#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.


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#28160

[¶5.]       GILBERTSON, Chief Justice, and ZINTER, KERN, JENSEN, and

SALTER, Justices, participating.




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