Full opinion text
MEMORANDUM OPINION AND ORDER GOTTSCHALL, District Judge. The plaintiffs in these three related actions are suppliers of wine. They claim that the recently passed Illinois Wine and Spirits Industry Fair Dealing Act, 1999 Public Act 91-2 [hereinafter “the Fair Dealing Act” or “the Act”], is unconstitutional as violative of the Contracts and dormant Commerce Clauses of the United States Constitution. The defendants are the members of the Illinois Liquor Control Commission and three wholesale distributors of alcoholic beverages. Prior to the filing of this action, each of the distributors had filed a petition before the Commission against one of the suppliers, charging that the supplier had violated the Fair Dealing Act. The plaintiffs in this action have moved to enjoin the proceedings before the Commission and have requested a declaration that the Fair Dealing Act is unconstitutional. The defendants have moved to dismiss this action, arguing that because of the pending proceedings before the Commission, this court should abstain from hearing the plaintiffs’ constitutional challenge to the Fair Dealing Act. For the reasons set forth below, the defendants’ motions to dismiss are denied and the plaintiffs’ motions for a preliminary injunction are granted. BACKGROUND A. No. 99 C 3813 Plaintiff Kendall-Jackson is a winery based in Santa Rosa, California. In approximately December 1995, Kendall-Jackson selected Judge & Dolph to be the distributor of Kendall-Jackson’s wines in northern Illinois. Judge & Dolph is an Illinois liquor distributorship owned by the defendant Wirtz Corporation. There is no written distributorship agreement between Kendall-Jackson and Judge & Dolph. Since early 1996, Judge & Dolph has acted as Kendall-Jackson’s distributor in northern Illinois. On April 22, 1999, Kendall-Jackson sent a letter to Judge & Dolph, stating that Kendall-Jackson would be terminating its distribution agreement with Judge & Dolph in 30 days. Kendall-Jackson claimed that it was terminating the agreement because of unsatisfactory performance by Judge & Dolph. On May 21, 1999, the Illinois Wine and Spirits Industry Fair Dealing Act of 1999 was signed into law and immediately became effective. Pursuant to Section 35 of the Act, Judge & Dolph filed a petition for relief with the Illinois Liquor Control Commission. Judge & Dolph requested that the Commission find that Kendall-Jackson had violated Section 35(b) of the Act, which provides that a supplier may not terminate a distribution agreement “except by acting in good faith in all aspects of the relationship, without discrimination or coercion, and not in retaliation or as a result of the distributor’s exercise of its right to petition the General Assembly” for passage of a bill. Judge & Dolph alleged in its petition that its performance was not deficient and that the real reason for the termination was Judge & Dolph’s lobbying on behalf of the Act. Judge & Dolph also requested the Commission enter an order requiring Kendall-Jackson to continue providing products to Judge & Dolph until the dispute is resolved by a final order. Finally, Judge & Dolph requested that the Commission prohibit Kendall-Jackson from providing products to anyone else for distribution in the area served by Judge & Dolph until the dispute is resolved by a final order. On June 2, 1999, the Commission found that the petition by Judge & Dolph “establishes a prima facie case that there was an improper termination of the distributorship relationship” under Section 35(b). The Commission issued an order requiring Kendall-Jackson to “continue providing the product or products alleged to have been withdrawn in violation of the Fair Dealing Act to the Petitioner at prices and quantities in effect under the prior distributorship relationship ... during the pen-dency of this matter and until such time as the Commission has entered its final order The Commission did not bar Kendall-Jackson from providing products to other distributors in the area served by Judge & Dolph. Judge & Dolph’s petition to the Commission was not verified or certified nor was it accompanied by any affidavits. The Commission did not provide Kendall-Jackson with notice that it was considering Judge & Dolph’s petition and did not conduct a hearing. On June 9, 1999, Kendall-Jackson filed this action, requesting that this court enjoin enforcement of the Fair Dealing Act against Kendall-Jackson and declare the Act unconstitutional. Kendall-Jackson claims that the Act violates the Contracts Clause of the U.S. Constitution by substantially impairing Kendall-Jackson’s contractual rights. Kendall-Jackson also claims that the Act violates the dormant Commerce Clause of the U.S. Constitution by