court's recent decision in tennessee wine to a state law allowing retailers within michigan's three tier system to deliver wine directly to customers as explained by the supreme court cases involving the interplay between the  amendment and the dharma commerce clause require a different inquiry because the st amendment allows states to regulate alcohol in a manner that made otherwise be prohibited by the dormant commerce clause that inquiry asks whether the uncontested record in this case as provides real tangible evidence that michigan's retailer delivery scheme has the predominant effect of protecting public health and safety and there are three primary reasons why it does so does that mean that if the overall import of the statutory scheme promotes health and safety that it basically inoculates any portions of the scheme or to do all aspects of the scheme have to meet the test the they have to be non protectionist or honor every part of the system i'm interested in the restrictions that the consumers here are complaining about the basically say we can't get anywhere near the broad variety of wines that are available through the three tier system right and would you concede that that's true the way the three tier system works that's true but it's not necessarily because of three tier system or well i didn't ask you about that because it's so there in the neighborhood of maybe three hundred thousand lines that are available around the world and in michigan you can buy a couple one thousand is that fair statement yes but those those couple o thousand let's say you have a one variety of wine and they make it every year that would count under michigan's counting scheme as eleven so up somebody on blank from a winery in california right through the three tier system that's so that's it seems to me that ignoring the special producer license that allows on the ships into michigan that the bottleneck if that's right were deployed it is really the wholesalers the wholesale determined and what wine can be sold at retail in michigan that's not really true your honor how it works out in the retailer get the wine if the wholesaler doesn't carry it a lot of the reason why ones aren't available is because the manufacturers make the decision not to distribute wanted turton areas are you saying that the read that the wholesalers carry every wine that i've read that the that the retailer that a producer wants to have distributed in michigan generally yes  most of the time when a wine isn't available the availability as it does come back to the shipping point i mean the reason some producers don't want to sell to wholesalers in michigan is the hassle of getting it they're having whole saw of  getting to the retailer and is not likely true in other words the plenty of producers that i'd be happy to direct to michigan and and they can get a direct shipper license to do just that and the reason why michigan has a direct shipper license is to facilitate wineries that it doesn't make economic sense for them to ship small quantities of wine in the mission be eligible for that license do you have to be like small like a certain size yes that still leaves back to judge mckee's point a lot of producers that are consumers in michigan are really able to get access to because it's too big for the direction of hers license and they think it's economically not feasible that  that decision by the manufacturers not to sell the wine in michigan is not a constitutional dimension and it doesn't make a valid three tier system protectionist that protectionism is the real nub  of just to make sure i'm getting all your answers to judgement key questions are there any producers that want to sell wine in michigan that the state is saying no to either for the wholesaler or the state just saying no we want sorry we're not going to sell it up unless they're making wind that is unlawful mission so marijuana infused want to get i mean that ok not that i'm aware of your other so the producer can get a special license and and then not only and then they can sell direct to the to the consumer that's right or if the retailer or if the producer wants to they can sell through the wholesaler and you say the wholesaler will buy any producer wine that wants to sell it in michigan that's my understanding yes and that that's true for vintage wines rare wines anything so why are there so few wines available in the retail stores in michigan that a lot of it as i said is a manufactured decision you have some there they just don't make that up wine and so they will market and then just want to rightly that other reasons this probably relates a little bit to the indiana michigan situation michigan just is placing more price controls it's not what the explanation my book that wouldn't affect the manufacturer of the manufacturer can sell the products to the wholesale at whatever price they want yeah but it's not great if you you may not want to sell it if it ends up being pricing five dollars which destroys your whole marketing scheme because of the michigan market it's one of them is that the recept become the real answer to his question why michigan consumers don't have access to as many winds as say illinois or indiana it's possible but what you have to understand is part of the three tier system is michigan has to set prices for alcohol that make it available to consumers but don't over stimulate consumption because of to the point where we had control the price of the wine that's sold in michigan under the the direction for licenses the producers that it's that get the license they can market it at any price they want that's true they can celebrate they can deliver it to your house you don't even have to get out of your pajamas to drink wine you do not so it least in terms of the what the ultimate