MERSCORP Holdings, Inc. v. Malloy ( 2016 )

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MERSCORP HOLDINGS, INC., ET AL. v.
DANNEL P. MALLOY ET AL.
(SC 19376)
Palmer, Zarella, Eveleigh, Espinosa and Robinson, Js.
Argued October 14, 2015—officially released February 23, 2016
Linda L. Morkan, with whom were Benjamin C.
Jensen and, on the brief, James A. Wade and Norman
H. Roos, for the appellants (plaintiffs).
Matthew J. Budzik, assistant attorney general, with
whom were Heather J. Wilson, assistant attorney gen-
eral, and, on the brief, George Jepsen, attorney general,
for the appellees (defendants).
Ryan P. Barry and Michael J. Dyer filed a brief for the
Connecticut Bankers Association et al. as amici curiae.
J. L. Pottenger, Jr., Jeffrey Gentes, and Aurelia
Chaudhury, Nicholas Gerschman and Marian Mess-
ing, law student interns, filed a brief for the Jerome N.
Frank Legal Services Organization and the Connecticut
Fair Housing Center as amici curiae.
Opinion
PALMER, J. In 2013, the legislature amended the stat-
utes governing Connecticut’s public land records sys-
tem to create a two tiered system in which a mortgage
nominee operating a national electronic database to
track residential mortgage loans must pay recording
fees approximately three times higher than do other
mortgagees. The plaintiffs, MERSCORP Holdings, Inc.,
and Mortgage Electronic Registration Systems, Inc.,
who are currently the only entities required to pay the
increased recording fees, commenced the present
action against the defendants, Governor Dannel P. Mal-
loy, Attorney General George Jepsen, Treasurer Denise
L. Nappier, Kendall F. Wiggin, the state librarian, and
LeAnne R. Power, the state public records administra-
tor,1 seeking, inter alia, injunctive relief and a judgment
declaring that this two tiered fee structure violates vari-
ous provisions of the federal and state constitutions.
Specifically, the plaintiffs alleged that General Statutes
§§ 7-34a (a) (2) and 49-10 (h), as amended, violate the
equal protection, due process, and takings provisions of
the federal and state constitutions, the federal dormant
commerce clause, and the federal prohibition against
bills of attainder. The plaintiffs further alleged that
enforcement of the statutes violates 42 U.S.C. § 1983.
The parties filed motions for summary judgment, and
the trial court granted the state’s motion for summary
judgment on all counts and rendered judgment thereon.
This appeal followed.2 We affirm the judgment of the
trial court.
I
This case concerns the filing fees that the parties to a
residential mortgage loan must pay to record mortgage
documents in the public land records in Connecticut.
Because the plaintiffs raise both federal and state con-
stitutional issues of first impression, it will be helpful
before considering the plaintiffs’ claims to briefly
review the traditional procedure for recording residen-
tial mortgage documents, certain relatively recent
changes to that system, and the novel response of the
Connecticut legislature to those changes.
Under the traditional residential mortgage model, a
person seeking to finance the purchase of a residential
property obtains a loan from a lender, typically a bank,
in exchange for a promissory note committing the bor-
rower to repay the loan. To secure the loan, the bor-
rower provides the lender a mortgage on the property.
Although, in Connecticut, there is no legal requirement
that the lender record the mortgage in the public land
records, mortgages typically are recorded—via the
clerk of the town in which the property is situated—
in order (1) to perfect the lender’s security interest
by giving public notice thereof, and (2) to maintain a
complete public chain of title.
Under the traditional model, the bank or other lender
maintains the loan on its books and continues to service
the loan until it is repaid. At that point, the parties
typically record a release of the mortgage in the land
records. At a minimum, then, the life of a residential
mortgage loan may involve only two recordable events,
although other events—for example, a transfer of the
mortgage loan to another lender, or the creation or
subordination of a home equity credit line—also may
arise under the traditional model.
The most significant factor in the decline of the tradi-
tional residential mortgage model has been the develop-
ment and evolution of the secondary mortgage market.
A secondary market is created when the initial lender
sells the mortgage loan to outside investors. Doing so
provides local lenders with greater liquidity, which facil-
itates additional home buying, and also allows large
outside investors to pool—and thus to minimize—the
risk that any particular loan will go into default.
Although the modern secondary mortgage market had
its genesis in the creation of the Federal Housing
Authority and associated government sponsored financ-
ing corporations such as Fannie Mae in the 1930s, it
expanded dramatically in the 1980s with the advent of
new types of mortgage backed securities for sale in the
private equity markets.
For mortgage loans sold in the secondary market,
the investor typically engages a third party to perform
servicing functions such as payment collection and file
maintenance. Both the loan itself and the servicing
rights may be sold or transferred multiple times over the
life of a loan. Under the common-law rule, as codified in
many states, the mortgage follows the note, so that an
investor who acquires a residential note automatically
obtains the attached security interest as well.
Although the development of a robust and sophisti-
cated secondary market has had a dramatic impact on
the liquidity and, with some notable exceptions, the
stability of the residential mortgage loan market, it also
has created challenges for the public land record sys-
tem. Because the ownership and servicing rights to a
loan may be transferred multiple times over the life of
a loan, the mortgagee of record, which may be either the
note holder or the servicer as nominee, will frequently
change. This means that each subsequent holder must
choose either (1) to undertake the costly and time-
consuming process of recording each of the numerous
mortgages that it may briefly hold, subject to the varying
costs and requirements of each state’s county or, as in
Connecticut, each town clerk, or (2) to decline to record
its interest, which may result in potential problems and
costs resulting from an incomplete public chain of title.
To address these problems, in the 1990s, the major
public financial service corporations, in collaboration
with various private interests, developed the national
Mortgage Electronic Registration Systems (MERS) sys-
tem. There are two primary components to the MERS
model.3 First, MERS operates a national electronic reg-
istration system that tracks any changes in the owner-
ship and servicing rights of MERS-registered loans
between MERS members, who include in-state and out-
of-state mortgage lenders, servicers and subservicers,
and public finance institutions. In this sense, MERS
operates as a centralized, virtual alternative to the hun-
dreds of traditional county or town land recording sys-
tems throughout the country. Second, because MERS
members cannot completely eschew the use of the pub-
lic land records, MERS becomes the mortgage nominee
on any loans held by MERS members, and is identified
as such when the mortgage is initially recorded in the
land records. Recording a mortgage with MERS as a
mortgage nominee essentially creates a placeholder for
the electronic MERS system in the public records,
allowing the two systems to interoperate. That is to
say, if a party searching the chain of title on a property
comes upon a recorded mortgage to MERS, the party
is thereby notified that the MERS database may be
consulted to determine the present beneficial owner of
the mortgage and loan, as well as any related servicing
rights or subordinate security interests. MERS remains
the mortgagee of record in the public records until the
mortgage either is released or assigned to a nonmember
of MERS.
One potential advantage of the MERS system is that
it eliminates the costs, in both time and fees, associated
with recording each subsequent mortgage assignment
in the public land records. Although the plaintiffs in
the present case do not concede that any such savings
have been realized in Connecticut, the parties do agree
that, as of 2013, approximately 65 percent of mortgage
loans nationally and in Connecticut originated with
MERS acting as the mortgagee. The plaintiffs’ principal
place of business is in Virginia.
