Bacchus, A True Friend of the Court and of the Cherished Values of Western Civilization

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Posted in 2016

BEFORE THE CHANCERY COURT OF
RANKIN COUNTY, MISSISSIPPI

JIM HOOD, ATTORNEY GENERAL
OF THE STATE OF MISSISSIPPI, Ex Rel.
THE STATE OF MISSISSIPPI;
COMMISSIONER OF REVENUE HERB
FRIERSON, MISSISSIPPI DEPARTMENT
OF REVENUE

PLAINTIFFS,

VS.

WINE EXPRESS, INC.;
CALIFORNIA WINE CLUB;
GOLD MEDAL WINE CLUB;
BOTTLE DEALS, ETC.

DEFENDANTS,

Civil Action No. 17-02964

Answer and Counterclaim in Intervention

BACCHUS, eternal god of wine for the Romans and the rest of the Western World, a/k/a DIONYSUS by the Greeks, acting on behalf of all of Western Civilization, particularly including but not limited to the thousands of good, law abiding, cheerful taxpaying citizens and quality wine lovers of Mississippi, has a few things to say — respectfully — about the Amended Complaint filed February 1, 2018, and shows unto this Honorable Court as follows:

Wisdom of the Ages

BACCHUS first calls the Court's attention to the Wisdom of the Ages of Western Civilization, a few vignettes from which are,

Wine can of their wits the wise beguile, Make the sage frolic, and the serious smile.
Homer, Odyssey
He causeth the grass to grow for the cattle, and herbs for the service of man; and he may bring forth food out of the earth, And wine that maketh glad the heart of man.
The Book of Psalms 104:14–15 [KJV]
Give me a bowl of wine, In this I bury all unkindness.
Brutus to Cassius and others, in William Shakespeare, Julius Caesar, Act IV, Scene 3, lines 158–159
And the third day there was a marriage in Cana of Galilee, … when they wanted wine, the mother of Jesus saith unto him, They have no wine … Jesus saith unto them, Fill the waterpots with water. And they filled them to the brim … [T]he ruler of the feast had tasted the water that was made wine … And saith unto him … but thou has kept the good wine until now. This beginning of miracles did Jesus … 
The Gospel According To St. John, ch. 2, ¶¶ 1–11 [KJV]
"Good wine is a necessity of life for me … Wine … the true old man's milk and restorative cordial." … "By making this wine vine known to the public I have rendered my country as great a service as if I had enabled it to pay back the national debt."
Thomas Jefferson
"Wine makes daily living easier, less hurried, with fewer tensions and more tolerance," "The discovery of a wine is of greater moment than the discovery of a constellation. The universe is full of stars."
Benjamin Franklin
"[Wine is] poetry in a bottle … To take wine into your mouth is to savor a droplet of the river of human history. A bottle of wine begs to be shared, I have never met a miserly wine lover."
Clifford Fadiman, Journalist
"Wine is the most civilized of things in the world and one of the most natural things of the world that has been brought to the greatest perfection, and it offers a greater range for enjoyment and appreciation than, possible, any other purely sensory thing."
Ernest Hemingway.
"Drinking good wine with good food in good company is one of life's most civilized pleasures."
Michael Broadbent, British wine critic.

Wisdom from The Supreme Court of Mississippi

Cartels and other combinations in restraint of trade are "frowned upon by all courts as tending towards a deprivation of rights and aimed at creating monopolies." Wilby v. State, 47 So. 465, 466 (Miss. 1908). The Court has no truck with those who "for the ostensible purpose of raising revenue" on behalf of the State of Mississippi would "control the business to which it is directed, to shut out competition, create a monopoly, and force those unable to pay the tax … to look to the ones in control of the monopoly for employment." Id. at 466–67.

Wisdom According to The Mississippi Legislature

"Any … association of persons whatsoever" which shall (a) Restrain or attempt to restrain freedom of trade or production" shall be unlawful. Miss. Code Ann. § 75–21-3.

