Lambert v. Town of Stringtown , 63 O.B.A.J. 2132 ( 1992 )

MEMORANDUM OPINION

SUMMERS, Justice.

Defendants have been sued in state court for alleged civil rights violations under 42 U.S.C. § 1983. They sought summary judgment based on the defense of qualified immunity. The trial court overruled their motion and the defendants appealed. On our own motion we ordered defendants to show cause why the appeal should not be dismissed as seeking review of a non-final, nonappealable order.

The defendants argue in response that they are entitled to appellate review of the trial court’s denial of their qualified immunity defense.¹ They recognize that an order denying a motion for summary judgment is an interlocutory adjudication that is not appealable unless it is one of the statutory exceptions such as appear at 12 O.S. 1991 §§ 952(b)(2), or 993. They urge that Section 1983 jurisprudence mandates an ap-pealable exception under the authority of Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) and Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

The matter is controlled by McLin v. Trimble, 795 P.2d 1035 (Okla.1990). The defendants are correct in that qualified immunity is “effectively lost if a case is erroneously permitted to go to trial.” Wyatt v. Cole, — U.S. —, 112 S.Ct. 1827, 1832, 118 L.Ed.2d 504 (1992), (quoting Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815).² An interlocutory appeal is provided in federal court, where a different scheme governs such things. McLin v. Trimble, 795 P.2d at 1039; Wyatt v. Cole, 112 S.Ct. at 1832, 1836, (opinion by the Court and the separate concurring opinion by Justice Kennedy joined by Justice Scalia). However, in McLin v. Trimble we resolved that an interlocutory order denying the defense in state court was not appealable, and conferred no appellate jurisdiction on this Court. Id. 795 P.2d at 1039, 1040. We also concluded that neither the Supremacy Clause nor the Due Process Clause required Oklahoma to provide an interlocutory appeal from an order denying a qualified immunity defense. Id. 795 P.2d at 1039, 1040.

But in McLin v. Trimble we found that a civil rights defendant was entitled to review of an order denying him qualified immunity by a higher court prior to trial. Id. 795 P.2d at 1038. We further explained the form such a proceeding must take in the state courts, saying:

A trial court order denying a claim of qualified immunity properly presented to a trial court will be reviewed on the merits of the immunity claim prior to trial by an original action in this court properly presenting the claim. Id. 795 P.2d at 1040. (Emphasis deleted).

In McLin the defendant/appellants requested an immediate appeal or, in the alternative, extraordinary relief by writ. No such alternative request appears in the present proceeding, nor is there any record before us by which to review the trial court order. (See McLin at 1040 where we cited the applicable Rules of the Oklahoma Supreme Court on providing this court with a record.) The District Court order appealed from is not capable of invoking our appellate cognizance. This appeal is dismissed for want of appellate jurisdiction. Our disposition does not prejudice the right of any party to seek proper review of the trial court order as per McLin v. Trimble, supra. See also DeLuca v. Mountain States Financial Resources Corp., 827 P.2d 171 (Okla.1992).

HODGES, V.C.J., and LAVENDER, SIMMS, HARGRAVE, KAUGER and WATT, JJ., concur. OPALA, C.J., dissents.

1 . The qualified immunity doctrine may be stated thus:

“[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Mitchell v. Forsyth, 472 U.S. 511, 517, 105 S.Ct. 2806 [2811] 86 L.Ed.2d 411 (1985), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727 [2738] 73 L.Ed.2d 396 (1982).

2 . Whereas Mitchell v. Forsyth enjoyed only a four-vote plurality the Wyatt v. Cole decision has six justices concurring.