Turning our attention to the legislation that led to
the present action, we note that, prior to July 15, 2013,
§ 7-34a required that all filers pay the town clerk $10
for the first page of each document filed in the land
records, plus $5 for each subsequent page. General Stat-
utes (Rev. to 2013) § 7-34a (a). Section 7-34a imposed
additional fees of $3 and $40 per filing; General Statutes
(Rev. to 2013) § 7-34a (d) and (e); and an additional fee
of $2 per assignment after the first two assignments.
General Statutes (Rev. to 2013) § 7-34a (a).
In 2013, General Statutes (Rev. to 2013) § 7-34a was
amended by Public Acts, No. 13-184, § 98 (P.A. 13-184),
and Public Acts, No. 13-247, § 82 (P.A. 13-247). As
amended, § 7-34a defines a ‘‘nominee of a mortgagee’’
as ‘‘any person who (i) serves as mortgagee in the land
records for a mortgage loan registered on a national
electronic database that tracks changes in mortgage
servicing and beneficial ownership interests in residen-
tial mortgage loans on behalf of its members, and (ii)
is a nominee or agent for the owner of the promissory
note or the subsequent buyer, transferee or beneficial
owner of such note.’’ General Statutes § 7-34a (a) (2)
(C). The parties agree that MERS is presently the only
entity that qualifies as a nominee of a mortgagee, as so
defined, and that the legislature crafted the statutory
language with MERS specifically in mind.
Section 7-34a, as amended, further provides that, with
two exceptions, when a nominee of a mortgagee files
a document in the land records, the town clerk shall
collect a fee of $116 for the first page filed and $5 for
each additional page. General Statutes § 7-34a (a) (2)
(A). In addition, the clerk continues to collect $3 for
each document pursuant to § 7-34a (d) and $40 for each
document pursuant to § 7-34a (e). The two exceptions
are that, when a nominee of a mortgagee files ‘‘(i) an
assignment of mortgage in which a nominee of a mort-
gagee appears as assignor, or (ii) a release of mortgage
by the nominee of a mortgagee,’’ the town clerk collects
a fee of $159, plus $10 for the first page and $5 for each
additional page.4 See General Statutes § 7-34a (a) (1)
and (2) (B). The recording fees for all other filers remain
unchanged under the amended statute.
The net effect of the amendments to § 7-34a (a) is to
collect from a nominee of a mortgagee, namely, MERS,
substantially more for the filing of deeds, assignments,
and other documents in the land records than from any
other filer. When filing a mortgage deed, for example,
if MERS is a party to the transaction, the recording fee
will be $159 ($116 plus $3 plus $40) for the first page
and $5 for each additional page. See General Statutes
§ 7-34a (a) (2) (A), (d) and (e). If MERS is not a party
to the transaction, the recording fee will be $53 ($10
plus $3 plus $40) for the first page and $5 for each
additional page. See General Statutes § 7-34a (a) (1), (d)
and (e). When filing a mortgage assignment or release, if
MERS is a party to the transaction, the recording fee
will be $159, plus $10 for the first page and $5 for each
additional page.5 See General Statutes § 7-34a (a) (1)
and (2) (B). If MERS is not a party to the transaction,
the recording fee will be $53 ($10 plus $3 plus $40)
for the first page and $5 for each additional page. See
General Statutes § 7-34a (a) (1), (d) and (e).
The 2013 amendments also shifted how the recording
fees on MERS-related transactions are allocated. See
generally P.A. 13-184, § 97, and P.A. 13-247, § 81, codi-
fied at General Statutes § 49-10 (h). The $159 assessed
for the filing of mortgage deeds in connection with
MERS transactions is allocated as follows: $10, plus
any fees for additional pages, to the town clerk; $39 to
the municipality’s general revenue accounts; and $110
to the state, of which $36 is paid into the community
investment account and $74 into the state’s general
fund. General Statutes § 49-10 (h). The $159 fee
assessed in connection with MERS-related assignments
and releases is allocated slightly differently: $32 to
municipal general revenue accounts; $36 to the state’s
community investment account; and $91 to the state’s
general fund. General Statutes § 49-10 (h). By contrast,
the $53 paid by other mortgagees for all recorded trans-
actions continues to be allocated as follows: $12 for
the first page ($10 plus $1 of the $3 fee pursuant to § 7-
34a [d], plus $1 of the $40 fee pursuant to § 7-34a [e]),
and $5 per additional page to the town clerk; $3 to
the municipality for local capital improvement projects;
and $38 to the state, of which $2 is dedicated to historic
document preservation and $36 for community invest-
ment. See General Statutes § 7-34a (a) (1), (d) and (e).
The parties agree that the legislature adopted the
amendments to § 7-34a (a) at least in part as a revenue
enhancing measure to help balance the state budget.
They also agree that there is no evidence that any mem-
ber of MERS has discontinued its membership in the
MERS system or halted or reduced its use of that system
as a result of the 2013 amendments. Finally, the parties
agree that, in most cases, the recording fees at issue
will be collected from the borrowers at closing and not
paid by MERS itself.
II
As an initial matter, we must address the dispute
between the parties about whether the fees imposed
by § 7-34a are more properly characterized as user fees
or taxes. The state contends that the payments are more
akin to taxes than user fees because the statute was
enacted primarily to raise revenues for the state and
its municipalities and because the lion’s share of the
fees incurred in connection with MERS-related transac-
tions is allocated to the state’s general fund, the state’s
community investment account, and municipal general
revenue accounts, whereas only a small fraction of the
fees is retained by the town clerks as compensation
for the recording service. The plaintiffs, by contrast,
contend that the fees, which are identified in the statute
as recording ‘‘fees’’; General Statutes § 7-34a; and are
paid in exchange for a discrete service of benefit to the
filer, are properly considered user fees. Courts in other
jurisdictions that have considered the question in other
contexts—e.g., for purposes of the federal tax injunc-
tion law, 28 U.S.C. § 1341 (2012)—have reached differ-
ent conclusions as to whether a purported ‘‘fee’’ that
generates more revenue than is needed to fund the
service for which the fee is charged, with the surplus
allocated to the government’s general fund, constitutes
a tax or a fee. Compare, e.g., Empress Casino Joliet
Corp. v. Balmoral Racing Club, Inc., 651 F.3d 722, 730
(7th Cir. 2011) (tax), with, e.g., San Juan Cellular Tele-
phone Co. v. Public Service Commission, 967 F.2d 683,
686 (1st Cir. 1992) (fee). But see S. Wolfe, ‘‘Municipal
Finance and the Commerce Clause: Are User Fees the
Next Target of the ‘Silver Bullet’?,’’ 26 Stetson L. Rev.
727, 729 (1997) (‘‘[r]ecent rulings by the [United States
Supreme] Court suggest that the difference between
user fees and taxes may be a distinction without a
difference’’). Because the payments at issue in this case
are hybrids, bearing some indicia of both taxes and
user fees, and because the parties have not fully briefed
the issue, we will assume, solely for purposes of the
present appeal, that we must apply the constitutional
standards governing both taxes and fees.
III
We now address the merits of the plaintiffs’ various
constitutional challenges,6 beginning with the plaintiffs’
claim that §§ 7-34a (a) (2) and 49-10 (h), by charging
nominees such as MERS higher recording fees than
other mortgagees, violate the equal protection guaran-
tees of the state and federal constitutions.7 We reject
this claim.
‘‘To prevail on an equal protection claim, a plaintiff
first must establish that the state is affording different
treatment to similarly situated groups of individuals.
. . . [I]t is only after this threshold requirement is met
that the court will consider whether the statute survives
scrutiny under the equal protection clause.’’ (Citation
omitted; internal quotation marks omitted.) Keane v.
