good morning ladies and gentlemen for family related reasons neither george roden or nor judge sykes can be present in court this morning george grosvenor is participating by speakerphone  and that has the usual difficulties of a speaker phone connection which is the talking in both ways at the same time doesn't work very well so there may be some awkwardness in beginning in answering questions but if we all try not to have simultaneous conversations going both ways that should work judge sykes cannot listen as the arguments are ongoing but she will listen to the recordings of the arguments before participating in the decisions so let us proceed with the first case this morning which is if transferred against the indiana alcohol and tobacco commission transportation services to liquor sellers yet transit would like to provide the services and believes that federal law entitles it to do so but it's had no choice but to refrain from providing those services because of a credible  sure at thank you judge or so i think it's important to keep in mind first that there were two different agreements that indians will sale and transit presented to the commission and with respect to the twenty twelve agreement that did not involve a warehouse component it involved pure transportation services and in the end a wholesale withdrew from that agreement only after at the commission issued a letter warning that violations of the hit and interests that cheats would be processed by the commission prosecutor and indiana will sales letter at withdrawing is that appendix at pages two forty two and two forty three and indiana wholesale specifically cited the risk that both parties would be cited for violating the law as a reason for withdrawing from that agreement now and mr terry who was transit c e o testified in this case that indiana wholesale an e f transit continue to engage in discussions regarding at transportation agreements and that they remain interested and having such an agreement and in the context of a pretty unfortunate challenge i think this creates cases make clear that parties are not required to undertake a series of futile gesture as such as drafting yet another agreement that we all know will be denied by the commission just to establish the rightness just to establish rightness this court acknowledged that in the triple g landfill's case where it said the doctrine does not require and plaintiff two to jump through a series of hoops just to find the final hoop obstructed by a brick wall the supreme court explained and the susan b anthony case that in the context of an pre enforcement challenge what is required is that a plaintiff allege an intention to engage in be prohibited conduct or the arguably prohibited conduct as in this case and you have terms that has alleged that intention and that intention is very credible not only because of mr terry's deposition testimony but because you have transit and you know wholesale have attempted to engage in that conduct twice and under the under susan b anthony and that babbitt line of cases that led up to that decision that is all that is required and now they're writing this inquiry typically has two elements of fitness george bush will review and hardship to the parties this  there is no question that you have transit piece as a credible threat of enforcement if it provides transportation services to indiana wholesale and as a district court found the commissions position with respect to the gal of their services as proven by their record in this case that finding is that appendix twenty one and although the state's new appellate attorneys attempt to characterize that position as only tentative that is not what the commission witnesses testified to well the commission's witnesses both its thirty six witnesses as well as the commission chairman who's a fine and then this case all testified that the commission's position i'm a critically  indiana law and not only that the district the commission actually wrote in a formal pleading indiana state trial court that it had made and determination that both agreements violate and you know the commission before this court and so for all those reasons you have transit has a very credible fear that if it were to provide transportation services to india wholesale it would face revocation of its permit and even potentially criminal penalties now the district court nonetheless found that the claimants and right because there's no evidence the commission has actually decided to bring and of course an action that is simply not required under this court's cases or the supreme court transportation relationship it is true that they have not again taken the gesture of drafting another agreement that will look very much like one of the two previous agreements and that's because the commission's position with respect to  entry one sixty three ten and page one thirty two where mr terry testified that you have transit in indiana wholesale continue to engage in discussions and remain interested in having a mutually beneficial relationship under which you have transit would provide transportation services to indiana wholesale and that was that testimony in this case by mr terry again the standard that the supreme court now the state has barely attempted to defend the district court's holding in this case and instead makes two new arguments about rightness the first is the one that we've just discussed with respect to the second i should say as one we just discussed with respect to whether there is sufficient evidence of a potential partner and i just address that and address that issue i think in considering that issue it's important to distinguish this case from cases such as hon and lyons that this state the lives on in those cases this is a lot at issue or the practice at issue did not directly regulate the conduct of the plaintiff it did not challenge i'm not what we have here and cases like lou hahn and lyons where the statute does not regulate the plaintiff's conduct and the supreme court has acknowledged that there may need to be a higher showing of a future injury for the plaintiff to establish standing or right yes now the other argument the state has made on appeal is that the case is not fit for review because the commission's interpretation of state law is only tentative as i mentioned the evidence does not support that characterization that it is tentative and to the extent that the state believes there needs to be some kind of final agency action here it's not clear what they have in mind with respect to the twenty twelve agreement there is no final agency action that can take place because the commission does not require it that you have trends that are in the in a wholesale and apply for permission to provide transportation services so the only sort of final agency action that could take place with respect to that agreement would be for yet transit to start providing the services to in the in a wholesale and  at two thousand and nine agreement and in that case it is it is true that indiana wholesale withdrew its application and there is evidence in the case that there were two reasons why it withdrew its application the first being because it had to renew its lease during the time the commission starts on the application and the second being that it did not want to incur the negative ramifications that go along with a