Thursday, May 26, 2011
Civil Rights Appeals: The Court's Opinion in Camreta v. Greene
The Supreme Court ruled on Thursday in Camreta v. Greene that a prevailing official in a federal civil rights action can appeal the constitutional ruling of the lower court, but that the appeal was moot in this case.
The case involved state child protective service officers' interviews of a 9-year-old girl, S.G., about allegations that her father had sexually abused her. S.G.'s mother sued under 42 U.S.C. Sec. 1983, claiming that the warrantless and permission-less interviews violated the Fourth Amendment's proscription on unreasonable searches and seizures.
The Ninth Circuit followed the two-step approach in Saucier v. Katz (2001) and Pearson v. Callahan (2009). Under Saucier, a court asks two questions: (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right (the constitutional question), and (2) if so, whether that right was "clearly established" at the time of the defendant's alleged misconduct (the qualified immunity question). Qualified immunity applies and protects an official unless the official's conduct violated such a right.
Pearson held that the sequence of the two-step process is flexible--that lower courts could, e.g., ask the second question first. If so, under Pearson, a lower court could also rule on the constitutional question, thus providing guidance to officials in their behavior and actions and advancing (not dodging) constitutional law in the area. Strictly speaking, the ruling on the constitutional question would be dicta (and under the avoidance principle, really shouldn't be at all--thus the "Pearson permission" that lower courts possess to rule on the constitutional question). But it would nevertheless be binding on officials, because it would reflect the lower court's judgment on the constitutional question--telling officials what is constitutional and what is not, and thus guiding their behavior.
This is exactly what the Ninth Circuit did. That court ruled that the officials enjoyed qualified immunity (because their interview did not violate clearly established Fourth Amendment rights). But it also ruled that the interviews violated the Fourth Amendment. Thus the officials won on immunity but lost (sort of) on the constitutional question. The officers appealed; S.G.'s mother did not.
The Supreme Court, by Justice Kagan (joined by Chief Justice Roberts and Justices Scalia, Ginsburg, and Alito) ruled that the officers could appeal, even though they won on qualified immunity. The appeal satisfied the federal statute conferring on the Court unqualified power to grant cert. on the petition "of any party." 28 U.S.C. Sec. 1254(1). And it satisfied the case-or-controversy requirement of Article III.
Moreover, the Court ruled that the constitutional question had now become moot: S.G. moved out of state and approached age 18, thus making a repeat of the interview unlikely in the extreme. And "[b]ecause mootness has frustrated [the officer's] ability to challenge the Court of Appeal's ruling that he must obtain a warrant before interviewing a suspected child abuse victim at school," op. at 18, the Court vacated the Ninth Circuit's constitutional ruling.
Justice Scalia concurred but wrote that he'd be willing to reconsider in an appropriate case whether "to end the extraordinary practice of ruling upon constitutional questions unnecessarily when the defendant possesses qualified immunity."
Justice Sotomayor, joined by Justice Breyer, concurred, but would have avoided the question whether the officers could appeal. Instead, they would simply have vacated the case in light of its mootness.
Justice Kennedy, joined by Justice Thomas, dissented. Justice Kennedy argued that the Court's ruling wrongly treated dicta (the Ninth Circuit's constitutional ruling) as precedent, and he argued that an officer who won on qualified immunity could not appeal.
Four Justices thus joined an opinion to maintain the Pearson permission of lower courts to rule on the constitutional question, even if they ruled that an officer enjoyed qualified immunity. One of those, Justice Scalia, suggested that he would reconsider it in an appropriate case. Two others, Justices Sotomayor and Breyer, were silent on the question, but gave no suggestion whatsoever that they would reassess Pearson. Two others, Justices Kennedy and Thomas, objected that the Court wrongly treated the Pearson constitutional ruling as binding precedent in this case and suggested more generally that Pearson constitutional rulings raised difficulties, because they "could come to resemble declaratory judgments or injunctions" (and not just the obiter dicta they are).
The case likely leaves Pearson permission on solid ground, even if as many as three Justices may be willing to reconsider it, and even if it suggested that in some narrow class of cases (like this one) the constitutional question could become moot, thus undermining it.