A week after its discriminatory wine retailer shipping law was found unconstitutional by the Sixth Circuit, Ohio filed a motion to stay the Sixth Circuit’s mandate.

In the first line of the motion Ohio AG Dave Yost states that Ohio intends to file a writ of certiorari in this case with SCOTUS and the deadline for filing the petition is August 4, 2026.

Interesting items

The petition seeks a mandate to delay the proceedings and not provide the plaintiffs the immediate benefit of victory.

However, what is most interesting about this motion is it acknowledges the split in not only result among the circuits but also a split in methodology, which mirrors the position of the SCOTUS cert petitioners in Day v. Henry.

This case presents a substantial question of federal law

Under Fed.R. App.P 41(d)(1) whether a substantial question exists depends on the reasonable probability the case will be granted cert by four justices and the possibility of five justices reversing the decision.

The motion provided two main reasons why SCOTUS would be interested in this case. First, there is a circuit split not only over result between the Sixth Circuit and the other circuits, but that there is a conflict over reasoning as well amongst numerous circuits.

Second, the motion states that SCOTUS has shown interest in this issue previously. Mainly, the recent Tennessee Wine case, which was heard by SCOTUS in 2019.

It begs the question, if Ohio wants SCOTUS to hear the case so badly, then why didn’t they file the motion before SCOTUS met for conference?

Good cause for a stay

A good cause for stay is granted if the moving party would suffer harm absent a stay and whether the non-moving party will suffer prejudice from a stay.

Ohio claims harm from not being able to impose direct shipping restrictions which are in their opinion an essential element of the three-tier system. And that harm would come from not being able to enforce the same direct shipping restrictions that Michigan and Indiana could enforce.

The state also claims that the retailer shipper won’t be prejudiced because the status quo would remain and they never had shipping rights before the decision.

Somehow Ohio claims benevolent for both parties as the decision to remand for remedy will be taken out of the district court’s hands and given to SCOTUS.

Other Arguments

The motion argues that public interest favors a stay for health and safety justifications, and that the Sixth Circuit granted a stay previously in this case.

Conclusion

The last time Ohio got a bad decision they filed a motion to stay indicating they were going to file a cert petition and withdrew their fire. The game is different this time around, now there is a split in result, and I don’t think a remand does them any good.

They do feign sincerity a bit on the importance of hearing this case, when their petition may have been very impactful if filed before SCOTUS met for the conference.