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Opinion analysis: A DIG in Vogt

Three months after oral argument (and as suggested in my analysis of that argument), the Supreme Court “dismissed as improvidently granted” (a “DIG,” in Supreme Court-speak) the case of City of Hays, Kansas v. Vogt. The effect of this one-sentence order is to leave in place the decision of the U.S. Court of Appeals for the 10th Circuit reversing the dismissal of Matthew Vogt’s civil suit – and to leave open a circuit split and some difficult constitutional questions regarding application of the Fifth Amendment. The long pendency of the case before this dismissal suggests deep disagreements among the justices on the substantive issues. Now that their interest is roused, one imagines they will be keeping their eyes out for a “clean” cert petition presenting some of the same questions.

An “odd” factual and procedural context

Without diving too far into specifics, this is a civil, not a criminal, case. Vogt was a police officer with the city of Hays who had applied for a job with a different police department. In the course of that process, the new department required Vogt to report certain potential misconduct to the city, and the city required Vogt to recount the details or lose his current job. Vogt complied; his statements were then sent by the city to the state for criminal investigation. Meanwhile, Vogt resigned from the city to take the new job. But the state charged him criminally and the new job offer was withdrawn. Vogt alleges that his statements were then used against him by the state prosecution at his preliminary hearing. After the hearing, the criminal case against Vogt was dismissed prior to any trial. But Vogt now had no job with either police force.

Vogt sued in federal court, alleging that his detailed statements had been compelled and that their use against him in the preliminary hearing violated his rights under the Fifth Amendment. He alleged as damages the loss of his job offer. The district court dismissed Vogt’s lawsuit, saying that the Fifth Amendment does not apply at a preliminary hearing. But the 10th Circuit ruled that such a hearing is indeed part of the “criminal case,” so the lawsuit should be reinstated for further proceedings. Today’s dismissal means that the 10th Circuit’s decision will stand, although still-unsettled factual and legal questions make it far from obvious that Vogt will ultimately win.

Difficulties become apparent “suddenly … for the first time” at oral argument

By the time this case was argued in front of the justices, a number of them noted its “odd” factual and procedural background. Justice Stephen Breyer in particular explained that the unusual posture and significant implications of the case had “suddenly … for the first time” come into focus for him. Without detailing my post-argument review, non-record information apparently suggested that some of Vogt’s factual allegations were questionable – Chief Justice John Roberts and Breyer sparred out loud over whether such non-record information should be considered. Meanwhile, on the constitutional questions, Justice Ruth Bader Ginsburg suggested that in a world in which well over 90 percent of criminal cases are disposed of without a trial, a ruling for the city would “shrink” the Fifth Amendment “to almost a vanishing point,” while Justice Samuel Alito said that a ruling for Vogt would be “revolutionary.” Finally, the statements at issue were viewed as “compelled” only by application of a 1967 employment-law decision (Garrity v. New Jersey) that has long been controversial. The city now urged that this doctrine be reconsidered – a question not obviously presented in any phrasing of the question presented in the cert petition.

The question presented “morphed” over the course of briefing

A simple version of the question presented in Vogt can be stated bluntly: Does the Fifth Amendment’s direction that “no person shall be compelled in any criminal case to be a witness against himself” apply if the prosecution uses a compelled statement in a criminal preliminary hearing, but not at a criminal trial? This appears to have been the 10th Circuit’s understanding of the question, and the answer seems textually clear: Surely a preliminary hearing, used to decide whether or not to continue a criminal prosecution against a defendant, is part of the “criminal case” so that the Fifth Amendment applies.

In its merits briefing, the city appeared to concede this point. But in its cert-stage reply brief, it described the question presented differently. The city argued that a separate textual reading required Vogt to lose: A defendant can only be a “witness against himself” at a criminal trial, and not in some preliminary stage of the case. Vogt’s merits briefing charged that the city had “abandoned” its original question. But the city contended that its question presented had been carefully phrased to encompass the issue.

The city found support for its view in precedents describing the Fifth Amendment’s self-incrimination clause as a “trial right” and holding that no violation of that clause occurs until compelled statements are introduced “at trial.” The city pointed out that a preliminary hearing does not determine guilt or innocence but only whether the prosecution’s evidence is sufficient to proceed to trial. In response, Vogt noted that his compelled statements were undoubtedly used at the preliminary hearing to suggest his criminal guilt, and that any commonsense understanding of the criminal process would hold that such statements are used “against” a defendant at whatever stage of a “criminal case” the prosecution relies upon them.

Thus 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. 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.

Why a DIG?

At argument, Breyer ultimately wondered “whether this is, in fact, an appropriate case … for the Court to take.” Vogt, having won below, quickly embraced this as a DIG suggestion. With Justice Neil Gorsuch recused, the eight remaining justices, after three months of internal deliberations that we can only guess at, have now agreed with that disposition and dismissed the case without any discussion of the merits.

It is possible, of course, that the DIG disposition was agreed upon immediately at the justices’ conference days after the argument and that the press of other business before the Supreme Court simply delayed the ruling.

But to me, the three-month hiatus indicates that dismissal was not the immediate outcome at conference. Instead, it seems likely that some decisional disposition was tentatively advanced, and that memos were then traded among the justices advancing very different substantive positions. It might even be that a potential opinion or two were circulated, only to be met with a response from Breyer detailing all the reasons why the case was a flawed vehicle for deciding important constitutional doctrine. But after further reflection, rather than render opinions in a case in which the constitutional issues were at best dimly perceived at the certiorari stage and make sweeping pronouncements based on dubious factual assumptions, the justices found that they could agree on one thing: This case was an “improvident” vehicle and should be sent back to the messy litigation muck from whence it came.

It is also possible that the eight justices found themselves tied 4-4 regarding disposition. But I believe that in the world of court-watchers, a DIG has slightly less precedential weight – indeed, it has none – than a 4-4 technical affirmance. Although affirmance by an equally divided court allegedly also has no precedental effect, a DIG presents a face of unanimous agreement (at least on the procedural posture), while a tie indicates significant substantive disagreement.

Today’s disposition is actually satisfying – though perhaps not to the SCOTUS advocates involved — given the various problems the case presented. It also suggests that perhaps the Supreme Court bar is just a tad too hungry, and unwisely pushes cases toward the court that involve circuit splits but that are not entirely ready for dispositive constitutional rulings. Cases that are remanded for further proceedings at a preliminary stage are often undeveloped on significant factual points, and as I always tell my students, “facts matter.”

Finally, today’s disposition once again suggests – although it by no means proves – the importance of Gorsuch’s position on the court. Although we will not know for many years, Gorsuch’s recusal may have allowed the remaining justices to solidify a 4-4 posture on the merits. Had Gorsuch participated, a five-justice majority might have decided the case. If this speculative view is accurate, then in some real sense it is Gorsuch, rather than or in addition to Justice Anthony Kennedy, who has become the “swing vote” in some significant cases. The major decisions to be issued over the next four weeks in nine-justice cases will likely provide further data with which to test this claim.

Recommended Citation: Rory Little, Opinion analysis: A DIG in Vogt, SCOTUSblog (May. 29, 2018, 4:17 PM),