Relevant Facts

  1. Certain wine sales in Mississippi are permissible and practiced. These are generally cheap, low end wines, not much above the level of the proverbial Ripple wines. The sale of wines in great volumes is consistent with the public policy of Mississippi.
  2. Among the citizens of Mississippi are thousands of good law abiding, cheerful taxpaying citizens and quality wine lovers.
  3. Retail sales of wines are subject to and severely limited to the stranglehold of a cartel or combination in restraint of trade under the control of Plaintiffs and particularly the Alcoholic Beverage Control Division of the Plaintiff Department of Revenue. Participating and wholly compliant members of the aforesaid cartel or combination are the producers and vendors of cheap, low end wines who are determined — and with the assistance of named Plaintiffs have succeeded — in avoiding competition from producers of better middle and high end wines, from around the Western World, and particularly from boutique wineries operating in states other than Mississippi.
  4. On information and belief, BACCHUS advises this Honorable Court that none of the following wines have been sighted on the shelves or otherwise available for consumer purchases from the cartel member, retail distributors, viz.,
    1. First Growth and other high end wines produced and marketed by world-wide famous chateaux such as Chateau Lafite Rothschild, Chateau Margaux, Chateau Haut Brion, Chateau Latour, and Chateau Mouton Rothschild, and other premier wines that Thomas Jefferson recommended to all Americans;
    2. World famous Burgundy red wines such as Chambertin wines which were Napoleon's favorite, and Vosne-Romanee, and Burgundy white wines such as Chablis Grand Cru and Montrachets;
    3. High quality Italian wines such as Brunellos and Barolos, for which BACCHUS has a particular affinity;
    4. High quality Spanish wines from the Rioja region;
    5. Medium and high quality wines from California;
    6. Wines produced by boutique wineries in California and other western states.

BACCHUS could go on. He and the thousands of good law abiding, cheerful taxpaying citizens and quality wine lovers would love to be proved wrong in the aforesaid allegations.

  1. As a result of the stranglehold heretofore maintained by the aforesaid cartel, and which Plaintiffs would tighten further by this punitive enforcement action, the thousands of good law abiding, cheerful taxpaying citizens and quality wine lovers have no practicable choice but to go to all of the trouble and expense of traveling to retail wine venues like Martin's Wine Cellar in New Orleans and Buster's Wines in Memphis, if they wish to purchase acceptable quality for sharing and sipping and fostering good cheer among family and friends.

Enough. The above is only the beginning of the picture that BACCHUS would like to paint for this Honorable Court of equity and good conscience.

Turning to the Amended Complaint, BACCHUS respectfully suggests:

Jurisdiction and Venue

  1. BACCHUS agrees that this matter lies within the subject matter jurisdiction of the chancery courts of equity and good and civilized conscience of Mississippi and that venue is proper in Rankin County. BACCHUS reserves the right to take discovery on more amenable and sophisticated wine loving parts of the Western World in order to educate this Honorable Court and Plaintiffs regarding the joy, pleasures, good cheer and other benefits wrought by truly wonderful wines. For reasons unknown to BACCHUS, the Plaintiffs and the monopolizing cartel that they operate are determined to keep the thousands of good law abiding, cheerful taxpaying citizens and quality wine lovers of Mississippi from gaining reasonable and lawful access to any but the cheapest and less desirable wines.

Parties

  1. BACCHUS respectfully acknowledges the legal authority and responsibilities of the Plaintiffs as set forth in paragraph 2 of the Amended Complaint. For reasons unknown to BACCHUS, Plaintiffs have failed and refused to protect "the good of the whole" of the people of Mississippi, as they are required to do by Miss. Const., Art. 3, § 5, or to secure the "safety and happiness" of the thousands of good law abiding, cheerful taxpaying citizens and quality wine lovers of Mississippi, as required by Miss. Const., Art. 3, § 6. Plaintiffs have not fessed up to this Honorable Court that they are managing and operating a monopolizing cartel contrary to all law and good order and civilized living. Because of their monopolizing cartel and the pernicious effects it is having among the thousands of good law abiding, cheerful taxpaying citizens and quality wine lovers of Mississippi, Plaintiffs' hands are very dirty, sufficient that they should not be allowed to proceed further.
  2. III.–VI. BACCHUS knows nothing of the four Defendants named in paragraphs 3, 4, 5 and 6, except that, upon information and belief, they offer quality wines to good wine lovers everywhere, and that Plaintiffs' cartel has filed suit against them in the interests of denying quality wines to the thousands of good law abiding, cheerful taxpaying citizens and quality wine lovers of Mississippi in furtherance of their rights secured by Sections 5 and 6 of the Mississippi Constitution.

