64th Annual Moot Court Showcase Argument

Author: Susan Good

64 Annual Moot court Showcase

Ron Fraper, Governor of the State of Old York


Association of Beverage Producers and Retailers


On March 3, 2012, Defendant Ron Fraper, the Governor of the State of Old York, signed the Comprehensive Beverage and Bottle Act of 2012 (the “2012 Act”). Section 4 of the Act requires retailers of sugar-sweetened beverages to post a two-feet-wide by two-feet tall sign at all places where such beverages are displayed. The sign contains two statements pertaining to sugar-sweetened beverages, one stating “You Have to Walk 3 Miles To Burn Off The Calories In One 20oz. Soda,” and the other stating “The Consumption Of Sugary Drinks Can Lead To Obesity, Diabetes, Cardiovascular Disease, And Tooth Decay.” The Association of Beverage Producers and Retailers is the Plaintiff in this case. Their members include retailers affected by this provision. Those retailers contend that they are being forced to make statements with which they do not agree and which may cause them to lose profits due to reduced beverage sales. Plaintiff sued the Governor on behalf of its member retailers seeking declaratory and injunctive relief under the First Amendment.

Plaintiff also claims that the 2012 Act is unconstitutional as a violation of the dormant Commerce Clause. Pursuant to the State of Old York Bottle Deposit Act of 2000 (the “2000 Act”), the State sought to reduce litter and provide an incentive to recycle by requiring distributors and retailers in the State of Old York to collect a refundable deposit of ten (10) cents on certain beverage containers at the point of sale. Consumers could later obtain a refund of the deposit by returning the empty container to a retailer or to a reverse vending machine. The retailers, in turn, could return the empty containers to beverage distributors or manufacturers to obtain the ten-cent refund. This 10 cents refund was greater than the refund offered by some neighboring states and led to the public purchasing beverages out of state and returning them to Old York for a (higher) refund. To combat this problem, the 2012 Act requires bottles and cans sold in Old York to contain a unique, state-specific identifying mark. Redemption can occur in Old York only for beverages that display the mark. The 2012 Act also made it illegal to sell containers with the Old York mark outside Old York. Plaintiff alleges this unique mark requirement purports to unconstitutionally regulate interstate commerce.

Both parties filed cross motions for Summary Judgment. The District Court found that requiring retailers to post the sign did not violate their First Amendment rights.

The District Court further found that Old York’s “unique mark” requirement did not violate the Dormant Commerce clause. Defendant’s Motion for Summary Judgment was granted by the Court.

The Twelfth Circuit reversed the decision of the District Court.

The Supreme Court granted certiorari on the following two issues:
I. Did the Twelfth Circuit properly hold that the Comprehensive Beverage and
Bottle Act of 2012’s posting requirement violates Respondent’s First Amendment rights?
II. Did the Twelfth Circuit properly hold that the Comprehensive Beverage and
Bottle Act of 2012’s “unique mark” requirement violates the dormant Commer


The Honorable Jon E. DeGuilio
United States District Court for the Northern District of Indiana

The Honorable Loretta H. Rush
Indiana Supreme Court

The Honorable Margaret A. Ryan
United States Court of Appeals for the Armed Forces


For Petitioners

Grace A. Fox
Evansville, Indiana

Ryan S. McNish
Jackson, Michigan

Andrew J. Mckeon, Brief Writer
Austin, Texas

For Respondents

Michael R. Kilgarriff
Eagan, Minnesota

Matthew M. O’Rourke
Bloomingdale, IL

Lauren M. Mogavero, Brief Writer
Erie, Pennsylvania

Professor Christine Venter


The Honorable Jon E. DeGuilio
Jon Ernesto DeGuilio was appointed to the United States District Court for the Northern District of Indiana by President Obama. He assumed office in May 2010. Prior to his appointment, Judge DeGuilio worked as executive vice president, secretary and general counsel for Northwest Indiana Bancorp, and as a U.S. Attorney in Northern Indiana.

Judge DeGuilio received his bachelor’s degree from the University of Notre Dame (1977) and his law degree from Valparaiso University School of Law (1981). He began his legal career in private practice in a Schererville, Indiana law firm. At this same time he served part-time as a deputy prosecutor and as a public defender in Lake County, Indiana; as a legal advisor to the Lake County Sheriff’s department; and, as an attorney for the Highland Police Commission and Water Board. Judge DeGuilio also served as a City Councilman in his birthplace of Hammond, Indiana.

Honorable Loretta H. Rush
Loretta Rush, the 108th justice of the Indiana Supreme Court and second woman on the five- member court, was appointed by Governor Daniels in September 2012.

Rush earned her undergraduate degree from Purdue University and graduated cum laude from the Indiana University Maurer School of Law in Bloomington. Prior to being elected judge, she spent fifteen years in general practice as an associate and then partner at a Lafayette firm. Before her appointment to the Indiana Supreme Court, Rush served as a judge in the Tippecanoe Superior Court 3 for fourteen years. The court focuses on CHINS, criminal and status offenses of juvenile cases, guardianships, delinquencies and protective order hearings. In 2003 she received the Kinsey Award for Juvenile Judge of the Year and in 2001 was presented with the Fiscal Responsibility Award by the Tippecanoe County Council and Commissioners.

Justice Rush serves as the liaison to the Judicial Conference Juvenile Justice Improvement Committee, Judicial Conference Problem-Solving Courts Committee and State Board of Law Examiners. She is the chair of the Commission on Improving the Status of Children in Indiana and the Indiana Conference for Legal Education Opportunity. Rush has served as the chair of the Indiana Juvenile Justice Improvement Committee which involves statutory and regulatory efforts to bring better and standardized child welfare practice to Indiana. She was chair of the Indiana Court Improvement Program Executive Committee and Child Welfare Improvement Committee; served on the Indiana Supreme Court Judicial Technology and Automation Committee; and was president of the Indiana Council of Juvenile and Family Court Judges. She also serves on the National Council of Juvenile and Family Court Judges and was appointed to the National Judicial Leadership Summit on the Protection of Children.

Honorable Margaret A. Ryan
Margaret A. “Meg” Ryan joined the United States Court of Appeals for the Armed Forces in December, 2006. Prior to her appointment, Judge Ryan was a partner at Wiley Rein & Fielding LLP and Bartlit Beck Herman Palenchar & Scott LLP. She served as a law clerk to the Honorable Clarence Thomas of the Supreme Court of the United States, and to the Honorable J. Michael Luttig, while he served as a judge on the U.S. Court of Appeals for the Fourth Circuit.

Before entering the private sector, Judge Ryan served on active duty in the United States Marine Corps. From 1987 to 1999 Ryan served in units within the second and third Marine Expeditionary Forces as a staff officer, company commander, platoon commander, and operations officer. Ryan’s tours included deployments to the Philippines, during a coup attempt, and to Saudi Arabia during Desert Shield and Desert Storm.

Judge Ryan was born in Chicago, Illinois. She is a graduate of Knox College, cum laude (1985) and the University of Notre Dame Law School, summa cum laude (1995). She was a member of the Notre Dame Law Review, received the William T. Kirby Legal Writing Award, and was the recipient of the Colonel William J. Hoynes Award for Outstanding Scholarship. As a judge advocate, Ryan served within the Military Justice System as a trial counsel and chief trial counsel in Okinawa, Japan and Quantico, Virginia. She was then selected by the 31st Commandant of the Marine Corps, General Charles C. Krulak, to serve as his aide-de-camp.