Fischetti, 300 Conn. 395, 403, 13 A.3d 1089 (2011). For
purposes of this case, we will assume without deciding
that the similarly situated requirement is satisfied and
proceed to consider whether the legislature was war-
ranted in singling out the plaintiffs for disparate treat-
ment. Cf. City Recycling, Inc. v. State, 257 Conn. 429,
449, 778 A.2d 77 (2001).
‘‘When a statute is challenged on equal protection
grounds, whether under the United States constitution
or the Connecticut constitution, the reviewing court
must first determine the standard by which the chal-
lenged statute’s constitutional validity will be deter-
mined.’’ (Internal quotation marks omitted.) D.A.
Pincus & Co. v. Meehan, 235 Conn. 865, 875, 670 A.2d
1278 (1996). In the present case, to prevail on their
equal protection claim, the plaintiffs must overcome a
highly deferential standard of review. ‘‘If the statute
does not [affect] either a fundamental right or a suspect
class, its classification need only be rationally related to
some legitimate government purpose . . . .’’ (Internal
quotation marks omitted.) Id. This rational basis review
test ‘‘is satisfied [as] long as there is a plausible policy
reason for the classification . . . the legislative facts
on which the classification is apparently based ratio-
nally may have been considered to be true by the gov-
ernment decisionmaker . . . and the relationship of
the classification to its goal is not so attenuated as
to render the distinction arbitrary or irrational . . . .’’
(Citations omitted; internal quotation marks omitted.)
Id., 876.
‘‘It is undisputed that the constitutionality of the taxa-
tion scheme at issue . . . must be analyzed under
rational basis review because it neither implicates a
fundamental right, nor affects a suspect class. Indeed,
claims that taxation schemes violate the equal protec-
tion rights of those more heavily taxed are subject to an
especially deferential rational basis review. The United
States Supreme Court has explained that in taxation,
even more than in other fields, legislatures possess the
greatest freedom in classification. Since the members
of a legislature necessarily enjoy a familiarity with local
conditions [that a reviewing] [c]ourt cannot have, the
presumption of constitutionality can be overcome only
by the most explicit demonstration that a classification
is a hostile and oppressive discrimination against partic-
ular persons and classes. . . . Accordingly, that court
has repeatedly held that inequalities [that] result from
a singling out of one particular class for taxation or
exemption, infringe no constitutional limitation.’’ (Cita-
tion omitted; internal quotation marks omitted.) Mar-
kley v. Dept. of Public Utility Control, 301 Conn. 56,
70, 23 A.3d 668 (2011); see, e.g., Alabama Dept. of Reve-
nue v. CSX Transportation, Inc., U.S. , 135 S.
Ct. 1136, 1142–43, 191 L. Ed. 2d 113 (2015). ‘‘Similarly,
this court consistently has held that the state does not
violate the equal protection clause by singling out a
particular class for taxation or exemption.’’ Markley v.
Dept. of Public Utility Control, supra, 71. Rather, ‘‘[t]he
burden is on the one attacking the legislative arrange-
ment to negative every conceivable basis [that] might
support it.’’ (Emphasis in original; internal quotation
marks omitted.) D.A. Pincus & Co. v. Meehan, supra,
235 Conn. 876–77. The same deferential standards gov-
ern equal protection challenges to user fees. See, e.g.,
United States v. Sperry Corp., 493 U.S. 52, 65, 110 S.
Ct. 387, 107 L. Ed. 2d 290 (1989); Kadrmas v. Dickinson
Public Schools, 487 U.S. 450, 462–63, 108 S. Ct. 2481,
101 L. Ed. 2d 399 (1988).
Turning to the case before us, we first consider
whether the challenged statutes seek to accomplish a
legitimate public purpose. The parties agree that one
primary purpose of the legislature in imposing higher
recording fees on mortgage nominees such as MERS
was simply to raise additional revenues, either to com-
pensate for fees allegedly lost as a result of the MERS
business model or, more generally, to help balance the
state’s budget. It is well established that raising reve-
nues is a legitimate purpose—often the primary pur-
pose—of a tax or a fee. See Harbor Ins. Co. v. Groppo,
208 Conn. 505, 511, 544 A.2d 1221 (1988) (tax); Eagle
Rock Sanitation, Inc. v. Jefferson County, United States
District Court, Docket No. 4:12-CV-00100-EJL-CWD (D.
Idaho November 22, 2013) (fee). Accordingly, the first
prong of the test is satisfied.8
The dispute between the parties thus centers around
the question of whether it is permissible for the legisla-
ture to impose a higher share of the state’s revenue
burden on nominees such as MERS than it does on other
recording parties. That is to say, we must determine
whether the disparate treatment imposed by §§ 7-34a
(a) (2) and 49-10 (h) is rationally related to the goal of
raising revenues and recouping lost fees.
Before considering whether the legislature had a
rational basis for imposing higher recording fees on
nominees such as MERS than on other mortgagees, we
first address the plaintiffs’ contention that we must
restrict our analysis in this regard to those theories that
the state raised before the trial court and that find
evidentiary support in the record. The plaintiffs mis-
state the law. As the trial court properly recognized,
the state ‘‘has no obligation to produce evidence to
sustain the rationality of a statutory classification. [A]
legislative choice is not subject to courtroom [fact-find-
ing] and may be based on rational speculation unsup-
ported by evidence or empirical data. . . . A statute is
presumed constitutional . . . and [t]he burden is on
the one attacking the legislative arrangement to nega-
tive every conceivable basis which might support it
. . . whether or not the basis has a foundation in the
record.’’ (Citations omitted; internal quotation marks
omitted.) Heller v. Doe ex rel. Doe, 509 U.S. 312, 320–21,
113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993). Indeed, it is
well established that a reviewing court need not restrict
its analysis even to those rationales proffered by the
parties but may itself hypothesize plausible reasons why
a legislative body might have drawn the challenged
statutory distinctions. See, e.g., Federal Communica-
tions Commission v. Beach Communications, Inc., 508
U.S. 307, 318, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993);
Kadrmas v. Dickinson Public Schools, supra, 487 U.S.
462–63; American Express Travel Related Services Co.
v. Kentucky, 641 F.3d 685, 690 (6th Cir. 2011). In the
present case, in light of the highly deferential standard
of review that applies to tax and user fee legislation
and other forms of purely economic regulation, we per-
ceive at least two conceivable bases on which the legis-
lature might reasonably have imposed higher recording
fees on nominees such as MERS than on other mort-
gagees.
First, the legislature might simply have concluded
that a large corporation such as MERS, which is
involved in nearly two thirds of the nation’s residential
mortgage transactions, is better able to shoulder high
recording fees than are smaller mortgagees. Although
it is true that large banks, loan servicing companies,
and other well-heeled mortgagees may be no less able
to afford such fees, a statute subject to rational basis
review can be under inclusive without running afoul of
the equal protection clause. See, e.g., Nordlinger v.
