Amicus Brief on Wine Cases Before the Supreme Court

[Adam Mossoff]

I have been asked to write an amicus brief for a case in which the
Supreme Court recently granted cert., and I am looking to see if any
other law professors would like to join the brief.  The case is
Swedenburg v. Kelly, 358 F.3d 223 (2d Cir. 2003), cert. granted, 124
S.Ct. 2391 (May 24, 2004), which, along with its companion case, Heald
v. Engler, 342 F.3d 517 (6th Cir. 2003), cert. granted, Granholm v.
Heald, 124 S. Ct. 2389 (May 24, 2004), the Supreme Court picked up as
they represent a circuit split concerning the interpretation of the
power granted to the states under the Twenty-First Amendment to prohibit
imports of alcohol.  

This issue has come to a head following the boom in the wine market
over the past ten to fifteen years, and the resulting boom in small
wineries popping up throughout the country.  The Internet also has
played a role, as small wineries that could only serve local markets in
the past could now access a national market at very low cost by
advertising and shipping via the Internet.  The supply followed the
demand, and now there are large and small wineries in many states of the
union.   

Many states have responded to the increased production by small
wineries within their jurisdictions with explicitly protectionist
legislation.  These states began permitting their in-state wineries to
ship directly to in-state consumers (thus providing an exemption from
the typical state requirement that alcohol producers ship only to
wholesalers, who may ship only to retailers, who may sell alcohol only
to consumers).  These same states, however, continued to prohibit
out-of-state wineries from shipping directly to consumers.  The
purpose--sometimes explicitly stated in the legislative history,
sometimes inferable from the nature of the legislation--is to
discriminate against out-of-state economic interests in giving in-state
interests a competitive edge.   

In challenging these discriminatory restraints on interstate commerce,
wineries have been slowly working their way through the federal courts
over the past few years.  The most common challenge is that the
Twenty-First Amendment did not empower the states to discriminate in
interstate commerce in contravention of the Commerce Clause.  Some
litigants also claim that these laws violate the Privileges and
Immunities Clause of Article IV.  The states consistently have defended
their statutes by claiming the power to adopt any statutory restraints
on imports of alcohol under the Twenty-First Amendment. 

As noted, there is now a circuit split on the issue.  The Fourth,
Fifth, and Sixth Circuits have construed the Twenty-First Amendment as
permitting states to impose restraints on interstate commerce, but not
for the discriminatory purpose of protecting in-state economic
interests.  Thus, these circuits have applied the dormant Commerce
Clause doctrine and invalidated the discriminatory restraints imposed
against out-of-state wineries.  (If you're curious to see the analysis
employed in these circuits, one of the more comprehensive opinions is
the Fifth Circuit's decision in Dickerson v. Bailey, 336 F.3d 388 (5th
Cir. 2003).)  In Swedenburg v. Kelly, 358 F.3d 223 (2d Cir. 2004), the
Second Circuit rejected the analysis employed in its sister circuits,
and approved New York's discriminatory prohibition against
out-of-state wine imports under the Twenty-First Amendment.  The Seventh
Circuit basically split the difference, rejecting the analysis employed
in the Fourth, Fifth, and Sixth Circuits, but still recognizing that
states may not discriminate in their import restraints on alcoholic
beverages.

The plaintiffs in Swedenburg challenged New York's prohibition
against out-of-state wine imports under both the Commerce Clause and the
Privileges and Immunities Clause of Article IV.  The Supreme Court
granted cert. on the Commerce Clause issue only.  I was asked to write a
brief on behalf of a Virginia winery (who may also get its trade
association of Virginia wineries to join) emphasizing the relevance of
the Article IV analysis to the Commerce Clause issue. As the Supreme
Court granted cert. only on the Commerce Clause issue, the brief is
largely historical and emphasizes what the Court has referred to as the
"mutually reinforcing relationship" between the Commerce Clause and the
Privileges and Immunities Clause of Article IV.  In sum, the brief
grounds the dormant Commerce Clause doctrine in a constitutional norm of
nondiscrimination between the states that is reflected in both the
Commerce Clause and the Privileges and Immunities Clause, which the
Twenty-First Amendment did not annul with respect to interstate commerce
in alcoholic beverages. The purpose of the brief is to identify the
original intent and the textual basis in the Constitution for
invalidating New York's discriminatory restraint on importation of wine
under the Commerce Clause, or, alternatively, the Privileges and
Immunities Clause. 

The amicus hopes that more law professors might join the amicus brief,
creating a "law professors' brief" on the issue.  If you feel
comfortable speaking on the constitutional issues implicated in these
cases and are interested in joining the brief, please contact me and
I'll send you a draft so that you can confirm whether you want to
join or not.  (The amicus asks only that you keep the brief in
confidence and do not show it to anyone else.)  The deadline for turning
in the brief to the printer is July 23, so I must hear from any
interested professors before that date.

Best regards,

Adam Mossoff
Assistant Professor of Law
Michigan State University College of Law
417 Law College Building
East Lansing, MI  48824-1300
(517) 432-6962
amossoff at law.msu.edu