discriminating against out-of-state wineries. Finally, Kendall-Jackson seeks a declaration that its termination of its distribution agreement with Judge & Dolph is effective and lawful. B. No. 99 C 4312 Plaintiff Jim Beam Brands Co. is the parent corporation for Peak Wines International. Peak is a winery and a California corporation with its principal place of business in Geyersville, California. Defendant Pacific Wine Company is a distributor in Illinois. In 1993, Peak and Pacific entered into an agreement under which Pacific became the exclusive distributor of Peak’s wines in Illinois. Jim Beam acquired Peak in June 1998. The bill that later became the Fair Dealing Act was passed by the Illinois Senate on May 14, 1999. On May 17, 1999, Peak informed Pacific orally and in writing that Peak was terminating Pacific’s exclusive distributorship rights with respect to all Peak brands. As noted above, the Fair Dealing Act was signed into law on May 21, 1999, four days after Jim Beam/Peak informed Pacific that it was terminating the distribution agreement. On May 28, 1999, Pacific filed a petition with the Illinois Liquor Control Commission, alleging that Peak and Jim Beam violated Section 35 of the Fair Dealing Act when the distribution agreement was terminated. The petition was not verified or certified. On June 2, 1999, in response to Pacific’s request, the Commission issued an order requiring Jim Beam/Peak to continue providing products to Pacific until the Commission issues a final order resolving the dispute. Jim Beam/Peak was not given notice or the opportunity to respond before the Commission issued its order. Although Pacific also requested that the Commission issue an order prohibiting Jim Beam/Peak from distributing products to other distributors in Pacific’s distribution area, the Commission did not issue such an order. Like plaintiff Kendall-Jackson, Jim Beam/Peak has filed an action claiming that the Fair Dealing Act is unconstitutional. The action filed by Jim Beam/Peak was reassigned to this court pursuant to Local General Rule 2.31. C. No. 99 C 4998 Plaintiff Sutter Home Winery is based in St. Helena, California. Defendant RJ Distributing Co. is a Peoria-based wholesale distributor of wines and spirits. On October 6, 1993, Sutter Home and RJ entered into a written distribution agreement. The agreement was valid through June 30, 1994, and was renewed thereafter for a period of six months or one year in each year from 1994 to 1998. The agreement permitted Sutter Home to terminate the agreement if, among other things, there was a change of ownership or management of RJ or if RJ attempted to assign its rights or obligations under the agreement. RJ agreed to provide at least 15 days prior notice of any contemplated change of ownership or management or of any attempted assignment. In a May 7, 1999 letter to its “Dear Valued Customers,” RJ announced that “RJ Distributing Company’s wine division has joined with Pacific Wine & Spirits from Chicago to create a new company called R.J. Pacific.” The May 7 letter, which was sent on the letterhead of R.J. Pacific L.L.C. and signed by Robert Jock-isch, the president and chief executive officer of RJ, attached a listing of wines available to retailers from the newly formed company, including each of the Sutter Home products RJ was to distribute under RJ’s distributorship agreement with Sut-ter Home. On or about May 14, 1999, Sutter Home learned of RJ’s May 7, 1999 letter. In a May 18,1999 letter, Sutter Home informed RJ that We were told that you changed the ownership or management of your company, or assigned your rights or obligations under your Sutter Home and Montevina agreements with us. Such actions rendered our agreements void. In any event, as you know, our agreements expire by their own terms on June 30, 1999. We will not be renewing the agreements upon that expiration. On May 28,1999, RJ filed, a petition with the Illinois Liquor Control Commission, requesting a finding that Sutter Home violated Section 35 of the Fair Dealing Act by failing to renew the distribution agreement. The petition included an affidavit from Jockisch averring that the information in the petition was correct. RJ also requested that the Commission issue an order requiring Sutter Home to continue providing products to RJ during the pen-dency of the dispute. Finally, RJ asked the Commission to issue an order prohibiting Sutter Home from providing products to any other distributor in RJ’s sales territory. On June 2, 1999, the Commission issued an order directing Sutter Home to continue providing products to RJ until the Commission issues a final order resolving the dispute. The Commission did not provide Sutter Home with notice or an opportunity to