Today we are going to discuss unpublished SJC opinions, or Memorandum Decisions. Our thoughts are triggered by a new Mem Dec decision issued by the Court last week (Download Memorandum of Decision), and an ongoing discussion about unpublished decisions running on Linked in by the Appellate Networking Group. (Am I plugged in to social media or what?)
First, the decision. Kudos to PA's Jon Block for prevailing. Here is the more comprehensive decision by the Superior Court, Justice Humphrey. (Download Decision on 80C Appeal)
Now some background. Simplifing everything, in 2011, the SJC had two appeals in front of it of use taxes on airplanes. (2011 ME 49 and 2011 ME 50) As those published decisions reflect, the Court decided that the test for imposing the tax was whether the use of the property in Maine was "sufficiently substantial." In one case, the plane was in the state for 21 days, in the other, 156; the Court rejected the tax in the first and upheld it in the latter.
Springing forward two years later, and in the appeal just decided, the plane was in the state for exactly the middle of 21 and 156 days. Tax or no tax?
In the Superior Court decision, as you can see, Justice Humphrey does a whiz bang job of going through all the facts and law, probing into what "sufficiently substantial" means – what factors do you look at? Is it just temporal or if not, what else is considered? etc. Wading through all the facts and applying that analysis, he then finds no tax, which the SJC upholds. As the mem dec notes, the Assessor is not a happy camper with this test and asked the SJC to revisit it, which the SJC declined to do.
So, question #1, why is this a mem dec, which gives the decision no precedential value and makes it difficult even to get your mitts on? This plugs into that broader Linked-In discussion in which a lot of appellate lawyers get cranky about unpublished decisions.
Generally the battle to stop the use of unpublished decisions, at least for citing purposes in other courts, has been lost, at least at the federal level. The primary challenge to federal courts of appeal that tried to keep their unpublished decisions uncitable was the argument, "hey, court, you aren't suggesting that the care you took on this case is less than taken in any other case ARE YOU?", to which the court must say "of course not!" — and then there's really no logical reason not to be allowed to cite the decision. The Linked-in discussion includes the accusation that some intermediate appeal courts (which we don't have here) try to avoid review by slapping "unpublished" on their rulings. (I'm dubious, because I've never seen the fact that a decision was unpublished stop someone from seeking discretionary review, and I don't think it's ever affected a decision to accept or reject review in my experience.)
Notwithstanding these arguments, there are good reasons to have some unpublished decisions, especially for an appellate court, like the SJC, that has to take practically any appeal. For example, take divorces. If there is no new legal principle involved in the decision, then really why make the couple see their wrangling published for the world to see? What benefit does this serve?
Now this tax case isn't a divorce or involve an issue of similar ilk. Perhaps, you may speculate, if you know a tidbit about tax, that the SJC declined to publish because the law has changed – I believe that planes are now exempt from use tax. That the parade has gone by and the law is now different is a sound and logical reason not to publish. Except that if you know a tidbit more about tax (not that I am an expert by any stretch), this "sufficiently substantial" test still applies to other property. For example, I am told that the Assessor in the oral argument alluded to construction equipment, cranes and other moveable stuff. So the test remains and applies to a lot of property out there.
Ok, so let's keep speculating. This sufficiently substantial use test is very fact sensitive. So maybe the SJC weighed this as a factor in favor of not publishing. But this isn't like a negligence car accident case, where the jury has a wide berth to do what it wants and the SJC is simply rejecting an unmeritorious sufficiency argument that ignores the standard of review. Rather, this is a context in which the Assessor has to figure out whether to impose the tax under the fact-sensitive test, and predictability would be helpful for taxpayers to know whether they need to the tax in the first place (and there's interest and potential statutory penalties if they guess wrong). So the more that the parameters of the test could be nailed down, I would think, the better.
In any event, here's my second question. Justice Humphrey, as I noted, wrote a whiz-bang decision. What weight does his decision now have? You aren't supposed to cite mem decs. Can you cite his decision? At all? If so, what weight does it have?
The obvious person to ask this question is Justice Alexander, but he's not on my speed dial. So I asked Nancy Wanderer over at the Law School. (Yes, your intrepid reporter does go that extra mile). Here's her response:
"you can't cite a Superior Court decision for precedential purposes. You can cite it as persuasive authority, especially if the reasoning is especially good, and you are suggesting that the Law Court adopt that line of reasoning in your case. Although you can't cite Mem Decs as precedent either, a Superior Court decision that has been affirmed by the Law Court in a Mem Dec is going to have more persuasive value than one that has not been reviewed by the Law Court and way more than one that was vacated or reversed by the Law Court. (The latter would not have anypersuasive value at all.)"
Thank you, Nancy, that makes perfect sense. So here is my third question (yes, there's more!). If the SJC thinks that a trial court has done a whiz bang job and there's nothing it can add, and it is planning on issuing a mem dec affirming that decision, then why not just adopt the decision as its own, so decision becomes that of the SJC and gets the full precedent treatment? I've never seen that done in the SJC. Maybe this situation never arises. But if it does, why not?
I once posed a similar question to a federal appellate judge (any maybe blogged about it, I can't remember). I think there may be some concern that the litigant could conclude that if the appellate court just goes "yeah, what that trial court said," and writes nothing more itself, that the appellate court really hasn't scrutinized the case. It's not true, but there may be a perception issue, and the litigant may feel that it hasn't gotten its day in court. But if the appellate court is going to make its decision a short mem dec, then I would suggest that the litigant may be just as likely to get the same impression.
In any event, the bottom line here, all my general pondering aside, is if you are trying to figure out whether you need to pay use tax for property that's been wandering across state borders, you might want to take a look at Justice Humphrey's decision — not as precedent, but as persuasive authority. So, I would say that you can go ahead and cite the Superior Court case, indicating that it was affirmed by the Law Court in a Mem Dec, but not state or even imply that the case should be viewed as precedent. Just tell the Court what it affirmed in the Superior Court decision and ask the Court to do the same in the present case.