In Uncategorized on 02/02/2021 at 16:53

Generally (don’tcha just love that word?) as a journalist I’m frustrated when someone declines to comment. But as an attorney, I approve when a colleague declines to try his cases in the media.

I saw what seemed an interesting lead the other day on a possible story. An attorney in a pending Tax Court case is seeking an order certifying a question of law to the AL Supreme Court. A source tells me that Rule 18 of the AL Supreme Court provides “(W)hen it shall appear to a court of the United States that there are involved in any proceeding before it questions or propositions of law of this state which are determinative of said cause and that there are no clear controlling precedents in the decisions of the supreme court of this state, such federal court may certify such questions or propositions of law of this state to the supreme court of Alabama for instructions concerning such questions or propositions of state law, which certified questions the supreme court of this state, by written opinion, may answer.”

It sounded like this could be a conservation easement extinguishment case, in which, unlike the recent GA cases where it seems the GA Supreme Court has ruled, AL has no, or almost no, appellate learning on point. Our NY Court of Appeals (our highest court; our Supreme Court is our trial court, for historical reasons) has a more limited form of the AL rule. NY Rule 500.27 only applies to the Supremes, the CCAs, and the court of last resort of any State. When it comes to our Court of last resort, pore l’il ol’ Article I Tax Court is out in the cold. Maybe our last resorters can’t be bothered with what the late Justice Antonin Scalia likened to a village traffic court.

Howbeit, here’s the question I put to the attorney for the petitioner, and his reply. Name omitted.

“Mr J, I manage the LinkedIn Tax Technical Discussion Forum, of which you are a member. I see your firm represents the petitioner in Montgomery-Alabama River LLC, Docket No. 9254-19, in Tax Court. I’m a journalist as well as an attorney, and see you’re moving to certify a question in that case to the AL Supreme Court. Is this a conservation case? Is this an easement extinguishment question? I’d like to do a blogpost on this subject on my blog Would you care to comment? Thank you for your consideration.”

He responded thus: “Hello Lewis, Thank you reaching out.  Unfortunately, we don’t comment on our pending cases.  Best regards,”

I replied that I entirely understand, and thanked him.

As I said, I well understand, and appreciate, that an attorney would rather try his case in court, and not in the media. But as a journalist, I still have to ask.

I will, of course, follow the case for any reported order of substance or decision.


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