restrictions are on the consumer and i understand you may not concede that that even is true but i'm using that as prophetical i'm just trying to figure out what how does it promote health and safety to to have the wholesalers exist as sort of the bottleneck through which wine has to come when you already allow wine to come right into the state and go right to the house because we know where the wind comes from so for example if there are any example that the state can ever point to that there was a problem of wine coming in it didn't know where it came from and it was somehow contaminated know but if you look outside of the united states in places that don't have the three steer system you have that problem you have that problem the united kingdom you have that problem and israel's we pointed out in our brief and you have the problem in mexico and affection at ohs in michigan from drinking you have did have an example and i apologize this is outside of the brief where you have collectors that buy a bottle of wine and it turns out to be fake  that those cases really all came up in a different global environment than exists today i would you are now americans are used to buying pretty much everything on line it gets ordered online it gets director delivered right to their house so should we should should somebody be reconsidering this whole scheme in light of the global economy and the dependence on the internet i don't think so you're not going to why not the reason is because michigan has you so you don't think so you mean you don't think they have to you can object to the possibility that someone could suggest three tier system doesn't work anymore you're right that that's up to michigan and the legislature you're right you're absolutely right john sutton the constitution does not require us to just allow everyone that somebody wants in the michigan michigan has the authority had the authority under webb can get it through that more and more states are creating exceptions and it looks less and less like this hard core three tier system as you travel around the country those states the decision that's allowing more wine and or more product in is advantageous to to their citizens and again it's a balance you know to go back to what you know the timing thing that this case is about the direction pinpoint there was a time where you could have direct shipping across the border of indiana and that right you couldn't have shipping you could have employee delivery i guess that's what i mean what one of the statistics show happened was there any problem that developed with employees that being across a delivery across state lines the problem that was discovered was not as much with employee delivery is we did the tech problems though with unlawful shipments  wineries themselves even these small direct shippers we allow we've had problems with them shipping wine to minors at a higher rate than in state entities and the one of the i think one of the key reasons is there's a regulatory reason cross border like the indiana michigan bright was there something there is there evidence of problems that arose there there are gold though there is evidence that there has been illegal shipments not employee delivery but shipments from out of state retailers let's just try to talk about that part of the campaign that is what the case is about why do you why do you need this limitation on leaving off being able to have direct deliveries across the border why like that's such a big deal because we don't know what they're  selling we don't know if that air wholesalers are different from the michigan wholesalers and if they do something wrong i can't put them out of this the psychic can put a machine return he said you don't know what they're selling do you know what the out of state wi neries from the producers that are to get these special licenses to direction yet you know i know you i know you know what they say they're going to ship and do you test it do you good do you go to the wineries in california we do we do random buys controlled by this of those random control buys indicated any sort of a problem not to this point but again the experience outside of the three cheers us to link countries that don't have it is they do have this problem with adulterated product it's just for what it's worth i that just seems so improbable is what's driving this would seems to be driving it and i just can't figure out if it's legit or not is if you allow direct delivery from the indiana wholesaler or retailer you're getting around the three tier system that's what you're getting around that's for you you want to say that's all about adulteration miners and that that really isn't the main thing going on it's probably is lower priced if indiana has lower taxes i mean that presumably is why michigan consumers would want that and i'm curious why you're not just depending in on that ground are you seems to be the real issue and the real issue is there will be price undercutting and you can say i'm one hand that sounds like it's discrimination it's interstate commerce or you could say on the other hand that means the three system can't work because the three tier system is about having some price control how else do you limit the amount of out on the state but i don't disagree with that your honor but i don't think that's the only route that in fact i don't think i know that that's not the only reason why we have a three tier system you've got to admit that there's a huge protectionist aspect of the three tier system protecting the retailers because you're freeing them from the competition not only throughout the rest of united states from for about the world of sending wine into the state to what otherwise might be their custom it's not motivated by protection i didn't