OPG U.S. Supreme Court Litigation

Due to the size and breadth of our practice, and the fact that our cases frequently present important legal questions of first impression including Constitutional issues, from time to time the Office of the Public Guardian finds itself in the Supreme Court of the United States.  The following are summaries of filings that demonstrate the breadth of this practice.


Concerned because the Ninth Circuit Court of Appeals had interpreted the Fourth Amendment  in a way that could harm children and impede child protection investigations, the Office of the Public Guardian filed an amicus brief with the United States Supreme Court in Camreta v. Greene, 131 S. Ct. 2020 (2011). The Ninth Circuit had held that interviewing a suspected child abuse victim at school without a warrant or parental consent violated the Fourth Amendment.

The case arose in Oregon. Child protection officials received a report raising suspicion that nine-year-old S.G. and another child were being sexually abused by S.G.’s father. A child protection case worker and a sheriff’s deputy interviewed S.G. at her school. Based on the interview and other evidence, child protection officials sought custody of S.G. and her sister. The child protection case was ultimately dismissed, but the father pled guilty in criminal court to fondling the other child, the son of a friend. S.G.’s mother sued the child protection case worker and the deputy in federal court, alleging that the school interview violated the Fourth Amendment rights of the mother and the child.

The U.S. District Court for the District of Oregon dismissed the lawsuit, finding no constitutional violation. On appeal, the Ninth Circuit Court of Appeals reversed, holding that an interview with a possible child abuse victim at a public school without a warrant or parental consent violated the Fourth Amendment.

The parties’ briefs focused on the interests of the parents, public school officials, child protection agencies and law enforcement. To provide the Court with a brief analyzing how the case might impact children during child protection investigations, the Public Guardian gathered scenarios, drawn from real children’s cases, to illustrate how requiring parental consent or a warrant could endanger children. The Public Guardian filed his brief as amicus curiae in support of neither party and suggested reversal. The Public Guardian argued that the Ninth Circuit erred in ruling that an interview of a possible child abuse victim without a warrant or parental consent automatically violates the Fourth Amendment.

Because the Ninth Circuit’s approach would impede investigations and endanger children unnecessarily, the Public Guardian suggested that the Court should forego a strict warrant requirement and instead implement the reasonableness test set forth in New Jersey v. TLO, 469 U.S. 325 (1985), and Illinois v. Lidster, 540 U.S. 419 (2004). The Public Guardian argued that requiring a warrant, exigent circumstances, or parental consent for state authorities to interview a suspected child abuse victim would make it more difficult for the child to safely disclose abuse, infringe on the child’s right to safety, and impact the government’s compelling interest in protecting children.

The Public Guardian also gathered social science research on best practice guidelines about how to best interview suspected child abuse victims. These best practices not only increase the accuracy of child abuse investigations and decrease the trauma suffered by the possible victim, but serve the compelling state interest in reducing the long-term negative impact of child abuse on society.

The Public Guardian believes that his brief provided the Court with an important perspective on a child’s individual right to safety, as well as the critically important role that a child’s opportunity to speak candidly to child protection investigators and law enforcement plays in the practical protection of abused and neglected children.

On May 26, 2011, the United States Supreme Court vacated the Ninth Circuit’s ruling addressing the merits of the Fourth Amendment issue. Having granted certiorari to consider whether the Ninth Circuit’s constitutional ruling could be reviewed notwithstanding that the Court of Appeals ruled in the favor of the child protection investigator and the sheriff’s deputy on qualified immunity grounds, the Supreme Court answered this question affirmatively. The Supreme Court concluded that S.G., having moved “across country and becoming an adult,” no longer had an ongoing interest in the dispute, so the case lacked the “concrete adverseness which sharpens the presentation of the issues.” The majority stated that this “happenstance” of mootness should not deprive the child protection investigator from his right to challenge the Ninth Circuit’s warrant requirement, so vacatur was warranted.

Regarding the kinds of problems that can arise when courts recognize new constitutional rights as clearly established, the majority opinion cautioned, “In general, courts should think hard, and then think hard again, before turning small cases into large ones.”

For full text of the Public Guardian’s amicus brief, click here.

For the full text of the Supreme Court’s opinion, click here.

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