Klindtworth v. Burkett

• Decision Date: 12 November 1991
• Docket Number: No. 910065,910065
• Citation: 477 N.W.2d 176
• Parties: Wally KLINDTWORTH and Kim Klindtworth, Plaintiffs and Appellees, v. Bruce BURKETT, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 176

477 N.W.2d 176

Wally KLINDTWORTH and Kim Klindtworth, Plaintiffs and Appellees, v. Bruce BURKETT, Defendant and Appellant.

Civ. No. 910065.

Supreme Court of North Dakota.

Nov. 12, 1991.

Ken. R. Sorenson, Asst. Atty. Gen., Bismarck, for defendant and appellant.

Traynor, Rutten & Traynor, Devils Lake, for plaintiffs and appellees; argued by Thomas E. Rutten.

ERICKSTAD, Chief Justice.

Bruce Burkett appeals from the order of the District Court for Ramsey County denying his motion for summary judgment of dismissal of the Klindtworths' complaint, based on qualified, statutory, and sovereign immunity. We dismiss the appeal.

All facts related in this opinion are from testimony given in conjunction with depositions.

Burkett, a game warden for the State of North Dakota, testified that on the morning of November 13, 1989, he went to the residence of the Klindtworths to investigate a reported shooting of a deer within city limits; that a neighbor of the Klindtworths had telephoned Burkett and told him that one of Wally Klindtworth's sons had just shot a deer; and that the caller indicated that a red pickup truck had left the Klindtworth residence sometime shortly after the shooting.

Burkett further testified that, upon arriving at the Klindtworth residence, he saw footprints in the snow coming from the residence, and that he saw a buck deer lying outside the fence of the Klindtworth residence. He also testified that, upon further investigation, he determined that the shot that killed the deer was fired in the direction of other homes, and that from outside the Klindtworth residence he was able to observe a high-powered rifle inside the residence through a clear sliding glass patio door. After noticing the rifle, Burkett testified that he went to the patio door and got down on his knees to look at it. According to Burkett he next knocked on the patio door and, after receiving no response, he opened the door and yelled something to the effect, "Is anybody there." What transpired subsequently is considerably more in dispute.

According to Burkett, Kim Klindtworth came to the door and he questioned her, while he remained outside of the door. Burkett asserts that he only entered the house after Kim had agreed to call her boyfriend, the apparent owner of the red pickup, so he could talk to him about the shooting. After talking to Kim's boyfriend, Kevin Sackenreuter, on the telephone, Burkett testified that he then took down the serial number of the rifle leaning by the door and left the house.

Kim Klindtworth testified that as soon as Burkett saw her he told her to get her brother Chad. After telling Burkett that Chad was away at college, Kim testified that Burkett simply walked into the house and said, "Get Chad's ass down here right now." According to Kim, Burkett walked into the house and proceeded to question her and take down the serial number of the rifle, all without any permission on her part. Kim testified that it was only after Burkett had entered the house, questioned her, and had taken down the serial number that she told Burkett she would call her boyfriend Kevin.

In November of 1989, Wally and Kim Klindtworth initiated this action against Burkett, alleging that Burkett's conduct amounted to an invasion of their property and violated their rights secured under the federal and state constitutions. An answer denying the complaint, and the defense of statutory immunity, was apparently made. The Klindtworths subsequently filed an amended complaint in February of 1990. Again an answer denying the complaint and raising the defense of statutory immunity was made. After the depositions of Burkett and Wally, Kim, and Troy Klindtworth were taken, Burkett moved the district court for summary judgment of dismissal of the amended complaint based on statutory immunity. The motion for summary judgment was denied. Thereafter, the Klindtworths moved the district court to allow them to amend their complaint to include a cause of action under 42 U.S.C. Sec. 1983. The district court allowed the motion to amend the complaint. Burkett then moved the district court for partial summary judgment on the federal claims based on qualified and sovereign immunity. The district court denied the motion. Lastly, a third motion for summary judgment of dismissal of the second amended complaint based on sovereign, qualified, and statutory immunity was brought by Burkett in November of 1990. The district court denied Burkett's third motion for summary judgment. It is from this third order denying summary judgment of dismissal that Burkett appeals.

