As ICSC continues to work on finding a federal solution to the e-fairness issue, we have been supporting various state efforts to address the inequity that exists for our brick and mortar retailers.

As a result of these states’ efforts, litigation has progressed with the most developed case emerging in South Dakota surrounding a law enacted last year that directly challenges the U.S. Supreme Court’s Quill decision upholding the physical presence standard for the imposition of sales tax collection.

This week, the South Dakota Sixth Judicial Circuit ruled the South Dakota law was unconstitutional (as it directly contradicts Quill).  Paradoxically, this was the desired outcome as it as it allows the state to appeal directly to the South Dakota Supreme Court, which it will do immediately.  It is ICSC’s expectation that the South Dakota Supreme Court will also rule the law unconstitutional, which frees the state to directly appeal the case to the U.S. Supreme Court.  While there is no certainty that the U.S Supreme Court will accept the case, various indications, including public commentary by Justice Anthony Kennedy, suggest a high interest in revisiting the Quill decision. 

We expect the South Dakota Supreme Court to take up the case this summer, providing an opportunity for the request for consideration, or the petition for cert, from the U.S. Supreme Court as soon as fall of 2017, allowing for an appeal to be heard early in 2018.