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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