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Summary Judgment Appeal Belly Flops in Cincinnati Pool Case

By Robyn Hagan Cain on May 25, 2012 | Last updated on March 21, 2019

Just in time for Memorial Day, the Sixth Circuit Court of Appeals issued an unpublished opinion this week concerning the question that’s been on every legal mind: Is there a constitutionally-protected right to public pools?

Surprisingly, the answer may be yes, but the Sixth Circuit lacked jurisdiction to address the issue because the appellant brought a post-trial summary judgment appeal instead of an interlocutory appeal.

In 2007, Jeff Zucker, a Cincinnati Police Officer, booted Robert Kennedy from a swimming pool owned and operated by the City of Cincinnati, based upon accusations from pool staff that Kennedy had been lurking in the pool area to watch children swim.

Kennedy contested the revocation of his pool pass, and the resulting ban from public property, in federal court. Kennedy alleged that Zucker had deprived him of a constitutionally-protected liberty interest in access to public spaces without affording him notice and due process.

Everyone moved for summary judgment -- Zucker, of course, claimed qualified immunity -- and everyone lost. Kennedy then lost again after a jury found in favor of Zucker, so he turned to the Sixth Circuit Court of Appeals.

Even in pressing matters of pool passes, a party may not appeal an order denying summary judgment after a full trial on the merits. While the Supreme Court noted an exception in Ortiz v. Jordan -- an order denying summary judgment on "a purely legal issue" capable of resolution "with reference only to undisputed facts" may be appealed -- the Sixth Circuit held that the Ortiz exception was inapplicable here.

Kennedy's summary judgment appeal was not of a purely legal character. In denying summary judgment, the district court concluded that Kennedy had shown a constitutionally-protected interest in access to the public pool. At the same time, it explicitly noted that summary judgment was inappropriate due to the "disputed questions of fact" that remained "as to what procedural process was afforded or available--pre-revocation and post-revocation."

Though Kennedy argued that the evidence proffered to the district court on summary judgment unequivocally demonstrated that he was not afforded notice or due process, the Sixth Circuit Court of Appeals ruled that Ortiz precluded an inquiry into whether the evidence presented at the summary judgment stage merits judgment as a matter of law because "Once [a] case proceeds to trial, the full record developed in court supersedes the record existing at the time of the summary judgment motion."

If your client has already been through a trial on the merits, your chances of a successful Sixth Circuit summary judgment appeal are slim. If you want to appeal summary judgment, do it in an interlocutory appeal.

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