Reply brief in 6th Circuit out-of-state alcohol retailer direct shipping case draws rebuke and desire for sur-reply. Briefing is done in one of the many inevitable Commerce Clause challenges to arise after Tennessee Wine.

The 6th Circuit’s “Amazon of liquor” case is about in-state liquor retailers having the privilege to ship liquor directly to residents, but denying that right to out-of-state alcohol retailers. One of the many foreseeable and inevitable Commerce Clause challenges to idiotic three-tier state-restricted liquor laws that are based on bad science and antequated reasoning from the 1930s

Liquor lawyers and others looking for more information can read our coverage of this case at both the District Court level challenge to the out-of-state retailers’ rights for direct-wine shipping as well as find the prior briefs filed in the 6th Circuit portion of the case here, here, here, and here. Illinois liquor attorneys can also find our coverage of the 7th Circuit, and Northern District of Illinois version of the similar Illinois lawsuit here.

The most recent brief, the State of Michigan’s Reply Brief reiterates several stale points from briefing in the other cases Lebamoff (the Plaintiff in the underlying action here) has brought in many other states, namely:

  • The 21st Amendment forces the Commerce Clause analysis of state liquor laws to be something other than strict scrutiny based on the comments from Tennessee Wine about the public’s health and safety where a state should only be required to show either that a law promotes public health and safety or that less restrictive methods are not available, not both.

This point, pulled from the language in Tennessee wine, inevitably leads states arguing it to attempt a demonstration in their briefs that their protectionist alcohol laws that discriminate against interstate commerce somehow implicate public health and safety. Here, Michigan does not disappoint. In addition to twisting the language from Tennessee Wine beyond recognition, and arguing that the state of Hawaii failed to raise issues in the Bacchus Imports case, it, without support, argues that “temperance” is a public health and safety goal the State had the audacity to also argue that Granholm interpreted Webb-Kenyon in a way as to allow differing in-state and out-of-state restrictions under the Commerce Clause, if only the wine shipping laws of New York and Michigan had been drafted differently in that case. (Apparently no one in the State’s Attorney General’s office bothered to even briefly become acquainted with Richard Mendelson’s “From Demon to Darling” let alone its exhaustive historical analysis of Webb-Kenyon.)

Here’s the deal, ignoring the very real requirement from Tennessee Wine and Granholm that “mere speculation or unsupported assertions are insufficient to sustain a law that would otherwise violate the Commerce Clause” and creating a just-so story after the fact to try and argue “how” your state law promotes health and safety isn’t just false, it’s improper. You can’t argue your way out of the fact that the majority of in-state v. out-of-state distinctions in alcohol laws and regulations are protectionist measures and that there is not a single thing in such a law or regulation that promotes temperance better than the effective methods of public awareness advertising campaigns which are less restrictive and invasive measures that bans on out-of-state commerce.

Additionally, if Michigan is right, then they’re turning strict scrutiny tests on their head and asserting that even if the law doesn’t protect health and safety, if they can show that there aren’t less restrictive methods to achieve whatever their non-public-health-and-safety goals are, then the law should stand. But that is contrary to the analysis and reasoning in Tennessee Wine and Granholm.

None of Michigan’s “goals” amount to public safety concerns or controls that have any foundation in empirical evidence impact. The inspection of in-state retailers does not allow for any effect, and no effect from inspection rights is argued. The state simply says that in-state retailers can be inspected, but doesn’t state what that implicates or why it is important to public safety. The state claims that adulterated alcohol is an issue, but there is no empirical evidence of this. Finally, the fact that others like wineries are allowed to use third-party carriers to deliver wine shows that the system works and doesn’t create an implication that underage ordering can run rampant. Also, you should know you’ve crossed the line to improper argument when you’re citing online news articles outside the record as “proof” of some point in a brief before an Appellate Court of the United States of America. Seriously, Michigan?

So what’s next? Oral argument, which hasn’t been set yet, but should be soon. The challengers here filed a motion to strike the new arguments about strict scrutiny from the state’s brief or to file a sur-reply, which, thankfully, was attached as a proposed filing to their motion. You can find both here.

Ashley Brandt

Hi there! I’m happy you’re here. My name is Ashley Brandt and I’m an attorney in Chicago representing clients in the Food and Beverage, Advertising, Media, and Real Estate industries. A while back I kept getting calls and questions from industry professionals and attorneys looking for advice and information on a fun and unique area of law that I’m lucky enough to practice in. These calls represented a serious lack of, and need for, some answers, news, and information on the legal aspects of marketing and media. I've got this deep seeded belief that information should be readily available and that the greatest benefit from the information age is open access to knowledge... so ... this blog seemed like the best way to accomplish that. I enjoy being an attorney and it’s given me some amazing opportunities, wonderful experiences, and an appreciation and love for this work. I live in Chicago and work at an exceptional law firm, Goldstein & McClintock, with some truly brilliant people. Feel free to contact me at any time with any issues, comments, concerns… frankly, after reading this far, I hope you take the time to at least let me know what you think about the blog and how I can make it a better resource.

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