Oddities in Ballard/Kanter
on Mar 8, 2005 at 10:25 am
A short follow-up to Danielle’s thorough recap of the Ballard decision.
Many had viewed the case as potentially an important vehicle for examining the due process implications of secret judicial proceedings (a topic that obviously has ramifications well beyond the Tax Court setting). In addition to the due process question, the petitioners argued that three different statutes could and should be construed to require disclosure of tax special trial judge reports. Some observers thought that the statutory objections appeared to be rather strong, and would provide an easy way for the Court to avoid the thornier, but potentially much more important, due process question. And petitioners’ counsel at oral argument conceded as much (p.5): “The readiest ground for decision is the statutory basis, and we believe that the statute is a good means to avoid a complex due process question.”
And yet, oddly enough, in its opinion yeserday the Court did not even mention the constitutional or statutory questions on which cert. was granted until the final page of its opinion — and then declined to address them. Instead of dealing with the questions presented, the Court explained at great length (as Danielle recounts) that the Tax Court had not followed its own rules — a ground of decision to which “the parties did not discretely refer” (as Justice Ginsburg delicately put it in footnote 2). [UPDATE: Looking back on it, at pages 3-7 of his reply brief Kanter did argue that the Tax Court was ignoring its own Rule, after the SG had for the first time described the relevant internal procedural practice. A reader also notes that perhaps the petitioners did not include the “violation of Tax Court Rules” question in its petition because it might have made the case seem less cert.-worthy (both by leaving the impression that the case was about a minor matter of the Tax Court’s adherence to its own rules, and by drawing attention away from the more interesting, more generally applicable questions about due process and judicial transparency).]
Of course, this unusual avoidance of the questions presented might simply reflect the Court’s view that regulatory questions should be resolved before turning to statutory or constitutional grounds. Justices Ginsburg and Souter did ask petitioners’ counsel point-blank at oral argument (pages 7-8) why he was not simply relying upon the Tax Court’s own rules. (See also Justice Kennedy’s questions at pages 12-13.) And discussion of those rules dominated the argument, to the point where due process went virtually unexamined.
On the other hand, perhaps the Court avoided the other issues because there were not five solid votes for petitioners on those questions. At oral argument, Justice Breyer made the telling comment (p.60) that “[i]If we have to go to the Constitution, I don’t see exactly the implications. So I’m nervous.” And the only two Justices to reach the questions presented — the Chief Justice and Justice Thomas — rejected them out of hand, simply stating that petitioners’ arguments “are not colorable,” and devoting a mere footnote to a summary dismissal of them. [UPDATE: On the other hand, Justice Ginsburg dropped plenty of hints in her opinion that she found the anomalous practce here very troubling, including a “cf.” cite to the 1954 Mazza case from New Jersey, which Kanter had descibed as a “landmark due process case . . . in which the court held such a practice unconstitutional.”]
Because the Court ruled on regulatory grounds, it is possible that, going forward, the Tax Court will formally promulgate a rule expressly authorizing nondisclosure of the special judge’s initial reports — at which point there would be no avoiding the statutory and constitutional questions. There is some indication, however, that the Court hopes it won’t come to that: At oral argument, Justices Ginsburg (p.28) and O’Connor (p.33) both strongly suggested to Deputy SG Tom Hungar that it was not in the Government’s interest to defend the Tax Court’s nondisclosure practice, and in footnote 15 of her opinion, Justice Ginsburg offered a gentle, if unusual, rebuke of the Government’s decision to defend the practice: “It is curious that the Commissioner, always a party in Tax Court proceedings, argues strenuously in support of concealment of the special trial judge’s report. As Judge Cudahy noted, . . . [i]nclusion of the report in the record on appeal would . . . seem ‘a procedural result that may benefit all parties.'”
