25 June 2004

Questionable Questions

One of the unwritten rules of dealing with "information-based opinions" from the Supreme Court is to read the footnotes in any opinions other than the majority (or plurality) first—because they conform to the reality of what could have been done to avoid the appeal in the first place. Cheney is a paradigmatic example of an "information-based opinion," because it concerns the propriety of two specific information-based aspects in a single matter. It punts the first one (incorrectly in my view, as I believe it is a threshhold inquiry)—does the federal open meetings law apply to advisory councils that allegedly included some individuals from the industry that was the subject of the meetings?—and answers the second one (again, incorrectly in my view, for reasons that I'll explain below)—is there a Vice Presidential privilege against disclosure of what are arguably policy deliberations and construction, as opposed to "mere" advice?

Justice Stevens's footnote is, to my mind, dispositive of the matter. Since this is, in reality, a civil procedure fact pattern—I would have been happy to use it as the fact pattern for a civil procedure exam question on the proper scope of discovery—a civil proceduresque aside seems appropriate.

A few interrogatories or depositions might have determined, for example, whether any non-Government employees voted on NEPDG recommendations or drafted portions of the committee's report. In my view, only substantive participation of this nature would even arguably be sufficient to warrant classifying a non-Government employee as a de facto committee member.

Cheney, slip op. at 29 n. (Stevens, J., concurring). Justice Ginsburg's first footnote is even more enlightening:

The Court of Appeals also concluded, altogether correctly in my view, that it lacked ordinary appellate jurisdiction over the Vice President's appeal. In its order addressing the petitioners. motions to dismiss, the District Court stated "it would be premature and inappropriate to determine whether any relief could be obtained from the Vice President." Immediate review of an interlocutory ruling, allowed in rare cases under the collateral-order doctrine, is inappropriate when an order is, as in this case, "inherently tentative" and not "the final word on the subject."

Id. at 33 n.1 (Ginsburg, J., dissenting) (citations omitted). Even Justice Thomas (joined, naturally, but Justice Scalia) has a similar objection, although not in a footnote where it's easier to spot at a glance.

One need look no further than the District Court's opinion to conclude respondents' right to relief in the District Court was unclear and hence that mandamus would be unavailable. Indeed, the District Court acknowledged this Court's recognition "that applying FACA to meetings among Presidential advisors "present[s] formidable constitutional difficulties.'"

Id. at 31 (Thomas, J., concurring and dissenting).

So, then, important constitutional questions—among them, the one stated by Justice Thomas—will go unanswered because the trial attorneys made three pretty basic errors in procedure. First, they didn't use other discovery devices available to create a sufficient record to even allow an opinion. As Justice Stevens implies, the Court was handicapped because the question was presented in the abstract; there was little in the record other than speculation to indicate the actual presence of industry figures at deliberative meetings, let alone during the deliberations themselves. Second, the case never should have reached the Supreme Court because the appeal was taken too soon. An "interlocutory" appeal (one before final judgment) should be allowed only when the result of the appeal (1) turns on a pure question of law and (2) will materially advance the process of the case in the trial court. Although Justice Ginsburg is not so explicit, her footnote indicates her doubts as to both parts of this test.

Finally, and perhaps most critically, the wrong remedy was at issue. At least, it's the wrong remedy depending upon how one formulates the question. Mandamus is an extraordinary remedy, which basically tells a government official "Do your duty—now!" That duty cannot be a discretionary function. For example, mandamus cannot issue telling an administrator how to decide a petition before him; but it can issue telling him to make some decision on the petition before him. The problem in Cheney is defining the duty. As the Court seems to have formulated it, the "duty" at issue is determining whether certain documents relate to an arguably privileged communication must be provided to the opposition as part of discovery (leaving aside, for the moment, the possibility of a protective order limiting disclosure to the attorneys involved, or in camera examination by the trial court—both of which should have been considered long before now). This is too narrow an inquiry, because it necessarily assumes part of its premise without opportunity to refute or question the assumption: That a meeting involving persons potentially subject to a regulation who are not government officers can somehow remain a privileged part of the deliberative process. This is the question that many commentators want answered. However, it's not even the correct question that was before the Court. If mandamus is to issue, there must be a nondiscretionary duty. The only potential nondiscretionary duty concerns not the turnover of documents, but the meeting itself. That is, the Vice President was initially obligated to make nondeliberative meetings "public." The document-turnover requirement is merely a carrotstick to encourage compliance with this duty—because creating documentation of a potentially privileged matter is a matter of discretion, and therefore probably not a proper subject for mandamus in the first place (as Justice Thomas points out).

Once again, this proves that how one asks the question is often at least as important as the answer. It appears to me that nobody was asking the right question(s). But, given the partisan nature of this particular fact pattern, that should surprise nobody; I suspect that both sides were posturing as much as anything else. So, in the end, I think Cheney is more a question of civil procedure than of "Presidential power."