Opposition Brief — Tenn. Wine & Spirits Retailers Ass'n v. Byrd, 139 S. Ct. 52 (2018) (No. 18-96)

No. 18-96

Iu The

Supreme Court of the United States

TENNESSEE WINE AND

SPIRITS RETAILERS ASSOCIATION,

Petitioner,

v.

CLAYTON BYRD, ET AL.,

Respondents.

»

a

On Petition For A Writ Of Certiorari

To The United States Court Of

For The Sixth Circuit

°

BRIEF IN OPPOSITION FOR RESPONDENT

TENNESSEE FINE WINES AND SPIRITS, LLC,

DBA TOTAL WINE SPIRITS BEER & MORE

i

RULE 29.6 STATEMENT

Respondent Tennessee Fine Wines and Spirits,

LLC, dba Total Wine Spirits Beer & More has no par-

ent corporation, and no publicly held company owns

any shares in Respondent.

TABLE OF CONTENTS

Page

RULE 29.6 STATEMENT .....................--c0ccccseeeees i

TABLE OF AUTHORITIES ..............................-.. iv

gee 1

STATEMENT OF THE CASE............................-+. 4

A. A Fair and More Complete Analysis of the

EES SET TE 4

B. The Unusual Procedural Aspects of This

Gerri ciidniasntiniictpuitinitiniuinnitpentiamennmedene 7

REASONS FOR DENYING THE PETITION...... 14

I. There Is No Real Conflict Among the Cir-

I crersetutecedsnntsninntentinetinieseinentninnnnes 16

Il. Petitioner Overstates the National Signifi-

I ee ttcteeecnnscenietineccneniene 21

Ill. The State of Tennessee Is Not the Petitioner

Here And Has Not Seen Fit to Defend

the Constitutionality of the Durational

Residency Requirements in a Consistent

As 24

IV. Resolution of the Question Presented Will

Not Finally Determine the Outcome of

Se I ectevessssscssavserneenenmeeme 27

V._ In Rejecting Petitioner’s Strained Reading

of Granholm, the Sixth Circuit Clearly

Reached the Correct Result........... siciinshieildaes 29

i cidicconsccmcinninapuctnnietiiepeitiianiambinanetiogateie 34

33

iii

TABLE OF CONTENTS—Continued

Page

APPENDIX

Tennessee Attorney General Opinion No. 12-59

Sry liaieitiiisinieiiaestaiibesticsiceniriahamniachaaittaienia aii eet la

Tennessee A General Opinion No. 14-83

iv

TABLE OF AUTHORITIES

Page

CASES

Anheuser-Busch, Inc. v. Schnorf, 738 F. Supp. 2d

0 eee 23

Arnold’s Wines, Inc. v. Boyle, 571 F.3d 185 (2d

Tt iiibtsicicnrceesdatideniatniniaiiniinseindibiddinaiiiaintadasiiiinns 20, 21

Bacchus Imports, Ltd. v. Dias, 468 U.S. 263

Ce 30

Brooks v. Vassar, 462 F.3d 341 (4th Cir. 2006).....20, 21

Brown-Forman Distillers Corp. v. New York

State Liquor Authority, 476 U.S. 573 (1986) ....16, 31

Cooper v. Texas Alcoholic Beverage Comm’n, 820

F.3d 730 (5th Cir. 2016)...............00.00000+. 17, 23, 27, 29

Diamond v. Charles, 476 U.S. 54 (1986)..........0.0.0000... 26

Glazer’s Wholesale Drug Co., Inc. v. Kansas, 145

F. Supp. 2d 1234 (D. Kan. 2001) ..............cccccccccceeees 23

Granholm v. Heald, 544 U.S. 460 (2005)............ passim

Halliburton Oil Well Cementing Co. v. Reily, 373

EE a eee eee 32

Healy v. Beer Institute, Inc., 491 US. 324 (1989) .... 15, 31, 33

Hollingsworth v. Perry, 570 U.S. 693 (2013)......... 25, 26

Jelovsek v. Bredesen, 545 F.3d 431 (6th Cir.

rin hcidticenitcticainiessiaiiaaneanedaaiiastinieiaipieaacearnicasaniniabaciagabteataas 6,7

Lewis v. BT Investment Managers, Inc., 447 U.S.

Ire TIT hshahcisesticnliierriniaiemnansnideehdipeniaeprinmtatemettadsipecnmmanseni 32

Vv

TABLE OF AUTHORITIES—Continued

Page

Oregon Waste Systems, Inc. v. Department of

Environmental Quality, 511 U.S. 93 (1994) ........... 31

Peoples Super Liquor Stores, Inc. v. Jenkins, 432

F. Supp. 2d 200 (D. Mass. 2006)......................0000000 23

Southern Wine & Spirits of America, Inc. v.

Division of Alcohol & Tobacco Control, 731

F.3d 799 (8th Cir. 2013).....0.0.......0cccccc0e 14, 17, 18, 19

Supreme Court of New Hampshire v. Piper, 470

ee IE enticecatnnsinesesncnseratesnsvanentndisntenesnsneances 28

Texas Package Stores Ass’n v. Fine Wine &

Spirits of North Texas, L.L.C., US. __

(2016) (Docket No. 16-242)..0.000.......cccccccceceeeeeees 17, 27

Wilson v. McBeath, 1991 WL 540043 (W.D. Tex.

IrrTiicstdetselshatetagtenmssetaiecidanetanitalihbcatbaieedeisendniadihadiaiaiietsbiiebatids 27

STATUTES

Ky. Rev. Stat. Amn. §243.100 200000000... eccccccc cece eeeeeeeeeee 22

SS Leen: 22

Me. Rev. Stat. tit. 28-A, $1401 .2000000.. 0. cccccccc ccc ceeeeceeees 22

Be, BUe I, Fe ei icceccccccescccccccccesccoscsccsccoccscoscevess 22

N.H. Rev. Stat. Amm. §17821 .0............ccccccccccccceceeeeeeeeeee 22

Tenn. Code Ann. §57-3-204(b)(2)MA) ....0..0..0000ccceeee 4, 26

Tenn. Code Ann. §57-3-204(b)(3)MA) 0.00.0 .....ccccccccceeeeeeee 5

Tenn. Code Ann. §57-3-204(b)(4) ....................00 6, 8, 12

Tenn. Code Ann. §57-3-213(a) ...............cccccccccseeeceeceseees 4

vi

TABLE OF AUTHORITIES—Continued

Page

Tenn. Code Amn. §$57-4-201...............ccccccccccesceeseeereneeeeeee 6

Wash. Rev. Code Ann. §66.24.010.0000..........00.0ccccccceeeee 22

Wis. Stat. Amn. $125.04.............:ccccccc cceeeneneeeeeeeeeeeenenes 22

1

BRIEF IN OPPOSITION

Respondent Tennessee Fine Wines and Spirits,

LLC, dba Total Wine Spirits Beer & More (“Total Wine”),

respectfully submits this Brief in Opposition to the Pe-

tition for a Writ of Certiorari filed by the Tennessee

Wine and Spirits Retailers Association (“Tennessee

Retailers”). This case is not an appropriate vehicle to

clarify whether Granholm v. Heald, 544 U.S. 460

(2005), carved out an exception to normal Dormant

Commerce Clause principles that would allow States

to enact blatantly discriminatory laws to protect local

retailers from out-of-state competition, under the guise

of regulating the sale of alcoholic beverages within the

State.