As this appeal is not from a final judgment but is from an order, our first inquiry must be whether or not we have jurisdiction to entertain this appeal. Before this Court will hear an appeal of an intermediate order, the order must meet two separate and distinct jurisdictional provisions. Barth v. Schmidt, 472 N.W.2d 473, 474 (N.D.1991). First, the order appealed from must satisfy one of the enumerated bases for review of section 28-27-02, N.D.C.C. Second, Rule 54(b), N.D.R.Civ.P., must be complied with. Gast Construction Company, Inc. v. Brighton Partnership, 422 N.W.2d 389, 390 (N.D.1988).

As Burkett candidly admits, it is generally recognized by this Court that an order denying a motion for summary judgment is not one of the orders reviewable (meaning appealable) under section 28-27-02, N.D.C.C. Herzog v. Yuill, 399 N.W.2d 287, 292-93 (N.D.1987); Gillan v. Saffell, 395 N.W.2d 148, 149 (N.D.1986); Skoog v. City of Grand Forks, 301 N.W.2d 404 (N.D.1981). ¹ However, Burkett argues that in light of the special nature of an immunity defense, this Court should allow this appeal.

Burkett points out that the United States Supreme Court in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), held that a denial of a motion for summary judgment based on qualified immunity in a Sec. 1983 action was immediately appealable under 28 U.S.C. Sec. 1291. The Court in Mitchell explained:

"Harlow [v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ] thus recognized an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal question whether the conduct of which the plaintiff complains violated clearly established law. The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial."

Mitchell v. Forsyth, 472 U.S. at 526, 105 S.Ct. at 2815. However, a distinguishing feature is that the Court in Mitchell was construing the appellate jurisdiction provision for the federal courts of appeals found in 28 U.S.C. Sec. 1291 and we are required to construe our state statute and our court rule in light of our previous decisions. Although somewhat elusive, qualified immunity is recognized by the United States Supreme Court to exist. ² Thus, when a state court hears a federal Sec. 1983 cause of action, the question of qualified immunity inherently arises. The issue of whether or not this Court has jurisdiction to review an intermediate order in a Sec. 1983 action, however, is a separate inquiry. ³

At the time 42 U.S.C. Sec. 1983 was enacted, and continuing through today, appellate jurisdiction of state courts was and is primarily a creature of statute. Furthermore, it has consistently been held that there is no general constitutional right to an appeal. Abney v. United States, 431 U.S. 651, 655, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). ⁴ See also Lindsey v. Normet, 405 U.S. 56, 77, 92 S.Ct. 862, 876, 31 L.Ed.2d 36 (1972). Accordingly, we do not believe Mitchell governs our action in this case.

To be sure, the Supremacy Clause of the United States Constitution mandates that federal law remain paramount to any state law which conflicts with federal law in Sec. 1983 actions brought in state court. For example, the United States Supreme Court in Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988), when reviewing the application of a state notice-of-claim statute, said:

"Because the notice-of-claim statute at issue here conflicts in both its purpose and effects with the remedial objectives of Sec. 1983, and because its enforcement in such actions will frequently and predictably produce different outcomes in Sec. 1983 litigation based solely on whether the claim is asserted in state or federal court, we conclude that the state law is pre-empted when the Sec. 1983 action is brought in state court."

Felder, 487 U.S. at 138, 108 S.Ct. at 2306-07. The Felder Court went on to say that:

"Just as federal courts are constitutionally obligated to apply state law to state claims, see Erie, supra at 78-79 [R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817 at 822-823, 82 L.Ed. 1188 (1938) ], so too the Supremacy Clause imposes on state courts a constitutional duty 'to proceed in such a manner that all the substantial rights of the parties under controlling federal law [are] protected.' Garrett v. Moore-McCormack Co., 317 U.S. 239, 245 [63 S.Ct. 246, 251, 87 L.Ed. 239] (1942)."

Felder, 487 U.S. at 151, 108 S.Ct. at 2313. However, the first and crucial issue in this case is whether or not this Court should entertain this appeal. It is the constitutional and statutory law of this state which creates and defines the jurisdiction of this Court. The Supremacy Clause of the United States Constitution alone cannot create jurisdiction in this Court when it does not otherwise exist. See generally F.E.R.C. v. Mississippi, 456 U.S. 742, 773 n. 4, 102 S.Ct. 2126, 2145 n. 4, 72 L.Ed.2d 532, 556 n. 4 (1982) (Powell, J. concurring in part and dissenting in part).

Thus, although this Court may take notice of Mitchell when construing the provisions granting appellate jurisdiction to this Court, the provisions of section 28-27-02, N.D.C.C., and rule 54(b), N.D.R.Civ.P., dictate the outcome. ⁵

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