say it was motivated you're changing the question you have to agree the impact is protectionism protecting the in state retailer yes i up and what about this guy that has to drive thirty miles to get wine be to get to his nearest retailer do we worry about him where he can just ordered online otherwise and get it delivered to his house or he can ask his local wine shop to have that wine available in michigan which happens all the time when i go making it available just one more question we're not taking talking about making available we're talking about him getting ahold of it right so what do you he asked the retailer if they'll if they'll drive thirty miles to deliver a bottle of johnny walker something i don't think i'm understanding a come back to it later thank you ok our thank you your hon perhaps your questions might be looked at more carefully if one remembers where we are today we have the benefit of this panel so why not this panels but this and eighteen opinion in tennessee wine and then we have the benefit of the twenty one thousand dollars supreme court opinion which not only affirmed this court's opinion but it also sat gave us a roadmap as to how this case should be decided today particularly while the tennessee case was a residency case not a direction case the reason that it is so impact ful and provide such good instruction for us is because the linchpin to the ability to get a retail license in michigan and therefore have the benefits and the obligations of being a michigan retailer which includes certain direction ping privileges is you have to be present here ok i think i mean we've got all of that if you want to pick up on the conversation pick up on the hard part of the conversation if you want to ok let me tell you what the heart of the conversation is the hard part of a conversation is the this is a there's a case about direction being right that's the point and it does it does seem a little flimsy and not the heart of the matter to say they're doing this because of protecting minors from getting it or doing it because of adulterated fancy wines that seems quite improbable it seems like the heart of the case is they need to do this because otherwise you can just enron the three tier system and un run it because leave them off can bias from indiana wholesalers obviously michigan's not regulating them that's a whole separate regime says over and over that so ok but then when you focus on what's really going on it's all a price point and that starts to look like donna commerce clause so that's that's what the hard point is you know honor i i agree with you up to the very last point  if what leave them off is complaining about in what the playing to individual plaintiffs who ironically are all attorneys are complaining about is not just the ability to purchase a product price and the question is whether the three tier system is allowed to do that and i can see a pretty good explanation they can if you have perfect adam smith efficiency you have lots of alcohol at low prices and people who can't say no the rd drink and that leads to all kinds of problems so why not embrace that but i'm not hearing either of you and bracing that your honor i fully embrace it because orderly markets and as the supreme court recognized and is this court recognized in tennessee wine is another legitimate ground for the presence requirement and again orderly as in highly regulated well orderly markets in other words markets that don't allow below cost sales michigan doesn't indiana does markets to have you for the produce the direct producers can sell and deliver in michigan below cost if they want to get there you don't regulate their price that's correct your honor but remember there's a big difference between the whiner and the retailers the wineries are it is not the wineries this is an exception to the three tier system because they are are able to go totally around it understand but the question then becomes whether the exception then screws up the whole three it invalidates the whole rationale for the three tier system respectfully your honor there is a significant difference between a winery in a retail well let me just say what it isn't in other words a retailer and indiana retailer coming directly to a michigan consumer that is that is an exception to the three that's not an exception to the thirty two dollars system because they otherwise would have to come through why is a winery an exception because they are going completely around it here the from the link from the wholesaler to the retailer is is a link that has been approved time and time again by courts and that is part of the legitimate three tier system rec there's never been a direct shipper challenge surely there has your honor and in fact this court noted residents well they have noted that having an in state wholesaler in in state retailer which is exactly what we're talking about here right you have to be in state you have to be in michigan in order to get both the burden and the benefit of michigan regulatory law or producer with a specialist that is correct your honor but again let me throw another wrinkle and we've been talking about price up to now how about variety and choice it seems to me this country's all about choice do you agree with your fellow lawyer that all of the wines that producers want to sell in michigan are carried by the wholesalers your honor the yes because the uncontroverted evidence on this point is in the kaminsky affidavit who is a wholesaler in michigan modern beverage and in his affidavit which is ari thirty three dash two he lists a number of reasons why the wineries choose not to have their wine sold in michigan and in fact that office of the question saying do you agree that in fact all wine that's available in the world is carried