The Tennessee statute at issue here flatly forbids

citizens of other states from obtaining a license to

operate a retail liquor store (a package goods store

offering alcoholic beverages for off-premises consump-

tion) unless they have established residency in Tennes-

see and continue to maintain it for at least nine

years. The statute also prohibits corporations and

other business entities from obtaining a retail liquor

license unless every director, officer and shareholder of

the business has been a Tennessee resident for at

least nine years. If this statute had been upheld, Total

Wine, whose owners reside in Maryland, would have

been ineligible for a retail liquor license. The statute

would also render ineligible for a retail license any

publicly traded corporation and many other iarger out-

of-state businesses. The Attorney General of Tennessee

twice opined that this residency statute violated the

Dormant Commerce Clause and could not be enforced.

2

See Opp. App. at la-18a. Thereafter, out-of-state resi-

dents, including two of the named respondents, began

to apply for and obtain liquor licenses in Tennessee.

When the Tennessee Retailers threatened to sue the

State’s Alcoholic Beverage Commission (“Commis-

sion”) if Total Wine were granted a retail license, the

Attorney General filed this declaratory judgment ac-

tion in a Tennessee chancery court to determine if the

statute was in fact unenforceable. After removal of the

case to the United States District Court for the Middle

District of Tennessee (upon petition of the Tennessee

Retailers), Judge Sharp concluded—in a thorough

opinion—that the statute blatantly discriminated

against out-of-state residents, while noting that nei-

ther the Commission, nor the Tennessee Retailers, had

offered any evidence of a legitimate non-protectionist

purpose advanced by the residency requirements. See

Pet. App. at 78a-80a.

The Court of Appeals affirmed the District Court’s

ruling in another thorough opinion. Pet. App. 2a-39a.

Even dissenting Judge Sutton (who concurred in por-

tions of the majority opinion) determined that certain

aspects of the statute did not further any legitimate

state interest, id. at 54a, while other aspects consti-

tuted “the epitome of arbitrariness.” Jd. at 55a. It is

little wonder that the State of Tennessee, through its

Attorney General and the Director of the Commission,

did not appeal the ruling of the District Court declar-

ing the statute unconstitutional and enjoining its

enforcement, and declined to participate in oral argu-

ment in the Sixth Circuit. Moreover, the State never

3

sought a stay of enforcement of the District Court’s in-

junction, and the Commission has now granted liquor

licenses to both respondents. Both of these “out-of-

state” licensees are currently operating retail liquor

stores in Tennessee. '

As set forth below, this case is a far cry from the

“clean vehicle” posited by the Tennessee Retailers for

this Court to provide guidance on the proper applica-

tion of Granholm to state durational residency require-

ments for obtaining licenses for the wholesale and

retail sale of alcohol. In addition, Judge Moore, who au-

thored the Court of Appeals’ majority opinion, clearly

got it right. The bizarre durational residency require-

ments enacted by Tennessee are blatantly protection-

ist, have no legitimate regulatory purpose, and cannot

be squared with decades of this Court’s Commerce

Clause jurisprudence, including the Court’s decision in

Granholm.

>

' Respondent Total Wine opened its 30,000 square foot store

in Knoxville on June 27, 2018. It is the largest retail establish-

ment of its kind in the State and it offers the widest selection

of beers, wines, and spirits, at competitive prices not previously

seen in Tennessee. See https://www.knoxnews.com/story/money/

business/20 1 8/06/28/total-wine-party-new-turkey-creek-store/74

1997002/. All of the store’s employees, including its general man-

ager, are Tennessee residents. Respondent Affluere Investments,

Inc. (“Affluere”) acquired an existing liquor store in Memphis,

Tennessee in the summer of 2017. Affluere’s stockholders, direc-

tors, and executive officers are now and have been residents of the

State of Tennessee since June, 2016.

4

STATEMENT OF THE CASE

A. A Fair and More Complete Analysis of the

Statutory Scheme.

The Tennessee Retailers focus their Petition only

on certain aspects of the durational residency statute

in question, without acknowledging how the statute

was designed to prevent any out-of-state residents or

any business with out-of-state owners from obtaining

a liquor license in Tennessee. For example, Petitioner

notes that “Tennessee law provides that, to obtain a

retail license, an individual must have ‘been a bona

fide resident of Tennessee during the two year period

immediately preceding the date upon which applica-

tion is made.’” Pet. at 8 (quoting Tenn. Code Ann. §57-

3-204(b)(2)(A)). But Petitioner all but ignores the very

next clause, which provides that a retail liquor license,

once granted, cannot be renewed unless the applicant

has been a Tennessee resident “for at least ten (10) con-

secutive years.” Tenn. Code Ann. §57-3-204(b)(2)(A).

Given that liquor licenses in Tennessee are only valid

for one year after issuance, Tenn. Code Ann. §57-3-

213(a), the renewal requirement effectively imposes a

nine year durational residency requirement on individ-

uals seeking to own and operate a Tennessee package

store. As a practical matter, no person who had resided

in Tennessee for less than nine years would spend the

funds necessary to obtain a license, and build and stock

a liquor store, in the face of these license renewal re-

quirements. It was this aspect of the statute that Judge

Sutton (whose separate opinion is otherwise touted by

Petitioner as having adopted the correct deferential

5

approach) described as “the epitome of arbitrariness.

Pet. App. at 55a.

Petitioner glosses over another aspect of the

statute that Judge Sutton and the Court of Appeals’

majority agreed was in plain violation of the Dormant

Commerce Clause. For business entities, including

Tennessee limited liability companies like Total Wine,

no license can be granted or renewed “if any officer, di-

rector, or stockholder owning any capital stock in the

corporation, would be ineligible” under the nine year

durational residency requirements for individual li-

censees. See Tenn. Code Ann. §57-3-204(b)(3)(A). Thus,

no corporate entity can obtain a Tennessee liquor li-

cense unless every officer, every director, and every

shareholder can establish Tennessee residency for nine

years prior to the date of application. The effective and

intended result of this provision is to preclude outside

business interests, including large specialty stores like

Total Wine, from obtaining a Tennessee liquor license

and competing with the Tennessee Retailers. Judge

Sutton noted that he saw “no way to explain this all-

or-nothing-at-all stockholder requirement as doing any-

thing other than promoting economic protectionism.”

