Does the appeal court’s Texas Walmart liquor store ruling diss the Supreme Court?
Remember the Supreme Court’s June Tennessee decision about out-of-state retailers?
That’s the one that was supposed to free us from the shackles of the antiquated, Prohibition-era three-tier system of liquor regulation. If so, the U.S. Fifth Circuit of Appeals wasn’t paying attention. It ruled last week that a Texas law that forbids public companies like Walmart from owning liquor stores may not be unconstitutional.
In other words, Tennessee can’t discriminate against out-of-state retailers, but Texas may be able to discriminate against publicly-owned retailers.
“We could be right back at the Supreme Court,” says Taylor Rex Robertson, an attorney with Haynes and Boone in Dallas. “The appeals court may have taken the easy way out.”
In this, Robertson says, the appeals court didn’t exactly rule that the Texas law is constitutional. Instead, it disagreed with the way the trial court judge analyzed the case and applied the law. Rather than make a decision, the appeals court sent the case back to the trial judge to do what needs to be done to analyze the case correctly. Call this a technicality, but one of the technicalities that oils the gears of the legal system.
And why not a technicality, since this is three-tier? If anything, the almost totally unexpected decision in the Texas Walmart liquor store case proves just how resilient three-tier is. Because it was a shock; the trial court had called the Texas law “irrational.”
Controversy, controversy, controversy
Still, it’s not like these kinds of contradictory decisions are unusual. In 2005, the Supreme Court ruling that allowed wineries to ship directly to consumers was supposed to end three-tier’s stranglehold. Until it didn’t.
Or, as a friend of mine put it: “Precedent? There’s no such thing as precedent when it comes to three-tier.”
Legally, the two decisions weren’t about exactly the same thing, even if an out-of-state retailer and a publicly-held retailer may seem to be pretty much alike to those of us who buy wine. But in the convoluted and tortured system that was set up to keep Al Capone out the liquor business after Prohibition, they’re vastly different. (Which, without boring you with legal-ese, is sort of why the appeals court did what it did.)
Hence, the Supreme Court ruled that barring out-of-state retailers wouldn’t necessarily promote the health and safety of Tennessee residents, which is the litmus test for a law’s constitutionality. The Supremes said an out-of-state retailer could just as effectively promote the health and safety as a local retailer. But in the Texas Walmart liquor store case, the appeals court said that there is no evidence that publicly-held retailers couldn’t promote the health and safety of Texas residents as effectively as privately-held companies could.
In other words, a Total Wine employee in Tennessee would card underage shoppers, fill out the state’s booze-related paperwork, and buy only from approved wholesalers more effectively than a Walmart employee in Texas would.
No, I don’t know what’s going to happen next. The only certainty, says Robertson, is that the Texas Walmart liquor store saga isn’t gon away anytime soon. What I do know is that whatever glimmer of hope we had that it would be easier to buy wine in the near future has glimmered away.
Drawing courtesy of Peter Hudspith via Flickr using a Creative Commons license