by wholesale no your honor but it no all wine available in the world is not carried by any wholesaler in any state but that is in the whole cereal ors decision is premised on what the wholesalers decision is not a unilateral one the wholesalers decision is in large part driven by the supplier whether the supplier wants that product in michigan and number one in number wines that i searched that already issue in other words we want to get them in michigan they're the winery does sell directly to the public but when he did his research they were listed either as sold out or they weren't listed at all in other words it's the wineries choice either to only sell to high end restaurants to only sell at their tasting rooms you're seeing the evidence before us doesn't back up the assertion that there's a lot of wine out there that you can't get in michigan because of the three tier system that's correct your honor precisely said so if what happens if  followed judge thomas approach both both on the underlying merits and the remedy it's just become a a border state problem i realize you all argue that no no no that means everybody could be selling but i'm warning if that's really true given the costs of shipping from farther away my instinct is it really just becomes an indiana ohio illinois type problem what's the reality there your honor the under judge tarn california and so forth it's there's a lot of cost involved in that so it's really not going to be the end run around the three tier system but that it will be locally is my promise but maybe i'm wrong your honor the problem with that argument is that you are defining what exceptions to the three tier system by again pricing in that is not constitutionally correct and here the  even the police say that there are likely to be around two thousand retailers that will take advantage of this so that certainly more than you know the retailers on the border of indiana  the problem with judge her nose remedy is that it's it's st of all his decision is is improper in terms of the merits but on the remedy the very things that he notes is proper in the michigan three  system no below cost sales post and hold no sales on credit all of that would go out the window because none of those things would apply to a retailer who's outside of michigan state so the remedy actually turns on its head the very three tier system the judge tarnow seem to be blessing in addition to which he did absolutely no severability analysis under this state's severance law so that's a huge problem and he also his remedy is inconsistent with what the supreme court has said and what this court has said in terms of severability including is recently as the th circuit decision in tennessee wine again you have to do some sort of severance analysis and he did nothing in addition to which  the federal cases like hell fine now to say ok you got to open it up it's a wrong in our g those cases those federal cases are talking about governmental benefits where the purpose of the statute is government large yes that is not the case here to the contrary this is alcohol beverage products and it is not the the policy of any state in this country certainly not michigan to open it up and have large yes when it comes to the sale and distribution of beverage products that is or at least some number of states that don't even have three tier system those systems where it's a control state your honor in other words where the state is essentially the retailer yes they do not have three tier systems so there are no states that you're aware of that don't have either the three tier system or the states selling it itself that's correct now in michigan as you may recall it's a bit of a hybrid b yes yes or so so if you want to finish with one point that's fine but one point ok that the one thing that i would say is that in terms of evidence of illegal out of state retailer shipments i believe judge sutton you asked mr sands about that again there is evidence in the ericsson affidavit now with respect to michigan but with respect to illinois that the illinois liquor control commission issued multiple cease and desist letters and it's certainly valid  michigan to look at the unfortunate experience of of illinois thank you from the other side think you may please the court this case really starts with granholm revealed where the court reviewed the history of the st amendment and concluded that it did not permit a discriminatory regulation and it struck down a law that allowed in state but not out of state restrict ship then the house if you think that's the key point in the case how do we have that problem here i don't see why no one from indiana has any limit in terms of getting all the benefits of being a retailer in michigan including the direction ping you just have to open up a shop the michigan and the corps over and over in our court has said you can if you put out to the side length of time you length of the residency requirement tennessee but you say you have a physical presence you're good and that requirement's been in power for a long time so i don't actually how it's analogy at all to that case but i think there's actually only been one case that directly faced a specific physical presence requirement for an out of state entity seeking to ship and that was grant home and it said that a physical that a state cannot require an out state firm to become a resident in order to engage in direct shipping because if michigan could require an interstate an internet seller to build a bricks and mortar facilities there then it th supreme court said and granholm then so could every state and interstate commerce is shut down because now if you're going to sell small quantities in a lot of states maybe i'm misremembering granma thought it was about in state