Ortiz v. Jordan - Oral Argument - November 01, 2010

Ortiz v. Jordan

Media for Ortiz v. Jordan

Audio Transcription for Opinion Announcement - January 24, 2011 in Ortiz v. Jordan

Audio Transcription for Oral Argument - November 01, 2010 in Ortiz v. Jordan

John G. Roberts, Jr.:

We will hear argument first this morning in Case 09-737, Ortiz v. Jordan.

Mr. Mills?

David E. Mills:

Mr. Chief Justice, and may it please the Court:

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.

In this case--

John G. Roberts, Jr.:

I'm sorry to interrupt so quickly, but that especially I take it -- I take it as a concession that there's a difference between claims for qualified immunity based on evidence and claims that are based on law.

David E. Mills:

--Well, there's a difference between defenses that depend on the evidence at trial.

What I would say about qualified immunity is that to the extent any court of appeals is going to enter judgment based on qualified immunity, it needs to understand the conduct of the officials in the case.

And so you're always talking about the evidence of that conduct.

Anthony M. Kennedy:

Well, of course there is always -- there are always facts.

There are often disputed facts.

But suppose the issue is whether or not this right -- and maybe there are two rights here -- this right was clearly established.

That is an issue of law.

David E. Mills:

That is -- that is an issue of law, Your Honor.

Anthony M. Kennedy:

And doesn't that fall within the "except" clause that the Chief Justice was talking to you about, which you haven't had much time to fill out, I understand.

But -- well, if you're going to say -- and it's really not whether the summary judgment is appealed.

That's a little bit -- it's whether or not the issues resolved by the summary judgment motion are appealable.

As I read into your response or implied from your response to what the Chief Justice said, maybe sometimes the summary judgment motion, say on an issue of law, is sufficient to preserve the issue.

David E. Mills:

Well, and that gets to what I think is the heart of the split in the circuits and the confusion, is that every circuit recognizes a very general rule that where the evidence at trial moots that at summary judgment we are not going to review the summary judgment decision.

Now, a number of courts said: Well, wait a second; there are summary judgment issues that don't depend on the evidence.

Those are typically called questions of law, and Respondents point to a number of good examples in their brief of defenses such as statute of limitations, preemption, and the like, that indeed very often don't depend at all on the evidence at trial.

The difference with qualified immunity is that qualified immunity requires the court to look at the evidence of the claim itself.

Now, statute of limitations, for example, is actually quite different, because in statute of limitations -- let's suppose Michelle Ortiz filed her suit 20 years late.

It would not matter at all how much evidence she adduced of the Respondents' misconduct.

It would be barred by statute of limitations.

Ruth Bader Ginsburg:

So Mr. Mills, what then is the difference?

You point out, quite rightly, summary judgment looks to what evidence there was and the question for the Court is: What could the plaintiff prove?

When we get past trial, the issue becomes: What has the plaintiff proved?

So what was brought out at trial?

What was the record at trial that was larger than the record at summary judgment?