as provided in this article.” (Emphasis added.)

¶43. The terms of Rule 1.50, Rules on Perfecting a Civil Appeal, 12 O.S.1981, Ch. 15, App. 2, provide in pertinent part:

" … No certified interlocutory order shall be considered if taken from an order overruling a motion for summary judgment."

¶44See Eason Oil Co. v. Howard Engineering, Okl., 755 P.2d 669, 672-673 [1988].

¶45. Because under our dual sovereignty system the power to review the decisions of state courts of last resort (on federal-law questions) resides solely in the U.S. Supreme Court, only that Court’s commands represent to us binding federal authority. United States v. Home Federal S. & L. Ass’n of Tulsa, supra note 5 at 325; Dean v. Crisp, supranote 5 at 963. A United States District Court may not entertain an appeal from judgments in the highest court of a state. Only the United States Supreme Court may exercise such review, and then only in cases within its jurisdiction. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482, 103 S.Ct. 1303, 1314, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416, 44 S.Ct. 149, 150, 68 L.Ed. 362 (1923); In re Asbestos Litigation, 829 F.2d 1233 (3rd Cir.1987). Absent Supreme Court precedent, we follow, as a matter of comity, the Tenth Circuit opinions on substantive federal law and that court’s constitutional jurisprudence applicable to the states. Phillips v. Williams, Okl., 608 P.2d 1131, 1135 [1980], The voluntary deference we pay to our circuit’s pronouncements prevents federal law from being dichotomized within the State of Oklahoma into different bodies of legal norms— that applied in Oklahoma courts and that which governs federal courts sitting within this state.

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