Pet. App. at 54a. And the majority opinion correctly ob-

served in response to Judge Sutton’s attempt to sever

and uphold only certain clauses of the residency stat-

ute that the State had offered no evidence during the

District Court proceedings to prove (or even suggest)

that any aspect of Tennessee’s durational residency re-

quirements actually served a purpose other than eco-

nomic protectionism. Jd. at 37a-38a & n.11.

6

Finally, Petitioner ignores certain other incongru-

ous aspects of the Tennessee statute. For example,

the durational residency requirements for retail licen-

sees were initially enacted in 1984, see Opp. App. at 9a,

but the legislative statement of intent with respect to

those provisions was not enacted until 2014, only after

the State’s Attorney General had opined that the re-

quirements could not be enforced under the Commerce

Clause as interpreted by the Court of Appeals’ opinion

in Jelovsek v. Bredesen, 545 F.3d 431 (6th Cir. 2008)

(discussed below). See Opp. App. at 14a-l16a. And

while the Tennessee legislature belatedly attempted to

justify the durational residency requirements on a

need to maintain a “higher degree of oversight, control

and accountability for individuals involved in the own-

ership, management and control of licensed retail

premises,” Tenn. Code Ann. §57-3-204(b)(4), those re-

quirements never have been applied to retail licensees

who sell spirits, wine and beer for on-premises con-

sumption in bars and restaurants. See Tenn. Code Ann.

§57-4-201. Petitioner argues that these requirements

are deserving of deference because they serve im-

portant community interests tied to the local conse-

quences of excessive alcohol consumption, such as

drunk driving, thereby warranting that local retailers

should be fully invested in those communities. Pet. at

31. Yet there is no explanation for the fact that Tennes-

see has never required that all (or any) of the owners,

officers and directors of national hotel and restaurant

chains should be required to establish residency in

Tennessee before they obtain retail licenses to serve al-

cohol for on-premises consumption. The durational

7

residency requirements at issue here were enacted in

1984 to protect established local package stores

against competition from out-of-state businesses seek -

ing to enter the Tennessee market.

B. The Unusual Procedural Aspects of This

Case.

Petitioner begins its discussion of the procedural

history of this case in 2016, when Tota! Wine and re-

spondent Affluere Investments, Inc. applied for Ten-

nessee retail liquor licenses. Pet. at 9. Petitioner omits

prior events showing why the applicants reasonably

expected to receive a license notwithstanding the du-

rational residency requirements imposed by the stat-

ute. Eight years earlier, in Jelovsek v. Bredesen, supra,

the Court of Appeals held that nearly identical dura-

tional residency requirements for the issuance of a

Tennessee winery license were discriminatory on their

face and impermissibly favored the interests of Ten-

nessee wineries “at the expense of interstate com-

merce.” 545 F.3d at 438.

After the decision in Jelovsek, and upon request of

a member of the state legislature, the Attorney Gen-

eral of Tennessee opined in 2012 that the Tennessee

residency requirements for applicants seeking a li-

cense as an alcoholic beverage retailer or wholesaler

also violated the Commerce Clause and could not be

enforced. Among other reasons, the Attorney General

examined the legislative history of the statutes and de-

termined that it “reveals no legitimate public policy to

8

support these residency requirements and indeed pro-

vides some evidence that the legislative intent for the

residency requirements for retailers was to deter the

sale of alcoholic beverages from outside Tennessee,

which intent would violate the federal Commerce

Clause.” Opp. App. at 11a.* Undeterred, the lobbyists

for the Tennessee Retailers returned to the legislature

seeking relief.

In 2014, the Tennessee General Assembly amended

the licensing statute and removed the residency re-

quirements for certain classes of retail licensees, but

retained the durational residency requirements for re-

tail licensees seeking to sell spirits and high alcohol

content beer for off-premises consumption. At the same

time, the General Assembly, without any legislative

fact-finding, enacted a new statement of purpose in

Tenn. Code Ann. §57-3-204(b)(4). New subsection (b)(4)

stated that it was in the interest of the state “to main-

tain a kigher degree of oversight, control and account-

ability for individuals involved in the ownership,

management and control of licensed retail premises”

selling products containing higher alcohol content

than persons seeking licenses to sell only wine and

beer, who were not subjected to the residency require-

ments. According to the General Assembly, that state

interest could only be satisfied if Tennessee required

“all licensees to be residents of this state as provided

* For example, the Attorney General pointed to floor debates

in which a member of the Tennessee House noted that they had

just voted “to kill interstate banking. I think all this does is kill!

interstate whiskey.” Opp. App. at 9a.

9

herein. ...” The General Assembly offered no other

reasons suppering the two-year and _ ten-

year durational residency requirements for an initial

application and license renewal, nor any reason why

the asserted local interests in ensuring responsible

sales of spirits could not be satisfied, for example, by a

requirement that a corporate licensee designate a res-

ident manager or agent, post a bond to ensure compli-

ance with all local laws, and/or file regular compliance

reports with the Commission. Nor did the General As-

sembly explain why its concerns for local accountabil-

ity did not apply to the owners of bars and restaurants.

The Attorney General of Tennessee was asked

again, this time by a state senator, whether the

amended statute violated the Commerce Clause. Rely-

ing principally on this Court’s decision in Granholm v.

Heald, 544 U.S. 460 (2005), the Attorney General read-

ily concluded in 2014 that the residency requirements

facially discriminated against nonresidents, and that

the statement of legislative intent in subsection (b)(4)

did not establish a local purpose sufficient to justify the

discriminatory licensing provisions. Opp. App. at 13a.

The Attorney General reasoned that the State had not

carried its burden of showing that its need for “greater

oversight with alcohol-related licenses can be served

only by favoring residents over nonresidents.” Jd. at

16a. The Attorney General also observed that the

State’s asserted interests in ensuring the “health,

safety, and welfare” of local communities could readily

be achieved by less discriminatory means, including

10

various forms of electronic monitoring. Jd. at 17a-18a

(citing Granholm, 544 U.S. at 492-93).

After the Attorney General’s second opinion, the

Commission continued to accept retail license applica-

tions from out-of-state residents, and from businesses

that did not meet the requirement that all officers,

directors, and shareholders needed to establish and

maintain residency in Tennessee. Total Wine was

formed as a Tennessee limited liability company in

November, 2015 and on July 5, 2016, applied for a

license for a new package store to be located in Nash-

ville. Pet. App. 58a. The members of Total Wine are not

Tennessee residents, id., but in its application Total

Wine designated a general manager who planned to

relocate and become a resident of Tennessee. And, of

course, all of the store’s prospective employees would

be Tennessee residents. The staff of the Commission

recommended that the license be approved and the

Commission was scheduled to vote on the application

on August 23, 2016. Another application from respond-

ent Affluere (whose owners recently had moved to Ten-

nessee but who did not meet the two-year and ten-year

durational residency requirements) was also sched-

uled to be voted on at that meeting. The Commission,

however, postponed and later deferred action on the

scheduled vote on the respondents’ applications pend-

ing the outcome of this action. On September 21, 2016,

Respondent Clayton Byrd, the Executive Director of

the Commission, represented by the State’s Attorney

General (a successor to the Attorney General who had

twice opined that the residency requirements violated

11

the Commerce Clause) filed a declaratory judgment ac-

tion in the Chancery Court for Davidson County, Ten-

nessee seeking a ruling on the constitutionality of the

durational residency provisions as applied to appli-

cants for off-premises retail liquor licenses. Pet. App.

at 4a.

