He may be best known as the independent prosecutor who dogged President Bill Clinton with his investigations into the Whitewater affair and the Monica Lewinsky scandal. Now wine consumers, regardless of their political leanings, have Kenneth Starr on their side. The former U.S. Solicitor General and former U.S. appeals court judge has joined the fight to allow wineries to ship wine directly to customers.
The Coalition for Free Trade, which coordinates court challenges to state bans on interstate shipments of wine to consumers' homes, has retained Starr to work on its nationwide legal strategy. The CFT, a nonprofit group supported primarily by wineries, is trying to take the issue to the U.S. Supreme Court, claiming that such prohibitions violate the Constitution's Commerce Clause, which ensures the right to free trade among the states.
"This battle is really one against the forces of discrimination," Starr said in an interview with Wine Spectator. "These are laws that are designed to handicap and hinder out-of-state wineries. ... This simply should not be."
Starr brings more than 25 years of legal experience to the CFT team, much of that focused on the work of the Supreme Court. He clerked for Chief Justice Warren Burger, spent six years as a federal appellate court judge, then served as Solicitor General of the United States from 1989 to 1993 under President George Bush. He says he has argued 28 cases before the Supreme Court, including a number of Commerce Clause—related cases, but most of those involved conflicts between state and federal laws, rather than between states' laws.
"That's one of the extraordinary things about this litigation," he said. "State A says, 'We are going to discriminate against the products of every other state.' Happily, this is not an issue that arises day in and day out, or it would really be quite destructive of the fundamental principle of a national economic union." Although the 21st Amendment grants states the right to control sales of alcohol within their borders, he added, "the constitutional amendment does not abolish the rest of the Constitution."
After Starr returned to private practice, a panel of federal judges appointed him special prosecutor of the Whitewater case, in which he won convictions of several people connected with Bill and Hillary Clinton. He later expanded his investigations to cover Bill Clinton's relationships with Paula Jones and Monica Lewinsky. Currently he is a partner at Kirkland & Ellis law firm, in Washington, D.C., where his specialties include antitrust and competition law. He recently wrote First Among Equals, a book looking at the Supreme Court's influence on American culture.
Starr said he enjoys a glass of wine, but confesses, "I'm not a collector. I'm more a Constitutional law guy." Nonetheless, he says he is learning a lot about wine from working with CFT and has great respect for the innovation he has seen from the industry's small, family-owned wineries. He adds, "That's what makes this country great -- small businesses that innovate and grow and prosper. That leads to consumer well-being."
In recent years, wine consumers, often joined by small wineries, have filed federal lawsuits in an attempt to overturn states' shipping bans, so that they can buy the wines they want. Five cases are currently pending in federal appeals court. Consumers recently scored key victories at the district court level in four of those cases --in New York, North Carolina, Virginia and Texas -- though a federal judge upheld Michigan's shipping ban. (The Virginia case may be dismissed as the state recently passed new legislation allowing limited shipments.) In a sixth case, in Florida, an appeals court returned it to the original trial court asking the state to demonstrate why its felony penalties were necessary to collect out-of-state taxes.
"We thought it was a good time to get the insights of someone who has had experience in Supreme Court, so when a case does 'ripen,' we are not caught unaware," said Tracy Genesen, legal director of the CFT. "We will have a strategy in place and have someone seasoned in Supreme Court analysis and advocacy, who has currency with the Supreme Court judges."
"We did some research ... and all roads led to Judge Starr in that regard," added Genesen, also a California grapegrower and senior counsel at Hyde, Miller, Owen & Trost in Sacramento. "We are fortunate that he happens to philosophically agree with our position as well."
CFT was able to retain Starr due to a grant from the Family Winemakers of California, an association of more than 600 wineries. Many of its members are small producers who don't have national distribution and rely heavily on tasting room and direct sales. They argue that their business suffers because they aren't able to ship to customers in other states.
Genesen does not expect a case to go to the Supreme Court any earlier than within 18 months to two years. The CFT's focus now, with Starr's help, is on the cases pending in appeals court, on "working them up in a way with an eye towards Supreme Court arguments," Genesen said. "We are trying to shape our arguments more directly to our ultimate goal."
At the moment, Starr is only an adviser. If one of the pending cases is accepted by the Supreme Court, it will be up to the plaintiffs' individual attorneys to decide who will argue it.
For a complete overview and past news on the issue of wine shipments, check out our package on The Direct Shipping Battle.
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