Public Law Monitor

Court Rejects AnnexationThe Indiana Court of Appeals ruled against the Town of Cedar Lake in northern Indiana after it sought to annex about 2,800 acres for “potential” economic development. Finding the town failed to prove the annexation was needed and could be used for development, Judge Cale Bradford wrote for a unanimous courtthat the five proposed projects were “more in the realm of speculation than reality at this time. . . . Moreover, the Remonstrators produced evidence tending to prove that no developer had yet expressed interested in the Annexation Territory or purchased any land. . . .” The ruling serves as a reminder of the importance of I.C. 36-4-3-13(c), which states that the municipality must prove the annexed territory is “needed and can be used by the municipality for its development in the reasonably near future.”

South Dakota filed a petition in South Dakota v. Wayfair asking the U.S. Supreme Court to hear a challenge to its law requiring out-of-state retailers to collect sales tax.

In Quill Corp. v. North Dakota (1992), the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax. However, in March 2015, Justice Kennedy wrote a concurring opinion stating that the “legal system should find an appropriate case for this Court to reexamine Quill.” Justice Kennedy criticized Quill in Direct Marketing Association v. Brohl for many of the same reasons the State and Local Legal Center stated in its amicus brief. Specifically, internet sales have risen astronomically since 1992 and states and local governments are unable to collect most taxes due on sales from out-of-state vendors.

Following the Kennedy opinion a number of state legislatures passed legislation requiring remote vendors to collect sales tax. South Dakota’s law is the first to be ready for review by the U.S. Supreme Court. In September the South Dakota Supreme Court ruled that the South Dakota law is unconstitutional because it clearly violates Quill and it is up to the U.S. Supreme Court to overrule it.

That is the theme of Tyler Cowen’s latest Bloomberg column in which he writes, “As American travel infrastructure decays, and traffic congestion worsens, what we used to call cities and suburbs won’t be able to rely on each other so much, as trips become too exhausting and time-consuming. That too will encourage cities and suburbs each have their own mix of jobs, retail and cultural opportunities.”

On September 28th, the Indiana Court of Appeals reversed a rate order issued by the Indiana Utility Regulatory Commission (IURC) in Hamilton Southeastern Utils. v. Ind. Util. Reg. Comm’n holding the IURC’s failure to follow its prior precedent or explain its departure from it was reversible error. The court also affirmed the ability of the utility (an S corporation) to recover, through its rates, the income taxes its shareholders paid. Finally, the court held the IURC could not appear as a party with full briefing rights in appeals from its orders. The court held “the Commission’s Order should speak for itself, without the need to further rationalize its decision to our court. Accordingly, the Commission is not a proper party on appeal from its own decision and should be dismissed.”