Total Wine, Affluere, and the Tennessee Retailers

(who had threatened to sue the Commission if Total

Wine were granted a license) were named as defend-

ants in the Chancery Court action. The Tennessee Re-

tailers removed the action to the District Court on

federal question grounds, and Judge Sharp entered an

order realigning Total Wine and Affluere as plaintiffs

(along with Respondent Byrd), leaving the Tennessee

Retailers as the sole defendant. Jd. at 4a n.1. But when

Total Wine moved for summary judgment with respect

to the constitutionality of the residency requirements,

the State and the Tennessee Retailers each filed oppo-

sition memoranda supporting the statute’s constitu-

tionality. Id.

In granting Total Wine’s motion, the District

Court readily found that the statutory provisions

discriminated against interstate commerce because

they created a barrier to entry, precluding out-of-state

residents and business owners from seeking to enter

the Tennessee retail liquor market. Pet. App. at 73a-

74a. The Court also concluded that the residency re-

quirements did not advance a legitimate local purpose

that could not be adequately served by reasonable non-

discriminatory means. Jd. at 76a-77a. The Court noted

that Respondent Byrd had not offered “any concrete

12

evidence to show that the discrimination against out-

of-state residents is demonstrably justified,” relying

instead on an argument that Tennessee’s residency re-

quirements were not subject to a Commerce Clause

challenge at all because of the State’s grant of regula-

tory control over the retail sale and distribution of al-

coholic beverages under the Twenty-first Amendment.

Id. at 78a. After reviewing the statement of legislative

purpose in §204(b)(4) of the statute, the District Court

concluded that it “fails to see how the retailer resi-

dency requirements even assist Tennessee to achieve a

higher degree of oversight, control, and accountability

over those involved in the ownership, management,

and control of licensed retail premises.” Jd. at 80a. Be-

cause the State and the Tennessee Retailers had made

“no showing that the residency requirements advance

a legitimate local purpose that cannot be adequately

served by reasonable nondiscriminatory alternatives,

the Court finds that the residency requirements do not

survive a Commerce Clause challenge.” Id.* The Dis-

trict Court declared the residency requirements un-

constitutional and enjoined their enforcement. Jd. at

8la.

. The District Court’s ruling on Commerce Clause grounds

precluded the need for the Court to rule on Total Wine’s alterna-

tive argument that the Tennessee residency statutes also violated

the rights of Total Wine’s owners under the Privileges and Im-

munities Clause of the Constitution. Although the Privileges and

Immunities claim was briefed below, the Court of Appeals also

did not rule on that issue. As addressed herein, this is one of sev-

eral reasons why this case is not an appropriate vehicle for the

Court to resolve the question that Petitioner seeks to present.

13

Petitioner Tennessee Retailers filed a timely no-

tice of appeal from the District Court’s judgment; the

Attorney General, representing Respondent Byrd and

the interests of the State, did not. The Attorney Gen-

eral did file a brief in the Court of Appeals generally

supporting the statute, but the State waived oral argu-

ment. Significantly, neither the Tennessee Retailers

nor the State ever sought a stay of enforcement of the

District Court’s order enjoining Respondent Byrd from

applying the residency requirements. As a result, by

the time this case was argued in the Court of Appeals,

Affluere already had obtained its liquor license. Total

Wine lost its opportunity to obtain a license in Nash-

ville when it was unable to execute the lease on its de-

sired premises due to the pendency of this litigation.

But after the Court of Appeals issued its ruling, Total

Wine applied for and obtained a retail license for a new

package store in Knoxville. That 30,000 square foot

store opened for business on June 27, 2018. See note 1

supra.

Total Wine believes there are several other retail

stores licensed by the Commission and currently

open for business in Tennessee that do not satisfy

the durational residency requirements at issue in this

litigation.‘ Those licenses were granted by the

* During the proceedings in the District Court, Total Wine

sought discovery from the State through a public information re-

quest about the existence of other Tennessee retailers who do not

meet the residency requirements imposed by the statute. The

Commission responded that it did not keep track of the residency

of applicants for retail licenses once the Attorney General had de-

clared the statute unenforceable. See R.96 (Page ID#611-18)

14

Commission following the opinions of the Attorney

General described above, and before Respondent Byrd

filed this declaratory judgment action based on the

threat of litigation from the Tennessee Retailers.

@

REASONS FOR DENYING THE PETITION

The opinions of the District Court and the Court

of Appeals majority demonstrate thoroughly that the

essential premises of the Petition are flat wrong. First,

contrary to language in the opinion of the Court of

Appeals in Southern Wine & Spirits of America, Inc. v.

Division of Alcohol & Tobacco Control, 731 F.3d 799

(8th Cir. 2013), and the separate opinion of Judge

Sutton in this case (dissenting with respect to certain

aspects of the Tennessee durational residency require-

ments), this Court’s decision in Granholm did not

grant the States carte blanche to enact and enforce an-

ticompetitive legislation that would shield local liquor

wholesalers and retailers against competition from

out-of-state businesses that sought to establish loca-

tions in those States. Second, no decision from this

Court is needed to resolve a conflict among the Circuits

because no reviewing court would conclude that the

Tennessee statute at issue here serves any purpose

(declaration of counsel and attached letter from Commission con-

firming that after the 2012 Attorney General’s opinion the Com-

mission did not consider the Tennessee residency requirements

ords concerning out-of-state residents who had obtained licenses).

15

other than an impermissible purpose to protect local

businesses from out-of-state competition.

As the Court of Appeals majority correctly

concluded, Granholm in fact makes clear that the non-

discrimination principle of the Commerce Clause

applies to all aspects of the sale and distribution of

alcoholic beverages, and is not limited, as Petitioner

contends, to discrimination against out-of-state prod-

ucts. See Pet. App. at 16a-23a. And even though the

“three tier system” of alcohol distribution imposed by

most States has been held to be “unquestionably legit-

imate,” Granholm, 544 U.S. at 489, that does not mean

those States are free to structure their three tier sys-

tems solely to protect local business interests, and to

discriminate against nonresidents seeking to compete

within the State through the imposition of onerous

durational residency requirements that serve no legit-

imate purpose. As Justice Scalia observed in a concur-

ring opinion in Healy v. Beer Institute, Inc., 491 U.S.

324, 344 (1989), when a State exercises its regulatory

power over the sale of alcoholic beverages in a fashion

that discriminates against out-of-state interests, “|t|he

discriminatory character lof the challenged statute]

eliminates the immunity afforded [to the State] by the

Twenty-first Amendment.” The Court in Granholm

quoted Justice Scalia’s observation with approval, 544

U.S. at 488. (In an otherwise thorough collection of rel-

evant precedents, Petitioner fails to mention Healy.)