producers getting  about my right or wrong about that was that the discrimination in state that there were two there were two cases in gravel i know but i thought that was the one you're relying on the discrimination the benefit given to the in state wineries in iran about that no this was an analysis of the new york scheme which had two statutes one gave in state wineries the benefit of direct shipping the other statute which is the one that the court commented on said out of state winery could also gain direct shipping by establishing a premises in the state and it addressed both of those questions in granville and it did and said that the physics and discriminatory because it's a lot easier to have a presence in the state of the regulation it means that the premise of your argument you're saying grandma arteries off this group no good granholm did not resolve the question that they raised about the granholm addressed only the producers the winery's and there was in the time between granholm in tennessee want to be thomas there was a lot of activity in the courts of appeals that asked the question whether or not because the winery shipping was bypassing the three tier system whether that nondiscrimination principle from granholm actually applied to the retailer tier tennessee want to be thomas answered that when they said there is no basis for distinguishing among tears when we are talking about discrimination that the review of the history of the st amendment says you can state can set up its distribution system in any way it wants to and for example california to answer the question does not have a three tier system the wineries do not have to go through wholesalers to have their products sold at retail purposes you have to be talking about two like situated entities and if they're differently situated it's possible you can treat them differently and the reason this doesn't seem like discrimination  indiana based retailer lives under a very different set of rules than the michigan based retailer the michigan based retailer has all these restrictions they can only get from michigan wholesalers and there's you know there's all these price rules and other regulations of that and if you allow what you're asking for you and run all of those restrictions and it seems like what actually happens if you win is it  creates favoritism actually victory is what creates discrimination or not its opposite because you're you're not stuck with any of the rules that apply to michigan wholesalers what if you miss right problematic but except for the rule about local processing that it had to come from michigan wholesaler michigan can apply all of its rules to interstate shipping just the one thing the most weight but i'm making the point that if leaving off can direct shi michigan it's buying not from michigan wholesaler at it's buying under a different regime with different restrictions correct that makes them differently situated than the michigan retailer based in michigan subject to the michigan rules differently situated but not in a relevant way the cases have all said that entities for commerce clause purposes entities in state n entities are similarly situated if they are selling the same product they have also said that the commerce clause under this sort of general notion of the nondiscrimination principle guarantees resident citizens of the state access to the markets of other states just let's let's a positive a bit extreme example but i'm just i think it helps illustrate my point think of utah ok say utah has a lot of regulations on what alcohol can be sold  let's now take this exact same argument you've got here you're next door to utah and you want to have your retailers be able to direct ship into utah the direct  retailer in nevada is getting from following the nevada rules no obligation to follow the utah rules completely and running them through direct shipment into utah and it completely violates the point of their scheme which is i think fundamentally have less alcohol sold in the state and have it heavily regulated well they thought the st amendment allowed them to do that and your theory where you can direct ship ban is long as you can show someone shipping within the state just break that down what the i'm right about that i think it with with one premise missing which is did utah change its policy to allow no in state retailers to ship around the state if so then you have parallel situation retailers in gauging and shipping right now to my knowledge utah requires everyone to show up in person show and id michigan could do that if they got rid of that but still kept their presence requirement correct then you don't you would not have a dormant commerce clause problem well then you'd have the tennessee one i know i want to know the answer to do you can see that's ok or not because that lets me understand what the real source of your argument is and my suspicion is you think there's a presence requirement is always unconstitutional no no no i'm in a presence requirement as a precondition to direct shipping i didn't mean  requirement i think of any answer my questions really easy if they got rid of the direction being there would not be any dormant commerce clause problem with michigan requiring people who want to sell to michigan consumers having a presence in and you can get the special license if you're an out of state producer and you can direct direct if they got rid of both of those things then your case probably falls i think that's probably true in that but once you have those things then you say that that you can no longer maintain your promoting health and safety arguments because it's been undercut by those two exceptions on the nuts i'm not going quite that for what the cases say is that the state gets the opportunity