Commonwealth Brands, Inc. v. Morgan

110 So. 3d 752, 2013 WL 1339387, 2013 Miss. LEXIS 141
CourtMississippi Supreme Court
DecidedApril 4, 2013
DocketNo. 2011-CA-01274-SCT
StatusPublished
Cited by10 cases

This text of 110 So. 3d 752 (Commonwealth Brands, Inc. v. Morgan) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth Brands, Inc. v. Morgan, 110 So. 3d 752, 2013 WL 1339387, 2013 Miss. LEXIS 141 (Mich. 2013).

Opinion

RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Appellants raise a constitutional challenge to a fee legislated on cigarettes distributed through Mississippi for sale outside the state, claiming separate violations of the Commerce and Due-Process Clauses. In 2009, the Mississippi Legislature passed a law imposing a fee1 on the sale, purchase, and distribution in Mississippi of cigarettes manufactured by companies that did not enter into settlement agreements with the State of Mississippi as a result of a 1997 lawsuit (the “nonset-tling manufacturer” or “NSM” law), “including cigarettes sold, purchased or otherwise distributed in this state for sale outside of this state.”2 Miss.Code Ann. § 27-70-5 (Rev.2010) (amended in 2010) (emphasis added).

¶ 2. In 2009, one nonsettling manufacturer — Commonwealth Brands, Inc. (“Commonwealth”) — and one distributor — the Corr-Williams Company (“Corr-Williams”) (collectively “Appellants”)— sued Ed Morgan, in his capacity as Commissioner of Revenue of the Department of Revenue (“Commissioner”) in Hinds County Chancery Court. Appellants claimed that the imposition of the NSM fee on products sold, purchased, or distributed in Mississippi, but ultimately sold to consumers or users outside Mississippi, violated the Commerce and Due-Process Clauses of the United States Constitution. They sought a declaration that the imposition of the NSM fee on cigarettes for sale outside Mississippi is unconstitutional; an injunction to prevent the State from collecting the fee from them for cigarettes distributed in Mississippi for sale outside the state; and damages, expenses, and attorney fees under 42 U.S.Code Sections 1983 and 1988.

¶ 3. In October 2009, the chancery court entered a temporary restraining order enjoining the Commissioner from assessing and collecting the challenged fee. In November 2009, the chancery court held an evidentiary hearing, after which it granted Appellants a preliminary injunction and [755]*755ordered them to post surety bonds. The chancery court found as follows:

(A) There is a substantial likelihood that Plaintiffs will prevail on their constitutional challenges to the assessment and payment of fees on the sale of NSM cigarettes sold, purchased or otherwise distributed in Mississippi for sale outside of Mississippi ...;
(B) Corr-Williams and Commonwealth Brands will suffer immediate and irreparable harm with such threat being imminent if the MSTC assesses and demands payment of fees on the sale of [such] cigarettes ... in that Corr-Williams may lose its ability to distribute NSM cigarettes and other grocery products in the State of Louisiana, with an accompanying loss in competitive advantage, business reputation, and goodwill and that Commonwealth Brands also faces the threat of immediate loss of competitive advantage, market share, business reputation, and good will with respect to cigarettes sold, purchased or otherwise distributed in this state for sale outside of this state.
(C) The threat of irreparable injury to Corr-Williams and Commonwealth Brands far outweighs any potential harm to the State ..., even considering the present economic conditions of the State of Mississippi and the potential implications of ... reduced revenues that this [preliminary injunction] might have on the State budget, and moreover, ... the threat of injury to the Defendant is minimal in that if the MSTC ultimately prevails, it will be able to assess and collect the tax that accrues during the pendency of this litigation; and
(D) The public interest is served by the entry of the [preliminary injunction] because if the MSTC assesses and demands payment of fees on the sale of NSM cigarettes sold, purchased or otherwise distributed in Mississippi for sale outside of Mississippi ... from Commonwealth Brands or by Corr-Williams, there may be a resulting loss of jobs and tax revenue when Corr-Williams and distributors in situations similar to Corr-Williams move all or some of its operations to the State of Louisiana and other states to avoid the effect thereof, or when Commonwealth and manufacturers in situations similar to Commonwealth shift some or all of their business to distributors in other states to avoid the effect thereof.

In January 2010, the chancery court allowed Vicksburg Specialty to intervene, entered a preliminary injunction enjoining the Commissioner from imposing the NSM fee on NSM cigarettes distributed by Vicksburg Specialty, and required Vicksburg Specialty to post a surety bond.

¶ 4. In May 2010, the chancery court issued a “Stipulated Order Regarding Schedule and Procedures,” in which the parties agreed, in lieu of trial, to submit proposed stipulations of facts and proposed findings of fact and conclusions of law to the chancellor. In August 2010, the chancery court issued an order denying Appellants a permanent injunction and declaratory relief, and finding all other issues moot. The chancery court found that the NSM fee did not violate the Commerce Clause or the Due-Process Clause, based on its findings that: (1) there was “a substantial nexus between the tax and the transaction within Mississippi”; (2) the fee was fairly apportioned, because, even if other states had an identical statute, those states would not tax Commonwealth for the “same purpose” — distribution through Mississippi; (3) the fee did not discriminate against interstate commerce, because, (like its reasoning for finding fair apportionment) even if other states had an iden[756]*756tical statute, they would not impose a fee on the same transaction as the Mississippi law — distribution through Mississippi; and (4) the fee was fairly related to distribution activities and services in Mississippi.

¶ 5. Subsequently, the Commissioner filed a “Motion for Entry of Final Judgment,” seeking fees, interest, and penalties from Appellants for the two years that it was enjoined from collecting fees under the preliminary injunction, and Appellants filed a motion for reconsideration. The chancery court held a hearing on both motions in December 2010. The chancery court reserved ruling on the motions until the end of the 2011 Mississippi Legislative Session, during which the Legislature amended the statute to provide that the NSM fee does not apply to cigarettes sold, purchased, or distributed in Mississippi for sale outside the state. Miss.Code Ann. § 27-70-5 (Supp.2012).

¶ 6. In May 2011, the chancery court found that the legislative amendment did not apply retroactively, denied Appellants’ motion for reconsideration, and granted the Commissioner’s motion for final judgment. However, the chancery court did not enter final judgment at that time. Rather, three months later, on August 30, 2011 (upon the parties’ request for a status conference), the chancellor entered final judgment, which incorporated the August 2010 order (denying Appellants’ request for a permanent injunction and declaratory relief) and the May 2011 order (denying motion for rehearing and granting motion for final judgment). Commonwealth, Corr-Williams, and Vicksburg Specialty appeal the final judgment, and the Commissioner cross-appeals.

FACTS

¶7.

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Bluebook (online)
110 So. 3d 752, 2013 WL 1339387, 2013 Miss. LEXIS 141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-brands-inc-v-morgan-miss-2013.