In Granholm, this Cour: also reaffirmed through-

out its opinion that the Commerce Clause does not

simply prohibit protectionist discrimination against

16

out-of-state products and producers, but rather pre-

vents the States from depriving “citizens of their right

to have access to the markets of other States on equal

terms.” Id. at 473. In fact, the Granholm Court reiter-

ated that “‘|w|hen a state statute directly regulates or

discriminates against interstate commerce, or when its

effect is to favor in-state economic interests over out-

of-state interests, we have generally struck down the

statute without further inquiry.” Jd. at 487 (quoting

Brown-Forman Distillers Corp. v. New York State Liq-

uor Auth., 476 U.S. 573, 579 (1986)).

Total Wine’s owners are residents of Maryland,

who formed a Tennessee limited liability company with

the purpose of gaining access to the retail market for

the off-premises sale of alcoholic beverages in that

State on equal terms with residents of Tennessee. In

purporting to deny Total Wine a liquor license on the

sole basis that its owners are not residents of Tennes-

see, the State’s durational residency statute favors in-

state economic interests over out-of-state interests,

and the courts below were correct to strike it down.

But aside from the fact that this case was correctly

decided below, there are ample additional reasons for

this Court to deny the Petition.

I. There Is No Real Conflict Among the Cir-

cuits.

No federal appellate court has reviewed a dura-

tional residency requirement for a liquor license that

is at all similar to the Tennessee statute at issue here

17

and determined that, despite its discriminatory effect

on nonresidents, it was immunized from Commerce

Clause scrutiny by the Twenty-first Amendment or

validated by legitimate state purposes that could not

otherwise be adequately served. That is because no

state has enacted residency requirements for whole-

sale and retail liquor licenses that are as blatantly dis-

criminatory as the Tennessee provisions at issue here.

Indeed, Judge Sutton in his separate opinion recog-

nized that the requirement that a corporation could

not be approved for a retail license unless 100% of its

shareholders were Tennessee residents could not be

explained as based on anything other than the promo-

tion of unlawful economic protectionism of the sort

that the Commerce Clause was designed to prevent.

Pet. App. at 54a. And the requirement that no license

can be renewed unless the license holder and all of its

principals have maintained Tennessee residences for

ten consecutive years was acknowledged by Judge Sut-

ton to represent “the epitome of arbitrariness.” Jd. at 55a.

Petitioner argues that the decision below, and

multiple decisions of the Court of Appeals for the Fifth

Circuit, culminating in Cooper v. Texas Alcoholic Bev-

erage Comm’n, 820 F.3d 730 (5th Cir. 2016), cert. denied

sub nom. Texas Package Stores Ass’n v. Fine Wine &

Spirits of North Texas, L.L.C., US. __ (2016)

(Docket No. 16-242), are in irreconcilable conflict with

the decision of the Eighth Circuit in Southern Wine &

Spirits, supra. But the decision in Southern Wine is dis-

tinguishable both factually and doctrinally. In that

case, the Court of Appeals upheld a Missouri statute

18

that imposed a three year residency requirement for

corporations seeking to obtain a wholesaler’s license in

that State. Missouri defended the statute, which ap-

plied to the corporation’s officers, directors, and at least

60% of its shareholders, based on the State’s asserted

interest in public accountability. The Court found that

the discrimination against nonresident corporations

inherent in these requirements would be impermissi-

ble under the Commerce Clause, unless authorized by

the Twenty-first Amendment. 731 F.3d at 807. But no-

tably, the Court also observed that Southern Wine had

waived in the district court any argument that the leg-

islation was motivated solely by economic protection-

ism—implying that if that were the statute’s only

purpose the residency requirements would be invalid,

even if they were integral to Missouri’s three-tier sys-

tem of alcohol distribution. Jd. at 807-08. Finally, the

Court interpreted language in Granholm, and specifi-

cally the sentence reaffirming that “the three-tier sys-

tem itself is ‘unquestionably legitimate,” 544 U.S. at

489, as mandating some deference for the states in

structuring the wholesale and retail tiers, so long as

they did not discriminate against out-of-state produc-

ers of beer, wine, and spirits. Based on that reasoning,

the Court determined that Missouri had “established

a sufficient basis for its residency requirement, which

is meaningfully tied to the ‘aim of the Twenty-first

Amendment ... to allow States to maintain an effec-

tive and uniform system for controlling liquor by regu-

lating its transportation, importation, and use.’” 731

F.3d at 812 (quoting Granholm, 544 U.S. at 484).

19

The decision of the Eighth Circuit in Southern

Wine clearly turned on the Court’s acceptance of the

State’s proffered nondiscriminatory purposes for its

wholesaler residency requirements, and the plaintiff’s

failure to demonstrate that the sole purpose of the

Missouri statute was protectionist. Here, by contrast,

both the District Court and the Court of Appeals

determined that the Tennessee durational residency

requirements were blatantly discriminatory and pro-

tectionist, both in purpose and effect. And the Sixth

Circuit majority found, based on the record presented

in the District Court, that “neither [Respondent] Byrd

nor [Petitioner] argues that a reasonable, nondiscrim-

inatory alternative cannot achieve Tennessee’s

[stated] goals.” Pet. App. at 33a. For these reasons, it is

not at all clear that this case would have turned out

differently if it had been decided in the Eighth Circuit.

Moreover, it is perfectly clear that the decisions of

the Courts of Appeals for the Second and Fourth Cir-

cuits, relied upon by Petitioner as evidence that the

Circuits are “intractably divided,” Pet. at 23, are not in

conflict with the decision below. As Petitioner concedes,

id., those decisions did not involve durational resi-

dency requirements for the owners of local liquor li-

censes. The Second and Fourth Circuit decisions both

involved challenges to laws that required alcohol to be

sold to local consumers by in-state licensed retailers

who had establishec a physical presence in the state

consistent with the three-tier system created by those

states. Total Wine today is selling alcohol in Tennessee

20

from its retail package store in Knoxville as a licensed

in-state retailer.

In Arnold’s Wines, Inc. v. Boyle, 571 F.3d 185 (2d

Cir. 2009), an Indiana retailer sought the ability to sell

directly to New York consumers without first obtaining

a New York retail license or opening a local store. The

requirement that any retailer had to obtain a license,

and establish a physical presence in the state, was in-

herent in New York’s three-tier system of licensed dis-

tribution of alcoholic beverages. The Second Circuit's

observation that the plaintiff’s Commerce Clause chal-

lenge presented “a frontal attack on the constitution-

ality of the three-tier system itself,” 571 F.3d at 190,

and was thereby inconsistent with Granholm, was

made in that narrow context.

