United States Supreme Court Denies Cert in Dormant Commerce Clause Challenge in Ohio

The Supreme Court today denied the cert petition.  End of this story.

(earlier post–  Solicitor General Recommends SCOTUS to Not Take Ohio Case)

The Solicitor General of the United States has weighed in with a brief recommending that the Supreme Court not take the dormant Commerce Clause challenge to the ruling by the Ohio Supreme Court regarding taxation of cable and satellite providers.    The Solicitor General noted that there is no real conflict among courts to resolve by this case and that the petitioners here over state the challenges facing them.   In one interesting section of the brief the Solicitor General’s brief notes “Contrary to petitioners’ contention, however, those decisions do not establish that state laws with a disparate effect on businesses that require fewer in-state infrastructural or other investments than their competitors are “almost * * * per se” discriminatory, Reply Br. 1. That proposed rule lacks standards capable of ready or consistent application.”

The Supreme Court is scheduled to meet on June 21 to decide whether to take this case.   If it does, it would not be heard until later in the fall as next week is expected to be the Supreme Court’s last official week in town until they return in October.

(Earlier Post)   Supreme Court Asks for Solicitor General’s View in Ohio Case

The United States Supreme Court did not grant but did not deny cert in the dormant commerce clause case out of the Ohio Supreme Court  relating to the taxation of satellite television.   The Supreme Court has asked for the views of the Justice Department on this case.   The lengthy order list (see page 6) can be found here.  There were five cases sent to the Solicitor General’s office for review.  At this time, it is not precisely known when the Solicitor General will respond to the Court on these cases.

(Earlier Post)    Supreme Court Asked to Consider Dormant Commerce Clause Case.

Direct TV has filed a petition for the Supreme Court to overrule the Ohio Supreme Court on dormant commerce clause grounds.  The Ohio Supreme Court upheld an Ohio law that taxed cable at lower rates  than satellite television.   Since the cable industry employs more Ohio residents than satellite TV it is alleged by the petitioners that this method of taxation is a protectionist violation of the dormant commerce clause.   The state of Ohio disagrees in its brief in opposition.   They rephrase the question “May a state, consistent with the Commerce Clause, tax satellite television services differently from cable broadcast services, given  their different methods of operation and the different regulatory sttructure that applies to each?

Interestingly, the Specialty Wine Retailers Association filed an amicus brief in support of the petitioners claiming that “the wine and satellite TV industry are just the tip of the iceberg” for oppressive tax regimes by the states if the Ohio ruling stands.  Other amicus briefs  supporting the petition were filed by law professors and the National Taxpayers Union.

The United States Supreme Court is currently in its summer recess.  No oral arguments are scheduled until October.  They have had a long summer to where possible cases for consideration accumulated. No conferences are scheduled until Monday, September 26.   At that conference, the Justices will select cases for review from the summer lists.  Given the backlog of cases since their last conference in May, it is possible some decisions may not be made at the conference on September 26.

Thanks to Scotusblog  for the heads up on the developments in this case.

(Earlier Post)  Ohio Supreme Court Case With Commerce Clause Implications

Thanks to David Raber of Ohio for catching  and forwarding this one.

The Ohio Supreme Court has upheld a state sales tax for satellite TV providers that cable competitors don’t have to pay, rejecting arguments from the satellite industry that the tax is unfair and unconstitutional.     In the 5-2 decision rendered 12/27/10, the Court ruled that the 2003 tax does not violate the U.S. Constitution’s Commerce Clause because the tax is based on differences between the nature of the businesses and does not favor in-state interests at the expense of out-of-state interests.

The Granholm and Bacchuscases are distinguished page 13 of the decision.   There was an amicus curiae brief filed by the Specialty Wine Retailers Association urging reversal which is attached here.   The brief waves the flag of internet regulation freedom. It was interesting to note the brief “blamed” certain state alcohol laws on other wineries or retailers for a change instead of  the supposed unchecked wholesaler power in the state house;  “location specific” language-i.e., “in person” or “on the premises”-and are enacted for the sole purpose of favoring local wineries at the expense of out-of-state wineries, states will defend these statutes as doing nothing more than distinguishing between two “modes” of selling wine to consumers.”

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