Cert Petitions: September 23

The Court granted cert in just one case today: New Cingular Wireless PCS, LLC et al. v. Department of Revenue et al. The case deals with when statutes may operate retroactively, here in the context of standing to sue for a tax refund.

The petitioners, a group of wireless internet providers, filed suit against the Department of Revenue after it refused to issue a refund for sales taxes they believe were wrongfully collected. The trial court dismissed the suit, holding (1) that the petitioners could not seek a refund before remitting the taxes in question to their customers; (2) that the petitioners lacked standing to collect taxes before the revenue code was amended in May of 2009, and (3) that a class action for a refund was barred by Georgia law.

This is the second time the case has made its way to the Court; in New Cingular I, the Court reversed the holding of the trial court (and the court of appeals) on the first point. On remand from New Cingular I, then Chief-Judge Dillard wrote for the Court of appeals that this second ground justified dismissal as well.

While the parties agree that the Revenue Code was amended in May, 2009 to allow third party standing in suits to remit wrongfully collected taxes, they disagree on whether this change apply before that date as well. See O.C.G.A. 48-2-35 and 35.1.

The Court of Appeals held it did not. Statutes are presumed to have only prospective effect, See S. States-Bartow Cnty. Inc. v. Riverwood Farm Homeowners Assoc., 300 Ga. 609 (2017); O.C.G.A. 1-3-5, and this presumption can only be overcome by a clear statement to the contrary. id. It is not enough that a statute applies to prior or preexisting facts. Bank of Norman Park, 169 Ga. 534, 536 (1929). Indeed, some types of legislation may not operate retroactively, such as "legislation which affects substantive rights" or "creates rights, duties, and obligations." Crane Composites, Inc. v. Wayne Farms, 296 Ga. 271, 272 (2014). 

These principles decide the case, Judge Dillard wrote, because standing is a substantive right to have the court decide the merits of a case. Therefore, a law dealing with standing to sue affects substantive rights, and may not be the object of retroactive legislation.

The Court granted cert on this issue, asking the parties to address whether the Court of Appeals erred "in holding that the plaintiffs lacked standing to file refund claims for periods prior to May, 2009?"

All the Justices concurred in granting cert, except for Justices Bethel and Peterson, who were disqualified, and Justice Warren, who will not participate.

The case will be assigned to the January 2020 oral argument calendar.

Denied

S19C0719. CHRISTIANO et al. v. A BETTERWAY LEASING, LLC et al. (A18A1902)
S19C0720. ANTHONY v. THE STATE (A18A2134)
S19C0757. HUNNICUTT v. THE STATE (A18A1863)
S19C0761. BISHOP v. THE STATE (A19A0794)
S19C0774. MCDONALD v. MCDONALD (A19D0258, A19A0965)
S19C0778. ROSS v. WELLS FARGO BANK, N.A. et al. (A19D0275)
S19C0783. ESTRADA v. THE STATE (A18A1793)
S19C0787. WILSON v. SUNNYLAND COMMUNITY, LLC (A19A0829)
S19C0800. COBBLE v. WILLIAMS (A19D0209)
S19C0828. WESTROCK et al. v. HILL (A19D0256)
S19C0871. BIVINS v. THE STATE (A18A1493, A18A1494)