In Brooks v. Vassar, 462 F.3d 341 (4th Cir. 2006),

the Court reviewed a number of Commerce Clause

challenges to Virginia’s liquor laws. The plaintiffs

argued, among other claims, that a Virginia statute

that allowed consumers to bring into the State for

consumption only limited amounts of wine purchased

from out-of-state wineries impermissibly favored in-

state licensed retailers who could sell unlimited

amounts of wine to those same consumers. /d. at 352.

It was in this context that Judge Niemeyer, speaking

only for himself,’ observed that “an argument that

® The aspect of Brooks relied upon by Petitioner to support

the asserted conflict was not contained in an opinion for the

Court. District Judge Goodwin dissented and would have af-

firmed the District Court’s conclusion in Brooks that Virginia’s so-

called “Personal Import Exception” violated the Commerce

21

compares the status of an in-state retailer with an out-

of-state retailer—or that compares the status of any

other in-state entity under the three-tier system with

its out-of-state counterpart—is nothing different than

an argument challe: ing the three-tier system itself.

Judge Niemeyer opined that any such argument was

precluded by Granholm. Id.

Neither the Second Circuit’s holding in Arnold’s

Wines, nor Judge Niemeyer’s opinion in Brooks, has

anything to do with the constitutionality of durational

residency requirements that prevent otherwise quali-

fied nonresidents from becoming in-state licensees.

These decisions do not demonstrate a conflict in the

Circuits on the question presented by this Petition.

Moreover, as will be shown below, protectionist resi-

dency requirements have in fact been disfavored by a

long line of federal decisions, following this Court’s

Commerce Clause precedents, including the decision in

Granholm.

Il. Petitioner Overstates the National Signifi-

cance of This Case.

Petitioner contends that as many as 21 states

impose some form of durational residency require-

ments on alcohol retailers or wholesalers, and that

many more state laws impose other residency-related

Clause. See 462 F.3d at 361-63. Judge Traxler concurred in the

Court’s opinion, except for the portion relied upon by Petitioner,

as to which he concurred in the judgment without further expla-

nation. Jd. at 361.

22

restrictions on the distribution and sale of alcohol. Pet.

at 23-25 & n.3 (collecting statutory citations). Affiliates

of Total Wine are currently operating licensed retail

package stores in several of those states, including

Kentucky, Missouri, New York, South Carolina, Vir-

ginia, and Washirgton, despite the fact that the owners

of those licensees do not reside in the states in ques-

tion.* Many “three-tier system” states impose no resi-

dency requirements on wholesale or retail licensees. In

other states, national retailers are able to obtain li-

censes because many of the statutes cited by Petitioner

allow corporations and other business entities to estab-

lish and maintain “resident status” if they are regis-

tered or qualified to do business in the state, e.g., Ky.

Rev. Stat. Ann. §243.100; La. Stat. Ann. §26:80; Me.

Rev. Stat. tit. 28-A, §1401; Wash. Rev. Code Ann.

§66.24.010, or they have designated a local manager or

single officer or director who becomes the resident

agent of the licensee, e.g., Mo. Rev. Stat. §311.060; N.H.

Rev. Stat. Ann. §178:1 (applicable solely to manufac-

turers and distributors); Wis. Stat. Ann. §125.04. These

® Total Wine currently has licensed stores in 23 states that

permit private retail sales of alcoholic beverages. The local licen-

sees are typically organized as corporations or limited liability

companies. The principal owners of these licensees reside in only

one of those states, Maryland. All of the states in which Total

Wine does business have implemented some form of the three-tier

system for the distribution of alcoholic beverages. Many do not

require that a locally registered corporate or business licensee es-

tablish some other form of state “residence.” Many others, by stat-

ute, regulation, or administrative practice, allow entity licensees

to designate a local manager as their resident agents for regula-

tory purposes.

23

statutes offer clear proof that a durational residency

requirement for all officers, directors, and shareholders

of a corporate licensee is not an essential element of

the three-tier system of distribution. And none of the

statutes cited by Petitioner imposes an effective nine

year durational residency requirement on applicants

for wholesale or retail licenses. The Court of Appeals

majority correctly found that the Tennessee statute is

blatantly protectionist and serves no legitimate loca!

purpose that could not be readily served by other non-

discriminatory licensing requirements. See Pet. App. at

32a-33a (describing such alternatives).

In several other states, restrictive residency re-

quirements (including some of those cited by the

Petitioner) have been struck down by reviewing courts

as inconsistent with the Dormant Commerce Clause,

notwithstanding the same Twenty-first Amendment

arguments presented by Petitioner here. See, e.z.,

Cooper v. Texas Alcoholic Beverage Comm’n, 820 F.3d

730 (5th Cir. 2016), discussed supra (Texas durational

residency requirements are invalid under Granholm);

Anheuser-Busch, Inc. v. Schnorf, 738 F. Supp. 2d 793

(N.D. Ill. 2010) (Illinois statutes denying distribution

rights to out-of-state breweries are invalid under Gran-

holm); Peoples Super Liquor Stores, Inc. v. Jenkins, 432

F. Supp. 2d 200, 221 (D. Mass. 2006) (opining in a chal-

lenge to Massachusetts residency requirements that

“Granholm cannot be held to sanction protectionist

policies at any of the [three] tiers”); Glazer’s Wholesale

Drug Co., Inc. v. Kansas, 145 F. Supp. 2d 1234, 1246

(D. Kan. 2001) (discriminatory durational residency

24

requirements have “nothing to do with” a state’s inter-

est in ensuring regulatory compliance).

Like the Court of Appeals in this case, those courts

had little difficulty in reconciling Granholm’s reaffir-

mation of the essential nondiscrimination principles of

the Dormant Commerce Clause with the “unques-

tioned legitimacy” of the three-tier system of alcoho!

distribution. Those decisions also belie any “intracta-

ble conflict” about the meaning of Granholm.

Ill. The State of Tennessee Is Not the Petitioner

Here And Has Not Seen Fit to Defend the Con-

stitutionality of the Durational Residency

Requirements in a Consistent Fashion.

Respondent Byrd did not appeal the judgment of

the District Court, and the Attorney General waived

the State’s opportunity to present oral argument in the

Court of Appeals in support of the constitutionality of

the durational residency requirements. Last week, the

Attorney General waived a response to this Petition on

behalf of Respondent Byrd. Throughout the course of

these proceedings, the Attorney General of the State

has vacillated over the validity of the durational resi-

dency requirements, opining twice in formal opinions

that the legislation was invalid under the Commerce

Clause. See Opp. App. at la-18a. When a successor At-

torney General initiated the declaratory judgment ac-

tion that began this litigation, the State’s position on

the validity of the statute was so unclear that, follow-

ing removal of the Chancery Court complaint, the

25

District Court aligned Respondent Byrd as among the

plaintiffs challenging the statute. See Pet. App. at 4a

n.1. And although the Attorney General filed briefs in

the courts below defending the statute, Respondent

Byrd never offered evidence to suggest, let alone

demonstrate, that any aspect of Tennessee’s durational

residency requirements actually served a purpose

other than economic protectionism. See Pet. App. at

76a-80a (District Court findings); 32a-33a (decision of

the Court of Appeals).

