14 Mass. App. Ct. 973 | Mass. App. Ct. | 1982
2. Gordon also argues that § 25B(d), as written and as applied, is unconstitutional (i) because it conflicts with the ban in the Sherman Act (15 U.S.C. § 1 et. seq. [1976]) against State sponsored policies which have the effect of maintaining resale prices and preventing competition among traders in competing goods; and (ii) because it creates an impermissible burden on interstate commerce in conflict with the commerce clause of the United States Constitution, art. 1, § 8. The Sherman Act argument is fully disposed of by the determination in the Supreme Judicial Court’s second Gordon decision (386 Mass, at 70-73) that the commission’s activity under § 25B(d) enjoys immunity from the antitrust laws under the “State action” doctrine first stated in Parker v. Brown, 317 U.S. 341 (1943), and more recently applied in California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97 (1980). See also Rice v. Norman Williams Co., 458 U.S. 654 (1982). The “as written” prong of Gordon’s commerce clause argument is disposed of by a long line of United States Supreme Court cases stretching from State Bd. of Equalization v. Young’s Mkt. Co., 299 U.S. 59 (1936), to the California case, supra, which hold that a State’s power to regulate the importation, consumption or use of intoxicating liquors within its borders under the Twenty-first Amendment to the United States Constitution “is totally unconfined by traditional Commerce Clause limitations.” Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 330 (1964). In light of these cases, there appears to be nothing to support the contention that G. L. c. 138 conflicts with the commerce clause on its face. The plaintiff’s likelihood of success on this point is therefore minimal. Gordon’s “as applied” argument cannot be properly assessed in the absence of some demonstration that the pricing requirements of c. 138, as implemented by the commission, materially impede the flow of alcoholic beverages into the Commonwealth, or result in reduced sales here, or otherwise obstruct some aspect of interstate economic activity. It would be Gordon’s burden to show the existence of such consequences. The few details furnished on the commission’s present decision regarding the application of c. 138, § 25B(d), are far from sufficient to permit sound analysis of this argument.
We conclude that the ruling in the first numbered paragraph of the order of the Superior Court entered on May 14, 1981, is erroneous as matter of law, and, as a consequence, that the restraint against the commission imposed in the second numbered paragraph of that order must be, and hereby is, vacated.
So ordered.