Facts versus Law on Summary Judgment Motions

When pursuing an action for defamation, on the Internet or off, the first hurdles faced are the dispositive motion to strike under the anti-SLAPP statute and/or a motion for summary judgment.  In their desire to clear their dockets, courts sometimes overreach when ruling on these motions.  A recent case illustrates the point on a motion for summary judgment, where the court confused the distinction between facts and law.

In a persuasive holding the 9th Circuit Court of Appeals indirectly reiterated to litigators and the courts the importance of distinguishing questions of fact and law on motions for summary judgment.1 At the district court level in Posey v. Lake Pend Oreille School District, plaintiff Posey lost his first amendment retaliation claim on summary judgment because the court concluded that Posey acted as a public servant purely as a matter of law. Taking the issue up on appeal, Posey contested whether his conduct occurred pursuant to his official duties, providing the 9th Circuit with the opportunity to decide precisely what type of question Posey had presented to the district court, and whether the issue was proper for summary adjudication. Initially, the Court noted the elusive and vexing nature of the distinction between questions of law and fact, and chose to rely on guiding language from the U.S. Supreme Court: “Facts that can be ‘found’ by ‘application of . . . ordinary principles of logic and common experience . . . are ordinarily entrusted to the finder of fact.’ ” Moreover, ‘An issue does not lose its factual character merely because its resolution is dispositive of the ultimate constitutional question’ at issue . . . for ” ‘the rule of independent review’ will always require the court [to] independently . . . evaluate the ultimate constitutional significance of the facts found.”

The court went onto conclude that the issue of whether speech is made by a private citizen or public actor is a mixed one of fact and law, further concluding that the parties dispute over the scope of Posey’s precise duties presented a genuine issue of material fact sufficient to defeat the appellee’s motion. Aside from the obvious effect on 1st Amendment pleading, the case also kindly reminds of the importance of isolating each issue in opposing motions for summary judgment. As done by Posey, making a factual issue out of the basis upon which the court will decide a question of law may very well carry a matter to the trier of fact, which is exactly where distressed and sympathetic plaintiffs’ cases truly belong.

1.  Posey v. Lake Pend Oreille School District, et al., 2008 DJDAR 15780.

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Aaron Morris
Morris & Stone, LLP

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View Aaron Morris, Trial Attorney and Partner at Morris & Stone, with emphasis on Free Speech and Defamation Law.

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