Hahn, 505 U.S. 1, 11, 112 S. Ct. 2326, 120 L. Ed. 2d 1
(1992) (‘‘[i]n structuring internal taxation schemes the
[s]tates have large leeway in making classifications and
drawing lines [that] in their judgment produce reason-
able systems of taxation’’ [internal quotation marks
omitted]); Markley v. Dept. of Public Utility Control,
supra, 301 Conn. 70 (‘‘[A] legislature is not bound to
tax every member of a class or none. It may make
distinctions of degree having a rational basis, and when
subjected to judicial scrutiny they must be presumed
to rest on that basis if there is any conceivable state
of facts [that] would support it.’’ [Internal quotation
marks omitted.]); Harbor Ins. Co. v. Groppo, supra, 208
Conn. 511 (‘‘[R]ecognizing that any plan of taxation
necessarily has some discriminatory impact . . . we
have previously stated the operative test for the validity
of a tax statute to be the following: As long as some
conceivable rational basis for the difference exists, a
classification is not offensive merely because it is not
made with mathematical nicety.’’ [Citations omitted;
emphasis in original; internal quotation marks omit-
ted.]). Indeed, our sister state courts have upheld taxa-
tion schemes that impose a heightened burden on
individual corporate taxpayers when there is a princi-
pled basis for doing so. See, e.g., North Pole Corp. v.
East Dundee, 263 Ill. App. 3d 327, 336–37, 635 N.E.2d
1060 (1994); Horizon Blue Cross Blue Shield v. State,
425 N.J. Super. 1, 21–23, 39 A.3d 228 (App. Div.), cert.
denied, 211 N.J. 608, 50 A.3d 41 (2012); see also Verizon
New England, Inc. v. Rochester, 156 N.H. 624, 631, 940
A.2d 237 (2007) (city could tax one public utility more
heavily than others if selective taxation was reasonably
related to legitimate public interest).9
Second, as the trial court recognized, the legislature
reasonably may have determined that mortgage assign-
ments that typically would be recorded in the public
land records are not recorded for loans registered with
the MERS system because MERS remains the mort-
gagee of record for its members. Accordingly, the legis-
lature could have raised the initial recording fee that
MERS pays, as well as the final fee that is paid when
the mortgage is released or transferred out of the MERS
system, to compensate for the fees ‘‘lost’’ over the
course of the life of the loan.
The plaintiffs offer four arguments in response: (1)
there is no evidence in the record to support the con-
tention that assignments are recorded less frequently
for MERS loans than for other mortgagees’ loans; (2)
there is no legal requirement that assignments be
recorded in the public land records; (3) even if town
clerks do perform fewer recording duties with respect
to MERS loans than non-MERS loans, there is no reason
to compensate town clerks for lost recording revenues
because they already save the costs associated with not
having to record assignments of MERS loans, or, put
differently, clerks are not entitled to payment for ser-
vices that they do not perform; and (4) even if town
clerks have lost recording fees under the MERS system,
there is no rational relationship between those losses
and the fees imposed under §§ 7-34a (a) (2) and 49-10
(h) because those fees are primarily allocated to the
state’s general fund and to municipal accounts, rather
than to the clerks themselves. We consider each argu-
ment in turn.
With respect to the plaintiffs’ argument that there is
no evidence in the record that mortgage assignments
are recorded less frequently for MERS-listed loans than
for non-MERS loans, we already explained that, under
the rational basis test, our review is not limited to theo-
ries that the state has documented at trial or that have
been subject to judicial fact-finding. Rather, courts may
consider—and it is the plaintiffs who must debunk—
any rationale that might plausibly have motivated the
legislature. In the present case, it cannot be seriously
suggested that the MERS model might not result in
fewer recordings in the public land records, with con-
comitant cost savings to MERS and its users. Indeed,
the plaintiffs’ argument is undercut repeatedly by the
amici supporting their own position. The amici compris-
ing two bankers associations and a land title association
represent, for example, that (1) prior to the advent of
MERS, recording expenses added at least $30 to the
cost of each loan, and sometimes substantially more,
(2) MERS was devised ‘‘with an eye toward eliminating
many of the unnecessary costs . . . associated with
land title and recording issues,’’ (3) assignments that
typically were filed on the land records before the estab-
lishment of MERS are no longer required, (4) this
reduced need for assignments results in lower title
insurance and closing costs for both buyers and sellers
using the MERS system, and (5) MERS ‘‘made the trans-
fer of loans in the secondary market both cheaper
and simpler.’’
The amici also direct our attention to scholarly litera-
ture concluding that MERS ‘‘reduces the need to pay
additional recording fees associated with subsequent
transfers of mortgage loans or mortgage loan servicing
rights’’ and to an article published by a former senior
executive officer of MERS predicting that, because
MERS ‘‘eliminates the need to record later assignments
in the public land records . . . MERS will save the
mortgage industry $200 million a year by eliminating
the need for many assignments. Because MERS should
decrease the cost of servicing transfers, mortgage loan
portfolios may begin to reflect a price difference if
the loans are MERS registered.’’ Moreover, ‘‘[w]hether
[town recorders’] assignment revenues will drop [as a
result] remains an open question.’’ In light of these
publicly available statements, we have no difficulty con-
cluding that the legislature might reasonably have deter-
mined that parties to MERS-listed loans can obtain sig-
nificant cost savings in recording fees over the life of
a loan and that, as a result, it is not unfair to ask them
to pay higher recording fees at the outset and again
when the mortgage ultimately is released or transferred
out of the MERS system.
The plaintiffs’ second argument, namely, that there is
no legal requirement that assignments of loan servicing
rights be recorded in Connecticut, is a red herring. It
is clear from the above quoted statements that, when
the plaintiffs represent that the MERS system ‘‘elimi-
nates the need to record later assignments in the public
land records’’; (emphasis added); they refer not to any
legal recording requirement but, rather, to the fact that,
from a practical standpoint, loan assignments must be
recorded if the holder is to perfect its security interest
and to avoid potentially costly gaps in the chain of title.
Nor are we persuaded by the plaintiffs’ third argu-
ment, namely, that the legislature had no legitimate
reason to compensate town clerks for lost recording
revenues because, if a document is not recorded, the
town clerk has performed no service for which he or
she deserves to be compensated. There are three flaws
with this argument. First, the argument accounts for
only the marginal costs associated with recording a
document. The costs of running a town clerk’s office,
including the clerk’s salary and benefits, building and
utilities, information technology infrastructure, and the
like, are largely fixed. By contrast, the marginal costs
associated with recording any particular document—a
bit of paper and ink, or the digital equivalents thereof—
are quite limited. Thus, if increased use of the MERS
system means that a clerk’s workload drops by 10 per-
cent, it is unlikely that the clerk’s office will recognize
a corresponding 10 percent cost savings. It therefore
was reasonable for the legislature to impose higher up-
front and back-end fees on MERS transactions to help
the town clerks maintain budget stability.
Second, the plaintiffs fail to acknowledge that the
service provided by a clerk’s office only begins with
the recording of a document. The principal service pro-
vided, and the principal value to the recording party,
is that a record of the transaction is perpetually main-
tained and made available to the public for search by
any interested party. This is the primary reason parties
opt to record assignments and other loan documents.
One value of the MERS system to subsequent transfer-
ees, then, is that it allows them essentially to free ride
on the public recording system. They reap the benefit
of MERS’ initial recording as mortgagee, without having
to pay—at least without having to pay the clerk—for
the ongoing benefit of the public notice. It is reasonable
to assume that the legislature imposed higher up-front
recording fees on MERS loans as a way to remedy this
free rider problem.
Third, the plaintiffs go astray in considering the issue
solely from the standpoint of the town clerk. Regardless
of whether the clerks have lost money as a result of a
lower recording rate for assignments of MERS loans,
it seems clear that MERS, its members, and the buyers
and sellers involved in MERS-listed transactions do
achieve some savings in recording costs. If the legisla-
ture concluded that this system of loan processing
results in significant cost savings for MERS members
and its users, the legislature was free to impose a higher
tax or fee on those transactions in order to recapture
a portion of those savings. See Rosemont v. Price-
line.com, Inc., United States District Court, Docket No.