This Court should decline Petitioner’s invitation to

rewrite decades of Commerce Clause and Twenty-first

Amendment jurisprudence where the authorized offi-

cials of the State have not defended the statute at issue

in a consistent fashion nor offered a coherent rationale

for why the statute can be justified despite its discrim-

inatory effect on nonresidents. The Petition here is pre-

eee cee meee meres ee

oxo taibsehad tar Gal cans tattnten teteets th eee

serving a local enclave free from competition from non-

residents like the owners of Total Wine, who have

extensive experience operating efficient retail stores.

The Tennessee Retailers no doubt lobbied for the chal-

lenged legislation, but they do not speak for the State

of Tennessee.

Under somewhat similar circumstances, in Hol-

lingsworth v. Perry, 570 U.S. 693, 715 (2013), this Court

observed: “We have never before upheld the standing

of a private party to defend the constitutionality of a

state statute when state officials have chosen not to.

26

We decline to do so for the first time here.” In this case,

the Attorney General of Tennessee twice opined that

the statute was unconstitutional, in reliance upon this

Court’s decision in Granholm, and Respondent Byrd

only initiated this litigation when threatened with a

lawsuit from Petitioner. And after the District Court

enjoined continuing enforcement of the statutes in

question, the relevant state officials did not seek a stay.

Instead, once the District Court ruled, and even before

the Court of Appeals affirmed that decision, Respond-

ent Byrd and the Commission began to accept applica-

tions and issue licenses to nonresident parties such as

Total Wine and Affluere, so long as they satisfied all

the reasonable requirements imposed by the State for

the grant of a retail liquor license. Those nonresidents

who have obtained licenses have now opened for busi-

ness at considerable expense and they expect to have

the ability to renew those licenses without regard to

the ten year residency requirement imposed by Tenn.

Code Ann. §57-3-204(b)(2)(A).

The principles underlying the decision in Hol-

lingsworth are applicable here. This Court has previ-

ously noted that “the power to create and enforce a

legal code . . . is one of the quintessential functions of

a State. Because the State alone is entitled to create a

legal code, only the State has . . . [a] direct stake . . . in

defending the standards embodied in that code.” Dia-

mond v. Charles, 476 U.S. 54, 65 (1986) (internal cita-

tions omitted). Given Respondent Byrd’s waiver of the

opportunity to respond to the Petition, it cannot be

gainsaid that the Attorney General’s defense of the

statute in question has been inconsistent, ambivalent,

27

and at most lukewarm. This Court should reserve its

grant of plenary review to a case in which the legiti-

macy of durational residency requirements for obtain-

ing a state liquor license has been defended vigorously

by the authorized proponents of the challenged legis-

lation.’

IV. Resolution of the Question Presented Will

Not Finally Determine the Outcome of This

Controversy.

As noted above, Total Wine moved in the District

Court for a ruling that the Tennessee durational resi-

dency requirements violated both the Dormant Com-

merce Clause and the Privileges and Immunities

Clause of Article IV of the Constitution. See, e.g., Wil-

son v. McBeath, 1991 WL 540043 (W.D. Tex. 1991) (en-

joining enforcement of the Texas durational residency

' Two years ago this Court was presented with a similar chal-

lenge to a decision of the Court of Appeals for the Fifth Circuit

rejecting efforts by the Texas Package Stores Association to over-

turn a longstanding injunction against the enforcement of a du-

rational residency requirement for the issuance of retail liquor

licenses in Texas. As in this case, the Texas retailers’ association

argued that the decision in Granholm authorized the otherwise

discriminatory statute. The State of Texas—the party that had

been enjoined in 1991 from enforcing the discriminatory statute

remained on the sidelines and took no role in the Texas retailers’

efforts to undo the ongoing effect of the injunction, and revive the

durational residency requirement. This Court denied the petition

for certiorari. See Cooper v. Texas Alcoholic Beverage Comm'n,

820 F.3d 730 (5th Cir. 2016), cert. denied sub nom. Texas Package

Stores Ass'n v. Fine Wine & Spirits of North Texas, L.L.C., U.S.

__ (2016) (Docket No. 16-242).

28

requirements for obtaining a retail mixed beverage

permit because they violated both the Commerce

Clause and the Privileges and Immunities C)ause).

The District Court declined to reach the issue, Pet.

App. at 80a-81a, and the Court of Appeals did not ad-

dress it.

But Total Wine did brief this issue in the Court of

Appeals, contending that the durational residency re-

quirements deprived the individual owners of Total

Wine of any opportunity to engage in a lawful business

in Tennessee “on terms of substantial equality with the

citizens of that State,” a right that this Court has held

to be protected by the Privileges and Immunities

Clause. See Supreme Court of New Hampshire v. Piper,

470 US. 274, 280 (1985) (holding that a state’s court

rules limiting bar admission to state residents violated

Privileges and Immunities because such clear discrim-

ination against nonresident lawyers was not substan-

tially related to legitimate state purposes that could

not be adequately served by less restrictive means).

Petitioner argued below that the Privileges and

Immunities Clause does not apply to corporations and

should not be held applicable to the State’s exercise of

its police powers over liquor licenses. Those arguments

were not well-founded for at least three reasons: 1) To-

tal Wine was named as a defendant in this declaratory

judgment action but was effectively asserting the indi-

vidual rights of its owners who were deprived of the

opportunity to obtain a license for their company based

solely on the fact that they were not Tennessee resi-

dents; 2) this Court has never ruled that the Privileges

29

and Immunities Clause does not apply to members of

limited liability companies; and 3) there has never

been a decision from this Court holding that the Privi-

leges and Immunities Clause is overridden by the

Twenty-first Amendment, and nothing in Granholm

suggests that state regulation of the liquor business is

immune from scrutiny under Article IV, §2 of the Con-

stitution.

In the unlikely event that this Court were to grant

this Petition and reverse the decision of the Court of

Appeals, a remand would be required in order for the

courts below to address the Privileges and Immunities

arguments implicated by Respondent Byrd’s declara-

tory judgment action, and Total Wine’s claim that the

durational residency requirements violate the “privi-

leges and immunities” of nonresidents who are de-

prived of the opportunity to apply for a retail liquor

license on equal footing with citizens of Tennessee.

Vv. In Rejecting Petitioner’s Strained Reading

of Granholm, the Sixth Circuit Clearly

Reached the Correct Result.

The linchpin of the position advanced by the Ten-

nessee Retailers in this case, like the position of the

Texas Package Stores Association in Cooper, see note 7

supra, is the erroneous assertion that this Court's

decision in Granholm should be interpreted “to mean

that the dormant Commerce Clause applies only to

state laws that regulate alcohol producers or products.”