be heard before issuing the June 2,1999 order. The Commission did not prohibit Sutter Home from providing products to other distributors in RJ’s sales territory. Like plaintiffs Kendall-Jackson and Jim Beam, Sutter Home filed an action in federal court claiming that the Fair Dealing Act is unconstitutional. D. The Illinois Wine and Spirits Industry Fair Dealing Act The Act was signed into law on May 21, 1999. Its declared purpose is “to promote the public’s interest in fair, efficient, and competitive distribution of wine and liquor products.” Sec. 10(a)(ii). The Act regulates agreements between distributors and suppliers of liquor. The Act does not apply to agreements between a distributor and a supplier when the supplier is “an Illinois winery” or is a “winery that has annual case sales in the State of Illinois less than or equal to 10,000 cases per year.” The Illinois Liquor Control Commission has the general authority to administer laws regulating liquor. For example, the Commission has responsibility for issuing licenses to manufacturers and retailers of alcohol and has the authority to revoke or suspend such licenses. See 235 ILCS 5/3— 12. Illinois has adopted the “three-tier” system of liquor distribution, in which there are (1) suppliers or manufacturers, (2) wholesale distributors and (3) retailers. See 235 ILCS 5/1-1 et seq. Manufacturers/suppliers are required to register with the Commission the names of the distributors who have been authorized to sell the manufacturer’s products at wholesale. 235 ILCS 5/6-9. Sections 15 through 30 of the Act apply only to agreements between suppliers and distributors entered into or renewed after the effective date of the Act. Section 15 provides that a supplier may not “cancel, fail to renew, otherwise terminate, or alter on a discriminatory basis an agreement” without good cause. Section 20 requires a supplier to provide written notice of the supplier’s intent to cancel, not renew, otherwise terminate, or alter a distribution agreement. The notice must be sent 90 days before the supplier cancels, fails to renew, otherwise terminates or alters the agreement. The notice must include a statement of reasons “including all data and documentation necessary to fully apprise the distributor of the reasons for the action” and must give the distributor “60 days in which to rectify any claimed deficiency. If the deficiency is rectified within 60 days, the notice shall be void.” In certain circumstances, the supplier is not required to provide notice 90 days in advance of taking action. A supplier does not have to supply any advance notice if the action is taken because of (1) the distributor’s assignment for the benefit of creditors, or similar disposition, of substantially all of the assets of the distributor’s business; (2) the insolvency of the distributor or the institution of bankruptcy proceedings by or against the distributor; (3) the dissolution or liquidation of the distributor; or (4) the distributor’s conviction of, or plea of guilty or no contest to, a charge of violating a law or regulation in this State that materially and adversely affects the ability of either party to continue to sell wine or liquor in the State, or the revocation or suspension of a license or permit to sell wine or liquor in this State. Section 15(c). A supplier need provide only 10 days advance notice if the cancellation, nonrenewal, termination or alteration is based upon (1) the failure of the distributor to pay any account when due; or (2) bad faith in the performance of the distributorship agreement. Section 15(d). Section 25 authorizes parties to a distributorship agreement to bring actions for damages and injunctive relief based upon violations of the Act. Section 35 “applies to all agreements between a distributor and a supplier (other than agreements with an Illinois winery or a winery that has annual case sales in the State of Illinois less than or equal to 10,000 cases per year) whether those agreements were entered into before or after the effective date of this Act.” Section 35 of the Act purportedly “clarifies existing rights and obligations and establishes remedial procedures applicable to registrations under Section 6-9 of the Liquor Control Act of 1934.” Section 35(b) provides that “[u]nder existing Illinois common and statutory law, suppliers, other than (i) Illinois wineries or (ii) wineries that have annual case sales in the State of Illinois less than or equal to 10,000 cases per year, ... have an obligation to act in good faith in all aspects of the registration and distributorship relationship .... Under the existing obligation to act in good faith, no registration or obligation to register under Section 6-9 may be terminated