I have not had time to thoroughly review the Supreme Court's decision in Wisconsin Department of Revenue v. Menasha Corporation. The case involved the interpretation of statutory language that subjects computer programs to sales tax unless they are custom programs. Menasha bought a program which apparently could be used without customization, but not by it. The DOR had decided that it was not a custom program and Menasha appealed to the Tax Appeals Commission. The Commission ruled in favor of Menasha, concluding that the program was custom. The DOR appealed to the Circuit Court which reversed. The Court of Appeals reversed the Circuit Court (finding for Menasha) and the Supreme Court affirmed that ruling. Menasha wins and does not have to pay sales tax on the program (which cost a bit north of $5 million).
My old Backstory colleague Jim Rowen is upset because the decision potentially blows a "$265 million dollar hole" in the state budget because there are a lot of software programs sold which, while they might stand alone, actually require substantial modification.
My good friends at One Wisconsin Now weigh in and Paul Soglin does too. But here's the thing: None of them criticize the Court's reasoning or, for that matter, say much about what the issue. OWN does accuse the author of the majority opinion, Justice Annette Kingsland Ziegler, of giving WMC and the business community (who supported her campaign) "what it paid for" and Jim calls her WMC's
servant" and the Court "its subsidiary." He asks us to imagine the "WMC-serving" justices as sycophantic flight attendants in first class waiting on someone (presumably rich people) while the rest of us swelter in steerage. Soglin limits himself to juxtaposing the ruling with WMC support of Justice Ziegler.
Here's an irony. All of our interlocutors have roundly criticized WMC and others who opposed their preferred candidates for the Court of "oversimplifying" complex legal questions and, in railing against decisions that favor criminal defendants, appealing to popular prejudice. At the time, I sometimes agreed with those criticisms and sometimes disagreed, generally believing that they were not evenly applied.
And so they are still not. If the decision is wrong, it is certainly not because WMC supported it or because it will prevent the DOR from imposing $ 265 million in sales tax. If the law does not call for a sales tax, then a sales tax ought not to be collected. Contrary to what Paul Soglin says, that decision would be in the interest of taxpayers.
All of our critics argue that Justice Ziegler should have recused herself but that is an astonishing claim. WMC was not a party to the Menasha case. It filed an amicus
brief in support of Menasha's position. In the last election cycle, a variety of interests - WEAC, other public employee unions, the plaintiff's bar, the criminal defense bar, the casinos - undoubtedly spent in support of the incumbent and, if there is a contested race next year, will do so again. With the exception of the casinos, all of these are logical sources of amici briefs in pertinent cases - all of which will, we hope, provide a useful perspective to the issues before the Court. If justices are to recuse themselves because the interests associated with amici supported their candidacies, then judicial elections will be rendered completely unworkable in cases in which there is broad public interest.
Was the decision in Menasha Corporation correct? I'm not prepared to say. The majority was concerned not only with construction of the statutes and rules in the first instance, but also with the extent of deference to the Tax Appeals Commission. That the court was split on the matter and two of the three entities that had reviewed the matter concluded that there should be no sales tax suggests that it is an issue on which reasonable jurists may differ. I have been asked to write on the case for State Court Docket Watch this fall. That won't involved editorializing on the outcome, but I may have more to say later.
Nevertheless, questioning the integrity - as opposed to the the merits of the matter - of the Court is unwarranted.