Another Rule 54(b) problem.

The Robinsons sued to establish an implied (Count One of the Complaint) and prescriptive (Count Two) easement to use a road over the Kay’s property. Both parties moved for summary judgment on Count One; the trial court ruled for the Kays and entered a judgment which, by stipulation, included Rule 54(b) language. The Robinsons appealed.

The Court of Appeals, on its own motion, dismissed the appeal. “Easements by prescription and implication are separate legal ‘theories’ supporting the existence of an easement; they do not in themselves constitute separate ‘claims.’” And “when a judgment merely disposes of one or more legal theories supporting a single claim, ‘Rule 54(b) language does not make the judgment final and appealable.’”

One would have thought that with Count Two still hanging out there the Robinsons would have spotted the problem. If they did but decided that the prescriptive-easement claim wasn’t worth pursuing, the answer in that situation is to take a lesson from the criminal side and remember that sometimes you have to dismiss things to set up your appeal.

On the other hand, Rule 54(b) problems are (depressingly) common and the Court of Appeals tends to deal with them by suspending the appeal until the paperwork can get cleaned up. Perhaps – since everything the parties did was consistent with the idea that the Robinsons didn’t want to proceed with Count Two, and since their lawyers are supposed to know what they’re doing, and since if that’s right then the appeal will have to be re-filed as soon as the parties can dismiss Count Two, and since this opinion says that the court is concerned about piecemeal appeals –  the court could have entered an order giving the parties ten days to dismiss Count Two or the appeal would be dismissed. (Our vote would be to dismiss all these appeals, since lawyers might then actually bother to do things right, but we’re not holding our breath.)

(link to opinion)

We respect lawyers and judges. Its unfortunate when an opinion might make it seem that they were all in over their heads.

Plaintiff’s mother died as a result of not being given insulin for her diabetes while in jail. She sued the County, the Sheriff, the sheriff’s office, and various employees for wrongful death and §1983 violations. The trial court granted summary judgment on some claims and denied it on others. The opinion’s introductory explanation of that is as confusing as anything you’re likely to read; after reading the rest of the opinion, the impression is that the reader isn’t the only one confused. The summary judgment had 54b language and both sides appealed (when summary judgment goes up a denial can go up, too, the court points out in passing).

The opinion spends pages detailing the facts of the mother’s incarceration, her sufferings, her jailers’ callousness, and her pitiable lamentations. The excuse is that the court will find, some pages further on, that certain evidence was sufficient to go to a jury, although to reach that conclusion the court will cite still more evidence. But at this point only the brain-dead don’t know where this opinion is going. First, though, are some legal hurdles.

The MCSO argued that it isn’t an entity subject to suit. (A “nonjural entity,” the court calls it; when judges start throwing around arcane jargon as if they use it every day its an even bet they’ve never heard it before.) You can’t sue a government entity unless a statute says you can. No statute says you can sue a Sheriff’s office. For some reason, the court appears to think this a novel issue.

Defendants also argued that Plaintiff had no standing to bring a §1983 claim in her own capacity. The trial court had denied summary judgment on this. Plaintiff argued that she had a familial liberty interest, i.e, a constitutional right to associate with her parent. The Court of Appeals followed the majority federal rule that this doesn’t apply unless the state action was aimed specifically at interfering with that relationship. It granted defendants summary judgment (then apologized to Plaintiff for it in a footnote).

(In its introduction, the court had referred to this as “a wrongful death claim pursuant to §1983.” No, a wrongful death claim is pursuant to 12-611, which the court doesn’t mention. The court means “a claim that letting her mother die violated her civil rights.” A little thing? No again. Wrongful death is a term of art and appellate opinions are supposed to use terms of art artfully.)

A prisoner can sue under §1983 when jailers are “deliberately indifferent” to his medical needs. Plaintiff brought such a claim on behalf of her dead mother. After reviewing some more evidence the opinion decides that there was enough to get the claim to a jury against individual jailers, the Sheriff, and the County. Vicarious liability doesn’t apply in §1983 cases so the latter two could be “deliberately indifferent” because the Department of Justice had criticized jail medical care and they hadn’t, allegedly, done enough about it.

The next question was what the damages can include. The trial court granted summary judgment against Plaintiff’s claims for punitive damages and for her mother’s pain and suffering. Federal civil rights law depends on state law for damages if, the court says, it is consistent with the meaning and purpose of federal law.

