Tuesday, March 22, 2011

Update to "Do Social Workers Need Search Warrants"

A few weeks ago, I (FosterEema) posted about an interesting case now before the United States Supreme Court. That case, Camreta v. Greene, confronted the issue of whether, and when, social workers need a search warrant to interview children in a school context.

For the legal eagles in the crowd, you can read a transcript (PDF) of the oral argument which took place before the Supreme Court, or listen to a recording of the argument.

At this point, while everyone waits for the Supreme Court to issue its opinion, the $64,000 question is how the Court will rule. Based upon my reading of the transcript, here're my thoughts:

First of all, the Justices seemed really uncomfortable with a blanket rule that would require social workers to always obtain search warrants before interviewing children. John Kroger, the attorney arguing for the social worker and sheriff's deputy, made the statement that in many cases it would be impossible to establish probable cause to get warrants without talking to the kid because "the child is usually the only witness that is available to the government". Therefore, he argued, reasonable suspicion - and not a warrant backed by probable cause - should be the legal standard for interviewing children.

However, the Court also spent a great deal of time on a more foundational issue: whether or not this appeal is even something they can decide. Under Article III of the United States Constitution, the courts cannot decide a case when there is no meaningful action they can take to benefit the party appealing. This is a legal doctrine known as "mootness", which stems from the requirement that courts only decide matters where there exists a "justiciable case or controversy".)

Here, the Supreme Court expressed considerable doubt that a justiciable case still existed. S.G., the minor in this case, is now 18 and no longer residing in Oregon, so her life is unaffected by the outcome of the appeal. And, since the lower court already granted social worker Camreta and Deputy Alford qualified immunity from liability, the Supreme Court's decision - whatever it ends up being - will change nothing for them, either. Given this, the only possible difference the Supreme Court's ruling could make would be to clarify the legal standard for the future, and several justices seemed reluctant to tackle that issue here.

So, what are the options available to the Supreme Court? I see at least four potential outcomes:
  1. The Court could agree with the Ninth Circuit's decision that search warrants are required before interviewing a child at school. Based on the tenor of the argument, I'd be very surprised if the Court did this.
  2. The Court could reverse the Ninth Circuit's decision on the merits, thereby setting a rule that search warrants are not required in child welfare investigations. I think this is also unlikely.
  3. The Court could withdraw its grant of certiorari as improvidently granted. Essentially, this would be the Court saying "we shouldn't have agreed to hear this case, so we're going to pretend we never did that and let the lower court's ruling stand."
  4. The court could issue a vacactur order back to the Ninth Circuit under United States v. Munsingwear, Inc.. I'll let you read this detailed article for a fuller explanation of what vacatur and the Munsingwear decision are all about, but the short version is that it would throw out the Ninth Circuit's decision mandating warrants and return things to the way they were without actually deciding the issue of whether and when warrants are needed.
To be clear, the difference between options #3 and #4 is what happens within the Ninth Circuit's jurisdiction. Both outcomes would defer the establishment of a blanket rule about search warrants, but under a vacatur, the Ninth Circuit's decision would be erased entirely. By contrast, if the Supreme Court withdraws the grant of certiorari, no national rule would be established, but the Ninth Circuit's requirement for search warrants would remain law within the states under its jurisdiction.

What's going to happen in this case? If I had to guess, I'd say this last option - vacating the Ninth Circuit's decision under Munsingwear is the most likely option. Although the Supreme Court Justices expressed considerable doubt that the Ninth Circuit's decision mandating search warrants was correct, they definitely seemed to feel that this might not be the right case from which to create a blanket rule. Vacating under Munsingwear would signal agencies within the Ninth Circuit's jurisdiction that they need not follow the search warrant rule, while kicking the larger issue down the road to a case with clearer facts and a justiciable controversy.

I'll update you all again when the Supreme Court issues its ruling.

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