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Coalition for Free Trade: playing hardball

Coalition for Free Trade: playing hardball

Philip E. Hiaring

As many a football coach will tell you, the best defense is an offense.

That’s the tack the Coalition for Free Trade (CFT) now is taking with regard to the issue of direct shipment of wine to legal-age consumers in states where such wines are not now available.

To be blunt, CFT is going to sue the bastards. Or, at least, it will assist consumer groups wishing to change the scene in their state(s) in spite of opposition from special-interest groups such as wholesalers, moralists and politicians.

Patrick Campbell of Laurel Glen, new CFT president, said “we’ve revised ourselves as a think tank to advise attorneys on litigation.” He added the organization also is screening attorneys who may want to take up the issue in the future.

Wines & Vines had lunch in February with William Kinzler, San Francisco attorney, who now is counsel for the Coalition for Free Trade. Kinzler made a presentation in January to the Family Winemakers of California regarding a restructuring and reorganization of CFT.

No longer will CFT lobby or do anything but litigate, or help others sue their states on behalf of the Commerce Clause of the U.S. Constitution.

Kinzler, on board since last fall, provided W&V with a telling quote from the Supreme Court in 1949: “Our system, fostered by the Commerce Clause, is that every farmer and every craftsman shall be encouraged to produce by the certainty that he will have free access to every market in the Nation, that no home embargoes will withhold his exports, and no foreign state will by customs duties or regulations exclude them. Like wise, every consumer may look to the free competition from every producing area in the Nation to protect him from exploitation by any. Such was the vision of the Founders; such has been the doctrine of this Court which has given it reality.”

That came from United States Supreme Court Justice Robert H. Jackson, H.P. Hood & Sons v. Du Mond (1949), 336 U.S. 525, 539, 69 S. Ct. 657, 665, 93 L. Ed. 865.

Strom Thurmond (R, S.C.) likely would be amused that the Commerce Clause was related to agriculture, especially milk.

As Kinzler pointed out, the Commerce Clause creates individual rights which may be remedied in federal court under the Civil Rights Act of 1871, which is better known in legal circles as Section 1983. What’s nice about Section 1983 is that it creates the opportunity for parties suing a state in federal court to collect legal fees. In short, it is a “bounty hunter” statute. Clearly, the statute makes it more attractive for attorneys to, in effect, fight city hall or, in this case, state capitals.

What it boils down to is that the direct shipment issue is a consumer issue, not a wholesaler monopoly issue. And this is what CFT will address.

It is producing a manual for other consumer groups and their counsel to follow in dotting the i’s and crossing the t’s in federal proceedings. What’s nice in federal proceedings, if you do things properly under Section 1983, is that emotional arguments such as ripping off state tax coffers or allowing minors to obtain licensed beverages don’t apply.

In other words, you do your homework, it can be pretty cut-and-dried.

Veteran industry observers likely would agree that the monumental task of overturning draconian state laws concerning direct shipments – felony, indeed! – is more than one body can handle. There are too many laws for Wine Institute, with its limited but capable legal staff to handle. So that’s where the hired guns of CFT, and their allies, come in.

CFT now is acting as a legal foundation or think tank to help concerned consumers find the “path through the wilderness.”

As Kinzler pointed out to Family Winemakers, the CFT program uses the acronym “ESP” for “Educate”, “Support” and “Protect.”

The “E” stands for educating consumers and the legal community regarding state restrictions and federal remedies.

The “S”, for support, includes serving as a clearing house and offering research, analysis, coordination and technical support where/when required.

The “P”, for protect, refers to protecting the American wine industry by evaluating/critiquing cases, monitoring cases progress, and filing “friend of the court” briefs in some instances.

The reorganization of CFT is interesting in itself. Last fall, Kinzler met with Bill MacIver, then president of CFT, Jess Jackson of Kendall-Jackson, Jim Barrett of Chateau Montelena and lawyers from three other states. (Both Jackson and Barrett were trained as lawyers.)

The organization has “trustees”, rather than directors, and took guidance from broker Bill Turrentine and Karen Ross of the California Association of Winegrape Growers as to such issues as delegating tasks. No turf wars, thank you kindly.

As Kinzler noted, CFT is not a bomb-throwing organization “out to destroy the three-tier system or disrupt distribution. We have a single issue – narrowly focused on consumer purchases. That is all we are about.”

Some background on Kinzler: in the mid ’80s he was involved with the (California) Senate Select Committee on Wine and provided early legal research to the committee’s late consultant, Lou Angelo. He has litigated in federal courts and knows about the potential land mines in Section 1983.

Reflecting, Kinzler said that looking back 20 years from now, what will be important is how the industry responded to the challenge of direct shipping and the felony statutes.

Resource:

Coalition for Free Trade (CFT), Exec. Dir., Vivienne Y. Nishimura, P.O. Box 4277, Napa, Calif. 94558; tel.: (707) 480-3312; fax: (707) 747-1566; e-mail: info@coalitionft.org; internet: www.coalitionft.org.

COPYRIGHT 1999 Hiaring Company

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