In a disjointed hour of arguments before the Supreme Court, the justices bogged down over some basic legal matters preventing them from having a more thorough discussion about the procedures police officers must follow before interviewing a child who may be a victim of sexual abuse.
While cases often come to the high court with various procedural irregularities, this one in particular seemed to frustrate many of the justices and may ultimately lead to a resolution that doesn't address the serious constitutional question presented.
As a result, the court could leave for another case to decide whether a law enforcement officer must obtain a warrant, court order or parental consent before conducting a schoolhouse interview with a minor.
The facts of the case are fairly straightforward. In 2003, an investigator for the Oregon Department of Social Services had reason to believe that Nimrod Greene may have sexually abused his daughters. That investigator and a sheriff's deputy went to the school of the nine year old girl, described in court documents as S.G., and pulled her out of class to ask if she'd been harmed.
The young girl denied abuse for most of the interview but later said she changed her story in an effort to end the inquiry. Greene was indicted on several counts of felony sexual assault but those charges were dismissed after a jury couldn't reach a verdict. The father eventually pleaded guilty to another unrelated incident of sexual abuse.
The mother filed a lawsuit saying the investigator and deputy had no right to pull her daughter out of class without approval from her or a court.
A federal trial judge said the interview was reasonable given the facts of the case. But the Ninth Circuit U.S. Court of Appeals overturned that decision and said the interview was out of bounds.
Even though the Ninth Circuit said the questioning was impermissible and violated the girl's Fourth Amendment rights, it nonetheless held that the officers were immune from liability. A final outcome not challenged by the mother.
"Why are you here?" Chief Justice John Roberts bluntly asked the mother's lawyer. "You're not challenging the qualified immunity ruling?" he pressed.
"Precisely," Carolyn Kubitschek answered.
"Why didn't you just go away?" Roberts asked again to the laughter of the courtroom audience. His problem, which was shared by other justices, is that the mother appears to have no vested interest in the outcome of the case.
"She has an interest in protecting her moral victory," Kubitschek offered.
It's a view Justice Ruth Bader Ginsburg seemed to agree with. "She's asserting the interests of other children who would be in the situation that she was once in, but no longer," Ginsburg said, but then immediately expressed concern that the mother's case was moot.
Roberts suggested that the court could summarily vacate the Ninth Circuit ruling. Justice Stephen Breyer offered that court could say it made a mistake in hearing the matter.
The case was brought by Oregon officials who said the lower court's ruling has hampered their ability to effectively conduct child sex abuse investigations. Oregon Attorney General John Kroger said the decision "puts a significant burden on the child protective services workers to do their utmost to protect Oregon's children."
The Obama administration joined the case on behalf of Oregon and echoed the state's concern.
There seemed to be agreement in the courtroom that if the justices reach the merits they need to write a ruling that allows for law enforcement officers to make a reasonable determination in what makes for a permissible interview.
"What if a child is called in and says, I don't want to talk to you without my mom; and they continue to speak to the child," Justice Sonia Sotomayor asked. "Is that reasonable?"
Kubitschek said the ruling should make clear that a "protracted custodial interview of a child by police and child welfare investigators is presumptively unconstitutional unless they have a warrant or court order or parental consent or exigent circumstances."
But that standard appeared to be too much for Justice Samuel Alito who took issue with the relevance of the duration of the interview and also wondered about age limits. "Is the child at 16 incapable of consenting to questioning?" Alito asked.