Breaking News

Analysis: A rare rebuff for the SG


The U.S. Solicitor General’s office has a special relationship with the Supreme Court, giving it more clout than any other law office dealing with the Justices.  The “SG” is a kind of outside adviser to the Court, and the Justices frequently seek its input in cases in which it is not even a party.  And the Court is especially generous in giving the SG time to argue in cases in which it says it has an interest.   Usually, the SG does not push that advantage audaciously.  It may have done so, however, in a case the Court will hear on November 1: Rehberg v. Paulk (docket 10-788).

The SG’s role in that case came to light on Tuesday, when the Court refused — in a truly rare order — to allow the government’s top legal office to join in the Rehberg argument.

The SG’s office filed a friend-of-Court brief  on June 16, leaving no doubt where its sentiments lay.  Its interest in this case, involving claims of legal immunity for state officials, is that the case may have a spillover effect and expose federal government officials to civil lawsuits “for violations of constitutional rights,” the brief said.  It made a strong plea for absolute immunity in the circumstances of this case.   A month later, apparently seeking to straddle the two sides in the case as an  independent counselor to the Court, the office asked the Justices to give it five minutes of each side’s time at oral argument.

The problem with that position (as lawyers for the individual who appealed, Georgia accountant Charles A. Rehberg, advised the Court), was that the SG was not in the middle of the case at all, but was squarely on the side of the local crime investigator, James P. Paulk, whom Rehberg had sued.  The case went to the Supreme Court because the federal appeals courts are in conflict over whether an individual who starts a criminal case against someone else (a “complaining witness”) is entitled to absolute immunity when that witness has appeared before a grand jury probing the allegations.    Because of that conflict, the Justices granted review on March 21, and the case is turning into a major test of claims that government officials retaliated against a whistleblower.

Rehberg had gotten into serious legal trouble after acting as something of a whistleblower, seeking to expose what he deemed unethical billing practices at a hospital in Albany, Ga.   Unfortunately for Rehberg, the hospital had close ties to the local prosecutor, who obtained three criminal indictments against Rehberg — each of which was later dismissed, so he never was put on trial.   Paulk, as chief investigator for the local prosecutors, was the lone witness before the grand jury that indicted Rehberg the first time, and appeared again when it issued the second and third indictments.  (The three indictments were later dismissed, so Rehberg never was put on trial.)

Later, when Rehberg sued Paulk and two prosecutors, he would claim that Paulk had testified falsely against Rehberg before the grand jury.    The lawsuit contended that Rehberg was a victim of retaliatory prosecution, and that his free speech rights had been violated.   Paulk sought to have the case dismissed, claiming that grand jury witnesses are entitled to absolute immunity for their testimony.   A federal judge rejected that claim, but the Eleventh Circuit Court ruled for Paulk’s immunity.  Rehnberg then petitioned the Supreme Court to clear up the lower court conflict on the issue.

The dispute among lower courts is over how to reconcile two Supreme Court rulings: Briscoe v. LaHue in 1983, granting total immunity to a police officer who lied during a criminal trial, and Malley v. Briggs, in 1986, finding that a police officer does not have absolute immunity for initiating a criminal case by wrongly obtaining an arrest warrant, based on an invalid affidavit.

The Solicitor General, stepping into the case in the Supreme Court, said the Eleventh Circuit Court was right: “a government official who testifies as a witness in ongoing judicial proceedings, including before a grand jury, is entitled to absolute immunity from civil damages actions based on his testimony.”  The brief elaborated on that theme throughout most of its 32 pages.   But, near the end, it suggested that the Court send the case back to lower courts to consider whether Paulk has only a limited form of immunity “for procuring or inducing a malicious prosecution.”  It added, however, that Paulk might be liable only if “the alleged means of procurement or inducement were acts other than grand jury testimony.”

Rehberg’s lawyers notified the Court that they would not be willing to share any of their time with the SG, since that office had turned out to be a nearly complete adversary.  His lawyers dismissed as an afterthought the suggestion that the case go back for review of an issue.  That issue is not before the Court, the response said.   Paulk’s lawyers informed the Court that they would consent to giving the government five minutes of their time.

In refusing to allot any time to the SG, the Court, following its usual practice, gave no explanation.

Recommended Citation: Lyle Denniston, Analysis: A rare rebuff for the SG, SCOTUSblog (Oct. 11, 2011, 9:01 PM),