09 C 4438 (N.D. Ill. October 14, 2011) (equal protection
clause was not offended when town imposed hotel tax
on only those travel companies using distinct business
model that otherwise would have resulted in tax savings
for those companies); Horizon Blue Cross Blue Shield
v. State, supra, 425 N.J. Super. 22–23 (equal protection
clause was not offended when state imposed tax solely
on health service companies, of which plaintiff was sole
exemplar, which previously had advantage of certain
tax loopholes).
Finally, the plaintiffs’ fourth argument is that, even
if town clerks have lost recording fees as a result of the
MERS system, there is no rational relationship between
those losses and the heightened fees imposed under
§§ 7-34a (a) (2) and 49-10 (h), which primarily are allo-
cated to the state’s general fund and municipal
accounts. This argument fails because, among other
things, it assumes a system of municipal financing that
is largely obsolete. Pursuant to General Statutes § 7-
34b (b), ‘‘[a]ny town may, by ordinance, provide that
the town clerk shall receive a salary in lieu of all fees
and other compensation provided for in the general
statutes . . . . Upon the adoption of such ordinance
the fees or compensation provided by the general stat-
utes to be paid to the town clerk shall be collected by
such town clerk and he shall deposit all such money
collected by him in accordance with such provisions
of law as govern the deposit of moneys belonging to
such town.’’ On the basis of publicly available docu-
ments, the legislature reasonably could have concluded
that only a handful of Connecticut towns still hew to the
traditional model under which financially independent
clerks’ offices retain the recording fees they collect,
and that, in most cases, such fees are now paid into
a town’s general revenues. See Office of Legislative
Research, Connecticut General Assembly, Report No.
2006-R-0297, Town Clerks: Duties, Responsibilities, and
Fee Collection (April 26, 2006). Accordingly, a falloff in
recording fees will adversely impact municipal budgets
and potentially result in a heightened need for local
community support by the state. For these reasons, we
conclude that the distinctions established by §§ 7-34a
(a) (2) and 49-10 (h) are rationally related to legitimate
public interests and, therefore, do not offend the equal
protection provisions of the state or federal consti-
tution.
IV
We next consider the plaintiffs’ claim that §§ 7-34a
(a) (2) and 49-10 (h) violate the dormant commerce
clause of the federal constitution. The commerce clause
provides that Congress shall have the power ‘‘[t]o regu-
late Commerce with foreign Nations, and among the
Several States, and with the Indian Tribes . . . .’’ U.S.
Const., art. I, § 8, cl. 3. ‘‘Although the [c]lause is framed
as a positive grant of power to Congress, [the United
States Supreme Court has] consistently held this lan-
guage to contain a further, negative command, known
as the dormant [c]ommerce [c]lause, prohibiting certain
state [regulation] even when Congress has failed to
legislate on the subject.’’ (Internal quotation marks
omitted.) Comptroller of the Treasury v. Wynne,
U.S. , 135 S. Ct. 1787, 1794, 191 L. Ed. 2d 813 (2015).
‘‘[T]he dormant [c]ommerce [c]lause precludes [s]tates
from discriminat[ing] between transactions on the basis
of some interstate element. . . . This means, among
other things, that a [s]tate may not tax a transaction or
incident more heavily when it crosses state lines than
when it occurs entirely within the [s]tate. . . . Nor may
a [s]tate impose a tax [that] discriminates against inter-
state commerce either by providing a direct commercial
advantage to local business, or by subjecting interstate
commerce to the burden of multiple taxation.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.
Although the recording transactions at issue in this
case may themselves be purely local in nature, the pres-
ence of MERS as a participant indicates that many of
the mortgage loans involved ultimately will be trans-
ferred on the national secondary loan market. For this
reason, and in light of the unique role that MERS plays
in the national secondary market, we will assume that
interstate commerce is implicated. See Camps New-
found/Owatonna, Inc. v. Harrison, 520 U.S. 564, 573,
117 S. Ct. 1590, 137 L. Ed. 2d 852 (1997) (‘‘if it is interstate
commerce that feels the pinch, it does not matter how
local the operation [that] applies the squeeze’’ [internal
quotation marks omitted]).
We first consider what legal standard governs chal-
lenges to taxes and user fees under the dormant com-
merce clause. The plaintiffs, at varying times, suggest
that the fees at issue in this case should be assessed
according to the tests and legal analysis that the United
States Supreme Court has applied to dormant com-
merce clause challenges against (1) general regulatory
measures, (2) tax schemes, and (3) user fees. The plain-
tiffs may be forgiven for any confusion in this regard,
however, as the United States Supreme Court’s dormant
commerce clause jurisprudence is less than a model of
clarity, particularly in the area of user fees and general
and special revenue taxes.10 That court itself has
acknowledged ‘‘the uneven course of [its] decisions in
this field’’; American Trucking Assns., Inc. v. Scheiner,
483 U.S. 266, 269, 107 S. Ct. 2829, 97 L. Ed. 2d 226
(1987); and has indicated that its inability to settle on
a guiding legal framework has created ‘‘a quagmire of
judicial responses . . . .’’ (Internal quotation marks
omitted.) Id., 280; see also S. Wolfe, supra, 26 Stetson
L. Rev. 778–81 (discussing ambiguous state of law).
Moreover, the high court’s recent dormant commerce
clause decisions have been decided by the narrowest
of margins, with substantial disagreement among the
members of that court as to the proper test or tests to
be applied. See, e.g., Comptroller of the Treasury v.
Wynne, supra, 135 S. Ct. 1791. As a result, several dis-
tinct but partially overlapping tests may be thought to
govern the present case. See, e.g., id., 1802 (applying
internal consistency test to income tax scheme); Dept.
of Revenue v. Davis, 553 U.S. 328, 338–40, 128 S. Ct.
1801, 170 L. Ed. 2d 685 (2008) (general two part test
governs all state regulations, including taxes, but differ-
ent rules may govern taxes and fees imposed by state
in its dual capacity as market participant and regulator);
Complete Auto Transit, Inc. v. Brady, 430 U.S. 274,
279, 97 S. Ct. 1076, 51 L. Ed. 2d 326 (1977) (establishing
four part test governing state taxes that impact inter-
state commerce); Evansville-Vanderburgh Airport
Authority District v. Delta Airlines, Inc., 405 U.S. 707,
716–17, 92 S. Ct. 1349, 31 L. Ed. 2d 620 (1972) (establish-
ing three part test governing user fees and special reve-
nue taxes); Pike v. Bruce Church, Inc., 397 U.S. 137,
142, 90 S. Ct. 844, 25 L. Ed. 2d 174 (1970) (establishing
balancing test governing any facially neutral state regu-
lation). As United States Supreme Court Justice Antonin
Scalia recently lamented: ‘‘One glaring defect of the
negative [c]ommerce [c]lause is its lack of governing
principle. Neither the [c]onstitution nor our legal tradi-
tions offer guidance about how to separate improper
state interference with commerce from permissible
state taxation or regulation of commerce. So we must
make the rules up as we go along. That is how we
ended up with the bestiary of ad hoc tests and ad hoc
exceptions that we apply nowadays . . . .’’ (Citations
omitted.) Comptroller of the Treasury v. Wynne, supra,
1809 (Scalia, J., dissenting).
