Qualified Immunity and the "Order-of-Battle"

Do you like your Constitution raw or well done? The recent Supreme Court decision in Scott v. Harris, 127 S.Ct. 1769 (2007),* contains a concurrence by Justice Breyer questioning the Saucier framework in civil rights cases for deciding qualified immunity by requiring that courts find a constitutional violation before proceeding to an immunity analysis. As argued by Justice Breyer, this leads courts to issuing more and unnecessary opinions on constitutional questions.

Saucier itself is a two pronged analysis: was a constitutional right violated, and, if so, were the contours of the right sufficiently clear that a reasonable person would know their conduct violated clearly established law? If reasonable minds could differ, then qualified immunity applies. (Other cases describe qualified immunity as protecting all but the “plainly incompetent,” or “those who knowingly violate the law”).

In Scott, Justice Breyer complained that Saucier forces district courts to issue unnecessary constitutional decisions before disposing of cases on immunity grounds: “the order-of-battle rule violates that older, wiser judicial counsel not to pass on questions of constitutionality ... unless such adjudication is unavoidable.” Scott, 127 S.Ct. at 1780 (citations omitted).

Bolstering his critique, Justice Breyer points out that Saucier’s “order-of-battle,” “may immunize an incorrect constitutional ruling from review,” id, where a case is disposed on the second prong. Justice Breyer further argues that “order-of-battle” “will spawn constitutional rulings in areas of law so fact dependent that the result will be confusion rather than clarity.” Id.

And Justice Breyer is not alone. Joined by 28 States which filed amici briefs, and, most likely by Justices Ginsberg and Stevens, (if you accept the concurrence in Saucier as evidence), there is some momentum for change.

Of course, this momentum does not swing one way only. Saucier itself grounded the wisdom of resolving constitutional questions in principle building, or the establishment of legal guide posts for subsequent courts:

“In the course of determining whether a constitutional right was violated on the premises alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established. This is the process for the law's elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer's conduct was unlawful in the circumstances of the case.” Saucier v. Katz, 533 U.S. 194, 201 (2001).

The contrast between Saucier and Justice Breyer could not be more clear, which gets back to the initial question: how do you like your Constitution, raw or well done?

*(The Scott decision is noteworthy as the first opinion in which the Court embeded a web link, which in this case directs the user to a video of the car chase at issue. The video can be found here).

State Constitutional Challenges

The Oklahoma Supreme Court has, of late, been amenable to challenges of state statutes as violative of the Oklahoma Constitution. For instance, in the recent case of Conaghan v. Riverfield Country Day School, 2007 OK 60, (which is available here), the Court analyzed a worker's compensation statute that created a rebuttable presumption in favor of the treating physician's determination of the extent of the claimant's disability. (The statute allowed the employer to select the treating physician.) One subsection of the statute, however, allowed the presumption to be rebutted only where the opinion of an independent medical examiner showed the opinion of the treating physician was not supported by "objective medical evidence." In such a case, the statute directed the worker's compensation court to follow the opinion of the independent medical examiner, the opinion of the treating physician, or establish its own opinion "within the range of opinions of the treating physician and the Independent Medical Examiner."

The Court first rejected a constitutional challenge to the rebuttable presumption, finding it did not "change the value or weight of the evidence," but merely imposed upon the opposing party "the duty to offer evidence to the contrary." The Court, nevertheless, was troubled by the subsection limiting the scope of evidence available in rebutting the presumption. The Court held that the language of the statute impermissibly encroached on the powers of the judicial branch of government (in conflict with Oklahoma Constitution, art. 4, sec. 1) by attempting to "predetermine the range of the adjudicative facts" and improperly invaded "the judiciary's exclusive constitutional prerogative of fact-finding." In other words, the subsection gave determinative effect to the opinions of the medical examiner and the treating physician, even in situations where such opinions were not supported by objective medical evidence. The Court severed the offending subsection from the remainder of the worker's compensation act, and remanded the case.

In another recent case, Zeier v. Zimmer, Inc., 2006 OK 98, 152 P.3d 861, (which is available here), the Court addressed the constitutionality of a statute requiring that a plaintiff's attorney file an affidavit which established that an expert agreed that a patient’s medical malpractice lawsuit had merit. The Oklahoma Supreme Court found the affidavit requirement was unconstitutional pursuant to the section of the Oklahoma constitutition (Article 5, sec. 46) which proscribes certain "special laws." The Court held that the affidavit law was a "special law" that was prohibited by the Oklahoma constitution because it treated medical malpractice cases differently than all other negligence cases. In addition, the Court found that the affidavit requirement was an unconstitutional "barrier to the access to courts" in violation of Article 2, sec. 6. The Court held that medical malpractice plaintiffs cannot be forced to incur the cost of consulting with an expert witness at the cost of between $500 and $5,000 before they may file their lawsuit.

Conaghan and Zeier may indicate that the Court is more amenable to accepting, or at least considering, challenges to state statutes on state constitutional grounds. (It should be noted that the Court has probably rejected a similar number of constitutional challenges. For instance, see here, here, and here).