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Texas is an idiot

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I didn’t much like Kenneth Starr when he was the special prosecutor dogging President Clinton into impeachment. But he won his place back into my good graces when he and others successfully argued the 2005 Granholm v. Heald case before the U.S. Supreme Court. The Court ruled it is unconstitutional for a state to prohibit out-of-state retailers from shipping wine directly to consumers, if in fact the state allows in-state retailers to do so. It was a simple matter of fairness.

I interviewed Starr after the victory (it was eerie talking to a man I’d earlier reviled) and I remember something he said that has become prophetically true. When I asked him how long it would be before all 50 states allowed legal shipping of wine from retailers to consumers, he said, “At least ten years.” I was surprised. Hadn’t the Supreme Court — the highest in the land — spoken?

Well, it had. But apparently, not loudly enough, with enough loopholes to drive a Hummer through. Anyone who follows the continuing hassles that some states are putting on interstate shipping knows that the people who do not want the free flow of wine in America simply will not allow it to happen, no matter what. And who are these people?

“Primarily wholesalers,” explains Tom Wark. As the executive director of the Specialty Wine Retailers Association, he’s been at the forefront of this ridiculous effort by wholesalers to jam up the free flow of wine. What’s their beef? “They’ve been against direct shipping for quite some time, on principle, because every time a bottle of wine comes into the state direct to the consumer, it’s a bottle they don’t make a profit on,” Tom said. “They’re staunch defenders of the 3-tiered system, so any crack in the system is a threat to them.”

The latest case, which Tom undoubtedly will report about on his Fermentations blog far better than I ever could, comes from Texas, where the state government allied itself with the wholesalers to prevent the spirit of Granholm from being applied. To make a long story short, a District Court judge ruled, as he had to, that Texas was wrong to prohibit out-of-state retailers from shipping wine to Texas consumers. That would seem to be a victory for the out-of-state retailers (not to mention the people of Texas), but then the judge pooped on his own decision by placing a restriction so arbitrarily difficult on the out-of-state retailers that it will effectively stymie them from sending anything to Texas. He said they would first have to purchase the wines from the very Texas wholesalers who are trying to prevent free trade in the first place.

I’m no businessman, but that sounds insane to me. Retailer X in California wants to send wine directly to Mr. and Mrs. Y in Dallas. The Judge says, Fine, that’s perfectly legal under Granholm, but first Retailer X must send the wine to Texas wholesaler Z, then buy the wine back from the wholesaler, at which point the wholesaler will re-send the wine to Retailer X, who can then re-re-send it to the customer who ordered it in the first place.

Did I get it right? I get dizzy just thinking about it. All that hassle, all that wasted time, all that extra carbon footprinting, because the Texas wholesalers want to prohibit their own citizens from having free choice in what to drink.

Stupid and shameful. But Starr and his team have appealed that dumb decision to the 5th Circuit Court of Appeals, in New Orleans, and while I’m still miffed at Starr for what he did to Clinton, I’m hoping that his legendary skills as a lawyer will prevail.

  1. That is especially dizzying and backwards. I can’t quite understand the logic in the Judge’s ruling as it defeats the entire incentive of direct shipping, and, as you’ve stated, adds unnecessary environmental impact.

  2. My nausea for Starr is so great that I have a hard time finding any appreciation for his current work. But, since I’m an industry man, I must. I long for the day on which we can look back and laugh at the blindness of the masses in supporting the distributor networks, out of fear, and take a minute to send a good friend in Utah a bottle from our favorite producer or retailer.

    Or, better yet, order a bottle from a CA producer and not have to go through the 4-tier system of PA or CO.

  3. That IS the logic of the judge’s decision: to abide by the letter of Granholm while completely defeating its spirit. Sort of like an intelligent psychopath. Sigh.

    I’m eternally amazed at how wine is regulated like plutonium. Actually, it might be easier to buy and ship plutonium.

  4. Starr is also lead attorney for protectmarriage.com. He is arguing for prop 8 to be upheld.

  5. Brad hits a nerve with his comment.
    I also disliked Starr during his aggressive anti-Clinton antics.
    And I really loathe him now that he is fighting for Prop 8 to be upheld and therefore does not support equal rights for all Americans.

    Despite that, yes, the legal ruling in Texas is insane.

  6. Lawyers. Hate them, but when you need one, you love them.

  7. I lived in Texas during the “Blue Laws” era, when purchasing alcohol was not permitted unless you belonged to a “club” that poured it. How to get around that? Simple. Walk up to the club door, say you want to join the club, walk in and get served. There was also the famous no alcohol purchase on Sundays, in deference to a large voting block, the Baptists. Well, that changed too.

    The problem with wine and Texas is that there is always someone with an axe to grind, and that is due to personal interest at stake, in this case, the Texas wholesaler. Still, it escapes me how some judge can come up with such a piece of doo doo and still look in the mirror in the morning. My guess… his pockets got lined, or his re-election guaranteed by his dumb azz decision. That’s the way Texas still works, unfortunately. If they didn’t learn it from him, they certainly took lessons from Lyndon…and he WAS and expert. It would be nice if everybody who sells wine would just start shipping it to Texas, en masse, and let Texas decide how to handle the Supreme Court ruling. It would put the onus on them, not on-us.

  8. RE: Lawyers
    They’re fun to sleep with. Mine is, anyways. (It’s OK, I married her. Just my luck, I hit on the only ethical lawyer in the universe. No? )

Trackbacks/Pingbacks

  1. Write Off the Vine - Texas Wine News: April 3, 2009 | VintageTexas - [...] More at: http://fermentation.typepad.com/fermentation/2009/03/key-wine-shipping-legal-case-argued-today.html Also see commentary from Steve Heimoff (”Texas is an Idiot”) at: http://www.steveheimoff.com/?p=2406 [...]

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