I am happy to announce that I filed an Amicus Brief in the Sixth Circuit case, Block v. Canepa, which challenges Ohio’s discriminatory wine retailer shipping law.

The brief written on behalf of the National Association of Wine Retailers (NAWR), challenges Sixth Circuit precedent in Lebamoff v. Whitmer, which erroneously performs a Commerce Clause analysis by not considering the presence of non-discriminatory alternatives.

The U.S. Supreme Court in Tennessee Wine and Granholm, and the Sixth Circuit in Byrd (Byrd became the Tennessee Wine case when the U.S. Supreme Court granted cert in this case) all stood for the proposition that for a discriminatory state liquor law to survive scrutiny it must serve public health or safety interests or can be justified on nonprotectionist grounds, and the state’s interests can’t be served by reasonable nondiscriminatory alternatives.

In Lebamoff Judge Sutton’s opinion cut out the reasonable nondiscriminatory alternatives test and replaces it with a “predominant effect” test in which he stated that we ask whether the law “can be justified as a public health or safety measure or on some other legitimate nonprotectionist ground.” But if the “predominant effect of the law is protectionism,” rather than the promotion of legitimate state interests, the Twenty-first Amendment does not shield it.

By implementing a “predominant effect” test and ignoring the reasonable non-discriminatory alternatives test, Judge Sutton changes the level of review for discriminatory state liquor laws from skeptical review to a lower standard somewhat akin to the Pike or rational review standard. He would leave one to believe that the “predominant effect” test, which was not part of the Granholm decision, was created by SCOTUS in Tennessee Wine to limit and narrow Granholm’s heighted scrutiny standard.

A case analysis shows otherwise. After setting forth its analysis of the “predominant effect” test, SCOTUS in Tennessee Wine did not limit its analysis to this test, it went onto exam non-discriminatory alternatives. In no way did it limit Granholm’s heightened scrutiny analysis, rather it did the opposite in following the Granholm test.

Unfortunately, the legal misrepresentation of doctrine from the Sixth Circuit has poorly influenced the Fourth and Eighth Circuit.

Here is to hoping the Sixth Circuit properly applies its analysis and overturns a bad decision with a domino effect.