II

Calendar No. 438

106TH CONGRESS

2D SESSION S. 577

To provide for injunctive relief in Federal district court to enforce State

laws relating to the interstate transportation of intoxicating liquor.

IN THE SENATE OF THE UNITED STATES

MARCH 10, 1999

Mr. HATCH (for himself, Mr. DEWINE, Mr. CONRAD, Mr. BYRD, Mr. ROBB,

Mr. KOHL, Mr. HUTCHINSON, Mr. THURMOND, Mrs. HUTCHISON, Mr.

CLELAND, Mr. DORGAN, Mr. BUNNING, and Mr. HELMS) introduced the

following bill; which was read twice and referred to the Committee on the

Judiciary

MARCH 2, 2000

Reported by Mr. HATCH, with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]

A BILL

To provide for injunctive relief in Federal district court to

enforce State laws relating to the interstate transportation of intoxicating liquor.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Twenty-First Amend5 ment Enforcement Act’’.
2

S 577 RS

1 SEC. 2. SHIPMENT OF INTOXICATING LIQUOR INTO STATE

2 IN VIOLATION OF STATE LAW.

3 The Act entitled ‘‘An Act divesting intoxicating liq4 uors of their interstate character in certain cases’’, ap5 proved March 1, 1913 (commonly known as the ‘‘Webb6 Kenyon Act’’) (27 U.S.C. 122) is amended by adding at

7 the end the following:

8 ‘‘SEC. 2. INJUNCTIVE RELIEF IN FEDERAL DISTRICT

9 COURT.

10 ‘‘(a) DEFINITIONS.—In this section—

11 ‘‘(1) the term ‘attorney general’ means the at12 torney general or other chief law enforcement officer

13 of a State, or the designee thereof;

14 ‘‘(2) the term ‘intoxicating liquor’ means any

15 spirituous, vinous, malted, fermented, or other in16 toxicating liquor of any kind;

17 ‘‘(2) the term ‘person’ means any individual

18 and any partnership, corporation, company, firm, so19 ciety, association, joint stock company, trust, or

20 other entity capable of holding a legal or beneficial

21 interest in property, but does not include a State or

22 agency thereof; and

23 ‘‘(3) the term ‘State’ means any State of the

24 United States, the District of Columbia, the Com25 monwealth of Puerto Rico, or any territory or pos26 session of the United States.
3

S 577 RS

1 ‘‘(b) ACTION BY STATE ATTORNEY GENERAL.—If

2 the attorney general of a State has reasonable cause to

3 believe that a person is engaged in, is about to engage

4 in, or has engaged in, any act that would constitute a vio5 lation of a State law regulating the importation or trans6 portation of any intoxicating liquor, the attorney general

7 may bring a civil action in accordance with this section

8 for injunctive relief (including a preliminary or permanent

9 injunction or other order) against the person, as the attor10 ney general determines to be necessary to—

11 ‘‘(1) restrain the person from engaging, or con12 tinuing to engage, in the violation; and

13 ‘‘(2) enforce compliance with the State law.

14 ‘‘(c) FEDERAL JURISDICTION.—

15 ‘‘(1) IN GENERAL.—The district courts of the

16 United States shall have jurisdiction over any action

17 brought under this section.

18 ‘‘(2) VENUE.—An action under this section

19 may be brought only in accordance with section

20 1391 of title 28, United States Code.

21 ‘‘(d) REQUIREMENTS FOR INJUNCTIONS AND OR22 DERS.—

23 ‘‘(1) IN GENERAL.—In any action brought

24 under this section, upon a proper showing by the at25 torney general of the State, the court shall issue a
4

S 577 RS

1 preliminary or permanent injunction or other order

2 without requiring the posting of a bond.

3 ‘‘(2) NOTICE.—No preliminary or permanent

4 injunction or other order may be issued under para5 graph (1) without notice to the adverse party.

6 ‘‘(3) FORM AND SCOPE OF ORDER.—Any pre7 liminary or permanent injunction or other order en8 tered in an action brought under this section shall—

9 ‘‘(A) set forth the reasons for the issuance

10 of the order;

11 ‘‘(B) be specific in terms;

12 ‘‘(C) describe in reasonable detail, and not

13 by reference to the complaint or other docu14 ment, the act or acts to be restrained; and

15 ‘‘(D) be binding only upon—

16 ‘‘(i) the parties to the action and the

17 officers, agents, employees, and attorneys

18 of those parties; and

19 ‘‘(ii) persons in active cooperation or

20 participation with the parties to the action

21 who receive actual notice of the order by

22 personal service or otherwise.

