Child interview case deemed moot

The case arose after petitioner Bob Camreta, an Oregon child protective services caseworker, interviewed respondent S.G., a nine-year-old girl, at school regarding allegations that S.G. was being sexually abused by her father.  James Alford, a county deputy sheriff and the petitioner in a parallel case, also attended the interview, which was conducted without either a warrant or the consent of S.G.’s parents.  S.G.’s mother, Sarah Greene, sued Camreta and Alford under Section 1983, claiming that the interview had violated S.G.’s Fourth Amendment rights.

The Ninth Circuit agreed that the interview violated S.G.’s Fourth Amendment rights, but it held that Camreta and Alford were entitled to qualified immunity.  And although they had ultimately prevailed at the Ninth Circuit, Camreta and Alford filed a petition for certiorari, asking the Supreme Court to grant review to clarify the underlying Fourth Amendment issue.  However, S.G. did not file a cross-petition seeking review of the qualified immunity ruling.

In an opinion by Justice Kagan, which was joined by the Chief Justice and Justices Scalia, Ginsburg, and Alito, the Court vacated the Ninth Circuit’s decision in part and remanded.  The Court then declined to rule on the underlying Fourth Amendment question, however, finding the matter moot.

The Court first considered whether it could review a case at all when the party petitioning for certiorari had prevailed below.  Although S.G. had argued that the case did not meet Article III’s “case or controversy” requirements, the Court rejected this argument.  It cited two prior cases in which it had granted certiorari at the behest of the party that prevailed below, emphasizing that the relevant inquiry is “whether the litigant retains the necessary personal stake in the appeal.”  S.G.’s stake in the appeal is unquestioned:  she wants a determination of whether her Fourth Amendment rights were violated.  But, the Court continued, Camreta also has a stake in the outcome of the case:  conducting child interviews is something he customarily does in the course of his job duties, so he has an interest in knowing whether such actions will render him vulnerable to liability in the future.

The Court acknowledged that, as S.G. had argued, the Court generally had a “settled practice” of declining to consider cases at the request of the prevailing party.  However, it explained that it had created an exception for cases which present a “policy reaso[n] . . . of sufficient importance to allow an appeal” by the prevailing party below.  Qualified immunity, it continued, presents precisely this kind of policy justification.  First, the underlying constitutional issues in qualified immunity cases affect how officials conduct their duties.  Second, because Bivens makes clear that qualified immunity is not available for violations of “clearly established” constitutional or statutory rights, jurisprudence on constitutional questions determines what official behaviors may be protected by qualified immunity in the future.  And, finally, the Court has empowered lower courts to review the constitutional question even in qualified immunity rulings precisely so that the law may evolve – the same rationale applies to the Court’s review of the underlying constitutional question in this case.

Then, as the Justices’ questions at oral argument foreshadowed, the Court determined that it is barred from deciding the case for another jurisdictional reason:  it is moot.  Since the interview occurred nine years ago, S.G. has moved to Florida and has no plans to return to Oregon.  She is also now either seventeen or eighteen years old and (the Court assumes) about to graduate from high school.  Therefore, the Court explains, S.G. has no ongoing stake in the litigation, as she has no need – either currently or in the future — for protection from the allegedly unconstitutional behavior.  The Court notes that S.G. faces “not the slightest possibility of being seized in a school in the Ninth Circuit’s jurisdiction as part of a child abuse investigation.”

The Court’s ordinary practice when a case becomes moot while appeal is pending is vacatur, and it follows this course here.  The rationale behind vacating judgments of cases that are moot on appeal is to ensure that when a party has sought review but cannot receive it, it will not be  “treated as if there had been a review”; the practice also prevents unreviewable decisions from having legal consequences.  If the Court did not vacate the Ninth Circuit’s Fourth Amendment ruling, that ruling would have legal consequences (a point which animates the first part of the Court’s opinion, in which it holds that it has jurisdiction to review the case).

Justice Scalia filed a three-sentence concurring opinion, in which he notes that he would consider terminating the Court’s “extraordinary practice of ruling upon constitutional questions unnecessarily when the defendant possesses qualified immunity” were the appropriate case to present itself.

Justice Sotomayor filed a separate concurrence, joined by Justice Breyer, in which she concurs with the Court’s judgment that the case is moot and should be vacated.  She would not, however, reach the first threshold question of whether the Court may hear the appeal of a prevailing party in this circumstance, when the Court could dispose of the case based solely on mootness.

Justice Kennedy, joined by Justice Thomas, dissented.  Noting that the “Court reviews judgments, not statements in opinions,” he characterizes the Court’s decision allowing review of the underlying constitutional question in cases such as this one as “an erroneous and unbounded exception to an essential principle of judicial restraint.”  In his view, “[p]arties who have obtained all requested relief may not seek review here.”  Justice Kennedy next expresses concern that the Court’s ruling in Pearson v. Callahan, which gave the courts of appeals “permission” to make rulings on the underlying constitutional issue in Section 1983 suits, even if they ultimately dispose of the suit on qualified immunity grounds, has sown confusion and – in this case –  unavoidably runs up against the Court’s rejection of advisory opinions.  Justice Kennedy concludes by observing that “[i]f today’s decision proves to be more than an isolated anomaly, the Court might find it necessary to reconsider its special permission that the Courts of Appeals may issue unnecessary merits determinations in qualified immunity cases with binding precedent.”