Appeals Court Ruling Upholding Ban on Direct Wine Shipments Will Be Short-lived, Institute for Justice Vows

John Kramer
John Kramer · February 12, 2004

Washington, D.C.—The Institute for Justice, the Washington, D.C.-based public interest law firm that represents New York consumers and small out-of-state wineries in their legal battle against New York’s ban on direct interstate shipments of wine to consumers, vowed to fight today’s ruling by the 2nd Circuit U.S. Court of Appeals upholding the ban.

“This decision will be a momentary blip on the legal radar screen,” declared Clint Bolick, the Institute’s vice president and lead counsel for the plaintiffs.  “The liquor distributors who benefit from the state-imposed monopoly can hold off popping the champagne corks.  The decision is profoundly anti-consumer and anti-free trade, and will not stand.”

The 2nd Circuit decision conflicts with decisions in three other appeals courts that struck down similar bans in North Carolina (4th Circuit), Texas (5th Circuit), and Michigan (6th Circuit).  The 11th Circuit also overturned a trial court decision that had upheld a ban in Florida.  The split in decisions increases the likelihood of review by the U.S. Supreme Court.  The State of Michigan recently appealed its 6th Circuit loss to the U.S. Supreme Court.

“The 2nd Circuit decision is an anomaly in a tide of jurisprudence that is striking down barriers to protectionism across the country,” Bolick added.  Twenty-four states still have laws forbidding direct shipment of wine to consumers, while 26 allow such shipments.

Earlier this year, Gov. George Pataki introduced legislation in his proposed budget that would permit direct shipments, citing the prospect of additional tax revenues.  The proposal is supported by Sen. Charles Schumer and Sen. Hillary Rodham Clinton, among others.

Juanita Swedenburg, the lead plaintiff in the case who operates a small winery in Middleburg, Virginia, said, “Is this what our Founding Fathers meant when they said that we’d have free trade among the states . . . that to trade in another state you’d have to have an office there?  I don’t think so and I’m going to continue this fight.  This court has the Constitution twisted all around.”

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