On Monday, in the case of Brooks v. Vassar, the Fourth Circuit in an opinion by Judge Niemeyer, with Judge Traxler concurring in part and District Judge Goodwin concurring in part, upheld the constitutionality of two Virginia statutes: Va. Code § 4.1-310(E), which provides an exception to the three-tier import restriction for consumers who personally carry into Virginia no more than one gallon (or four liters) of alcoholic beverages for personal consumption; and Va. Code § 4.1-119(A), which authorizes state-owned and -operated ABC stores to market and sell only wine produced at Virginia "farm" wineries.
In addition, "[w]ith respect to challenged provisions of the ABC Act that permit in-state producers of wine and beer, but not out-of-state producers, to bypass the three-tier structure and sell directly to in-state retailers and consumers — Virginia Code §§ 4.1-112.1(B); 4.1-207(4),(5); 4.1-208(1),(7) — we conclude that Virginia legislative amendments enacted while this appeal was pending render the challenge to those provisions moot and therefore bar us from considering the district court’s order and the amended provisions."
Finally, the Court agreed that the case could be brought under 42 U.S.C. 1983, such that the prevailng plaintiffs on the issues the Commonwealth did not appeal could claim their attorney's fees under 42 U.S.C. 1988.