Fortunately, we need not wade into this quagmire or
attempt to divine the precise standards by which the
United States Supreme Court might judge the statutes at
issue in this case. This is because the parties apparently
agree that their dispute boils down to the question of
whether two central criteria—criteria that reappear
throughout the United States Supreme Court’s various
dormant commerce clause tests and frameworks—are
satisfied. First, a state user fee or tax is presumed to
violate the dormant commerce clause if it facially dis-
criminates against interstate commerce. See, e.g.,
United Haulers Assn., Inc. v. Oneida-Herkimer Solid
Waste Management Authority, 550 U.S. 330, 338, 127
S. Ct. 1786, 167 L. Ed. 2d 655 (2007). ‘‘In this context,
discrimination simply means differential treatment of
in-state and out-of-state economic interests that bene-
fits the former and burdens the latter. . . . Discrimina-
tory laws motivated by simple economic protectionism
are subject to a virtually per se rule of invalidity . . .
[that] can . . . be overcome [only] by a showing that
the [s]tate has no other means to advance a legitimate
local purpose . . . .’’ (Citations omitted; internal quo-
tation marks omitted.) Id., 338–39. Second, a fee or
tax that is facially neutral nevertheless may offend the
dormant commerce clause if it has the practical effect
of imposing a burden on interstate commerce that is
disproportionate to the legitimate benefits. See, e.g.,
Dept. of Revenue v. Davis, supra, 553 U.S. 365 (Kennedy,
J., dissenting). We consider each criterion.
A
Facial Discrimination
The plaintiffs first contend that the challenged stat-
utes discriminate on their face against interstate com-
merce because they impose higher recording fees only
on those transactions involving a mortgage nominee,
such as MERS, that operates in conjunction with a
national electronic database. The plaintiffs argue that
there is no apparent justification for penalizing compa-
nies that operate national databases, as opposed to a
hypothetical nominee operating a database that tracks
only mortgage loans transferred between Connecticut-
based entities or securing Connecticut-based proper-
ties. For this reason, they contend, §§ 7-34a (a) (2) and
49-10 (h) presumptively violate the dormant commerce
clause. There are at least four problems with this
argument.
First, although the plaintiffs correctly note that a
statute can facially discriminate against interstate com-
merce even if it does not expressly favor in-state over
out-of-state businesses; see Healy v. Beer Institute, 491
U.S. 324, 340–41, 109 S. Ct. 2491, 105 L. Ed. 2d 275
(1989); the United States Supreme Court nevertheless
has emphasized that ‘‘[t]he central rationale for the rule
against discrimination is to prohibit state or municipal
laws whose object is local economic protectionism,
laws that would excite those jealousies and retaliatory
measures the [c]onstitution was designed to prevent.’’
C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383, 390,
114 S. Ct. 1677, 128 L. Ed. 2d 399 (1994); see also Dept.
of Revenue v. Davis, supra, 553 U.S. 337–38 (‘‘economic
protectionism . . . designed to benefit in-state eco-
nomic interests by burdening out-of-state competitors’’
is paradigmatic form of discrimination [internal quota-
tion marks omitted]); Healy v. Beer Institute, supra,
326 (challenged statute ensured favorable pricing for
residents of Connecticut and maintained competitive-
ness of Connecticut-based retailers); Philadelphia v.
New Jersey, 437 U.S. 617, 624, 98 S. Ct. 2531, 57 L. Ed.
2d 475 (1978) (‘‘[t]he crucial inquiry . . . must be
directed to determining whether [the challenged stat-
ute] is basically a protectionist measure, or whether it
can fairly be viewed as a law directed to legitimate local
concerns, with effects [on] interstate commerce that
are only incidental’’). In the present case, there is no
indication that the legislative choice to impose higher
fees on nominees—whether in state or out of state—
who operate national mortgage databases reflected an
invidious discrimination against out-of-state interests,
or an effort to favor Connecticut-based financial compa-
nies. If anything, the opposite is true, as the likely result
will be that Connecticut homeowners, who, the parties
agree, typically absorb the higher upfront fees for
MERS-listed loans, will subsidize out-of-state banks and
government sponsored financing corporations or their
agents, who, upon acquiring the loans in the secondary
market, will receive the benefits of recordings in the
public land records without having to pay the associated
costs. See United Haulers Assn., Inc. v. Oneida-Herki-
mer Solid Waste Management Authority, supra, 550
U.S. 345.
Nor do we believe that the hypothetical favored mort-
gage nominee the plaintiffs conjure up—one that oper-
ates a Connecticut only electronic database—is any-
thing other than a chimera. Because the secondary resi-
dential mortgage market is national in scope and is
dominated by federal agencies that are located outside
of this state, there would be no reason for a company
to invest in an electronic registration system that tracks
only loan transfers between Connecticut investors, or
only loans issued in connection with Connecticut-based
properties.11 The plaintiffs do not contend that any such
competitor currently exists or is likely to emerge in the
foreseeable future. As the Supreme Court explained in
Associated Industries v. Lohman, 511 U.S. 641, 114 S.
Ct. 1815, 128 L. Ed. 2d 639 (1994), ‘‘[it has] never deemed
a hypothetical possibility of favoritism to constitute
discrimination that transgresses constitutional com-
mands.’’ Id., 654; see also Exxon Corp. v. Governor, 437
U.S. 117, 125, 98 S. Ct. 2207, 57 L. Ed. 2d 91 (1978)
(disparate treatment claim was meritless when state’s
entire gasoline supply flowed in interstate commerce).
Second, notwithstanding the statutory reference to
national electronic databases; General Statutes § 7-34a
(a) (2) (C); we do not interpret the challenged statute
to be a facial attack on interstate commerce. Rather,
the record suggests—and the plaintiffs conceded at oral
argument—that the language in question appears in § 7-
34a only because the legislature cut and pasted it from
MERS’ own corporate documents describing the com-
pany’s business model. In other words, the legislature’s
apparent intent was not to impose higher recording fees
on residential mortgage transactions with a national
character but, rather, merely to indicate that the higher
fees are directed at MERS and any other mortgage nom-
inees that may develop virtual recording systems to
facilitate transactions in the secondary mortgage mar-
ket. It is only because that market, like many modern
financial markets, happens to be national in scope that
the ‘‘national electronic database’’ language found its
way into § 7-34a.12 Both this court and the United States
Supreme Court have emphasized in this regard ‘‘the
importance of looking past the formal language of [a]
tax statute [to] its practical effect . . . .’’ (Internal quo-
tation marks omitted.) Chase Manhattan Bank v.
Gavin, 249 Conn. 172, 210, 733 A.2d 782, cert. denied,
528 U.S. 965, 120 S. Ct. 401, 145 L. Ed. 2d 312 (1999);
accord Quill Corp. v. North Dakota ex rel. Heitkamp,
504 U.S. 298, 310, 112 S. Ct. 1904, 119 L. Ed. 2d 91 (1992).
As we discuss hereinafter, we perceive no deleterious
effect of the challenged legislation on the national sec-
ondary mortgage market.
Third, the United States Supreme Court has explained
that ‘‘a fundamental element of dormant [c]ommerce
[c]lause jurisprudence [is] the principle that any notion
of discrimination assumes a comparison of substan-
tially similar entities.’’ (Internal quotation marks omit-
ted.) Dept. of Revenue v. Davis, supra, 553 U.S. 342. As
we explained in part III of this opinion, MERS is not
substantially similar to other mortgagees—even other
mortgage nominees—with respect to the roles they play
in Connecticut’s residential mortgage recording market.
