Supporters of battling wine retailers are using GoFundMe to finance their argument briefs at the U.S. Supreme Court, a new strategy that aims to help level the field in the expensive and specialized practice of trying to sway the justices.
GoFundMe and other crowdfunding isn’t unusual in litigation and legal controversies. Some, like embattled former Donald Trump lawyer Michael Cohen, have tapped the resource to offset legal fees, while more than $1 million was raised by dueling camps in Justice Brett Kavanaugh’s politically charged confirmation battle.
But a Bloomberg Law search turned up only a few examples so far focusing on Supreme Court litigation, specifically around the writing and filing of briefs by outside parties hoping to be heard by the court.
Crowdfunding can be a good way to fund opinions that otherwise might not get noticed by the court because of the potentially prohibitive cost of printing amicus, or friend-of-the-court, briefs, said Kyle C. Velte, a University of Kansas School of Law professor.
‘Wine v. Wine’
In the latest high court GoFundMe campaign, Wine Freedom, an affiliate of the National Association of Wine Retailers, had far exceeded its goal and raised more than $9,000 several days after launching the fundraising effort to help pay for a brief in the case the justices will hear this term.
More than 100 contributors supporting the argument of independent heavyweight Total Wine & More and other plaintiffs appear to include consumers, businesses, and figures in the wine community, a Bloomberg Law review of the effort on the crowdfunding platform shows.
Donations through noon Friday ranged from $5 to $1,000. The initial goal was $5,000, but that was upped to $25,000.
A competing GoFundMe campaign funding an amicus brief on the other side had raised more than $2,000. It’s set up to highlight the health ramifications of removing state limitations on alcohol licensing and consumption.
Wine Freedom aims to overturn Tennessee’s requirement that those involved in a business must live there for at least two years before getting a retail liquor license, and 10 years for renewing one. The law is aimed at promoting responsible drinking, which states are authorized to do under the 21st Amendment.
The national association behind the GoFundMe campaign says it and laws like it nationally unlawfully hurt consumers by preventing wine shipments from out-of-state retailers while allowing them from in-state.
The brief “will be the first time wine consumers ever had the opportunity to represent themselves in front of a court collectively and make the case that wine shipping bans are unfair and harmful,” Tom Wark, of the national wine retailers association, said in a statement.
Local businesses represented by the Tennessee Wine and Spirits Retailers Association have appealed a lower court ruling that found the residency rule unconstitutional.
The Tennessee Alcoholic Beverage Commission, though technically a respondent with Total Wine, said it “strongly agrees” with the local retailers that the law is constitutional.
Masterpiece Cakeshop Connection
GoFundMe allows individuals and groups to raise money for charities, friends, or even themselves.
Wine Freedom wants to replicate Velte’s success in fundraising for an amicus brief in Masterpiece Cakeshop, a hot-button Supreme Court case from last term that involved a Colorado baker who refused to make a cake for a gay couple’s wedding because of his religious objections to same-sex marriage.
“I want to file a friend-of-the-court brief to help persuade the court that the rule of law must be upheld” and that bakers and other wedding providers can’t “create a Gay Jim Crow by turning away LGBT customers,” Velte said in 2017.
But she needed money to do so.
“Per Court rules, you must send a certain number of copies to the court and the printing is quite expensive,” Velte told Bloomberg Law. “I couldn’t afford to print it myself so did the GoFundMe thing.”
She raised her goal of $1,200 and filed her brief with the high court later that fall.
“If you aren’t drafting an amicus for an organization with a budget for such things, you have to pay out-of-pocket,” Velte said.
The court in Cakeshop ultimately found in favor of the baker, but did so on narrow grounds that didn’t resolve the tension between anti-discrimination laws and religious autonomy.
Wine Freedom seeks its GoFundMe proceeds to go toward “the writing, printing and distribution of the consumer-focused” brief.
The group has tapped two attorneys, Robert Epstein, of Epstein Cohen Seif & Porter, LLP in Indianapolis, and J. Alexander Tanford, of the Indiana University Maurer School of Law to draft the brief on behalf of consumers.
Both Epstein and Tanford have participated in similar lawsuits nationwide, including the 2005 Supreme Court case striking down Michigan and New York’s outright bans on out-of-state shipments.
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