#28160-rev & rem-PER CURIAM 2018 S.D. 62

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * * STATE OF SOUTH DAKOTA, Plaintiff and Appellant,

v. WAYFAIR INC., OVERSTOCK.COM, INC., and NEWEGG INC. Defendants and Appellees.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SIXTH JUDICIAL CIRCUIT

HUGHES COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE MARK W. BARNETT

Judge

* * * * MARTY J. JACKLEY Attorney General RICHARD M. WILLIAMS Deputy Attorney General KIRSTEN E. JASPER Assistant Attorney General Pierre, South Dakota ERIC F. CITRON of Goldstein & Russell, PC Bethesda, Maryland Attorneys for plaintiff

and appellant.

* * * *

CONSIDERED ON MOTION

JULY 25, 2018

OPINION FILED 08/09/2018 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. #28160 PER CURIAM [¶1.] On September 13, 2017, this Court issued its opinion in State v. Wayfair Inc., 2017 S.D. 56, 901 N.W.2d 754. We affirmed the circuit court’s summary judgment for internet sellers and held that the statutory scheme requiring these sellers with no physical presence in South Dakota to collect and remit sales tax violates the Commerce Clause. [¶2.] On June 21, 2018, the United States Supreme Court vacated our judgment and remanded the case for further proceedings not inconsistent with its opinion. South Dakota v. Wayfair, Inc., 585 U.S. ___, 138 S. Ct. 2080, 2100 (2018). “Any remaining claims regarding the application of the Commerce Clause in the absence of Quill [504 U.S. 298, 112 S. Ct. 1904, 119 L. Ed. 2d 91 (1992)] and Bellas Hess [386 U.S. 753, 87 S. Ct. 1389, 18 L. Ed. 2d 505 (1967)] may be addressed in the first instance on remand.” Id. [¶3.] On July 23, 2018, this Court received and filed certified copies of the United States Supreme Court’s mandate and judgment in Wayfair. Two days later, on July 25, 2018, the State filed a motion requesting that we remand the matter to the circuit court for further proceedings not inconsistent with the United States Supreme Court’s opinion in Wayfair. Internet sellers filed no response to the State’s motion. See SDCL 15-26A-87.2. [¶4.] Accordingly, the circuit court’s order granting defendants’ motion for summary judgment is reversed, and the case is dispositively remanded for further proceedings not inconsistent with the United States Supreme Court’s opinion in Wayfair.

-1- #28160 [¶5.] GILBERTSON, Chief Justice, and ZINTER, KERN, JENSEN, and SALTER, Justices, participating.

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