Judge John G. Roberts, Jr. (IV)
Bill Long 9/12/05
Knowing How to Frame the Issue
One of the sharpest arrows in the appellate lawyer's quiver is knowing how correctly to frame the issue before the Court. In the case of an argument before the US Supreme Court, this refers to how one should "read the "Question(s) Presented" for consideration by the Court. When a party appeals to the Court, it tries to frame its understanding of the legal controversy by virtue of the lower court rulings. However, the case to be argued before the Supreme Court is determined by how that Court itself frames the question presented. Sometimes attorneys (and the Court itself) ignore this question; sometimes attorneys try to make the question broader or narrower than it seems to be. In this case, John Roberts cleverly and unremittingly framed the issue as narrowly as possible (in a correct way, in my judgment), and in a way that benefitted his clients most. As a result, he convinced six of nine Justices on the issue, and won a huge victory on a so-called "regulatory takings" case. What is also significant about this case, however, is that Roberts was arguing the "liberal" position, and the three dissenters were the Court's conservative bloc--Rehnquist, Scalia and Thomas. While this may give no ultimate indication on "where he stands" on takings issues, it shows that Roberts can convincingly and eloquently argue the more liberal position and win.
The Issue and the "Frame"
At issue was commercial and residential development on the shores of beautiful Lake Tahoe.* Aware that unfettered
[*The case is Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency , 535 US 302 (2002).]
development would spoil the lake for all, CA and NV entered into a compact in the late 1960s to study ways to preserve its beauty. Early in the 1980s the joint-state agency TRPA decided it needed two moratoria on development before implementing its final plan, The moratoria lasted from late 1981 - mid 1984. Then, it passed a 1984 plan--whose effect was enjoined by a court--and a 1987 plan, which also never went into effect. The two later plans would have permitted some development but because they never went into effect, the moratoria of 1981-84 functioned as the first of what might be called a permanent injunction on develpment. Thus, you can see how the framing of the issue becomes mightily important. Does the case in fact stand for the proposition of what happens when permanent injunctions on use of property are in place, when temporary injunctions are in place or, more complicated, when temporary injunctions that function as long-term injunctions are really what is at issue? Thus, there were several ways the Court could have sliced and diced the issue, with the central one being how long the "temporary injunction" (using the words in the Question Presented) lasted. If the Court decided ultimately that a "taking" of property was in view, both sides agreed that the landowners needed to be compensated. An injunction that lasts 32 months, however, looks quite different from one lasting 6 or 21 years, with respect to whether it is a "taking " of property.
Enter John Roberts
Roberts represented the respondent agency and therefore needed to limit the significance of "temporary injunction" to as short a period as possible if his client was to win. And, he did. He managed to convince the Court that the appropriate period that the "temporary injunction" covered was only 1981-1984 rather than, as Petitioner claimed and the Chief Justice argued in dissent, that it ought to be a period of at least six years. Deprivation of use of land for this shorter period was then held not to be a taking of property. How did Roberts convince the Court to see things his way? By very close attention to the procedural history of the case. In a nutshell, he divided the history of the controversy into four periods: I and II were from 1981-1984; III was from 1984 to 1987 (when the second plan was presented) and IV was from 1987 on. He showed how the lower courts, which had been considering this "Dickensian" litigation (a word used by Petitioners in their brief) for 15 years, first devised this division.
Then he went litigation by litigation to show the following. The District Court said that periods I and II (always read together) were a taking, but that periods III and IV were not, the former because the court enjoined the implementation of the 1984 plan and the latter because the statute of limitations for implementing it had run out. This court also said that the 32 month period covered by I and II constituted a taking not under the traditional Penn Central "balancing" test but under the more rigorous Lucas test (ah, if there were only time....). Ok, 1st level, the petitioners "win" on one of three periods, but under a "Lucas" theory.
The case then went to the 9th Circuit, which affirmed the District Court on III and IV, but reversed on I-II. The upshot was that the petitioners now lost on all grounds. Petitioners had not (as they should have) challenged the District Court's ruling in their favor in order to try to get the 9th Circuit to rule favorably towards them also on Penn Central grounds. Thus, when the 9th Circuit ruled, Petitioner had lost on all grounds and only could appeal on the Lucas ruling to the Supreme Court (because it had not challenged the Penn Central ruling on appeal). While it tried also to revive III and IV, Roberts showed, in fact that the only period ever referred to by the words "temporary injunction" was the 32-month period from 1981-1984.
It is interesting that when you read portions of Justice Stevens' majority opinion, you see how he quotes directly from Roberts on the issue of what period the "temporary moratorium" is to cover. And, to add insult to injury, he addresses Chief Justice Rehnquist directly in FN 8 on this point (and Roberts was a former clerk of Rehnquist) and says, "throughout the District Court and Court of Appeals decisions the phrase 'temporary moratorium' refers to thwo things and two things only: Ordinance 81-5 and Resolution 83-21" [the period from 1981-1984]. Roberts couldn't have said it better. But very soon he will have the opportunity to do so...
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