One week after the federal government urged the Supreme Court to resolve a split in lower courts over who can sue state officials to get them to obey a federal law protecting mentally ill patients from neglect and abuse, Indiana officials asked the Supreme Court to block a lower court ruling exposing them to a new lawsuit on the same issue.  In a new application (09A1156) filed Thursday, the officials noted that they, too, are trying to head off being sued by another arm of the Indiana state government to get access to records of state institutions.

The Court already has before it the case of Virginia Office for Protection and Advocacy v. Reinhard (09-529), and last week got the response it had requested from the Justice Department on whether to take on the right-to-sue issue in that case.  Acting Solicitor General Neal K. Katyal urged the Court to grant review, noting that the Fourth Circuit Court in the Virginia case had blocked one state agency from suing other state officials over access to records of mental patients, while the Seventh Circuit Court had allowed just that kind of lawsuit to go forward in an Indiana case.  It was in the Indiana case that arrived this week as a challenge to the Seventh Circuit — Indiana Family and Social Services Administration v. Indiana Protection and Advocacy Services.

Since 1975, Congress has been providing funds to states to use for systems of advocacy to protect individuals with disabilities or mental illness from abuse or neglect.  Laws passed in 1975, 1986 and 2000 have followed the principle that states must promote advocacy of the rights of the disabled and mentally ill when they are in state facilities.  In the Virginia and Indiana cases, states created such advocacy organizations within state government.  Those groups are now carrying on investigations incidents of abuse or neglect in state-run facilities, and are seeking medical records about patients.

The Fourth Circuit barred the Virginia advocacy group’s lawsuit against state officials, saying that the case implicated “special sovereign interests.” because the lawsuit was essentially an “intramural contest” between the state’s own officials and agencies.   That argument, however, was rejected in the Seventh Circuit in the Indiana case, saying the key issue on whether state officials could be sued depended upon the identity of the officials being sued and the nature of the claim against them, not the identity of who was suing.

The Solicitor General sided with the Seventh Circuit’s view, saying that, when a state advocacy organization sues under the federal laws protecting the disabled and mentally ill, and seeks a court order to assure access to records of such patients, it is “implementing federal law and policy, intramural state political dispute.”

The Indiana officials, in their filing on Thursday, sided with the Fourth Circuit’s view.  The state advocacy group’s lawsuit against other state officials, the application asserted, implicates the state’s “special sovereignty interests.”   They argued: “There is at least a reasonable possibility that either [Indiana officials] or their Virgicounterparts…willpersuade the Court that sovereign immunity preludes this federal court action.”  Thus, they asked the Supreme Court to order the Seventh Circuit in the Indiana case to put its ruling on hold, so that the lawsuit does not proceed until the Supreme Court has settled the dispute among the Circuit Courts.

Now that the Justices have the Solicitor General’s views urging them to hear the Virginia case, they are expected to decide shortly whether to grant review.  The Solicitor General’s view is not binding on the Court, however.

Posted in Cases in the Pipeline