permit denial which can court should not decide the merits of the of transits claim at this time for two reasons first the parties hotly disputed the meaning of state law and second if transit hasn't provided any concrete plans of  intended future arrangements now it's to kind of how do you how do you how do you what argument about the deposition testimony think i think that mr terry can speak for each of transit and monarch and spirited sales but he cannot speak for indiana wholesale there is not anything coming from anyone with authority from indiana wholesale indicating that indiana wholesale is interested in striking an agreement now or in the near future with the of transit and i think it's also important we don't know what the terms of that agreement would be as shown by the two thousand and nine two thousand and twelve agreements the parties in the passive have struck two vastly different agreements and when you're looking at the preemption test and twenty first amendment tests set out and led them off enterprises by this court where you have to weigh the state interest versus the federal interest it's imperative that we know the details of  agree with that position in you know it's it's possible that he of transit could have other liquor wholesalers who are interested but again we don't know who those are we don't know any concrete plans for who you have transits proposed dance partner is or what dance they're going to be performing and it's important to know that when we're weighing the balances of federal and state interest on the twenty first amendment  i would like to clarify that the commission does firmly believe now that the two thousand and nine and two thousand and twelve agreements proposed agreements between you have transit in indiana wholesale did violate or would violate the indiana prohibit interest statutes but it's impair important to realize that if transit disagrees with that view of state law they firmly believe that the commission is wrong on state law and this is really what the spirit sales case is about so really their claim is not one of preemption but it's one of conditional preemption if state law is as a complete commission says it is then it's preempted in their view but it it just is not the business of federal courts to decide conditional constitutional claims like that and this is why the dispute over nuclear engineering point out or archer daniels midland when the parties dispute state law and the plaintiffs says it can do what it wants to under state law but it can also do what it wants to under federal law there's just not a right controversy and this is supported by what the supreme court cautioned in the white cough case about you know not intruding too far on state administrative agencies and not forcing their hands before they're ready to that to be forced going back to your earlier point judge throw in or you have transit points out that you know there are just needs to be an intent to engage in the conduct under this court's cases in the supreme court's cases but in all those cases it's unilateral conduct and in most of them it's first amendment protected speech so you don't need someone else to go out and speak but in this case you do need someone else you need a buyer of the services me and so without that buyer of the services you don't have the type of imminent injury that's required for rightness i'd also like to on under pullman intil the time that the state courts result the state law issue now in their reply brief you have transit points out that preemption issues often aren't viewed as constitutional issues for purposes of poland but this isn't a regular preemption case this isn't a matter simply of comparing state law on federal law the federal courts are going to have to interpret directly the twenty first amendment and would result from it it's also not too late in the day to raise this arguments this court held in walden waldron vs mcentee and illinois ecologist surgeons if it can be raised for the first time on appeal now you have transit points to several cases say that raising it late that support their argument that this is too late in the day but in all of those cases the district courts had decided the merits of the claim and the parties had argued only the merits it wasn't until after the merits had been decided against the government entity that the government argued for abstention here although we did not raise abstention below the commission has argued from the moment the cross motions for summary judgment were filed that the federal courts should not decide the merits of the claim now and that is not inconsistent with the abstention argument it's just basic problem in this case is that it's premature again in the m a supreme court granted the emergency transfer unspirited sales case and its decision will in all likelihood cast a whole lot of light on this issue from a state law perspective and then one spirited sales us decided we still need to know exactly what each of transit wants to do when with whom they get it is seeking prospect of relief it's not seeking retroactive retrospective relief and so it's past conduct really can't control the injury inquiry under article three and less or no further questions the commission would ask that the court affirmed the district court's judgment or alternatively  just three brief points your honor and first with respect to the notion that and we can bring this claim if you need to skew the meaning of state law that's simply not the case first the supreme court recognized and the season b anthony case plaintiff in a pre enforcement challenge need not concede that it's kind that my late state law two to bring that kind of a challenge and second with respect to that i would point the court in particular to the supreme court's decision airlines particularly relevant to this case because it's a preemption case under the sister preemption provision to the f a a in the end american airlines deregulation act and in that case the plaintiff was challenging not the law itself or not a regulation itself but this state attorney general's interpretation of that law and that interpretation made clear that it itself did not have the force of law but was preempted that's exactly what you have transit is seeking here the f a a of pre amps not only the enactment of laws but also the enforcement of what's second with respect to abstention and the spirit sales case the state acknowledges abstention becomes relevant only once a skate this court finds a case to be right and it is a question that goes to the merits the merits are not before this court the merits have not been briefed by the parties before this court so we believe that any questions relating to the spirited sales case or abstention were generally are best left to the district court on remand and then what do you think we should do about spirit sales could we wait question right so if this court reaches the right guy decides a case is right and then turns to at the merits because of course the court can't even consider the merits until it first determines the question of jurisdiction we believe like the cases that at the state's attorney's cited and where it simply unknown at all how the agreement would apply to the plaintiffs conduct we have to agreements in the record and this case those are the services that you have transit would like to provide and