23 ‘‘(e) CONSOLIDATION OF HEARING WITH TRIAL ON

24 MERITS.—
5

S 577 RS

1 ‘‘(1) IN GENERAL.—Before or after the com2 mencement of a hearing on an application for a pre3 liminary or permanent injunction or other order

4 under this section, the court may order the trial of

5 the action on the merits to be advanced and consoli6 dated with the hearing on the application.

7 ‘‘(2) ADMISSIBILITY OF EVIDENCE.—If the

8 court does not order the consolidation of a trial on

9 the merits with a hearing on an application de10 scribed in paragraph (1), any evidence received upon

11 an application for a preliminary or permanent in12 junction or other order that would be admissible at

13 the trial on the merits shall become part of the

14 record of the trial and shall not be required to be

15 received again at the trial.

16 ‘‘(f) NO RIGHT TO TRIAL BY JURY.—An action

17 brought under this section shall be tried before the court.

18 ‘‘(g) ADDITIONAL REMEDIES.—

19 ‘‘(1) IN GENERAL.—A remedy under this sec20 tion is in addition to any other remedies provided by

21 law.

22 ‘‘(2) STATE COURT PROCEEDINGS.—Nothing in

23 this section may be construed to prohibit an author24 ized State official from proceeding in State court on

25 the basis of an alleged violation of any State law.’’.
6

S 577 RS

1 SECTION 1. TWENTY-FIRST AMENDMENT ENFORCEMENT.

2 (a) SHIPMENT OF INTOXICATING LIQUOR IN VIOLA3 TION OF STATE LAW.—The Act entitled ‘‘An Act divesting

4 intoxicating liquors of their interstate character in certain

5 cases’’, approved March 1, 1913 (commonly known as the

6 ‘‘Webb-Kenyon Act’’) (27 U.S.C. 122) is amended by adding

7 at the end the following:

8 ‘‘SEC. 2. INJUNCTIVE RELIEF IN FEDERAL DISTRICT COURT.

9 ‘‘(a) DEFINITIONS.—In this section—

10 ‘‘(1) the term ‘attorney general’ means the attor11 ney general or other chief law enforcement officer of

12 a State or the designee thereof;

13 ‘‘(2) the term ‘intoxicating liquor’ means any

14 spirituous, vinous, malted, fermented, or other intoxi15 cating liquor of any kind;

16 ‘‘(3) the term ‘person’ means any individual and

17 any partnership, corporation, company, firm, society,

18 association, joint stock company, trust, or other entity

19 capable of holding a legal or beneficial interest in

20 property, but does not include a State or agency

21 thereof; and

22 ‘‘(4) the term ‘State’ means any State of the

23 United States, the District of Columbia, the Common24 wealth of Puerto Rico, or any territory or possession

25 of the United States.
7

S 577 RS

1 ‘‘(b) ACTION BY STATE ATTORNEY GENERAL.—If the

2 attorney general has reasonable cause to believe that a per3 son is engaged in, or has engaged in, any act that would

4 constitute a violation of a State law regulating the importa5 tion or transportation of any intoxicating liquor, the attor6 ney general may bring a civil action in accordance with

7 this section for injunctive relief (including a preliminary

8 or permanent injunction) against the person, as the attor9 ney general determines to be necessary to—

10 ‘‘(1) restrain the person from engaging, or con11 tinuing to engage, in the violation; and

12 ‘‘(2) enforce compliance with the State law.

13 ‘‘(c) FEDERAL JURISDICTION.—

14 ‘‘(1) IN GENERAL.—The district courts of the

15 United States shall have jurisdiction over any action

16 brought under this section by an attorney general

17 against any person, except one licensed or otherwise

18 authorized to produce, sell, or store intoxicating liq19 uor in such State.

20 ‘‘(2) VENUE.—An action under this section may

21 be brought only in accordance with section 1391 of

22 title 28, United States Code, or in the district in

23 which the recipient of the intoxicating liquor resides

24 or is found.
8

S 577 RS

1 ‘‘(3) FORM OF RELIEF.—An action under this

2 section is limited to actions seeking injunctive relief

3 (a preliminary and/or permanent injunction).

4 ‘‘(4) NO RIGHT TO JURY TRIAL.—An action

5 under this section shall be tried before the court.

6 ‘‘(d) REQUIREMENTS FOR INJUNCTIONS AND OR7 DERS.—

8 ‘‘(1) IN GENERAL.—In any action brought under

9 this section, upon a proper showing by the attorney

10 general of the State, the court may issue a prelimi11 nary or permanent injunction to restrain a violation

12 of this section. A proper showing under this para13 graph shall require that a State prove by a prepon14 derance of the evidence that a violation of State law

15 as described in subsection (b) has taken place or is

16 taking place.

