The U.S. Supreme Court’s ruling Tuesday in City of Hays v. Vogt.

The U.S. Supreme Court’s decision Tuesday to dismiss a pending Fifth Amendment case came as no surprise. But the justices gave no explanation for its action, leaving the unusual demise of the case City of Hays, Kansas v. Vogt open to speculation.

At issue in the case was whether the Fifth Amendment’s protection against forced self-incrimination is violated when incriminating statements are used by prosecutors at a probable cause hearing, not at a criminal trial.

But during oral argument in February, justices raised a host of concerns about the case, leading some commentators to predict that it would be “dismissed as improvidently granted” or “DIGged,” in court parlance.

One of the advocates who argued the case even explicitly invited the justices to do it.

“If this court wanted to [dismiss] the case as improvidently granted, we would certainly not object,” said Kelsi Corkran, a partner at Orrick, Herrington & Sutcliffe who represented Matthew Vogt, the respondent who stood to benefit from such an outcome. When a case is dismissed, the ruling of the court below stands.

The high court sometimes explains its reasons for dismissing a case, but not this time.

From the beginning, Hays had an unusual fact pattern. Vogt, a police officer, made his incriminating statements during a job interview for another a police department position—not a typical police interrogation. Procedural issues also plagued the case.

“By the time of argument, factual flaws and mysteries, as well as deep constitutional questions not immediately apparent, were seen lurking in any decision that might be written,” University of California Hastings College of the Law professor Rory Little wrote in a post at SCOTUSblog. “Yet this case had not advanced beyond the motion to dismiss stage, in which a plaintiff’s allegations must be assumed (not proved) to be true. There thus had been no factual development, as well as no consideration of other legal questions regarding liability.”

During oral argument, justices made it clear that they were disturbed by the case before them. Justice Stephen Breyer said at one point that the irregularities of the case “raise the question as to whether this is, in fact, an appropriate case or controversy for the court to take.”

Justice Samuel Alito Jr. said, “This is a very odd case,” and Justice Sonia Sotomayor agreed. But the biggest predictor of trouble came when Breyer asked a key question about the procedural history of the case.

When Corkran said “none of that is in the record,” Chief Justice John Roberts Jr. blew up, disparaging the use of non-record statements of fact. He let the questioning continue, but added, “I will discount the answers because it’s not something that’s in the record.” (Listen to the argument audio below—Roberts’s remarks appear about 32:09.)



Another factor that could have led to the court’s dismissal of the case was the fact that Justice Neil Gorsuch was recused in the case—presumably because the appeal made its way through the U.S. Court of Appeals for the Tenth Circuit while Gorsuch was still a judge there.

Gorsuch’s recusal made it possible that the court was divided 4-4 on the outcome—which sometimes has led the court to dismiss cases. Historically, other reasons for dismissal include inadequacy of the record, a jurisdictional defect, or other flaws in the case that were not discovered when the justices decided to review the case in the first place. But no one except the court really knows which factor prevailed in the Hays case.

One thing is clear: Vogt’s lawyer Corkran was happy with the court’s action.

In a statement, she said, “We’re obviously pleased with this outcome—as we said in our brief opposing certiorari and during oral argument, there was no reason for the court to review the Tenth Circuit’s decision, both because it would be premature at this stage in the litigation and because the decision is correct. … The court’s decision to dismiss is a victory for our client, Officer Vogt, who is now free to pursue his civil rights claim on remand.”


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