State v. Wayfair Inc., 28160.

• Decision Date: 13 September 2017
• Docket Number: 28160.
• Citation: 901 N.W.2d 754
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. WAYFAIR INC., Overstock.com, Inc., and Newegg Inc., Defendants and Appellees.
• Court: South Dakota Supreme Court

901 N.W.2d 754

STATE of South Dakota, Plaintiff and Appellant,

v.WAYFAIR INC., Overstock.com, Inc., and Newegg Inc., Defendants and Appellees.

28160.

Supreme Court of South Dakota.

ARGUED AUGUST 29, 2017

OPINION FILED September 13, 2017

MARTY J. JACKLEY, Attorney General, RICHARD M. WILLIAMS, Deputy Attorney General, KIRSTEN E. JASPER, Assistant Attorney General, Pierre, South Dakota, ANDREW L. FERGEL, Chief Legal Counsel, Department of Revenue, Pierre, South Dakota, RONALD A. PARSONS, JR. of Johnson, Janklow, Abdallah, Reiter & Parsons, LLP, Sioux Falls, South Dakota, ERIC F. CITRON of Goldstein & Russell, PC, Bethesda, Maryland, Attorneys for plaintiff and appellant.

GEORGE S. ISAACSON, MARTIN I. EISENSTEIN, MATTHEW P. SCHAEFER of Brann & Isaacson, Lewiston, Maine, JEFF BRATKIEWICZ, KATHRYN J. HOSKINS of Bangs, McCullen, Butler, Foye & Simmons, LLP, Sioux Falls, South Dakota, Attorneys for defendants and appellees.

SEVERSON, Justice

[¶1.] South Dakota has no state income tax and relies on retail sales and use taxes for much of its revenue. Pursuant to state statute, sales tax is generally collected by sellers selling merchandise in this state at the point of sale and is remitted to the state by those sellers. SDCL 10–45–27.3.¹

Decisions from the United States Supreme Court interpreting the Commerce Clause of the United States Constitution prohibit the State of South Dakota from imposing this collection obligation on sellers with no physical presence in the state. As Internet sales by these sellers have risen, state revenues have decreased. Faced with declining revenues, the 2016 South Dakota Legislature passed legislation extending the obligation to collect and remit sales tax to sellers with no physical presence in the state. S.B. 106, 2016 Legis. Assemb., 91st Sess. § 1 (S.D. 2016).² The Legislature specifically passed the legislation to challenge the Supreme Court's Commerce Clause decisions. Id. § 8. Pursuant to the legislation, the State of South Dakota commenced a declaratory judgment action in circuit court seeking a declaration that certain Internet sellers (Sellers)³ with no physical presence in the state must comply with the requirements of the 2016 legislation. Id. § 2. Sellers moved for summary judgment. Adhering to Supreme Court precedent, the circuit court granted the motion, entered judgment for Sellers, and enjoined the State from enforcing the 2016 legislation. The State appeals. We affirm.

Facts and Procedural History

[¶2.] Generally, sellers selling merchandise in South Dakota have an obligation to collect and remit sales tax on each transaction to the Department of Revenue. SDCL 10–45–27.3. However, the applicability of this requirement to sellers with no physical presence in a state has been limited by the Supreme Court's interpretations of the Commerce Clause since at least 1967. The Commerce Clause generally grants "exclusive authority [to] Congress to regulate trade between the States[.]" Nat'l Bellas Hess, Inc. v. Dep't of Rev. of the St. of Ill. , 386 U. S. 753, 756, 87 S.Ct. 1389, 1391, 18 L.Ed. 2d 505 (1967).⁴ In 1967, the Supreme Court held that the Commerce Clause prohibited Illinois from requiring a mail order seller in Missouri to collect and remit use tax⁵ to Illinois for merchandise sold and shipped into that state. The seller had no physical presence in Illinois, and its only contacts with that state were by mail or common carrier.⁶ The Court reasoned that exposing the seller's interstate business to local "variations in rates of tax ... and record-keeping requirements" would violate the purpose of the Commerce Clause "to ensure a national economy free from ... unjustifiable local entanglements." Id . at 759–60, 87 S.Ct. at 1393. The Court concluded that "[u]nder the Constitution, this [was] a domain where Congress alone [had] the power of regulation and control." Id .⁷

[¶3.] In 1992, the Supreme Court, while limiting application of its due process analysis, reaffirmed Bellas Hess's Commerce Clause limitations in Quill Corp. v. North Dakota, 504 U.S. 298, 112 S.Ct. 1904, 119 L.Ed. 2d 91 (1992). In that case, the Court held that a mail-order house with no physical presence in North Dakota could not be required to collect and remit use tax to that state for "property purchased for storage, use, or consumption within the State." Id . at 302, 112 S.Ct. at 1908. Despite later developments in its Commerce Clause jurisprudence, the Court adhered to the "bright-line rule" of Bellas Hess on the basis that it "encourage[d] settled expectations and ... foster[ed] investment by businesses and individuals." Id . at 316, 112 S.Ct. at 1915.

