The Ninth Circuit upheld Arizona law and has ruled against a pending constitutional challenge by two oenophiles seeking to create a national wine retailing right in Arizona.
In an opinion authored by Judge Milan Smith the court noted that the plaintiffs did have standing, but that they had failed to prove that the Arizona physical presence requirement was discrimination prohibited by the Constitution. The court noted that the Supreme Court precedents do not “prohibit Arizona from implementing a physical presence requirement as a matter of law.”
Additionally the court concluding noting the impact of the challenges. It noted: “The effect of the presence requirement is simply to “mandate[] that both in-state and out-of-state liquor pass through the same three-tier system before ultimate delivery to the consumer.” Arnold’s Wines, Inc., 571 F.3d at 191. To find this kind of basic importation restriction discriminatory would therefore render § 2 “a dead letter.” Bridenbaugh, 227 F.3d at 853. The Supreme Court has not yet struck such a blow to § 2, and neither do we.”
Judge Forrest issued a concurrence and a dissent. She concurred on the issue of standing but argued that the Arizona law discriminated against interstate commerce and she would have sent the case back to the district court for additional fact-finding on the state’s health and safety evidence.
A copy of the opinion can be found here.
(previous post) Oral Argument Held in Ninth Circuit on Appeal by Wine Aficionados Challenging Arizona Retail Shipping Laws
On August 22, 2024, a panel of the Ninth Circuit comprised of Judges Bade, Forrest, and Smith heard oral arguments on the appeal of the district court’s decision upholding Arizona’s retail laws banning out of state retail sales.
Like the recently argued case in the Third Circuit, these judges noted the same problems that caused the district court to rule for Arizona. Most importantly, these two wine fan plaintiffs seek to challenge the law that prevents out of state retailers from selling to Arizona residents but fail to attack the law that requires all retailer to get their alcohol from Arizona retailers. The Supreme Court has repeatedly noted that this is a permissible mandate under the three tier system.
To hear the argument, click here.
To watch the argument, click here.
(previous post) Briefing Complete for 9th Circuit Review of Arizona Retailer Laws
The briefing is complete for the 9th Circuit on the dormant Commerce Clause challenge by two wine aficionados to Arizona laws on wine retailing. After the Arizona District Court upheld the state law, an appeal was filed. The state of Arizona has filed its response brief and and a brief was filed by the intervening defendant-appellee Wine and Spirits Wholesaler Association of Arizona. Amicus briefs were filed by the National Beer Wholesalers Association as well as the American Beverage Licensees and Wine &Spirits Wholesalers of America. These briefs noted the faults that the district court found in plaintiff’s case with the amici highlighting the redressability remedy under plaintiff’s theory.
The Appellant has filed its opening brief and its reply brief. In its response brief the appellant puts a bullseye on the state’s physical presence laws but doesn’t address many of the state’s and amici arguments about the redressability of the relief sought by plaintiffs. The next step is for the 9th Circuit to schedule oral argument in the upcoming months.
And maybe because he had so much fun the last time in Arizona and also because the lead attorney wants to break the 50-lawsuit mark, the plaintiff’s attorney has filed ANOTHER lawsuit in Arizona with new local counsel under the same theory. The new plaintiffs include a wine retailer this time and again argue that the state is violating the dormant Commerce Clause with a broadside against various state laws it claims violates the U.S. Constitution.
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