Virginia vintner takes wine fight to U.S. Supreme Court

MIDDLEBURG, Va. -- It has always bothered Juanita Swedenburg that so many of her customers are criminals in the eyes of the law. n Swedenburg sells premium handcrafted wines made from grapes she grows on her 130-acre farm in the heart of Virginia hunt country. She makes the kinds of wines she likes to drink herself -- traditional, European-inspired wines -- and she has developed a loyal customer base after nearly 20 years in business.

But if a customer from, say, Maryland, crosses the Potomac River into Virginia, buys a case of her wine, and returns to his home state, he has just broken Maryland law regulating the sale and shipment of alcoholic beverages.

This week the U.S. Supreme Court will hear arguments on whether such laws are an unconstitutional barrier to interstate commerce or whether states enjoy broad discretion to regulate alcohol sales under the 21st Amendment, which repealed Prohibition.

The strict barriers some states impose on shipment of alcoholic beverages stick in Swedenburg's craw. New York, for instance, allows in-state vintners to ship wine by mail to New York customers but prohibits out-of-state vinters from doing so.

"It seems to be restraint of trade, seems to be against a basic tenet of the economy," Swedenburg said. "If we could only buy things made in Virginia, we'd all be eating just peanuts and tomatoes and drinking wine."

Swedenburg, now in her late 70s, and her late husband, Wayne, were wine enthusiasts throughout their career in the Foreign Service, where they served in the Far East, Middle East and Africa.

When they retired in 1980, they bought land in rural Loudoun County, about 40 miles west of Washington, D.C. They first raised beef cattle, then decided a winery might be more profitable.

She studied and learned that Thomas Jefferson had likened Virginia soil to that found in France, which of course is renowned for its wine.

"The whole object was to maintain the land as a viable farm," said Swedenburg, who frequently gets queries from developers in what has become the nation's fastest-growing county. "We never had the kind of money where we could just afford to sit back and look out at the scenery. It wouldn't have taken us long to be broke."

The Swedenburgs made Cabernets, Chardonnays and other dry, traditional wines that cater to older, more mature wine drinkers who don't necessarily crave the sweetness found in some popular American wines.

For Swedenburg, vintner was a perfect second career, despite the hard work a winery entails.

"I had been all over the world. I didn't need to go on a bunch of cruises," she said. "I'd already done the travel. I'd already done the cocktail parties."

As business grew, the Swedenburgs began shipping wine to customers in other states who perhaps had tried her wines on a visit to Virginia. But she soon learned that it was illegal to do so in many states, and stopped.

The states that employ restrictive measures argue that such laws help keep alcohol out of the hands of minors and that the traditional "three-tier" system with strictly defined roles for manufacturers, wholesalers and retailers works well.

Opponents say the three-tier system, when followed rigidly, puts small wineries at a disadvantage with wholesalers who don't want to bother stocking a bunch of niche wines. And the concern over shipping to minors can be overcome by requiring an adult to sign for a shipment, they say.

But John Fitzpatrick, a spokesman for the Wine and Spirits Wholesalers of America, said it is not reasonable to expect delivery companies and truck drivers to enforce laws regarding alcohol and minors.

And while minors might not necessarily be interested in purchasing Swedenburg's Cabernet Sauvignon, the issue has broader implications. Fizpatirck cited a recent case in which an underage student at Virginia Tech was able to make an online purchase of absinthe, a liqueur that is illegal in the United States.

"As a society we need to be thinking about ways to make it harder for children to get alcohol, not easier," Fitzpatrick said.

Jeremy Benson, executive director of Free the Grapes, a coalition of wineries and consumers that advocates for legal direct shipments of wine, said the 50 states have widely disparate laws governing wine shipment, making it difficult for consumers and wineries to know what is legal.

"It's almost like you're exporting to 49 different countries," Benson said.

Swedenburg tried for years to find a lawyer to take up the issue and finally found a willing advocate in Clint Bolick, a wine aficionado and customer who also happens to head up the Institute for Justice, a libertarian law firm that seeks to advance property rights and economic liberty.

"When I found out what kind of work he does, I said, 'Boy, do I have a case for you,"' Swedenburg said.

Steve Simpson, an institute lawyer who will argue Swedenburg's case before the Supreme Court, said it's difficult to tell what kind of precedent will be set. He said the appellate ruling against Swedenburg, if allowed to stand, could be used to restrict interstate commerce in areas other than alcoholic beverages because the judges did not rely on the 21st Amendment in their ruling.

"To some extent it depends on how the court rules," Simpson said. "It depends on how the justices cast the issue."

Within the wine industry, though, it's clear the case could have a major impact. Increasingly, small wineries are finding a niche as American consumption of wine has increased.

Swedenburg said she doesn't necessarily need the extra sales that would come from the Internet -- she routinely sells out of the 2,000 or so cases she produces each year. But she is upset that she can't serve customers who visit Virginia for vacation or business and want to place an out-of-state order.

"It really is the principle. It really incenses me that a customer carrying a bottle of wine across state lines has to be breaking the law," she said.