in it in a heavily regulated product toxic waste raw milk alcoholic beverage they get the opportunity to prove with concrete evidence that the direction of being causes a problem in the st place and there's no evidence of that and more importantly that reasonable nondiscriminatory alternatives would not be effective it doesn't he still has to drive thirty miles to the nearest store to pick it up m m m making the point when michigan facilitates sales by a michigan based retailers is every time they do that is that create discrimination because someone who sells across the sells across the border doesn't have that option you know so so they can do on law i mean you could have an order on line and then if you pick up a certain time you could have drive through that facilitates right right i think you have employees delivering you then the employees delivering again and that's the president's an interesting cross border question that was the situation before when michigan for eight or nine years allowed delivery by only employers because again they'd have to show that there's a problematic that they allow delivery or that allow our delivery to go across the border state delivery and don't allow cross border delivery then you've got the descriptor tensional discrimination against interstate commerce allowing employees to say we're going to we're going to bring it to you to the home and i go one step farther which is some states texas being an example has a law that says they can deliver in their own vehicles but only within their own county no you still if was kind of surprised when i discovered that since i came up from north carolina which was a control state i did maybe i didn't understand your last point maybe you were saying texas was something that was ok with employees of the retailer could deliver but within the county right that meant there's no discrimination if you say find an out of state retailer can do whatever they want to within their own county once you create i would have thought it's within the state is the level of generality yet has the state oh you agree with me you can deliver within the state and if so you have to allow out of state and i was making the point that the level of generality is within the state because it's the state that's regulating and creating the whole system discovered tory when the whole thing is it but that's been breaking down because the court repeatedly including this court in cherry hill vineyards had said this state has to justify the need to discriminate it has to show that it actually advances a legitimate state purpose and that reasonable nondiscriminatory alternatives are unavailable so that's what's missing so there but there are two step point is facilitate sales or making life easier on the consumer and then we say you can't do it if you're an indiana retailer it's not because we want to discriminate we don't want somebody to sell in the state who hasn't complied with our rules at the wholesale level that's it's not intentional discrimination but the question is whether it has a discriminatory effect and the record is then this was emphasized in granholm in the federal trade commission study that these restrictions not only affect price but reduce availability and the record shows that our plaintiffs couldn't get their one that they want if the experts that they couldn't find  say that the evidence doesn't support that because they say they claim that that every wind that's out there that is available where the producer wants to sell it in michigan the wholesalers will buy it they say that but it is not in the record and the what the record does show from the two expert witnesses mr warka mr bryden ball and from the consumers themselves is that the wine is not available in the particular problem are older vintages so rare long as i feel like i'm missing this line of inquiry what is it about the recent direction that create this absence of choice let's accept in other words that the state is wrong there really is a material absence of choice but the recent direct shipping that's the that's not the explanation for it the explanation for it is the preexisting i agree with you like a choice problem is resolved if you allow the consumer to go directly to this purveyor of this rare wine and buy it directly over the internet that's right the courts have said that it is a violation of the nondiscrimination principle going to state commerce for state for state law to prevent the consumer from having access to what is available in a market in another state that's the balkanization why should a person who lives in indiana be able to get some warnings that the person living a few miles across the border in michigan cannot all of what was true before the shipping it was all of that was true before before that but the shipping rule changed it and granholm changed it and tennessee wind changed i mean changed it except for the sake of argument changed in the sense of gave you an argument you could make it and then change the preexisting problem is the frustration of consumers that there's this big internet out there they can get everything they want to except when well let me let me ask you about their appeal the st amendment event all bets are off you get everything you want and get rid of that this just occurred to me that there is a secondary market in these wines and liquors for that right i know nothing about i'm wondering i know nothing about liquor and there's nothing in the record about liquor so i don't know i'm just curious about about wine  if there's a secondary market for these rear wines that i and i believe that there is there is yes there is evidence on the record if you go to that secondary market seller or whatever will call them does that violate the michigan three tier system