September SJC oral arguments


The summaries of the oral arguments before the SJC the week of September 15 are now posted on the SJC website.  If I were looking for one to see for fun, I’d try Picher, on Sept. 16, 3 pm, if Gerry Petrucelli is really going to do the argument.  He’s always interesting to watch, and it looks like a case with interesting legal issues, too.  Remember, the October arguments are the SJC’s annual road trip (sort of like the Rolling Stones, but I’d say our Justices are much better looking), so if you are down in Portland, you won’t get another opportunity to see another argument in the court house until November.

I’ve got an aargument that is now scheduled for Monday (Fogarty).  Another interesting appeal is Cyr v. State Tax Assessor, also Monday.  Cathy, you are asking incredulously, how can a tax case be interesting?  Well, remember they involve the Commerce Clause.  (I know a tax lawyer who introduces himself at cocktail parties as a constitutional lawyer.  This may be a little over the top — it’s not exactly Floyd Abrams territory — but I suppose technically correct.)  But in this case, the interesting part is that the folks in our tax department wrote an amici brief explaining how one of the grounds upon which the Assessor ruled was incorrect — and in his brief in the appeal, the Assessor agreed,  so now they are just arguing about the remaining grounds.

I could wax rhapsodic until the cows come home about government folks who understand their role as not a general adversarial contestant, but doing what is right.  From a political perspective, often there is no down side to the government defending a decision, right or wrong .  There is typically no cost to the state in a regulatory appeal, for example, because they have a stable of AGs they pay anyway, so there are no attorney costs.  And towns can find it politically problematic not to defend a board’s decision, and if they don’t want to spend money on a lawyer, and there’s another party on their side, they can avoid expenses simply by filing a "me, too" letter instead of a brief.  On multiple occasions, the only way I have gotten a governmental party to give up on an unmeritorious argument was by adding a viable Section 1983 claim, which obviously has cost ramifications, so they finally had to take a serious look at the merits.

So hats off to government lawyers who take their jobs seriously from the get go and are willing to listen to the other side.  No only is this the right thing to do, but a good appellate lawyer has got to be able to understand different points of view.  If you just stick to your guns, with a face like a wet cat whenever the other side starts talking, you will never be able to see the appeal from the court’s point of view, open to all sides.  Understanding the other side’s position is crucial in any appeal.  Giving up on bad positions is another.  So here, on this issue, the tax assessor is being both a stand-up guy, and smart.   

Good for him.