Facts

  1. VII.–X. BACCHUS has read paragraphs 7 through 10 and finds no statements of fact, only propositions of law. That Plaintiffs do not know the difference between facts and law is disturbing, suggesting that Plaintiffs may have been partaking excessively of the cheap wines that their cartel markets in Mississippi, all to the detriment of the thousands of good law abiding, cheerful taxpaying citizens and quality wine lovers of Mississippi.
  2. Because of the illegal and monopolizing cartel that they operate, the Plaintiffs have very dirty hands and should be precluded from enforcing the statutes they cite.
  3. Plaintiffs complain here of the sale of "one (1) bottle of bourbon whiskey" in Rankin County. BACCHUS has no interest in such vile and pedestrian consumptive activities.
  4. XIII. Plaintiffs complain here of the sale of "two (2) bottles of champagne." There are, of course, very cheap champagnes that no self-respecting wine lover would knowingly purchase. Before pleading further to this particular charge, BACCHUS needs to know if the champagne said to have been sold and delivered in Forrest County was in fact available through the state's illegal and monopolizing cartel at a price competitive with that offered by Grand Wine Cellar. A bill of particulars, please. On information and belief, BACCHUS would show that the Plaintiffs engaged in illegal and otherwise devious acts of entrapment in procuring the evidence, if any, upon which these charges are based.
  5. XIV.–XV. Plaintiffs complain here of the sale of three (3) bottles of Lockwood Pinot Noir wine. Before pleading further to these particular charges, BACCHUS needs to know if the Lockwood Pinor Noir wine said to have been sold and delivered in Rankin County was in fact available through the state's illegal and monopolizing cartel at a price competitive with that offered by Wine Express. A bill of particulars, please. On information and belief, BACCHUS would show that the Plaintiffs engaged in illegal and otherwise devious acts of entrapment in procuring the evidence, if any, upon which these charges are based.
  6. XVI., XVIII., XX., XXIV. Plaintiffs here complain of the sale of bottles of wines to minors — persons under 21 years of age — in Madison and Rankin Counties. BACCHUS agrees that wines should not be sold to persons under 21 years of age. BACCHUS will waive his defense of the state's dirty hands by reason of the state's operation of an illegal and monopolizing cartel, if the state will agree to prohibit the sale of guns, arms and other deadly weapons to persons under 21 years of age, and enforce that prohibition effectively.
  7. XVII., XIX., XXI., XXIII., XXV., XXVI., XXVII., XXVIII. Plaintiff complains here of the sale of bottles of wine in Adams, Bolivar, Harrison, Madison, Rankin, and Winston Counties. Before pleading further to these particular charges, BACCHUS needs to know if the wines said to have been sold and delivered in said counties were in fact available through the state's illegal and monopolizing cartel at a price competitive with that offered by vendors named in these paragraphs of the Amended Complaint. A bill of particulars, please. On information and belief, BACCHUS would show that the Plaintiffs engaged in illegal and otherwise devious acts of entrapment in procuring the evidence, if any, upon which these charges are based.
  8. XXIX. On information and belief, BACCHUS believes that the only reason the Defendants have been able to sell or deliver the aforesaid wines is that the state's illegal and monopolizing cartel has failed and refused to offer to the thousands of good law abiding, cheerful taxpaying citizens and quality wine lovers of Mississippi the sale, delivery and other marketing services of these wines at prices and on terms competitive with those offered by vendors named and charged in the Amended Complaint.
  9. XXX. As to the allegations of paragraph 30 of the Amended Complaint, BACCHUS says, "Don't be silly!" Any damages suffered by the State of Mississippi are self-inflicted wounds. If Plaintiffs would disband its illegal and monopolizing wine cartel, as aforesaid, so that the thousands of good law abiding, cheerful taxpaying citizens and quality wine lovers of Mississippi could have access to and enjoy the sale, delivery and other marketing services of these wines at prices and on terms competitive, the State would suffer no damage. Without qualifying the foregoing, BACCHUS agrees completely that wines should not be sold to persons under 21 years of age, and would cheerfully join and support the state's efforts in this regard, if the state would prohibit the sale of guns, arms and other deadly weapons to persons under 21 years of age, which sales heretofore have caused and inflicted upon the State of Mississippi infinitely greater damages than those that the State has suffered through sales of wine to minors.

Affirmative Defenses

  1. Plaintiffs come before this Court with very dirty hands, as aforesaid.
  2. On information and belief, Plaintiffs have obtained substantially all of the factual information that they set out in Paragraphs 12 through 28 of their Amended Complaint through entrapment, deceit and/or other impermissible evidence gathering tactics.
  3. Except in the instance of their charge that wines should not be sold to minors, by reason of Plaintiffs' creation of, management of and enforcement of the anti-competitive cartel described above, Plaintiffs are estopped from proceeding with their claims.