nor may a supplier ... fail to renew or extend a product, name, brand, registration, or an agreement with a distributor except by acting in good faith in all aspects of the relationship, without discrimination or coercion, and not in retaliation or as a result of the distributor’s exercise of its right to petition the General Assembly, the Congress, or any other unit or form of government for any purpose, to any end, or for or against any proposition, provision, amendment, bill, resolution, judgment,.decision, rule, regulation, or interpretation.” Section 35(c)(1) gives the Illinois Liquor Commission the power to prohibit or suspend any supplier from selling its products in Illinois if the supplier is found to have “flagrantly or repeatedly violated” Section 35. Section 35(c)(2) grants the Commission the authority to order the supplier “to continúe providing products to a distributor at prices and quantities in effect for the- distributorship prior to any termination or failure to renew that becomes the subject of-a dispute or administrative proceedings under this Section until the matters in dispute are determined by an order which is final and non-reviewable.” Section 35(c) specifies that orders entered under Section 35 are “deemed orders as to which an emergency exists.” Under Section 35(d), any aggrieved party may apply to the Commission for a finding that another party has violated this section and request relief. The Act does not specify what process the- Commission must employ to reach such a finding. The Act also does not specify what evidence a petitioner must provide in order to obtain preliminary or permanent relief. Section 35(e) specifies that orders entered by the Commission under this section are renewable by the Circuit Court under the terms of the Administrative Review Law. On review, the findings and conclusions of the Commission are prima facie true and correct. However, non-final orders, such as those here requiring the suppliers to continue providing products to the distributors pending a final order by the Commission, are not reviewable. Section 35(f) provides that “[n]o court shall enter a stay, restraining order, injunction, mandamus, or other order that has the effect of suspending, delaying, modifying, or overturning a Commission finding or determination under this Section before a full hearing and final decision on the merits of the Commission ruling, finding, or order.” The Act contains a severability clause, which provides that “[i]f any provision or interpretation of this Act, or the application of such interpretation or provision to any distributorship, is held invalid, the application of the Act to persons or circumstances other than those as to which it is held invalid shall not be affected thereby.” Section 10(e). The Illinois Liquor Control Commission has issued emergency rules, pursuant to ILCS 100/5^15, governing disputes under the Fair Dealing Act. The rules went into effect on July 13, 1999, after the petitions in each of the instant cases was filed with the Commission. Among other things, the emergency rules require a petition for relief to include a “detailed statement of the facts and circumstances giving rise to the allegations of violation of the Fair Dealing Act.” 11 Ill. Admin. Code 100.400(a)(6), reprinted at Illinois Register, 23 Ill. Reg. 8687. The emergency rules require that a petition be certified. 11 Ill. Admin. Code 100.400(g)(15). The emergency rules permit the respondent to file a motion “directed to the adequacy or sufficiency of the application” within 14 days after the respondent is served with the petition. 11 Ill. Admin. Code 400(d). The rules also allow for motions or petitions to “vacate, alter or otherwise modify orders entered by the Commission.” Id. Under the emergency rules, when a petitioner requests preliminary relief, such as an order requiring the respondent to continue providing products pending a final decision on the merits, the respondent must receive notice that the petitioner is requesting such relief. 