Some Observations on Calls for Senate Reform: Part One of a Two-Part Series

VIKRAM DAVID AMAR

In this first of a series of columns, Illinois Law dean and professor Vikram David Amar offers four observations about recent calls for reform of the filibuster device in the U.S. Senate. Dean Amar suggests looking at state experiences with supermajority rules, as well as the Senate’s own recent past, and he considers why senators might be reluctant to eliminate the filibuster. He concludes with a comment on President Joe Biden’s suggestion that the Senate return to the “talking filibuster” and praises a suggestion by Senator Tom Harkin (D-IA) that the cloture requirement (currently at 60 votes) could be lowered gradually, the longer a measure under consideration is debated.

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Clay v. Commissioner of Internal Revenue

Court: US Court of Appeals for the Eleventh Circuit

Docket: 19-14441

Opinion Date: March 16, 2021

Judge: Grant

Areas of Law: Gaming Law, Native American Law, Tax Law

After taxpayers filed suit challenging the IRS's deficiency findings and penalties, the tax court sustained the deficiency determinations but rejected the accuracy-related penalties. In this case, the Miccosukee Tribe shared profits from its casino with Tribe members and encouraged its members to hide their payments from the IRS. The taxpayers here followed the Tribe's advice, and they are now subject to hundreds of thousands of dollars in tax deficiencies. The Eleventh Circuit affirmed the tax court's judgment and rejected taxpayers' assertion that any taxes are barred by the Miccosukee Settlement Act that exempted an earlier land transfer from taxation. Even if the court interpreted the Act as providing an indefinite tax exemption for the "lands" conveyed under it or the agreement, the casino revenues still do not fit the bill because the casino's land was not conveyed under either the Act or the agreement. Furthermore, an exemption for "lands" only exempts income "derived directly" from those lands, and this court has already held that casino revenues do "not derive directly from the land." The court also rejected taxpayers' assertion that the payments are merely nontaxable lease payments from the casino, citing factual and legal problems. Rather, the court concluded that the payments are taxable income.

Clear Channel Outdoor, Inc. v. Department of Finance of Baltimore City

Court: Maryland Court of Appeals

Docket: 9/20

Opinion Date: March 15, 2021

Judge: Robert N. McDonald

Areas of Law: Constitutional Law, Government & Administrative Law, Tax Law

The Court of Appeals affirmed the denial of Clear Channel Outdoor, Inc.'s request for a refund of the taxes that it paid pursuant to a Baltimore City ordinance for the privilege of selling advertising on billboards that are not located on the premises where the goods or services being advertised were offered or sold, holding that the ordinance is constitutional. Clear Channel, which was in the business of selling advertising on its billboards in Baltimore City, sought a refund from the City Director of Finances of the taxes it paid pursuant to the city ordinance at issue. Clear Channel claimed that the ordinance was unconstitutional under the First and Fourteenth Amendments and Article 40 of the Maryland Declaration of Rights. The City denied a refund, and the Maryland Tax Court affirmed. The circuit court and court of appeals affirmed. The Supreme Court affirmed, holding that the ordinance survives the application of a rational basis test and, accordingly, is constitutional.

2 Crooked Creek, LLC v. Cass Cty. Treas.

Court: Michigan Supreme Court

Docket: 159856

Opinion Date: March 16, 2021

Judge: Brian K. Zahra

Areas of Law: Constitutional Law, Government & Administrative Law, Real Estate & Property Law, Tax Law

2 Crooked Creek, LLC (2CC) and Russian Ferro Alloys, Inc. (RFA) filed an action against the Cass County Treasurer, seeking to recover monetary damages under the Michigan General Property Tax Act (the GPTA) in connection with defendant’s foreclosure of certain property. In 2010, 2CC purchased property for development, but failed to pay the 2011 real-property taxes and, in 2013, forfeited the property to defendant. From January through May 2013, defendant’s agent, Title Check, LLC, mailed via first-class and certified mail a series of notices to the address listed in the deed. The certified mail was returned as “Unclaimed—Unable to Forward,” but the first-class mail was not returned. Meanwhile, 2CC constructed a home on the property, obtaining a mortgage for the construction from RFA. A land examiner working for Title Check visited the property; determined it to be occupied; and being unable to personally meet with any occupant, posted notice of the show-cause hearing and judicial-foreclosure hearing on a window next to the front door of the newly constructed home. Title Check continued its notice efforts through the rest of 2013 and into 2014, mailing various notices as well as publishing notice in a local newspaper for three consecutive weeks. After no one appeared on 2CC’s behalf at the show-cause hearing or the 2014 judicial-foreclosure hearing, the Cass Circuit Court entered the judgment of foreclosure. The property was not redeemed by the March 31, 2014 deadline, and fee simple title vested with defendant. 2CC learned of the foreclosure a few weeks later. In July 2014, 2CC moved to set aside the foreclosure judgment on due-process grounds. These efforts failed because the circuit court concluded defendant’s combined efforts of mailing, posting, and publishing notice under the GPTA provided 2CC with notice sufficient to satisfy due process. In an unpublished per curiam opinion, the Court of Appeals affirmed. 2CC moved to set aside the foreclosure judgment, filing a separate action in the Court of Claims for monetary damages under MCL 211.78l(1), alleging it had not received any notice required under the GPTA. After a bench trial at the Court of Claims and at the close of 2CC’s proofs, the court granted an involuntary dismissal in favor of defendant, holding, in relevant part, that 2CC had received at least constructive notice of the foreclosure proceedings when the land examiner posted notice on the home. 2CC appealed as of right, and the Court of Appeals also affirmed. Finding no reversible error, the Michigan Supreme Court affirmed too.