By Jonathan Feldman and Stephen Burroughs
A mere 28 days after oral argument, a three-judge panel of the Michigan Court of Appeals unanimously upheld a Court of Claims decision that sanctioned the Michigan Legislature’s retroactive withdrawal from the Multistate Tax Compact in 2014 PA 282, by ruling for the Michigan Department of Treasury in the consolidated appeal. The court held that the retroactive repeal of the Compact and the three-factor election within did not violate the Contract Clauses of the state or federal constitutions, reasoning that the Compact did not contractually bind Michigan from exercising its full legislative power. Accordingly, the Compact was subject to Michigan law concerning the interpretation of statutes. The court held that the retroactive repeal satisfied the Due Process Clauses of the state and federal constitutions because: (1) taxpayers generally do not have a vested right in the continuing validity of taxing statutes; (2) because the Legislature had a legitimate purpose for giving retroactive treatment to 2014 PA 282; and (3) because the six-and-one-half year retroactive period was sufficiently modest. The court also struck down the taxpayers’ separation-of-powers argument, asserting that the Legislature has the authority and obligation to amend a statute it believes has been misconstrued by the judiciary and that 2014 PA 282 did not reverse a decision or repeal a final judgment. Finally, the Court held that the retroactive repeal does not discriminate against interstate commerce, violate taxpayers’ First Amendment rights to petition the government, or defy any other Michigan constitutional provision. The court noted that the application of 2014 PA 282 to IBM’s appeal of its 2008 tax year decided by the Michigan Supreme Court was not at issue here. Sutherland will provide additional analysis as this case moves through the appellate process. Gillette Comm Operations N Am & Subsidiaries v. Department of Treasury, No. 325258 (Mich. Ct. App. 2015) (consolidated with 49 other appeals).