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Indiana wine-shipping case should not go to Supreme Court Knowledgeable wine lover
Serious weaknesses in the Bridenbaugh case Bridenbaugh vs. Freeman-Wilson, the legal challenge to Indiana's restrictive wine-shipping laws that was denied in the 7th District U.S. Court of Appeals, is so seriously flawed that it should not be appealed to the United States Supreme Court, argues a knowledgeable wine lover who closely follows judicial and legislative activity in the wine-shipping arena. "If the Court were to take this case up," says this expert, "it could be used as a vehicle to completely destroy any hope of using the Commerce Clause to overturning the states' bans on direct shipping. The consequence of such a negative decision would reverberate for the next 30 years and lock in the wholesalers' monopoly for the rest of our lifetimes." The author of this commentary is a wine-shipping expert, wine lover and collector, whose identity is known to Wine Lovers' Page but will be held confidential for now at the individual's request. Here is this expert's report, which may be distributed freely by E-mail or reproduced on Web pages as long as it is not altered and appropriate credit is given: ... I have been closely following the direct shipping cases around the country, in particular the Indiana case - Bridenbaugh vs. Freeman-Wilson. After reviewing the matter, I have reluctantly come to the conclusion we should "fold our tent" in Indiana and take our losses. Here's why. You will recall that the 21st Amendment states in pertinent part: "The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." In the Bridenbaugh case, the 7th Circuit U.S. Court of Appeals in Chicago overturned the trial court's decision that Indiana's ban on the direct shipment of wine to consumers was unconstitutional. In a nutshell, Judge Frank Easterbrook of the 7th Circuit held that the trial court was wrong in overturning Indiana's ban on direct shipment because (i) the 21st Amendment trumped the Commerce Clause and (ii) because there was no "functional discrimination" against out-of-state wines. (For the complete text of the Easterbrook ruling, click here.) The rationale of the first part of his decision was that the plain and explicit language of the 21st Amendment gives the states the unfettered right (with one exception) to regulate the importation of alcohol over its borders. Parenthetically, this is what is known as a "textualism," a view of the law that holds that the meaning of a given statute or constitutional provision can only be gleaned from the text's surface. "Textualism" ignores legislative history, the context in which the provision arose, and its overarching purposes in favor of a "plain" reading. For what it is worth, Judge Frank Easterbrook is a well-known believer in "textualism." In my view, Judge Easterbrook's opinion is rather disingenuous. On the one hand he talks with great conviction about the "plain meaning" of the 21st Amendment. On the other hand, he justifies his opinion based upon the state's need to collect taxes. Indeed he identifies tax collection as one of the reasons why the 21st Amendment was enacted. This assertion is just plain wrong. It should be noted that tax collection is not mentioned in either the text of the 21st Amendment, or in its legislative history. Accordingly, it would appear that Judge Easterbrook isn't quite the "textualist" that he is claims to be, since he apparently looked beyond the "plain language" of the Amendment to justify his opinion. I suppose Judge Easterbrook is of the opinion that a "rising tide" of alcohol consumption during the Great Depression, and the concomitant collection of taxes, was intended to solve the nation's economic woes. Of note is that fact that Judge Easterbrook acknowledges that Indiana's ban on direct shipping does violate the Commerce Clause. If it were any other good, one not covered by the 21st Amendment, he believes the law would clearly be unconstitutional. But, to his mind, the 21st Amendment gives the states carte blanche to violate the Commerce Clause, provided they do so vis-à-vis the importation of alcohol. As you know, the 7th Circuit refused to give the Plaintiffs what is known as an "en banc" hearing. Had the Court given the Plaintiffs the hearing they sought, the fifteen or so judges of the entire 7th Circuit Court of Appeals would have addressed the merits, as opposed to just the two judges on the panel who heard the Plaintiffs' first appeal. If a majority of the en banc judges disagreed with Judge Easterbrook's original opinion, they would have overturned his decision and issued a new opinion. Then that new decision would be the "law of the land" in those states encompassed by the 7th Circuit Court of Appeals, i.e., Illinois, Indiana and Wisconsin. Because there is no automatic appeal to the Supreme Court in a case like this, the only thing the Plaintiffs can do at this point is file what is known as a writ of certiorari to the United States Supreme Court. It is within the Supreme Court's discretion to either accept or reject the Plaintiffs' request. By the way, such a writ must be filed within 90 days after the 7th Circuit's mandate came down. It is the consensus among those involved in the fight against the ban on direct shipments that the Plaintiffs in the Bridenbaugh case should just drop the matter altogether, instead of filing a writ of certiorari. There are several reasons. When one takes a case up the Supreme Court, the Court doesn't decide the case from "scratch." Rather, the Supreme Court examines the "record" established below and searches only for legal errors, i.e., errors in the application of the law. The Court decides only issues of law, not facts. Furthermore, those facts that they do examine are only those facts in the "record." By the way, when I say, "in the record," I mean facts contained in the parties' legal briefs, exhibits thereto, depositions transcripts, affidavits, etc. What is in the record are things that the lawyers themselves have introduced, or placed, into the Court's case file. As a general rule, the Supreme Court will not go outside "the record" and consider new facts that the lawyers failed to place in the record before. When one looks at the Indiana "record," it is woefully inadequate to take to the United States Supreme Court. A better vehicle is needed to highlight the problem of the states' bans on direct shipping. Why? There are two schools of thought regarding the 21st Amendment. One school, represented by the textualists and wholesalers, holds that the 21st Amendment means just what the bare words say, i.e., that the states can do whatever they wish vis-à-vis the importation of alcoholic beverages into their states and are therefore free to ban direct shipping. The other school of thought holds that states may restrict importation