The Plaintiffs in the Wine Country Gift Baskets/Siesta Village case are trying to get the entire 5th Circuit to hear their case in a petition filed last week. In a press release, the Specialty Wine Retailers Association stated: “We are concerned not only that the Fifth Circuit’s recent ruling disregarded opinions of the U.S. Supreme Court, but that it also disregarded precedent from its own cases within the Fifth Circuit,” said Tom Wark, executive director of SWRA . Personally, I believe that this rehearing petition grossly stretches the two Fifth Circuit decisions as well as the Granholm and I am hopeful that the state will again demonstrate this succinctly to the court.
As you recall, the State of Maryland sought an en banc opinion after it lost the most recent decision at the 4th Circuit. Similarly, Costco failed to get the entire 9th Circuit to take up its cause after it lost most of its challenge to Washington state laws. Both requests were denied. Rehearings en banc are rarely granted.
A win for the 21st Amendment today in the 5th Circuit.
Our read of Granholm is that the Twenty-first Amendment still gives each State quite broad discretion to regulate alcoholic beverages. The dormant Commerce Clause applies, but it applies differently than it does to products whose regulation is not authorized by a specific constitutional amendment. Regulating alcoholic beverage retailing is largely a State’s prerogative. “
“Because of Granholm and its approval of three-tier systems, we know that Texas may authorize its in-state, permit-holding retailers to make sales and may prohibiti out-of-state retailers from doing the same.”
The decision gives the state of Texas a clear win on all counts and joins the 2nd Circuit in rejecting the attempts to twist the 2005 Supreme Court decision in Granholm v. Heald involving wineries into an examination of state distribution and retailing laws.
The Court did caution though that it was limiting its ruling. “We pull back from any effort to define the reach of a three-tier retailer.”
Posted January 26, 2010 by admin under 21st Amendment, Dormant Commerce Clause, Supreme Court
