Supreme Court Briefing Completed By Parties for Tennessee Retailers Association’s Appeal from 6th Circuit

In February 2018, the 6th Circuit ruled in a mostly 2-1 decision to uphold a district court’s finding that the alcohol retail residency laws of the state of Tennessee violated the dormant Commerce Clause. The 6th Circuit case is captioned Byrd, et. al v. Tennessee Retailers Association 883 f.3d 608 (6th Cir. 2018).  The Tennessee law required those seeking alcohol retail licenses to be a resident for two years and to renew a license to be a resident for at least ten years.  The effect of these laws was to essentially create a nine year residency law to open a retail liquor store.

The previous state Attorney General issued two separate opinion letters that questioned the constitutionality of the laws and when challenges to license applications manifested itself, the Attorney General’s office brought a declaratory action to resolve the constitutionality of the laws.  The odd posture of the state in not aggressively defending its own laws did not help the defense of the laws but Judge Sutton’s dissent noted that the core powers of the 21st Amendment should mean more than zero and he would have saved much of the state laws.

The Tennessee Retailers Association is taking this case to the Supreme Court and has filed a petition of writ for certiorari.   In its brief the association noted that various federal circuit courts have interpreted the language of the 2005 Granholm v. Heald case differently requiring Supreme Court clarification.  An intervening retailer, Total Wine and More, has filed a brief in opposition to the petition for certiorari.  They argued that there is no conflict and taking this case will not clarify issues below. The State of Tennessee and the other intervening retailer waived the filing of a response to the petition of writ for certiorari.

The Supreme Court is expected to decide whether to take the case, ask the state or federal government to brief the case, or deny taking the case at some point in October when the Supreme Court resumes for the 2018-2019 term.   Statistically, most petitions are rejected.  There were over 8,000 cases filed with the court but the Supreme Court considers less than 100.  There have been articles in recent years noting this trend of few cases.

Since the 2005 Granholm decision, the Supreme Court has passed on other petitions from the 5th and 6th Circuits to revisit issues surrounding the 21st Amendment.

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