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A Virginia Vintner's Full Court Press

Until five years ago, the regulations meant little to Swedenburg, who produces only about 2,000 cases per year. About 95 percent of her sales were made on site, though she occasionally shipped wine when an out-of-state customer requested it. But that, she says, has stopped. Who knows, she says, somebody might be trying to trap her in a sting.

In October 2000, President Clinton signed the 21st Amendment Enforcement Act, which authorized the federal courts to intervene to control the steadily increasing growth of interstate alcohol sales, particularly through the Internet.

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"I was furious, never so cross, as cross as I can get. Something had to be done," says Swedenburg, who doesn't even own a computer.

That's when she enlisted the help of her longtime customer Clint Bolick, co-founder of the Institute for Justice, a public interest law firm in Washington. "At first, he wasn't going to take the word of some old woman. Then he studied it, and we talked it over and saw that the laws were such a hodgepodge."

The decision was made to challenge the New York interstate wine law. In short, it says that out-of-state producers of alcoholic beverages must sell their products to New York-licensed wholesalers, who then sell them to New York-licensed retailers, who sell them to in-state consumers -- a three-tier distribution system.

New York and many other states contend that the 21st Amendment to the Constitution repealing Prohibition gave states the right to regulate alcohol and that states can prohibit out-of-state shipments to promote temperance and raise revenue. Swedenburg argues that the Commerce clause of the Constitution prevents states from interfering in free trade between New York and Virginia, including sales of wine by telephone and Internet.

After the U.S. Court of Appeals for the 2nd Circuit ruled against her in February 2004, she appealed to the Supreme Court. Swedenburg says New York's distribution system protects wholesalers and hurts small wineries that cannot fairly compete. Her opponents disagree, saying the state laws are needed to prevent Internet sales to underage drinkers and to collect taxes on wine sales. She says she has received little support from other wineries in the state.

"There has been quite a lot of animosity, especially by the big wineries," she says. "They think I'm a silly old woman being led around by the Institute for Justice. But I was the one who was pushing it, and I'm not being led around by anyone."

Gordon W. Murchie, executive director of the Virginia Wineries Association, says his organization is "in full support of the effort to open up all states to the free flow of commerce. But we're waiting to see what the Supreme Court says." The owners of small wineries "just don't understand the issues. There's a lot of ignorance in the industry, and it's all so complex," Murchie says.

He believes a victory for Swedenburg would not have an immediate effect on Virginia vintners, who produce about 300,000 cases of wine per year. "It will not open a floodgate because it costs money to ship wine," says Murchie. "You can get a nice bottle of comparable wine at the grocery store. But you may get some wine enthusiasts buying wine for their cellar, and they will be paying for it."

Swedenburg, an Illinois native, traces her love of wine to 1950 and Saigon, her first posting in the Foreign Service. She was working in personnel and administration, her future husband, Wayne, in accounting.

"In those days it was the Paris of the East, and I was so much a wine novice," she says. "We drank really good 1948 and 1949 Bordeaux and cabernets. It taught me a lot about good wine."

Decades later, after numerous postings in emerging African nations, the road led to Middleburg.

With retirement in mind, in 1976 the couple bought Valley View with a plan to raise Angus cattle and start a vineyard. "Wayne use to say, a cattle farm is a big, black hole where you put money. Wine would be the cash crop." In 1980 they planted their first vines in fields that have grown to 15 acres over the years.

At this time of year, in addition to the tasting room she tends for six hours a day, seven days a week, Swedenburg spends her days reading the latest publications on fungus and pests in vineyards. Fertilizers and chemicals for the coming year need to be ordered.

"I've gotten old and gray because of this case," says Swedenburg. "I just sit here and hope that the people will come." The case is Swedenburg, et al. v. Kelly, et al. Edward D. Kelly is the chairman of the New York State Liquor Authority. The court has combined the Swedenburg case with two other related cases, Jennifer M. Granholm, Governor of Michigan, et al. v. Eleanor Heald, et al.; and Michigan Beer & Wine Wholesalers Ass'n v. Eleanor Heald, et al.

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