only to promote a "core concern" of the 21st Amendment. The term "core concern" has been defined by some courts to mean "temperance," i.e., "should we let 'em drink or not." At its core, the 21st Amendment was about allowing the states to either continue with Prohibition or opt out. The decisions of whether a state should either allow the consumption of alcohol or not involves the issue of temperance. You should know that the so-called "textualist" school of thought is a minority position within the legal community. In a constitutional challenge, like those involved in these direct shipping cases, the courts generally look to the legislative history to discern what was the meaning of the legislation and the intent of the legislators who passed it. In the present instance, it would be useful to know what the Congressmen and Senators involved in the passage of the 21st Amendment thought about its meaning and application. Unfortunately, the Plaintiffs did not place any of the legislative history of the 21st Amendment in the record of the Bridenbaugh case. Furthermore, they failed to place in the record the legislative histories of the Indiana statutes they were challenging pertaining to direct shipping. Assuming for the moment that the United States Supreme Court chose to review the Bridenbaugh case, the Plaintiffs would not be able to raise the 21st Amendment's legislative history to demonstrate why the 21st Amendment's application should be limited solely to issues of temperance. In addition, the Plaintiffs in the Bridenbaugh case failed to include in the record the legislative history of the Webb-Kenyon Act. The Webb-Kenyon Act is a federal statute pertaining to the importation of alcohol that the state of Indiana and the wholesalers contend evidences Congress' intent to exempt alcohol related issues from consideration under the Commerce Clause. Remember, the Constitution grants Congress the power to regulate commerce. Lastly, they failed to place the legislative history of the disputed Indiana statutes in the record. The upshot of all of this is that without the presence of the legislative histories of both the 21st Amendment, and the Webb-Kenyon Act in the record of the Bridenbaugh case, there is no way to refute what the State of Indiana, and the wholesalers have to say about the meaning of the 21st Amendment or the Webb-Kenyon Act. So by trying to move forward with Supreme Court review in the Bridenbaugh case, one is playing into the hands of those who are hostile to direct shipping. The Plaintiffs would simply be unable to make some of their best arguments. Another problem with the Indiana case is that the Plaintiffs are "dirty." They have admitted on the record that they have had wine illegally shipped to them in Indiana. The Bridenbaugh case is what is known as an "equity" case. This means that instead of asking for money, the Plaintiffs are asking the court to do an act, to do something for them. In this case, that something is to ask the court to declare the particular statutes at issue unconstitutional, and issue an injunction prohibiting the Attorney General of Indiana from enforcing them. In equity cases, there is a defense known as the doctrine of "unclean hands." What this means is that if any party has done something wrong or illegal, then other party can raise it as a defense to the lawsuit. Conceivably, unclean hands could be a basis to deny a party the relief they seek. In the Bridenbaugh case, the fact that the Plaintiffs have admitted their hands are "unclean" possibly led Judge Sharpe, the trial court judge, not to issue a final injunction against the Attorney General of Indiana from enforcing the disputed statutes. Assuming the Bridenbaugh case reached the Supreme Court, it would play into the hands of the wholesalers, who would say, "See, we told you so. All of these people who want direct shipment are just a bunch of criminals." The illegal conduct on the part of the Plaintiffs did not go unnoticed by Judge Easterbrook who, in his appellate opinion, sneeringly referred to the Plaintiffs as a bunch of "scofflaws." No doubt the U.S. Supreme Court might take a similar view the Bridenbaugh Plaintiffs. Accordingly, why would you want to file a writ of certiorari in connection with a case that had "dirty" Plaintiffs? Wouldn't it seem prudent to wait for a case to come along that had "clean" Plaintiffs, who would make a more sympathetic appearance before the Court? Lastly, the most glaring flaw in the record of the Bridenbaugh case is the fact that the Plaintiffs sued under the wrong statute! They sued seeking to overturn Indiana Code Section 7.1-5-11-1.5. This Section provides:
(b) Upon a determination by the commission that a person has violated subsection (a), a wholesaler may not accept a shipment of alcoholic beverages from the person for a period of up to one (1) year as determined by the commission. As Judge Easterbrook noted, the "Plaintiffs are not in the business of selling alcoholic beverages 'and therefore could not violate' Section 7.1-5-11-1.5 (a) if they tried." Plaintiffs should have challenged a different statute, which penalizes consumers who purchase from a vendor they know to be unlicensed by Indiana. There is, in other words, a very strong argument that none of the Bridenbaugh Plaintiffs had standing to bring the lawsuit in the first place. So how did it come to pass that the trial court found Indiana's ban on direct shipments of wine unconstitutional, if the Bridenbaugh Plaintiffs lacked standing? Well, the trial Court wanted to find the disputed statutes unconstitutional, and overlooked the Plaintiffs' mistake in how the complaint was pleaded. Conversely, Judge Easterbrook wanted to write a pro wholesaler decision, so that he could drive a stake through the heart of the direct shipping movement; accordingly, Judge Easterbrook "bent over backwards" to find standing for the Plaintiffs. In short, both the "record" of the Bridenbaugh case and the standing problems make it unsuitable for review by the United States Supreme Court. If the Court were to take this case up, it could be used as a vehicle to completely destroy any hope of using the Commerce Clause to overturning the states' bans on direct shipping. The consequence of such a negative decision would reverberate for the next 30 years and lock in the wholesalers' monopoly for the rest of our lifetimes. In my opinion, it would be better to wait for a better case to come down the pike. Such a case should be one where the Plaintiffs sued under the right statute, where the Plaintiffs had "clean" hands, and one where the legislative histories of the 21st Amendment, the Webb-Kenyon Act, and the challenged statutes were included in the record for the Court to consider. For more information on wine-shipping and free trade issues, try these links:
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