that that secondary seller who bought the wine from out of state or french producer or whoever it was and now they're reselling it presumably at a higher price and they ship directly into michigan or is that violation of michigan law depends on whether michigan law prohibits its own in state reliques retailers from reselling old wine if it did it could impose that same prohibition again on interstate shipping so you know you don't know i don't believe that it has any restriction on all wines and it certainly doesn't have any restriction on the example that mr bryden book talked about in his report which is popular wines selling out locally not over just recent pumper ones get a good review in the wine spectator and there's a run on them consumer buys a bottle takes it home likes it goes back to the store the store says we're out they contact the wholesaler can you get some more which they claim they can get anything but is his evidence shows if you go to the winery itself and say we've got more customers that want this the winery says we sold out we don't sit on our supply we sell it and go on to the next year but the product is readily available at other retailers selling on the internet and that's the core of the problem you could definitely help me with this the extent to which the state of michigan is exaggerating the differences in what how michigan regulates wholesalers in indiana regulates wholesalers i mean these i mean so be helpful to your side to say  there really aren't that many differences and this this really is about a northern indiana retailer that has a bunch of customers in michigan that just wants to facilitate the sales and that it's exaggerated  they really are treating wholesalers that differently in the two states well i think that would have been helpful but the what the courts do is they place the burden on the state to justify the need to define a fine i'll call the burden on them just tell me why you don't think it's that different i don't want the i don't see any evidence that that there's anything any different in who all wholesalers are licensed all wine is heavily regulated by the federal tax and trade bureau you do below cost heavy regulations on the wholesalers that affect the michigan based retailers and they're saying if you win your end running that with an indiana retailer just you can accept the invitation or not just tell me the things they're us underlying that is an assertion that somehow indiana and the federal government combined don't properly regulate this stuff so it poses some danger to the public and only michigan yes i was on with you that there might be some exaggeration on the adulteration i mean the key thing they do have a porthos is spending licenses of in state retailers they don't have access to that with the out of state but you're probably right on one particular it is probably not a big adulteration problem and the to justify a facially discriminatory law which this is the state has to prove that it has an actual fact that promotes its interests public interest in public health and safety and that no reasonable nondiscriminatory alternative would also advance its interest so that the they have yet to identify a particular a fact actual public fact that i mean there are dozens of different wholesalers in michigan where the wholesaler i mean interstate commerce stops if you start worrying about who the wholesalers are because every business in state not a state whether it's liquor or not has a different supply chain they get it from different also and this is not the st time that the courts have dealt with issues of potential public health and safety they did it in talk in that in all the toxic waste cases in the s they did  wrong milk cases in the thirty's forty's and fifty's and they've always reached the same decision which is they have to identify that there are not not just of that shipping line generally poses some kind of danger to the public you access and things like that but they have to show that there is something different one that's moved through the india through regulated three tier system and one that's moved the let me leave it off can sell it to you and put it in the car you can drive it back and i may violate some tax law or something i don't know about that can a michigan retailer go to leave them off if they know they have this wine and then buy that for the michigan consumer to buy from the michigan retailer no because it didn't come from the wholesale the law restricts the michigan retailers let me give the elegy may be a completely imperfect analogy but we're we're i'm from michigan we're car people we understand cars so you want to buy a car the car is not available at your local dealer's lot it's at the end of the model year so you can't they can't get it from the manufacturer but they simply go online they get it from another car dealer could be in california and that's how you buy cars yes so your analogy here i mean your answer is that the problem with the reason you can't do that online is because not only can the consumer not buy a direct the retailer can't go to another retailer an out of state retailer i don't believe that that's what i just asked you get my local retailer buy it from leave it off i believe enough ships it to my michigan retailer and then they sell it to me yeah like if if one retailer goes out of business what do they do with their inventory they can transfer it to another or another retailer or just picking up on your own your answer earlier where you said the the the bottleneck is you can't buy from other you can buy this rare wine from other retailers in other states but that assumes in the st place that there is some retailer that wants to go to all the expense to get to the levels of the question that trying to say why i so