8th Circuit gives Missouri a hard-time in oral argument over important Commerce Clause wine (and beer and liquor) shipping case. Bonus: We’ve got the audio for you.

As one judge put it to the state during this oral argument – “The issue is whether Tennessee Wine undermines the 8th Circuit precedent the district court relied on to tell the plaintiffs they didn’t plead a case.”

We’ve written and posted the briefs on this important wine shipping case. You can find our initial post describing the matters involved here.

And you can find the rest of the briefs for this out-of-state alcohol retailer shipping case here.

In this case, the district court dismissed the matter finding in favor of the State, holding that – because the three-tiered system is legitimate, and because Missouri has a tiered system (albeit a 4-tiered system, really) Missouri’s system must also be “legitimate” as the 8th Circuit found in Southern, which allowed dismissal without considering the facts of the matter.

The plaintiffs – a group of out-of-state wine retailers and consumers looking to ship direct to in-state consumers (or receive direct shipments from out-of-state retailers) appealed

You can find the audio of the oral argument here:

You won’t know how fun this is unless we give you a spoiler – the whole shebang ends with an 8th Circuit judge commenting on how fascinating Granholm’s majority and dissenting opinions discussions of pre-Eighteenth Amendment liquor licensing and shipping issues was. That’s right – here’s an oral argument presided over by a 21st-Amendment-intersects-the-Commerce-Clause enthusiast. And it doesn’t disappoint.

We’ve written often about the need for a factual record in these cases as factual records leave nonsensical and unsupported state restrictive liquor laws out in the wind when the state is asked to prove the impact of its laws and cannot. Here, a large part of the oral argument involved the request for the chance to develop a factual record. 

Go to 12:30 and listen to the judge push back on the state’s claim that the life of the three-tiered system is at risk… hyperbole is not welcomed at the 8th Circuit. “Counsel that’s just not true” That’s so untrue that I’m not going to let you start with it.

Prognostication is ridiculous when it comes to oral argument, but I’d have to say that the state lost this one and it will get remanded to allow the plaintiffs the chance to develop their record.