Cumberland Farms, Inc. v. LaFaver

United States Court of Appeals
For the First Circuit

No. 93-2066

CUMBERLAND FARMS, INC.,
Plaintiff, Appellant,

v.

JOHN LAFAVER, ET AL.,
Defendants, Appellees,

BOSTON MILK PRODUCERS, INC., WAYNE HAPSWORTH,
PRISCILLA ROWBOTHAM, AGRI-MARK, INC.,
HAROLD LARRABEE AND ADRIAN WADSWORTH,
Intervenors, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Selya, Boudin, and Stahl,
Circuit Judges.

Joel C. Martin, James B. Haddow, Petruccelli & Martin, and

Sheldon A. Weiss on brief for appellant.

Janet M. McClintock, Assistant Attorney General, Michael E.

Carpenter, Attorney General, and Cabanne Howard, First Assistant

Attorney General on brief for appellees.
Jerrol A. Crouter, Richard A. Spencer, Drummond Woodsum Plimpton

& MacMahon on brief for Boston Milk Producers, Inc., Wayne Hapsworth,

Priscilla Rowbotham, Agri-Mark, Inc., Harold Larrabee and Adrian
Wadsworth.

August 24, 1994

Per curiam. The Maine Dairy Farm Stabilization
Per curiam

Act, 36 Me. Rev. Stat. Ann. tit. 36, 4541-4547 (West Supp.

1993), imposes a tax on all packaged fluid milk sold in Maine

irrespective of the origin of the milk, but only Maine dairy

farmers are eligible for what amounts to a rebate from the

Maine Dairy Farm Stabilization Fund. Cumberland Farms, which

sells to Maine consumers milk produced by out-of-state dairy

farmers, filed suit against various Maine officials, alleging

that the tax-and-rebate scheme violates the restrictions on

state power inherent in the Commerce Clause. The district

court denied Cumberland Farms' motion for summary judgment

and granted that of the defendants, using the following

reasoning as the linchpin of its analysis: "It is true that

the proceeds [of the tax] are . . . used to benefit Maine

milk producers, but current precedents permit this kind of

economic protectionism." See Cumberland Farms, Inc. v.

LaFaver, 834 F. Supp. 27, 32 (D. Me. 1993).

We believe that with the intervention of West Lynn

Creamery, Inc. v. Healy, 114 S. Ct. 2205 (1994), which struck

down a similarly discriminatory tax-and-rebate scheme imposed

by Massachusetts, the reasoning of the district court is no

longer tenable. Defendants argue that West Lynn is not

dispositive because the Massachusetts dairy tax was collected

primarily from out-of-state milk sellers while the Maine tax

is collected primarily from in-state milk sellers. The Court

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has rejected such quantitative distinctions in the past, see

New Energy Co. v. Limbach, 486 U.S. 269, 276-77 (1988)

("Varying the strength of the bar against economic

protectionism according to the size and number of in-state

and out-of-state firms affected would serve no purpose except

the creation of new uncertainties in an already complex

field."), and we are compelled to do the same in this

instance. Accordingly, we deny the parties' request for oral

argument, reverse the decision of the district court, and

remand the case with instructions to enter judgment in favor

of the plaintiff and to conduct any necessary additional

proceedings in a manner consistent with this opinion.

So ordered.

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