remember that i know we should be nicer up here i mean just say whatever you want right now we want to ask not just to be prepared with my red light appears to be on a i have lost track of my time what's not on from our side been missing from much of this discussion but it cannot come to that i was trying to ask something earlier that just to drill down on when you focus on the their burden i think the way you're saying it is they have to show that they're doing this that make sure the put the way the product sales are there's no adulteration they're not sold to minors you're not messing up the product and and i take it the reason you say that's where their burden is is on those things because if they go back to cost and they have the right to set prices that to you just as our economic protectionism and that can't be a justification is that the way you would look at it even though it grows out of a three tier system now the words yes you can do that but then if you the many you do something that has a discriminatory feel to it you put in risk the whole the whole thing but not you will put in risk that one rule because that again it's not indiscriminate nondiscriminatory alternative availability you can simply establish minimum prices for one ship from other states you can decrease control but you have to do it across the board for yes that's right you can i mean there's nothing if we get i take it then maybe i'm not didn't get your argument this is not just about the the consumer the act access of michigan retailers to direction even if they got rid of that but still had th for small wineries to direct ship you would still say there's a problem no because then you wouldn't have similarly situated and are as one hundred dollars but i did understand your argument that it was retailer versus retailer shipping versus non shipping that's the that's the essence of it and given the three thousand and thirteen other states allowed retailers licensed retailer shipping and suppose the courts have said both in this case and in in this court in cherry hill and in graham home that it is a relevant factor in deciding whether or not the other side ahead has proved the an availability of nondiscriminatory alternatives to look and see therefore you've already michigan has conceded that it can be done and you haven't pointed to any problems flowing from which they think that what we have had problems flowing from directions from wineries and the record is replete with those problems including sales to minors that cause that goes to remedy when we fix that problem if we just don't adopt the turnaround and that's right if that's true and everything must and you agree with everything m remedy is all direction shipping is out because that is that is under cherry hill that is the clear intent of the legislature was not to open up shipping two out of state retailers in fact it's the opposite they got rid usually only have one set of rebuttal and i didn't realize that's what happened today oh so go ahead i'm sorry your deputy asked and i said yes two very brief things this is not a car this is not toxic waste this is not fish it's beverage alcohol so you do need to look at the st amendment  understand that the st amendment doesn't apply to cars i understand your honor but but mr tan ferd's argument to you is sliding down in getting ringback us back into plain strict scrutiny that does not take into account the st amendment for example that the issue is not our is michigan doing a protectionist thing to use your language in the st inquiry is is this discriminatory assuming it is assuming that these folks are similarly situated which you know in our brew said no then the question is ok what kind of discrimination is it is it soley protectionist or is it is the predominate effect soley protectionist or is it for the protection of public health and safety it's not that it has to be have to concede that the system is protectionist with respect to both the wholesaler and the retailer i disagree your honour's it doesn't doesn't protect it is discriminatory but it is not protectionist you're kidding you're free of interstate competition that's enough protection as i am not i'm not asking you if that's the predominant motive i'm just saying that's got to be an effect under economics one hundred and one dollars if it's an incidental effect in that someone use that to her ok but it is not protectionist discrimination in the standard that we have to look at this case because of the ibos the discrimination become protectionist what it is the law and what it when you get to it for example in grant home the new york did not even if they did nothing other they can see that that statue was to protect the local farm winery in that state it was a big legislative agenda and it was also big with the executive all right so that is protectionism same thing with baucus right there so why they didn't put up any argument they conceded that that tax only nine hawaiian wine was to protect the local pineapple industry it can't just evolve to the use of a label i absolutely agree with you your honor but contrast bring home contrast baucus contrast tennessee wine where in that case the state did not put up a defense right they were arguing as a matter of law there was no evidence this is a very different situation we have a whole binder full of affidavits to show what is the fact the effect the predominant effect is the protection of public health and safety and i've cited you the affidavit that your time's up ok thank you very much but there was one last piece there was a recall of wine your honor in the state of michigan it's in the kaminsky affidavit thanks to all three of you for your hopeful arguments  brief to really appreciate it the case will be submitted quickly call the next case