
    STATE of South Dakota, Plaintiff and Appellant, v. WAYFAIR INC., Overstock.com, Inc., and Newegg Inc. Defendants and Appellees.
    28160
    Supreme Court of South Dakota.
    CONSIDERED ON MOTION JULY 25, 2018 OPINION FILED August 9, 2018
    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.
    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.
   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, 201 L.Ed.2d 403 (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.

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

Attachment

IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA STATE OF SOUTH DAKOTA, ORDER OF REVERSAL Plaintiff and Appellant, and DISPOSITIVE REMAND vs. WAYFAIR INC., OVERSTOCK.COM, INC. and NEWEGG INC., #28160 Defendants and Appellees.

Appellant State of South Dakota's having served and filed a motion for remand in the above-entitled matter on July 25, 2018, and no response having been filed thereto and the Court having considered said motion and having filed its decision in writing, now, therefore, for the reasons stated in #28160, State v. Wayfair Inc., 2018, S.D. 62, it is

ORDERED that the circuit court's order granting defendants' motion for summary judgment be reversed and the case is dispositively remanded for further proceedings not inconsistent with the United States Supreme Court's opinion in South Dakota v. Wayfair, Inc., 585 U.S. ___, 138 S.Ct. 2080, 2100 (2018).

DATED at Pierre, South Dakota this 9th day of August, 2018.

BY THE COURT ATTEST: David Gilbertson, Chief Justice. Clerk of the Supreme Court (SEAL) PARTICIPATING: Chief Justice David Gilbertson and Justices Steven L. Zinter, Janine M. Kern, Steven R. Jensen and Mark E. Salter.  