Whereas traditional mortgagees are primarily lenders
or loan servicing companies, MERS is identified as a
mortgagee in the public land records as a sort of place-
holder, indicating to interested parties that the recent
chain of title to a MERS-listed property may be traced
by consulting the MERS database. Accordingly, the stat-
utes do not facially discriminate against interstate com-
merce. Rather, they simply recognize that MERS, which
uses the public land records as a means of enhancing
the value that its member companies obtain from its
electronic registration services, may realize a distinct
and greater benefit from recording its interests than do
other mortgagees.
Fourth, and relatedly, even if we believed that the
statutes in question discriminated against interstate
commerce, we would conclude, for reasons discussed
in part III of this opinion, that there is no constitutional
violation because such discrimination advances a legiti-
mate local purpose. See, e.g., Camps Newfound/Owa-
tonna, Inc. v. Harrison, supra, 520 U.S. 581. It is well
established that interstate commerce can be made to
‘‘pay its way’’ under a state regulatory scheme without
running afoul of the dormant commerce clause. (Inter-
nal quotation marks omitted.) Commonwealth Edison
Co. v. Montana, 453 U.S. 609, 616, 101 S. Ct. 2946, 69
L. Ed. 2d 884 (1981). In the present case, to the extent
that the purpose of the challenged legislation was
merely to recoup from MERS the recording fees that
its members otherwise would have paid upon the trans-
fer of a mortgage in the secondary market, §§ 7-34a (a)
(2) and 49-10 (h) represent a legitimate attempt to level
the playing field between MERS members and nonmem-
bers and to ensure that recording revenues are not lost
as a result of MERS’ novel business model. For all of
the foregoing reasons, we agree with the state that
the statutes do not discriminate impermissibly against
interstate commerce.
B
Undue Burden
We next consider the plaintiffs’ claim that the chal-
lenged statutes place an undue burden on the national
secondary mortgage market. Their argument appears
to be that, despite the dearth of any evidence that the
increased fees have adversely impacted MERS’ business
or the secondary mortgage market in general, the simple
fact that the state receives more than $5 million per
year in increased fees on MERS-related transactions is,
ipso facto, proof that interstate commerce has been
burdened. The plaintiffs further contend that, because
both the costs to the state and the benefits to the filers
are the same for the recording of MERS and non-MERS
transactions, but MERS is forced to pay fees that are
approximately three times higher than other mortgag-
ees, the costs imposed are necessarily disproportionate
to the benefits. We are not persuaded.
The amount of a tax or user fee is presumed to be
appropriate; S. Wolfe, supra, 26 Stetson L. Rev. 739;
and the plaintiffs must demonstrate that the burdens
imposed on interstate commerce clearly outweigh the
benefits. See, e.g., Dept. of Revenue v. Davis, supra,
553 U.S. 353. As we explained in part III of this opinion,
we are not convinced that either the costs or the bene-
fits of recording a MERS-listed mortgage are the same
as for any other mortgagee. Let us assume that a hypo-
thetical non-MERS thirty year mortgage loan is trans-
ferred to a different lender every ten years during the
life of the loan and that each subsequent holder records
its interest in the public land records. Under that sce-
nario, the original lender’s recording fees would afford
it the benefit of ten years of public notice of its interest
in the property, and the clerk’s office would receive
three recording fees—the initial one and the fees for
two assignments—to subsidize its costs of operation
over the term of the loan, not including the release when
the loan is fully repaid. Under the same circumstances,
however, MERS and its members would continue to
receive the benefit of the initial filing fee for the entire
thirty year term of the loan, regardless of the number
of intervening assignments among MERS members, and
the clerk’s office will be correspondingly poorer. See
S. Wolfe, supra, 742 (noting that length of use of public
service ‘‘strongly affects cost’’); id., 744 (noting impor-
tance of intangibles in calculating value of public ser-
vice and that continued consumer use suggests that
fees are not disproportionate to value provided).
Accordingly, we cannot say that imposing higher front-
end and back-end fees on MERS transactions in order
to compensate for the reduced number of recorded
mortgage assignments imposes an undue burden on
MERS or, by extension, interstate commerce. See Asso-
ciated Industries v. Lohman, supra, 511 U.S. 647 (inter-
state and intrastate transactions may be taxed dif-
ferently, as long as ultimate burdens are comparable).
The United States Supreme Court also has suggested
that, in gauging the burdens imposed on interstate com-
merce, a reviewing court should consider whether, if
every state were to adopt the challenged policy, the
result would be to ‘‘place interstate commerce at a
disadvantage as compared with commerce intrastate.’’
(Internal quotation marks omitted.) Comptroller of the
Treasury v. Wynne, supra, 135 S. Ct. 1802. In the present
case, even if every state were to charge $106 extra to
record MERS-listed mortgages in its corresponding land
records, there is nothing in the record to suggest that
those higher fees, taken together, would unduly burden
interstate commerce. There is no indication that higher
recording fees would so overshadow the benefits of
participation in a national electronic registration system
that borrowers and lenders would opt not to participate
in MERS or that the vitality of the secondary mortgage
market would be compromised. The parties have agreed
that higher fees have not resulted in a loss of MERS
business within this state, and there is no reason to
believe the outcome would differ elsewhere, or nation-
ally. Nor is there any evidence of (1) what share of
the estimated $5.4 million that the state will receive in
additional annual recording fees will be borne by MERS
and its members, and how that amount compares to
the annual profits on their residential mortgage lending
business in Connecticut, (2) what share of the increased
fees will be borne by borrowers, and what impact those
fees will have on their total closing costs, or (3) what
cost savings MERS, its members, and borrowers in
MERS-related transactions have achieved as a result of
the MERS system. We are mindful in this regard of the
United States Supreme Court’s recent guidance that the
judiciary is particularly ill-suited to making the sorts of
complex predictions and subtle cost-benefit calcula-
tions necessary to assess whether a particular tax
scheme is unduly burdensome. See Dept. of Revenue
v. Davis, supra, 553 U.S. 355.
In Davis, the United States Supreme Court also cau-
tioned that a court ‘‘should be particularly hesitant to
interfere . . . under the guise of the [c]ommerce
[c]lause [when] a [state or] local government engages
in a traditional government function,’’ of which the
maintenance of public land records is clearly an exam-
ple. (Internal quotation marks omitted.) Id., 341, quoting
United Haulers Assn., Inc. v. Oneida-Herkimer Solid
Waste Management Authority, supra, 550 U.S. 344. In
light of this guidance, and given the parties’ stipulation
that the legislation at issue has not redounded to the
tangible detriment of the MERS business model, we are
compelled to defer to the legislature’s judgment that
the fees at issue represent a reasonable approximation
of the savings in recording costs generated by use of
the MERS system. Accordingly, §§ 7-34a (a) (2) and 49-
10 (h) do not offend the dormant commerce clause,13
and we reject the plaintiffs’ claim to the contrary.14
The judgment is affirmed.
In this opinion the other justices concurred.
1
We hereinafter refer to the defendants collectively as the state.
2
The plaintiffs appealed from the judgment of the trial court to the Appel-
late Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
The plaintiffs have not appealed from the trial court’s ruling that the
challenged statutes do not offend the takings provisions of the federal and
state constitutions, and, accordingly, those claims are not before us.
We granted permission for two groups to file amicus curiae briefs: the
Connecticut Bankers Association, Connecticut Mortgage Bankers Associa-
tion, and American Land Title Association; and the Jerome N. Frank Legal
Services Organization and the Connecticut Fair Housing Center.
