Beer law and the commerce clause, or how to tell if you are an appellate lawyer

Everyone knows that there are simple tests to take to discern traits.  For example, a simple test to find out if people are male or female is to put them in a room where a Three Stooges movie is playing on the tv.  Anyone left in the room after 5 minutes is almost inevitably male.  (Rocket launches work, too.)

The following decision provides an excellent test for determining if you are made for appellate law.  If you can get to the end of this decision because you found it interesting, you're golden:

Coors Brewing Co. v. Mendez-Torres, 07-2682,

This decision is chock-a-block with fascinating discussions of the difference between claim and issue preclusion, the Rooker-Feldman doctrine, and other procedural and jurisdictional niceties that get an appellate lawyer's blood racing. 

The bottom line of this decision is that Puerto Rico has been taxing big brewers more than small brewers; Coors says this violates the commerce clause; and the issue in the decision was whether previous actions and jurisdictional obstacles kept Coors from making the claim.  The First Circuit said no, so it's on to the merits.

The merits will be interesting to see, because courts treat commerce clause claims in various ways.  In theory, either discriminatory purpose or effect can trigger strict scrutiny, under which the state almost always loses.   But the degree to which the court will examine the law or the facts outside the text varies. 

A good example of the dichotomy between the two schools, one that looks at reality and the other that keeps the review very strict (gee, what school does Cathy prefer?), is reflected in a couple of boat-length cases,  Davrod Corp. v. Coates, 971 F.2d 778, 796 (1st Cir.1991) and Atlantic Prince Limited v. Jorling, 710 F.Supp. 893 (E.D.N.Y. 1989).

In Atlantic Prince, the district court struck down a facially neutral state boat length law on the ground that it was discriminatory in effect.  The court noted that the law affected no New York-owned boats, but only boats owned by out-of-state interests.  The court also examined legislative history, noting, “Those who advocated passage of the bill which became [the law at issue] knew that it discriminated against out-of-state fishers.”  Id. at 897.  The court observed that when a law is discriminatory in effect, the burden shifts to the state to show, among other things, a legitimate purpose, and that little deference is given to the state’s explanation: 

this court is required to assess such contentions skeptically.  "[W]hen considering the purpose of a challenged statute, [the court] is not bound by '[t]he name, description or characterization given it by the legislature or the courts of the State,' but will determine for itself the practical impact of the law."  Hughes, 441 U.S. at 336… (quoting Lacoste v. Louisiana Department of Conservation, 263 U.S. 545, 550, … (1924)).   See also Dean Milk Co. v. Madison, 340 U.S. 349, 354 … (1951) (taking proffered justification at face value would vitiate the Commerce Clause "save for the rare instance where a state artlessly discloses an avowed purpose to discriminate against interstate goods"); Taylor, 477 U.S. at 149… (asserted local purpose cannot be merely "a sham or a 'post hoc rationalization'"; quoting Hughes, 441 U.S. at 338 n. 20,…; Consolidated Freightways Corp., 450 U.S. at 680,…(Brennan, J., concurring in judgment) ("The burdens imposed on commerce must be balanced against the local benefits actually sought to be achieved by the State's lawmakers, and not against those suggested after the fact by counsel");  Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 522 …(1935) (state may not burden interstate commerce "under any guise"; quoting International Textbook Co. v. Pigg, 217 U.S. 91, 112 … (1910)); New Energy Co. v. Limbach, 486 U.S. 269 … (1988) ("implausible speculation" not a sufficient local purpose); W.C.M. Window Co. v. Bernardi, 730 F.2d 486, 496 (7th Cir.1984) (state cannot justify statute as addressing "purely conjectural harms").

Jorling, 710 F.Supp. at 898-99 (brackets in original; footnote omitted).

In contrast, in Davrod, in a 2:1 decision, the First Circuit reversed and vacated the district court’s ruling, after trial, enjoining a Massachusetts boat length law and a shrimp processing rule.  Looking first at the boat length law, the majority, with a visiting district court judge from Pennsylvania writing the opinion, distinguished Jorling on the basis that there had only been at most one New York boat affected by the law in that case, while the Massachusetts law affected 70 Massachusetts boats, and because the court in Jorling had found a discriminatory purpose, with a “clear paper trail” showing an economic protectionist motive.  Davrod, 971 F.2d at 789.  See also id.  (“No such heavy discriminatory footprints appear in this case.  There are a number of Massachusetts fishing vessels over 90 feet in length which could be converted to squid fishing.”).

The majority remanded to the district court assessment of a squid processing rule for further factual findings, citing evidence in the record that could support the inference that the purpose of the rule was to steer squid processing away from efficient out-of-state boats and towards Massachusetts shore-based processors.  Id. at 796.

Judge Coffin dissented, stating that he would “neither uphold the 90-foot limitation nor vacate the district court’s decision” on the shrimp processing rule.  Id.

As to the boat length rule, Judge Coffin concluded:

(1) the 90-foot rule adversely affects out-of-state interests; (2) it has no such impact on in-state ones; and (3) it disproportionately benefits local interests.  On such a record, to label the effect on interstate commerce “incidental” seems to me to create too wide an escape hatch from the Commerce Clause.  I would find affirmative discriminatory effect.

Id. at 797.

As to the shrimp processing rule, Judge Coffin would have upheld the injunction instead of vacating it for further findings, because the record showed that three of the four largest shore-based processors in the region were from Massachusetts, permitting the inference that the limitation discriminated; evidence linking the rule to a legitimate purpose was “less than compelling”; and the Commonwealth had failed to meet its burden of proving the unavailability of non-discriminatory methods of conserving squid or saving Massachusetts’ fish processing industry.  Id. at 798-99.

In sum, commerce clause is one of those areas where lawyers earn their keep, because you've got to put together a strong case on the facts and the law, and it's possible to do so because the court at least in theory can't summarily reject the claim by dreaming up a legitimate basis for the law, as with rational basis due process.  Even then, you might get rejected depending on which school the judges come from; but you are supposed to get a fighting chance.   

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