17 ‘‘(2) ADDITIONAL SHOWING FOR PRELIMINARY

18 INJUNCTION.—No preliminary injunction may be

19 granted except upon—

20 ‘‘(A) evidence demonstrating the probability

21 of irreparable injury if injunctive relief is not

22 granted; and

23 ‘‘(B) evidence supporting the probability of

24 success on the merits.
9

S 577 RS

1 ‘‘(3) NOTICE.—No preliminary or permanent in2 junction may be issued under paragraph (1) without

3 notice to the adverse party and an opportunity for a

4 hearing.

5 ‘‘(4) FORM AND SCOPE OF ORDER.—Any pre6 liminary or permanent injunction entered in an ac7 tion brought under this section shall—

8 ‘‘(A) set forth the reasons for the issuance of

9 the order;

10 ‘‘(B) be specific in terms;

11 ‘‘(C) describe in reasonable detail, and not

12 by reference to the complaint or other document,

13 the act or acts sought to be restrained; and

14 ‘‘(D) be binding upon—

15 ‘‘(i) the parties to the action and the

16 officers, agents, employees, and attorneys of

17 those parties; and

18 ‘‘(ii) persons in active concert or par19 ticipation with the parties to the action who

20 receive actual notice of the order by per21 sonal service or otherwise.

22 ‘‘(5) ADMISSIBILITY OF EVIDENCE.—In a hear23 ing on an application for a permanent injunction,

24 any evidence previously received on an application

25 for a preliminary injunction in connection with the
10

S 577 RS

1 same civil action and that would otherwise be admis2 sible, may be made a part of the record of the hearing

3 on the permanent injunction.

4 ‘‘(e) RULES OF CONSTRUCTION.—This section shall be

5 construed only to extend the jurisdiction of Federal courts

6 in connection with State law that is a valid exercise of

7 power vested in the States—

8 ‘‘(1) under the twenty-first article of amendment

9 to the Constitution of the United States as such arti10 cle of amendment is interpreted by the Supreme

11 Court of the United States including interpretations

12 in conjunction with other provisions of the Constitu13 tion of the United States; and

14 ‘‘(2) under the first section herein as such section

15 is interpreted by the Supreme Court of the United

16 States; but shall not be construed to grant to States

17 any additional power.

18 ‘‘(f) ADDITIONAL REMEDIES.—

19 ‘‘(1) IN GENERAL.—A remedy under this section

20 is in addition to any other remedies provided by law.

21 ‘‘(2) STATE COURT PROCEEDINGS.—Nothing in

22 this section may be construed to prohibit an author23 ized State official from proceeding in State court on

24 the basis of an alleged violation of any State law.
11

S 577 RS

1 ‘‘SEC. 3. GENERAL PROVISIONS.

2 ‘‘(a) EFFECT ON INTERNET TAX FREEDOM ACT.—

3 Nothing in this section may be construed to modify or su4 persede the operation of the Internet Tax Freedom Act (47

5 U.S.C. 151 note).

6 ‘‘(b) INAPPLICABILITY TO SERVICE PROVIDERS.—

7 Nothing in this section may be construed to—

8 ‘‘(1) authorize any injunction against an inter9 active computer service (as defined in section 230(f)

10 of the Communications Act of 1934 (47 U.S.C. 230(f))

11 used by another person to engage in any activity that

12 is subject to this Act;

13 ‘‘(2) authorize any injunction against an elec14 tronic communications service (as defined in section

15 2510(15) of title 18, United States Code) used by an16 other person to engage in any activity that is subject

17 to this Act; or

18 ‘‘(3) authorize an injunction prohibiting the ad19 vertising or marketing of any intoxicating liquor by

20 any person in any case in which such advertising or

21 marketing is lawful in the jurisdiction from which the

22 importation, transportation or other conduct to which

23 this Act applies originates.’’.
12

S 577 RS

1 SEC. 4. EFFECTIVE DATE.

2 This Act and the amendments made by this Act shall

3 become effective 90 days after the date of this enactment

4 of this Act.

5 SEC. 5. STUDY.

6 The Attorney General shall carry out the study to de7 termine the impact of this Act and shall submit the results

8 of such study not later than 180 days after the enactment

9 of this Act.

Calendar No. 438

106TH CONGRESS

2D SESSION S. 577

A BILL

To provide for injunctive relief in Federal district

court to enforce State laws relating to the interstate transportation of intoxicating liquor.

MARCH 2, 2000

Reported with an amendment