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PRESS RELEASES
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April 8, 2007
HeraldTimesOnline.com
Commentary
"Attack on law prof an example of bare-knuckled politics"
by Mike Leonard, Herald-Times columnist |
leonard@heraldt.com
April 8, 2007
If the recent inquiry into the work activities of Indiana
University law professor Alex Tanford didn't carry with it
a question about the man's character and professionalism,
it might be amusing.
Tanford has been the lead attorney or a consultant on
several court challenges to laws that regulate wine
distribution and shipping. The first of these cases goes
back nearly a decade now, but over time, Tanford and his
allies have prevailed more often than not.
And that has big business and its allies in a dither. And
blatantly out to exact a measure of revenge.
The powerful Wine and Spirits Wholesalers of Indiana
pressed their lackeys in the Legislature to questi on
whether Tanford's legal work has detracted from his
responsibilities and duties as a law professor. Lead
lackey David Long, R-Fort Wayne, asked IU to look into
Tanford's activities and determine whether the law
professor has violated university policies regarding the
use of his time and university resources.
"It's the take-no-prisoners, out with the knives
attitude," observes Russ Bridenbaugh, a Bloomington wine
writer and advocate. "If they can't win in court, then
they go after their opponents with smears and harassment."
IU is beholden to the Legislature for appropriations to
higher education, of course, and dutifully launched the
requested investigation. Tanford says bring it on and that
his work on litigation in no way conflicts with either IU
policy or his effectiveness as a law professor.
"I teach litigation," he said last week. "I'm in a
professional school. I cannot teach my students litigation
if I myself am not actively involved in some litigation."
Of course, he could continue to teach litigation without
continuing courtroom experience. And the losers in that
scenario would be IU law students.
"It does make you wonder why the Legislature singled him
out," said Allen Dale Olson, a Jackson County resident who
is president of the newly formed wine consumers' group,
VinSense. "No one asks why an English professor travels to
Oxford to read a paper or share in the discovery of a new
manuscript.
"No one questions why an art professor might travel to
Egypt for research. Or why a surgeon on the medical school
faculty might write a book or lecture at universities or
hospitals around the country."
Indeed, outside activity - "publish or perish" - is an
integral aspect of life at a research institution such as
IU. The "inquiry" into Tanford's activities clearly is a
bare-knuckled assault on the pro fessor and his reputation.
Who pays?
But it doesn't stop there. James Purucker, the lobbyist
for the wine and spirits wholesalers, wants the
Legislature to set aside $1 million from IU's state
appropriations to offset the $800,000 Tanford says he is
due for eight years of legal work to overturn what he has
argued are Indiana laws and practices that violate the
commerce clause of the U.S. Constitution.
"That's the way constitutional law works," said
Bridenbaugh. "You're almost always suing a governmental
entity on a constitutional question. If you win, the
losing side has to pay the winner's legitimate legal fees.
The wholesalers and their friends in the Legislature are
trying to say that Alex is wasting taxpayers' money.
"If you want to point a finger at someone wasting
taxpayers' money, let's look at the crummy legislation
that was written by the wholesale wine and spirits lobby
and carried by the Legislature.
"Ultimately, though, you have to look at the governor and
the state attorney general and ask, why are you mounting
this defense of an indefensible and unconstitutional law?
Who is wasting taxpayers' money - the attorney who is
challenging an unconstitutional law or the state that
won't give up?"
The conflict
The genesis of the legal wrangling comes down to this. The
21st Amendment repealing prohibition set up a three-tier
system - producer, wholesaler and retailer - for the
distribution of alcoholic beverages. The wholesalers argue
that wine lovers who want to order wines from out-of-state
wineries in California or Indiana may not do so because it
bypasses the three-tier system.
Things have changed since the 21st Amendment repealed
prohibition in 1933. Grape agriculture and wine-making
have become a thriving business. Indiana, for example, now
has more than 30 wineries that attract more than a million
tourism visits annually.
"So it's economic development, it's rural development,
it's agricultural development, it's tourism development,"
VinSense president Olson pointed out. "It's small business
creating jobs and economic development, and big business
doesn't like it."
For nearly 30 years, wineries such as Oliver Winery and
Butler's Bloomington Winery welcomed visitors and shipped
wine back to those in-state visitors who might have been
vacationing or visiting their sons and daughters at IU.
The wineries didn't ship out-of-state because of warnings
from Indiana officials that to do so would be illegal.
The same issues have cropped up around the country. And to
resolve lawsuits, contradictory decisions and appeals in
several states, the U.S. Supreme Court finally decided in
2005 that states could not allow in-state wine shipping
and not allow out-of-state shipping. That practice would
violate the commerce clause of the Constitution that
dictates that there must be free trade among the states,
the Supreme Court ruled.
Indiana's initial reaction was to suggest a ban on all
shipping, a move that likely would have closed down at
least half of the Hoosier state's farm-based wineries.
The realities
No one has ever proved that consumers ordering wine for
shipment - in-state or out - has resulted in a problem
with underaged drinking or evasion of tax laws, as alleged
by the wholesalers and their allies.
But wine aficionados argue that they can only get access
to 5-10 percent of all the wine labels produced in the
U.S. alone through wholesalers. Wholesalers typically
carry wines from large producers, again to the detriment
of small business.
Olson said that, following the Supreme Court decision, 35
states have said, OK, we'll allow shipping. Many require
"signature service" from freigh t carriers such as UPS and
Federal Express, which means an adult with an ID must sign
for any delivery.
"We in Indiana are now among the backwards minority who
can't figure out how to do this," said VinSense's Olson.
VinSense was formed to give voice to the consumer. Until
the group was formed a month ago, there was no organized
entity to stand up to the wholesalers' lobby.
Common sense suggests that consumers, when they learn the
facts, will side with advocates of free trade and against
the wholesalers and the politicians who take their
campaign contributions and do their bidding.
"That has been one of the more amusing aspects to this
attack on Alex Tanford," said Bridenbaugh. "Sen. Long
suggested that he was double-dipping, getting paid by the
state as a professor and then suing the state and getting
paid for his legal work.
"The legislators get paid by the state and get benefits
from the state . The legislators also take money from
lobbies such as the wholesale wine and spirits lobby.
Pointing a finger at an attorney who successfully sued the
state for an unconstitutional law seems more than a bit
disingenuous."
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