Opinion
NO. 2014-0235
10-08-2014
Hillenmeyer v. Cleveland Bd. of Rev.
MOTION AND PROCEDURAL RULING.
On appellees' motion to strike the new issue raised for the first time in appellant's reply brief claiming facial discrimination against interstate commerce, it is ordered by the court that the motion is denied. Appellant's first merit brief substantially states the basis for the argument, and "there is no clear line between" a claim of facial discrimination against, and a claim of undue burden upon, interstate commerce. See Gen. Motors Corp. v. Tracy, 519 U.S. 278, 298, 117 S.Ct. 811, 136 L.Ed.2d 761 (1997), fn. 12, citing Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573, 579, 106 S.Ct. 2080, 90 L.Ed.2d 552 (1986).
O'CONNOR, C.J., would hold the motion to strike in abeyance and issue an order requiring Hillenmeyer to show cause why the entire Commerce-Clause argument should not be stricken.
O'DONNELL, J., dissents.