3
For the sake of brevity, in this opinion, we use the term MERS to refer
to (1) the electronic recording system, (2) the entities that are the plaintiffs
in this case, in their capacity as operators of the MERS system, and (3) the
general model according to which changing legal interests in residential
mortgages and mortgage loans are recorded in the MERS system.
4
The state interprets § 7-34a (a) (2) (B) to mean that, in addition to the
$159 recording fee, a nominee of a mortgagee filing an assignment or release
under that subparagraph must pay $10 for the first recorded page and $5
for each additional page pursuant to § 7-34a (a) (1). The plaintiffs contend
that it is unclear whether town clerks are permitted to charge these addi-
tional fees, in light of the statement in § 7-34a (a) (2) (B) that ‘‘[n]o other
fees shall be collected from the nominee for such recording.’’ For purposes
of this appeal, because we glean from the state’s brief that these additional
fees are in fact being imposed on the plaintiffs, and that they are therefore
a subject of the plaintiffs’ complaint, we assume without deciding that the
statute authorizes such additional fees.
5
See footnote 4 of this opinion.
6
Because a challenge to the constitutionality of a statute presents a ques-
tion of law, our review is plenary. E.g., Keane v. Fischetti, 300 Conn. 395,
402, 13 A.3d 1089 (2011). We recognize, however, that legislation that struc-
tures and accommodates the burdens and benefits of economic life carries
a strong presumption of constitutionality. See, e.g., Schieffelin & Co. v.
Dept. of Liquor Control, 194 Conn. 165, 186, 479 A.2d 1191 (1984).
7
The equal protection clause of the fourteenth amendment to the United
States constitution provides that no state shall ‘‘deny to any person within
its jurisdiction the equal protection of the laws.’’ U.S. Const., amend. XIV,
§ 1. Article first, § 20, of the constitution of Connecticut provides in relevant
part: ‘‘No person shall be denied the equal protection of the law . . . .’’
Neither party contends that the state and federal constitutional analyses
diverge with respect to equal protection challenges to tax and fee statutes.
Accordingly, for purposes of this case, we treat the relevant state and federal
protections as coextensive. See, e.g., Keane v. Fischetti, 300 Conn. 395, 403,
13 A.3d 1089 (2011).
8
The plaintiffs also contend that the amendments to §§ 7-34a and 49-10
were motivated by an impermissible desire to punish MERS for its business
model. The trial court rejected this allegation, and we find no support for
it in the legislative history. Even if it were true, however, the outcome of
our analysis would be no different. As long as the challenged distinction is
rationally related to some legitimate public purpose that conceivably may
have motivated the legislature, it is irrelevant whether certain legislators
also may have been motivated by animus toward the plaintiffs. See, e.g.,
United States v. O’Brien, 391 U.S. 367, 383–84, 88 S. Ct. 1673, 20 L. Ed. 2d
672 (1968); see also Wisconsin Education Assn. Council v. Walker, 705 F.3d
640, 653 (7th Cir. 2013).
9
The equal protection cases on which the plaintiffs rely are readily distin-
guishable, as they primarily address legislative distinctions that (1) implicate
federalism or other constitutional interests, (2) are transparently arbitrary
and without rational basis, or (3) impose criminal or quasi-criminal sanc-
tions. See, e.g., Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432,
449–50, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985) (in rare case in which
United States Supreme Court held that challenged social legislation failed
to withstand rational basis review, court concluded that irrational fear of
mentally disabled individuals did not justify discriminatory zoning ordi-
nance); Williams v. Vermont, 472 U.S. 14, 23, 105 S. Ct. 2465, 86 L. Ed. 2d
11 (1985) (state impermissibly discriminated against nonresidents); Zobel
v. Williams, 457 U.S. 55, 64, 65, 102 S. Ct. 2309, 72 L. Ed. 2d 672 (1982)
(apportioning state benefits on basis of duration of residency would imper-
missibly divide citizens into castes and unduly infringe interstate travel
rights); James v. Strange, 407 U.S. 128, 138–39, 92 S. Ct. 2027, 32 L. Ed. 2d
600 (1972) (statute imposed ‘‘unduly harsh or discriminatory terms’’ on
indigent criminal defendants and potentially infringed right to counsel); City
Recycling, Inc. v. State, supra, 257 Conn. 453 (trial court’s specific factual
findings ‘‘directly negate[d] every conceivable rational basis for the legisla-
tion’’); State v. Reed, 192 Conn. 520, 531–32, 473 A.2d 775 (1984) (quasi-penal
statute imposing liability for hospital care expenses on certain confined
individuals but not others was deemed to be ‘‘entirely arbitrary’’); Caldor’s,
Inc. v. Bedding Barn, Inc., 177 Conn. 304, 316–18, 417 A.2d 343 (1979)
(applying stricter standard in case of penal statute); see also Allegheny
Pittsburgh Coal Co. v. County Commission, 488 U.S. 336, 345, 109 S. Ct.
633, 102 L. Ed. 2d 688 (1989) (county assessor failed to comply with uniform
state tax policy).
10
Because the statutory scheme at issue in this case allocates a portion
of the nominee filing fees to the state’s general fund and municipal accounts,
and a portion to the town clerks and the state’s community investment
account, the fees have characteristics of both general and special reve-
nue taxes.
11
To the extent that they suggest otherwise, the plaintiffs place the cart
before the horse. The amici consisting of the bankers associations and the
land title association, who support the plaintiffs’ position in this case, have
presented scholarship indicating that it was the national mortgage lending
industry and government sponsored financing corporations such as Fannie
Mae and Freddie Mac that partnered to create MERS to fill the need for a
central registry for the national residential mortgage industry. See R. Arnold,
‘‘Yes, There Is Life on MERS,’’ 11 Prob. & Prop. 33, 33 (1997); see also P.
Sargent & M. Harris, ‘‘The Myths and Merits of MERS’’ (September 25, 2012).
From its very inception, then, the MERS business was necessarily national
in scope.
12
Although the plaintiffs suggest in their reply brief that the statutes
bespeak a legislative intent to punish MERS for transacting business outside
of Connecticut, there is no evidence in either the record of this case or the
legislative history to support such a suggestion.
13
It might also be argued that, insofar as the state’s purpose in imposing
higher recording fees on MERS-listed mortgages is to prevent a competitor
in the mortgage recording business from free riding on its public recording
system, the state acts as a market participant—as well as a regulator—
with respect to MERS and, therefore, is immune from challenge under the
dormant commerce clause. See, e.g., Dept. of Revenue v. Davis, supra, 553
U.S. 339; SSC Corp. v. Smithtown, 66 F.3d 502, 510–12 (2d Cir. 1995), cert.
denied, 516 U.S. 1112, 116 S. Ct. 911, 133 L. Ed. 2d 842 (1996); see also
McBurney v. Young, U.S. , 133 S. Ct. 1709, 1720, 185 L. Ed. 2d 758
(2015) (state, having created market by offering program, does not offend
dormant commerce clause by restricting access to that market so as to favor
local interests). Because neither party has raised this argument, however, we
need not consider it.
14
On appeal, the plaintiffs also contend that enforcement of the challenged
statutes violates their substantive due process rights under the federal and
state constitutions, the federal constitutional prohibition against bills of
attainder, and 42 U.S.C. § 1983. We have reviewed these claims and, for
essentially the same reasons that we rejected the equal protection and
commerce clause claims, we find them to be without merit.