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U.S. Supreme Court arguments Tuesday in a closely watched dispute over the interrogation of child abuse victims quickly turned into a “where’s the beef” discussion of whether a controversy remains between the parties in the case. At one point during arguments in Camreta v. Greene, Justice Ruth Bader Ginsburg said, “It just seems like the whole case has evaporated.” At another, Chief Justice John Roberts Jr. asked one lawyer, “Why are you here?” adding, “Why didn’t you just go away?” At issue in the case is whether the Fourth Amendment requires that government officials obtain a search warrant or parental permission before they interrogate a child suspected of being the victim of child abuse — and whether an official who fails to do so can be held liable for a civil rights violation. Billed as the first case involving child-protective services in more than two decades, Camreta drew widespread interest from government agencies asserting that they need to be able to investigate abuse cases without notifying the possible perpetrator. It also attracted interest from a range of groups claiming that constitutional protections are needed to insulate children from invasive questioning. But by the end of the hour of arguments, it seemed possible that the Fourth Amendment issue might not get resolved because of the procedural posture of the case. The U.S. Court of Appeals for the 9th Circuit ruled in the case that social worker Bob Camreta’s school interrogation of a child without a warrant violated the Fourth Amendment. But it also ruled that because the right was not clearly established at the time, Camreta was protected by qualified immunity from being found liable for a Section 1983 violation of the girl’s civil rights. Since Camreta won on the immunity point, and lawyers for the child did not challenge that aspect of the ruling, justices were left wondering whether there was a real “case or controversy” left for them to decide. In addition, the child involved in the case has left the state, so has little stake in the outcome. By long-standing tradition, the Court dislikes deciding cases that no longer matter to the parties — even if larger issues of interest to others are at stake. Oregon Attorney General John Kroger asserted right off the bat that the case was justiciable, and was about to get into the merits of the Fourth Amendment issue when Justice Antonin Scalia said, “Not so fast.” Much of Kroger’s 20 minutes of argument time was taken up with questions on the mootness issue. Kroger argued that Camreta, who still works for the state’s child-protective services, still has a stake in the outcome. And he said the girl in the case still has a related case pending against Deschutes County, Ore., which has no immunity. But several justices seemed dubious and when Justice Sonia Sotomayor asked what he would think of a finding that the case was moot, Kroger indicated he could live with the high court vacating the 9th Circuit decision, which would mean erasing the Fourth Amendment restriction on interrogations. After the argument, Kroger said that would be “a very good result.” Carolyn Kubitschek, partner in the New York firm of Lansner Kubitschek Schaffer, ran into more trouble when she rose to represent Sarah Greene, the mother of S.G., the initials for the unnamed Oregon child interrogated in the case. “There is no case or controversy between S.G. and the petitioners in this case,” was Kubitschek’s opening line. That was when Roberts angrily asked why she had not just gone away. Kubitschek gently reminded Roberts that as the appellee in the case, “We are not here voluntarily.” Roberts agreed, but said she could still have told the Court she had no continuing interest in the case. Asked later what remaining interest her client has in the case, Kubitschek said “she has an interest in protecting her moral victory” embodied in the 9th Circuit’s decision on the Fourth Amendment issue. But otherwise, she conceded, “Our client has no legally binding, legally cognizable interest in the case.” Tony Mauro can be contacted at [email protected].  

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