462 F.3d 341 (4th Cir. 2006), 05-1540, Brooks v. Vassar

Docket Nº:05-1540, 05-1541, 05-1791.
Citation:462 F.3d 341
Party Name:Peter BROOKS; David T. Gies; Patricia Clemmer Peters; Robin B. Heatwole; Dry Comal Creek Vineyards, a Texas Corporation; Hood River Vineyards, an Oregon Sole Proprietorship; Schneider Liquor Company, Incorporated, Plaintiffs-Appellees, and Miura Vineyards, a California Limited Liability Company; Clint Bolick, Plaintiffs, v. Esther H. VASSAR, Chairm
Case Date:September 11, 2006
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 341

462 F.3d 341 (4th Cir. 2006)

Peter BROOKS; David T. Gies; Patricia Clemmer Peters; Robin B. Heatwole; Dry Comal Creek Vineyards, a Texas Corporation; Hood River Vineyards, an Oregon Sole Proprietorship; Schneider Liquor Company, Incorporated, Plaintiffs-Appellees,

and

Miura Vineyards, a California Limited Liability Company; Clint Bolick, Plaintiffs,

v.

Esther H. VASSAR, Chairman, Virginia Department of Alcoholic Beverage Control; Pamela O'Berry Evans, Commissioner, Virginia Department of Alcoholic Beverage Control; Susan R. Swecker, Commissioner, Virginia Department of Alcoholic Beverage Control, Defendants-Appellants,

and

Virginia Wine Wholesalers Association, Incorporated, Intervenor-Defendant.

Virginia Vineyards Association, Movant.

Peter Brooks; David T. Gies; Patricia Clemmer Peters; Robin B. Heatwole; Dry Comal Creek Vineyards, a Texas Corporation; Hood River Vineyards, an Oregon Sole Proprietorship; Schneider Liquor Company, Incorporated, Plaintiffs-Appellees,

and

Miura Vineyards, a California Limited Liability Company; Clint Bolick, Plaintiffs,

v.

Esther H. Vassar, Chairman, Virginia Department of Alcoholic Beverage Control; Pamela O'Berry Evans, Commissioner, Virginia Department of Alcoholic Beverage Control; Susan R. Swecker, Commissioner, Virginia Department of Alcoholic Beverage Control, Defendants,

and

Virginia Wine Wholesalers Association, Incorporated, Intervenor-Defendant-Appellant.

Virginia Vineyards Association, Movant.

Peter Brooks; David T. Gies; Patricia Clemmer Peters; Robin B. Heatwole; Dry Comal Creek Vineyards, a Texas Corporation; Hood River Vineyards, an Oregon Sole Proprietorship; Schneider Liquor Company, Incorporated, Plaintiffs-Appellants,

and

Miura Vineyards, a California Limited Liability Company; Clint Bolick, Plaintiffs,

v.

Esther H. Vassar, Chairman, Virginia Department of Alcoholic Beverage Control; Pamela O'Berry Evans, Commissioner, Virginia Department of Alcoholic Beverage Control; Susan R. Swecker, Commissioner, Virginia Department of Alcoholic Beverage Control, Defendants-Appellees,

and

Virginia Wine Wholesalers Association, Incorporated, Intervenor-Defendant.

Virginia Vineyards Association, Movant.

Nos. 05-1540, 05-1541, 05-1791.

United States Court of Appeals, Fourth Circuit.

Sept. 11, 2006

Argued May 26, 2006.

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ARGUED:

William Eugene Thro, State Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants/Cross-Appellees.

Daniel Roy Ortiz, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellees/Cross-Appellants.

ON BRIEF:

Judith Williams Jagdmann, Attorney General of Virginia, Carla R. Collins, Associate State Solicitor General, Ronald N. Regnery, Associate State Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Esther H. Vassar, Chairman, Pamela O'Berry Evans, Commissioner, and Susan R. Swecker, Commissioner, Virginia Alcoholic Beverage Control Board; Walter A. Marston, Jr., REED SMITH, L.L.P., Richmond, Virginia, for Virginia Wine Wholesalers Association, Inc.

Before NIEMEYER and TRAXLER, Circuit Judges, and JOSEPH R. GOODWIN, United States District Judge for the Southern District of West Virginia, sitting by designation.

OPINION

NIEMEYER, Circuit Judge:

This appeal involves a facial challenge, under the dormant Commerce Clause of the United States Constitution, to various aspects of Virginia's Alcoholic Beverage

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Control Act ("ABC Act"), Va.Code § 4.1-100 et seq., which generally prohibits the importation, distribution, and sale of wine and beer in Virginia except through a regulated, three-tier structure. We sustain the constitutionality of:

(1) Virginia Code § 4.1-310(E), which provides an exception to the three-tier import restriction for consumers who personally carry into Virginia no more than one gallon (or four liters) of alcoholic beverages for personal consumption; and

(2) Virginia Code § 4.1-119(A), which authorizes state-owned and -operated ABC stores to market and sell only wine produced at Virginia "farm" wineries.

