SCOTUS Requests Views of Solicitor General in Comptroller v. Wynne

By Steve Klepper

In January of last year, the Court of Appeals of Maryland, in Maryland State Comptroller of the Treasury v. Wynne,  431 Md. 147 (2013), held that Maryland tax law discriminated against interstate commerce by failing to allow a tax credit for certain “pass through” income for Subchapter S corporations. Judge McDonald wrote the majority opinion, and Judge Greene, joined by Judge Battaglia, dissented. In May, the Court of Appeals denied reconsideration, but it stayed its mandate pending the Comptroller’s filing of a petition for certiorari with the United States Supreme Court. SCOTUSblog has been tracking the case.

Today’s orders list from the United States Supreme Court included an order in Comptroller v. Wynne that “[t]he Solicitor General is invited to file a brief in this case expressing the views of the United States.” Though such a call for the views of the Solicitor General (CVSG) is far from a guarantee that the Supreme Court will grant review, it is an indication that the Supreme Court is taking the petition seriously.

If the petition is granted, it would mark at least the third time that Maryland Attorney General (and gubernatorial candidate) Douglas Gansler has successfully sought certiorari to the Court of Appeals of Maryland. Previously, his office prevailed on the merits in Maryland v. Shatzer, 130 S. Ct. 1213 (2010) (argued by Gansler personally), and Maryland v. King, 133 S. Ct. 1 (2012). A third certiorari grant would be fairly remarkable, as the Supreme Court reviews decisions from state courts nationwide in only about a dozen cases each year.