Judge John G. Roberts, Jr. I
Bill Long 9/9/05
A Careful Appellate Attorney
The confirmation battle over Judge John Roberts to succeed William Rehnquist (beginning on 9/12) will no doubt be characterized by senatorial grandstanding, attempts by the left to draw out the judge on important social issues and countervailing efforts by the right to show Roberts as a sensible, thoughtful judge in the mainstream of American jurisprudence. In the midst of the "show," it seemed good to me to write a few essays illustrating some aspects of Judge Roberts' mastery of the judicial craft or his approach to law that will probably never make the headlines or even the footnotes of news reports or the hearings themselves. This essay shows how Roberts, the counsel of record in the 2003 case of Smith v. Doe, cleverly exploited a change of mind in the 9th Circuit appellate opinion to lend credibility to his case, even as he won a reversal of the 9th Circuit's decision.
The Case in a REAL Nutshell
Smith v. Doe presented the issue of the constitutionality of Alaska's Sex Offender Registration Act (ASORA). This was the first time the Supreme Court had considered such an act. These acts, passed largely in response to Megan Kanka's 1994 murder in NJ, usually impose registration burdens upon sex offenders who have served their terms and also allow the states to notify the public of the whereabouts of offenders, through Internet postings or other methods. Doe, an offender who was convicted before the ASORA went into effect, argued that as applied to him this act was an ex post facto enactment, violating the federal constitution (I, 10). His case was dismissed by the AK federal court but reversed by a panel of the 9th Circuit in 2001 on the grounds that the lifetime quarterly registration of certain sex offenders, as well as other provisions of the statute, constituted a "penalty" in violation of the clause. The U.S. Supreme Court reversed, 6-3, and Roberts argued the case for the State of Alaska.
Crucial to understand in order to assess Roberts' care and cleverness is the way that courts determine if an ex post facto violation of the Constitution has taken place. If a legislature enacts a statute which is "civil" or "nonpunitive" in intent, then such a purpose is deferred to by courts unless by "clearest proof" the statute is actually punitive. But if a legislature enacts a statute ambiguous in intent, as to its civil or punitive purpose, the court uses a relaxed standard, which it may call an "ordinary" burden of proof standard. Thus, in the latter instance, if it is more probable than not, by examining the statute, that it appears punitive rather than regulatory or civil, the statute will violate the ex post facto clause.
So, in drafting the Petitioner's brief on behalf of AK, Roberts reviewed the lower court holdings and noted that the 9th Circuit had issued two opinions. In its first one the Circuit court held that the ASORA was ambiguous as to its punitive intent and would therefore apply only the "ordinary and customary legal standards" in determining whether it violated the ex post facto clause. After examining the predominance of evidence, they concluded the statute was punitive and therefore unconstitutional. Roberts then quotes the petition for rehearing, which pointed out that ASORA was modeled on the State of WA's act, which the 9th Circuit had upheld as unambiguous--non punitive. It also pointed out that the court had made a six-fold mistake on a crucial fact--that sex offenders didn't have to register four times yearly "in person."
Roberts next points out that rather than granting a rehearing, the 9th Circuit recalled their opinion and amended it as follows: (1) it agreed that the AK statute was "remarkably similar" to the WA statute and therefore concluded that the statute was not ambiguous--i.e., the AK legislature acted with non-punitive intent (thus triggering the higher standard) and (2) it deleted its factual errors. But, as Roberts shows, even with the higher standard, which should have triggered a re-examination of the legal analysis (e.g., as a change from a preponderance to beyond reasonable doubt standard would certainly do), the language of the second 9th Circuit's opinion is almost identical. This suggests that the court really didn't revisit its analysis and either lazily or carelessly simply reissued the opinion.
Though the Supreme Court never mentioned Roberts' analysis in its decision, because it had to focus on the 7 "Mendoza-Martinez" factors to determine the issue, and though one might argue that a more conservative Supreme Court would be likely to overrule the "dissident" 9th Circuit anyway, I am sure they couldn't ignore the telling point made by Roberts about the way the 9th Circuit decided the case. Every little bit helps, you know, when you are learning to count to five.
Copyright © 2004-2008 William R. Long