See Pet. at 12. The apparent source of this argument is

the Granholm Court’s reference to discrimination

30

against out-of-state producers when it invalidated

state laws that prevented out-of-state wineries but not

in-state wineries from engaging in direct shipments,

and on the Court’s passing observation that the

three-tier system previously had been recognized as

“unquestionably legitimate.” 544 U.S. at 489 (quoting

North Dakota v. United States, 495 U.S. 423, 432

(1990)). But these passages from Granholm appear in

the portion of the opinion that rejected the States’ ar-

gument “that any decision invalidating their |discrim-

inatory state] shipment laws would call into question

the constitutionality of the three-tier system.” 544 U.S.

at 488. In the same way, nothing in the opinions below

calls into question “the constitutionality of the three-

tier system,” so long as the State does not structure

that system in a manner that masks blatant economic

protectionism.

Petitioner is asking this Court to rule that the

States are free to utilize their authority under the

Twenty-first Amendment to immunize state regulation

of the sale and di tribution of alcohol from the nondis-

crimination principle of the Commerce Clause. In

Granholm, Michigan and New York invited the same

result and this Court declined the invitation in terms

that are fully applicable here. In fact, in Granholm, the

Court squarely rejected the States’ argument that the

Court should overrule Bacchus Imports, Ltd. v. Dias,

468 U.S. 263 (1984), and thereby reaffirmed that a

state’s right to regulate alcohol is limited by the non-

discrimination principle of the Commerce Clause. 544

U.S. at 487-88. The Granholm Court recognized that

“lal retreat from Bacchus would also undermine

31

Brown-Forman |Distillers Corp. v. New York State Ligq-

uor Authority, 476 U.S. 573 (1986)|, and Healy |v. Beer

Institute, Inc., 491 U.S. 324 (1989)].” The Court readily

rejected the States’ contentions because each of those

prior cases “lend|s] significant support to the conclu-

sion that the Twenty-first Amendment does not im-

munize all [liquor] laws from Commerce Clause

challenge.” 544 U.S. at 488.

Petitioner presents a variation on the same theme

rejected in Granholm by claiming that the Commerce

Clause should apply only to State discrimination

against producers of alcoholic beverages or their prod-

ucts, leaving the States free to engage in economic pro-

tectionism with respect to the wholesale and retail

tiers of the liquor industry. This more limited approach

ignores the fact that the Commerce Clause, as reaf-

firmed in Granholm, has always applied to “‘differen-

tial treatment of in-state and out-of-state economic

interests that benefits the former and burdens the lat-

ter.’” Id. at 472 (quoting Oregon Waste Systems, Inc. v.

Department of Environmental Quality, 511 U.S. 93, 99

(1994)) (emphasis supplied). Petitioner ignores the

holding in Granholm that “‘|wl|hen a state statute di-

rectly regulates or discriminates against interstate

commerce, or when its effect is to favor in-state eco-

nomic interests over out-of-state interests, we have gen-

erally struck down the statute without further

inquiry.’” Id. at 487 (quoting Brown-Forman, supra, at

579) (emphasis supplied). Petitioner ignores the pas-

sage in Granholm expressly noting that “States may

not enact laws that burden out-of-state producers or

32

shippers simply to give a competitive advantage to in-

state businesses.” 544 U.S. at 772 (emphasis supplied).

And Petitioner disregards the fact that in reviewing

the statutes in question, the Granholm Court observed

that New York’s requirement for an out-of-state winery

to maintain an in-state presence in order to enjoy the

benefits of direct shipment “runs contrary to our ad-

monition that States cannot require an out-of-state

firm ‘to become a resident in order to compete on equal!

terms.’” Id. at 475 (quoting Halliburton Oil Well Ce-

menting Co. v. Reily, 373 U.S. 64, 72 (1963)).

In short, when fully and fairly analyzed (as in the

majority opinion below), there is nothing in Granholm

to suggest—for the alcoholic beverages industry

alone—that the Commerce Clause’s principle of non-

discrimination applies only to producers, and does not

prohibit the states from withholding licenses from pro-

spective wholesalers or retailers for the sole reason

that their owners reside in other states. See also Lewis

v. BT Investment Managers, Inc., 447 U.S. 27, 44 (1980)

(invalidating a Florida law that prohibited out-of-state

banks from owning or controlling in-state businesses

seeking to provide investment services to Florida resi-

dents because “the Commerce Clause prohibits a State

from using its regulatory power to protect its own citi-

zens from outside competition”).

The true meaning of Granholm, and its impact

on discriminatory durational residency requirements,

has not been lost on reviewing courts. In her majority

opinion, Judge Moore analyzed Granholm closely, took

into account this Court’s prior decisions rejecting

33

Twenty-first Amendment defenses to protectionist

liquor regulations, and reached the right result.

See Pet. App. at 16a-23a. The Court’s opinion was

consistent with the repeated rulings of the Fifth Cir-

cuit in determining that the Texas durational resi-

dency requirements have been properly enjoined since

1991. Id. at 24a- 27a.

In rejecting Judge Sutton’s view that the Twenty-

first Amendment grants the States nearly unfettered

authority over “alcohol distribution as opposed to pro-

duction,” the Sixth Circuit majority correctly deter-

mined that Granholm and the decisions that it

reaffirmed establish that the nondiscrimination prin-

ciple of the Commerce Clause applies both to the pro-

ducers of alcoholic beverages and to those engaged in

the wholesale and retail distribution of those products.

Id. at 20a-22a, n.7. Moreover, even Judge Sutton was

forced to conclude that critical aspects of Tennessee’s

durational residency requirements for retail licensees

could not survive Commerce Clause scrutiny, even if

the States were granted virtually free rein to dictate

local ownership requirements for licensed package

stores. Id. at 54a-55a. The level of discrimination

against out-of-state business owners evidenced in the

Tennessee durational residency requirements demon-

strates the wisdom of Justice Scalia’s observation in

Healy that “|t|he discriminatory character [of the chal-

lenged statute] eliminates the immunity afforded by

the Twenty-first Amendment.” 491 U.S. at 344 (concur-

ring opinion).

34

Because the Court of Appeals’ opinion in this case

is so clearly correct, and because its cogent decision

should help to inter the misinterpretations of Gran-

holm previously advanced by some States and repeat-

edly endorsed by the entrenched local retailers who

seek the benefits of economic protectionism, this Court

should reserve plenary review for a future case in

which a reviewing court has accepted Petitioner’s erro-

neous premise that a blatantly discriminatory dura-

tional residency requirement is somehow protected

from Commerce Clause scrutiny by the Twenty-first

Amendment.

se

-

CONCLUSION

For all the reasons addressed herein, the Petition

for a Writ of Certiorari should be denied.

Respectfully submitted,

WILLIAM J. MURPHY

Counsel of Record

JOHN J. CONNOLLY

ALICIA SHELTON

ZUCKERMAN SPAEDER LLP

100 East Pratt Street

Suite 2440

Baltimore, MD 21202

(410) 332-0444

wmurphy@zuckerman.com

Counsel for Respondent

Tennessee Fine Wines and

Spirits, LLC dba Total

Wine Spirits Beer & More