Comptroller v. Wynne: Will Tuesday Be the Day?

By Steve Klepper (Twitter: @MDAppeal)

Only recently has the media been focusing on a sneaky-big Supreme Court case out of Maryland, Comptroller v. Wynne. Just last week, Bill Turque at the Washington Post noted the potentially major consequences in Maryland and beyond. The question is whether Maryland tax law, in denying a county income tax credit for income tax paid in other states on out-of-state income, discriminates against interstate commerce in violation of the so-called “dormant” or “negative” commerce clause.

In Comptroller v. Wynne, 431 Md. 147 (2013), the Court of Appeals, in a five-to-two decision, ruled in favor of the taxpayers. But the math became bad for the Wynnes as soon as the Supreme Court, at the Solicitor General’s urging, granted certiorari. Justice Thomas believes that the Supreme Court precedents recognizing a “dormant” or “negative” commerce clause were wrongly decided, and he refuses to follow them. Justice Scalia, although agreeing with Justice Thomas that those precedents were wrongly decided, generally will adhere to them under principles of stare decisis – but he won’t extend them.

It has been a long wait for the decision. Excluding a case in which the Supreme Court ordered reargument, Wynne is one of only two cases from the Court’s November sitting that remain undecided. The other case, which SCOTUSblog has flagged as a “major case,” involves major questions of foreign policy. So what’s taking the Supreme Court so long in Wynne?

One possible reason is that the Hogan Lovells appellate practice did a great job in a case with tough math. They maximized the possibility of attracting Justice Scalia’s vote by citing a case, Brown v. Maryland, 25 U.S. 419 (1823), for the proposition that the Maryland tax violated existing law on the dormant commerce clause. Brown was a major find. Not only did the Wynnes’ counsel know to look for a case designed specifically to sway Justice Scalia – they also managed to find a case that predated Gibbons v. Ogden, 22 U.S. 1 (1824), the case from which the phrase “dormant commerce clause” was originally drawn. Justice Scalia expressed disagreement with the Wynnes’ argument during questioning, but he still may concur with an opinion in their favor if he’s persuaded that Brown already decided the issue. Indeed, the Wynne’s counsel concluded his argument by quoting directly from Brown.

One interesting wrinkle is that the case has taken so long that two of the three Hogan Lovells attorneys from the state proceedings are gone from the case. Chris Handman, after arguing the case in the Maryland Court of Appeals, became general counsel at Snapchat. Dom Perella took Handman’s place as counsel of record and argued the case. But Perella left Hogan Lovells last month to join Handman in Venice Beach as Snapchat’s deputy general counsel. That leaves Sean Marotta, the Hogan Lovells associate who has Tweeted anxiously each decision day. Maybe Monday Tuesday will finally be the day.

[Update: After this post went up, SCOTUSblog reported that Tuesday, not Monday, would be the first decision day this week. We edited the title and body of this post accordingly.]