Frankel & Nogid: Retroactive Tax Increases and the Ex Post Facto Clause

Paul H. Frankel & Amy F. Nogid (both of Morrison & Foerster, New York) have published The Manifest Justice of the Manifest Injustice Doctrine: The Time Has Come to Invoke the Ex Post Facto Clause to Bar Retroactive Tax Increases, 49 State Tax Notes 599 (Sept. 1, 2008). Here is the part of the Conclusion:

Although the "wisdom, good sense, policy or prudence (or otherwise) of a statute are matters within the province of the Legislature and not the Court," by taking a very circumscribed view of the ex post facto clause and the due process protections afforded by the U.S. and state constitutions, courts have failed to protect the populace against improper legislative action. It is improper for courts to second-guess the wisdom of a legislative enactment, but it should not be improper for courts to ensure that, in achieving the legislative purpose, fundamental rights of the populace are not trammeled. The long-standing animus toward retroactive or retrospective legislation is grounded in the significant potential for due process violation. Stated differently, the protection afforded under due process clauses is the protection against manifest injustice. Oberhand offers a welcome respite from courts' laissez-faire approach to retroactive legislation. Justice Albin got it right: "Manifest injustice and the denial of fundamental fairness are two ways of expressing the same concept."