[¶4.] In 2015, the Supreme Court reviewed a Colorado law that instead of imposing the obligation to collect and remit use tax on sellers with no physical presence in that state, imposed the obligation "to notify ... customers of their use-tax liability and to report" sales information back to the state. Direct Marketing, ––– U.S. ––––, 135 S.Ct. at 1127. The issue before the Supreme Court was whether the United States District Court had jurisdiction under the Tax Injunction Act ( 28 U.S.C. § 1341 ) over a suit challenging the new law on Commerce Clause grounds.

Justice Kennedy, however, took the opportunity to write a concurrence questioning the advisability of continuing to follow Bellas Hess and Quill in light of later Commerce Clause jurisprudence and "in view of the dramatic technological and social changes that [have] taken place in our increasingly interconnected economy." Id . at ––––, 135 S.Ct. at 1135 (Kennedy, J., concurring). Despite noting the "startling revenue shortfall in many States" due to Bellas Hess and Quill , Justice Kennedy observed that Direct Marketing did not raise reconsideration of those decisions "in a manner appropriate for the Court to address it." Id . Nevertheless, he concluded that Direct Marketing provided "the means to note the importance of reconsidering doubtful authority." Id . He invited "[t]he legal system [to] find an appropriate case for [the Supreme] Court to reexamine Quill and Bellas Hess ." Id .

[¶5.] With this legal backdrop, the South Dakota Legislature began its 2016 session concerned with its ability to maintain state revenue in the face of increasing Internet sales and their effect on sales tax collections.⁸ Senate Bill 106 was introduced during the session as: "An Act to provide for the collection of sales taxes from certain remote sellers, to establish certain Legislative findings, and to declare an emergency." S.B. 106, 2016 Legis. Assemb., 91st Sess. (S.D. 2016). The Act provided that any sellers of "tangible personal property" in South Dakota without a "physical presence in the state ... shall remit" sales tax according to the same procedures as sellers with "a physical presence[.]" Id . § 1. However, the Act limited this obligation to sellers with "gross revenue" from sales in South Dakota of over $100,000 per calendar year or with 200 or more "separate transactions" in the state within the same time frame. Id . §§ 1–2. The Act authorized the State to bring a declaratory judgment action in circuit court against any person believed to meet the Act's criteria "to establish that the obligation to remit sales tax is applicable and valid under state and federal law."Id . § 2. The Act further authorized a motion to dismiss or a motion for summary judgment in the action. Id . It also provided that the filing of the action "operates as an injunction during the pendency of the" suit prohibiting the State from enforcing the Act's obligations. Id . § 3. Other sections of the Act prohibited retroactive application of the obligation to remit sales tax and made the obligation prospective only from the date of dissolution or lifting of an injunction provided for by the Act. Id. §§ 5–6.

[¶6.] In addition to these provisions, the Act contained an emergency clause declaring it "necessary for the support of the state government" and making it effective "on the first day of the first month" falling at least fifteen days after signing by the Governor. Id . § 9.⁹ The Act's emergency clause made a two-thirds majority vote in both houses of the Legislature necessary for it to pass. S.D. Const. art. III, § 22.

[¶7.] Senate Bill 106 was introduced in the South Dakota Senate and referred for a hearing by the Senate State Affairs Committee. S. Journal, 91st Sess., 150 (S.D. 2016). The hearing was held on February 17, 2016. Id . at 316. Several witnesses testified in open committee in support of the bill, including a representative of the Governor's Office.¹⁰ There was no opposition. Hearing I , supra note 9. The bill passed out of committee with a do pass recommendation and was debated and considered on the floor of the Senate on February 19, 2016. S. Journal at 319, 370. The bill passed the Senate on a vote of thirty-three yeas and zero nays. S. Journal at 370.

[¶8.] The bill had its first reading in the South Dakota House of Representatives on February 22, 2016, and was referred for a hearing by the House State Affairs Committee. H. Journal, 91st Sess., 621 (S.D. 2016). The hearing was held on February 29, 2016. Id . at 710. Once again, several witnesses testified in open committee in support of the bill.¹¹ Again, there was no opposition. Hearing II , supra note 10. The bill passed out of the House committee with a do pass recommendation. H. Journal at 710. It was debated and considered on the House floor on March 1, 2016. Id . at 740. The bill passed by a vote of sixty-four yeas and two nays. Id . The Governor signed the bill on March 22, 2016. S. Journal at 619. It fulfilled the two-thirds vote requirement for the emergency clause and took effect on May 1, 2016. Id .; S.B. 106, § 9.

[¶9.] Shortly after the Governor signed Senate Bill 106 into law, the South Dakota Department of Revenue began issuing written notices to sellers it believed met the requirements of Senate Bill 106. The notices: informed the sellers of the passage of...