The punitive damages claims were made against the individual jailers (case law says they aren’t available against government entities and officials).  Arizona government employees aren’t liable for punitive damages under 12-820.04. But the court decided that §1983 is, in part, about deterrence and that the statute isn’t consistent with that since Plaintiff was “likely” to get only “modest” compensatory damages. (It notes that she wasn’t even seeking economic damages, as if that were an innocent circumstance and not a strategic decision.) So the court reverses the denial of punitive damages. Not only does the statute not apply but the standard for punitives is apparently “reckless or callous indifference,” not evil mind.

As to Plaintiff’s claim for her mother’s pain and suffering, under state law that obviously wouldn’t survive. But “[t]here is no Arizona case deciding this issue where the constitutional violation asserted was the cause of the victim’s death.” Applying state law would, the court concludes, “defeat the remedial and deterrent functions of §1983.” This because compensatory damages are minimal and the jury might not award punitives.

You may be able to wrap your head around these conclusions but our advice is that you’d just hurt yourself. The court does not explain how Arizona law would defeat “remedial and deterrent functions” when our courts have said repeatedly that Arizona tort law has, among others, remedial and deterrent functions. Forgive us for being a bit dubious about the supposed preemptiveness of remedial and deterrent functions of a federal statute that doesn’t bother to provide for remediation and deterrence, leaving damages to the states. You may wonder, too, how those purported purposes can create standards for survival and punitive damages. Penumbras from emanations, presumably. Courts can scotch the idea of federal common law but obviously not kill it, even in their own minds. And how is a constitutional violation a cause of death? Did someone beat mom to death with an invalid warrant? This court had waded into seriously deep confusion.

But we’ll cut it some slack, having just said (before reading this opinion) that the process is assisted by collective wisdom. Defendants must not have had any to contribute since they didn’t brief the punitive and pain-and-suffering issues.

What were they doing instead? Arguing that the trial court should have granted summary judgment because the mother’s failure to tell her jailers that she had diabetes was an intervening/superseding cause of her death. Yes, you read that right. They didn’t brief important issues of law but took the time to make a howler of an argument that lost below and that a first-year law student should have told them would lose anywhere.

They also appealed some discovery rulings. An interesting procedural and jurisdictional situation, appealing discovery rulings in connection with the appeal of failure to grant summary judgment in response to the appeal of the grant of summary judgment. The court doesn’t mention it. It isn’t surprising for our courts, so quick to include boilerplate discussion of jurisdiction when it isn’t noteworthy, to ignore it when it is. Boilerplate is pretense of thought, not proof of it. In any event, the court reversed some of the rulings and upheld others.

This is a medical malpractice case; the issue was causation. We will not blog it, for one or more reasons set forth in our FAQ. But it raises a question of judicial technique on which we feel free to comment.

Although the opinion does not suggest it, we are informed that the court decided the case using a legal analysis different from that presented by either party.

From time to time the appellate courts have said more or less that they are not bound by the parties’ legal analysis if following it would produce an incorrect result. The principle is salutary; two wrongs don’t make a right and it may be that neither party knows what its talking about. The problem is that the court doesn’t, necessarily, either.

There is a difference between rejecting both parties’ legal conclusions and rejecting their analysis – between deciding that the cases don’t mean what either party argues and deciding that neither even knows what cases or rules of law to argue. A court’s analysis is informed by that of the parties; its decision results from the collective wisdom of them all. This is the system’s way of trying to ensure that that decision is correct, that it is consistent with precedent, and that it hasn’t overlooked any major problem. It is also the way that the people contribute to the making of their common law rather than being in thrall to judicial ukases. If some judicial functionary can discard what the parties have said and start with a tabula rasa then the adversary system is thrown out the window. And respect for the system requires the recognition that not everyone who writes an opinion is an experienced expert on the subject or a supple legal mind. When an appellate court decides that the parties got it all wrong – when their analyses, not just their conclusions, are mistaken – then the thing to do is to solicit supplemental briefing on what the court believes to be the right analysis. That can either let the parties know that they were wrong or let the court know that it was.

When that doesn’t happen a routine case can jump the tracks and turn into a disastrous train wreck that splatters debris all over the law. Not that we’re expressing an opinion about this case, you understand.