Plaintiffs' Claims for Relief

In paragraphs 31 through 44, and at pages 15 through 22, Plaintiffs make claims for relief. By reasons of their very dirty hands, BACCHUS respectfully suggests that the Plaintiffs and the State of Mississippi on whose behalf they purport to proceed are entitled to no relief from this Honorable Court of equity and conscience. Provided, however, BACCHUS agrees completely that wines should not be sold to persons under 21 years of age, and would cheerfully join and support the state's efforts in this regard, if the state would prohibit the sale of guns, arms and other deadly weapons to persons under 21 years of age. Moreover, BACCHUS advises this Honorable Court that he is reliably informed that the thousands of good law abiding, cheerful taxpaying citizens and quality wine lovers of Mississippi, would gladly pay taxes lawfully assessed consistent with the Constitution and laws of the United States and, subordinate thereto, of the State of Mississippi. BACCHUS advises this Honorable Court that he is reliably advised that the aforesaid quality wine lovers of Mississippi accept without qualification that fundamental practical reality of social existence in a democracy that taxes are the price they pay for civilization. BACCHUS would add that their reasonable access to quality wines in Mississippi would greatly enhance the civility of life here and would facilitate the peace, prosperity and pursuit of happiness consistent of the people with the Constitution and laws of the United States and Article 3, Sections 5 and 6 of the Constitution of the State of Mississippi.

Complaint in Intervention

  1. BACCHUS proceeds in accordance with Rule 24, Miss. R. Civ. P. In the alternative, BACCHUS respectfully advises this Honorable Court of equity and good conscience that he is its very good friend in moral support of the core values of Western Civilization, and, notwithstanding all else, asks the Court's leave to participate as Amicus Curiae.
  2. BACCHUS reasserts all of the allegations he has made hereinabove, including those made on information in belief.
  3. BACCHUS makes claim for declaratory relief, Rule 57, Miss. R. Civ. P., in addition to coercive relief.
  4. As set forth herein above and as may be shown at the hearing hereof, Plaintiffs and Counter-Defendants have created, coordinated and are practicing a cartel, trust or combination in restraint of the freedom of trade in quality wines in the State of Mississippi, contrary to the Sherman Act, 15 U. S. C. § 1, and other federal antitrust laws, and, as well, contrary to Miss. Code Ann. § 75–21-3.
  5. As set forth herein above and as may be shown at the hearing hereof, Plaintiffs and Counter-Defendant have engaged in or acted with intent to facilitate unfair methods of competition affecting commerce.
  6. Until Plaintiffs dismantle their cartel, trust or combination, and cease facilitating unfair methods of competition, they should be required to adopt an additional rule or regulation to be added to their present regulations under Title 35, Part II, Mississippi Code of Regulations, providing for reasonable and practicable means whereby any of the thousands of good law abiding, cheerful taxpaying citizens and quality wine lovers of Mississippi, may be promptly reimbursed for their reasonable expenses incurred going to venues outside of Mississippi in order to procure a reasonable and continuing supply of quality wines to enhance the peace, prosperity, happiness and good cheer of their family, relations and friends. The Court should order that these rules be adopted in accordance with notice, comment and other requirements of Miss. Code Ann. § 25–43.3.101, et seq., as amended.
  7. Internet sales of quality wines should be allowed to continue as with other products, subject to such sales taxes as may lawfully be levied consistent with the Constitution and Laws of the United States.
  8. At all times hereafter, BACCHUS is assured that, upon the cracking of each new bottle of quality wine, the thousands of good law abiding, cheerful taxpaying citizens and quality wine lovers of Mississippi will each raise a glass and join in a toast to the values of Western Civilization, one of which will always be that payment of lawfully levied taxes is the price we pay for our enjoyment of life in the Western World.

WHEREFORE, BACCHUS, Plaintiff In Intervention herein, respectfully requests the Court will grant such relief as may be equitable and proper in the premises, and upon the finality thereof, join him and the thousands of good law abiding, cheerful taxpaying citizens and quality wine lovers of Mississippi, in a toast to the values of Western Civilization.

Respectfully submitted,
BACCHUS aka DIONYSUS
Rome and Athens and the rest of the Western World,
Including Mississippi, U.S.A.