Accordingly, with respect to these two aspects of the ABC Act, we reverse the judgment of the district court, which concluded that these provisions unconstitutionally discriminated against interstate commerce.

With respect to challenged provisions of the ABC Act that permit in-state producers of wine and beer, but not out-of-state producers, to bypass the three-tier structure and sell directly to in-state retailers and consumers--Virginia Code §§ 4.1-112.1(B); 4.1-207(4), (5); 4.1-208(1), (7)--we conclude that Virginia legislative amendments enacted while this appeal was pending render the challenge to those provisions moot and therefore bar us from considering the district court's order and the amended provisions. Accordingly, with respect to them, we dismiss the appeals, vacate the district court's judgment, and remand for dismissal of the claims challenging those provisions.

Finally, with respect to the district court's conclusion that the plaintiffs in this case are entitled to maintain their action under 42 U.S.C. § 1983 and therefore qualify for an award of attorneys fees if they are the prevailing party, as provided by 42 U.S.C. § 1988, we affirm.

I

Through its ABC Act, which was enacted following the ratification of the Twenty-first Amendment and the end of Prohibition, Virginia regulates the distribution and sale of alcoholic beverages under a three-tier structure. Under this structure, producers and sellers of alcoholic beverages may sell in Virginia only to Virginia-licensed wholesalers, who in turn may sell only to Virginia-licensed retailers, who may then sell to consumers.

In November 1999, Clint Bolick and Robin Heatwole, individual consumers of wine and beer, and Dry Comal Creek Winery, Miura Vineyards, and Hood River Vineyard, wineries based in Texas, California, and Oregon, respectively, commenced this action under 42 U.S.C. § 1983 against the members of Virginia's Alcoholic Beverage Control ("ABC") Board, alleging that Virginia's ABC Act violated the dormant Commerce Clause of the United States Constitution by favoring in-state wine and beer producers and discriminating against out-of-state producers. The district court granted summary judgment to the plaintiffs, sustaining the plaintiffs' challenges and enjoining the enforcement of the relevant portions of the ABC Act. See Bolick v. Roberts, 199 F.Supp.2d 397, 416-17 (E.D.Va.2002) (" Bolick I "). Virginia appealed that decision to this court.

While the appeal of Bolick I was pending, the Virginia General Assembly enacted H.B. 1652 and S.B. 1117, which modified some of the contested statutory provisions. Virginia claimed on appeal that the legislative changes mooted portions of the case and altered the arguments and analysis necessary to adjudicate the remaining issues. We agreed. In Bolick v. Danielson, 330 F.3d 274 (4th Cir.2003)

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(" Bolick II "), we vacated the district court's order and remanded the case for reconsideration in light of our intervening opinion in Beskind v. Easley, 325 F.3d 506 (4th Cir.2003), which addressed a similar challenge to North Carolina's ABC laws.

On remand, the plaintiffs filed a second amended complaint that substituted new plaintiffs and modified the plaintiffs' claims to take into account the revisions enacted by the Virginia General Assembly. The original "winery plaintiffs," Dry Comal Creek Winery and Hood River Vineyards, were joined by Peter Brooks, David T. Gies, and Patricia Clemmer Peters, consumers of wine and beer, and by Schneider Liquor Company, a wine and beer retailer incorporated and licensed in the District of Columbia. In their second amended complaint, the plaintiffs identify five aspects of Virginia's ABC Act, as amended, that they allege unconstitutionally discriminate against out-of-state producers and sellers of alcoholic beverages:

The first is the "Distribution Privilege" of in-state wineries and breweries by which in-state wineries and breweries, but not out-of-state wineries and breweries, are allowed to bypass the wholesale level and sell and deliver unlimited amounts of wine and beer directly to in-state retailers. See Va.Code §§ 4.1-207(4), (5); 4.1-208(1), (7).

The second is a "Delivery Privilege" conferred on in-state producers to deliver unlimited amounts of wine and beer directly to consumers provided the producers use their own mode of transportation to perform deliveries, while limiting out-of-state producers and sellers to two cases per month using common carriers. See id. §§ 4.1-207(4), (5); 4.1-208(1), (7).

The third is a "Shipping Privilege" which favors in-state retailers. All retailers are required to obtain licenses to sell and ship directly to Virginia consumers, but out-of-state retailers are also required to obtain written permission from the producer of each type of wine or beer that the retailer planned to ship into Virginia. See id. § 4.1-112.1(B).

The fourth is a "Personal Import Exception" that allows individual consumers to import into Virginia one gallon or four liters (if packaged in metric containers) of wine and beer without requiring the wine and the beer to be sold through the three-tier system. See id. § 4.1-310(E).

And the fifth is an "ABC Stores Restriction," limiting state-owned and -operated ABC stores to marketing and selling only wine produced by Virginia "farm" wineries. See id. § 4.1-119(A).

On the parties' cross-motions for summary judgment, the district court held that the challenged portions of the ABC Act unconstitutionally discriminated...

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