11 Ill. Admin. Code 100.400(e). The respondent has 7 days to file a response to the request for preliminary relief. Id. “The party moving the Commission for the entry of a preliminary order shall have the burden of establishing the entitlement .to relief, unless the Fair Dealing Act provides to the contrary.” Id. The rules permit a preliminary order establishing the status quo (ie., requiring a supplier to continue providing products to a distributor) without notice to the supplier/respondent only if “it clearly appears from the facts shown by verified application or by affidavit if by supplemental request (motion, petition) that immediate and irreparable harm, damage or loss will result to the movant before notice can be served and a hearing on the application can be had.” Id. The emergency rules also provide for discovery. See Ill. Admin. Code 100.400(f). DISCUSSION The plaintiffs argue that the Fair Dealing Act is unconstitutional. They argue that Section 35 violates the Contracts Clause of the United States Constitution, art. I, sec. 10. As noted above, Section 35(b) purports to clarify existing law. However, plaintiffs claim that by requiring suppliers who were in agreements before the effective date of the Act to act in good faith in terminating or declining to renew such agreements, by requiring them to act without “discrimination or coercion” and by prohibiting them from acting in retaliation for a distributor’s' petitioning the government, Section 35 substantially impairs their contractual rights in violation of the Contracts Clause. They also claim that Section 35 impairs their contractual rights by authorizing the Commission to issue nonreviewable orders requiring them to continue providing products to the distributors until the dispute is resolved by a final order of the Commission. In addition, they argue that the Fair Dealing Act discriminates against out-of-state suppliers, in violation of the dormant Commerce Clause, U.S. Const, art. I, sec. 8, cl. 3, by specifically excepting Illinois wineries from the provisions of the Act. I. The Motions to Dismiss under Federal Abstention Doctrines The defendants argue that this court should not exercise jurisdiction over these actions because of federal abstention doctrines. In particular, defendants argue that Younger, abstention, Pullman abstention, and/or Burford abstention require this court to decline jurisdiction. A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction is the appropriate mechanism for raising abstention issues. Lowery v. Schnorf, No. 97 C 6688, 1998 WL 341835, at *2 (N.D. Ill. June 18, 1998). The Supreme Court has stated that “[ajbstention from the exercise of federal jurisdiction is the exception, not the rule.” Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). “Abstention rarely should be invoked, because the federal courts have a ‘virtually unflagging obligation ... to exercise the jurisdiction given them.’ ” Ankenbrandt v. Richards, 504 U.S. 689, 705, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992) (quoting Colorado River, 424 U.S. at 817, 96 S.Ct. 1236). The court addresses each of the abstention doctrines below. A. Younger Abstention In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court held that a federal court should not enjoin a pending state criminal proceeding unless an injunction is necessary to prevent great and immediate irreparable injury. The Court held that federal courts should refrain from interfering with state criminal prosecutions because of “the notion of ‘comity,’ that is, a proper respect for state functions.” Id. at 44, 91 S.Ct. 746. The Court has noted that in circumstances when abstention would otherwise be required, there are narrow exceptions to the Younger rule, such as when the prosecution is the result of bad faith and harassment or when a statute is “flagrantly and patently violative of express constitutional prohibitions.” Id. at 53-54, 91 S.Ct. 746. Although Younger involved a pending state criminal prosecution, the Younger abstention doctrine has been expanded to apply to other pending state proceedings. In Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), the state of Ohio successfully brought a civil action in state court to close a theater for one year. The state relied on a nuisance statute providing that a place exhibiting obscene films is a nuisance and may be closed for one year. The theater owner brought an action in federal court, seeking to have the state court judgment enjoined. The Supreme Court found that the same federalism concerns raised in Younger required abstention in Huffman, noting that the civil proceeding under the nuisance statute is “more akin to a criminal prosecution than are most civil cases .... and is in aid of and closely related to criminal statutes which prohibit the dissemination of obscene materials.” Huffman, 420 U.S. at 604, 95 S.Ct. 1200. Although Huffman suggested that Younger abstention in civil proceedings might be limited to civil proceedings that are similar or closely related to criminal proceedings, the Supreme Court rejected such a limitation in Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977). In Juidice, a creditor obtained a default judgment in state court against Vail. Vail failed to satisfy the judgment, and when Vail failed to respond to a subpoena and appear at a deposition, a state court judge issued an order to show cause why Vail should not be punished for contempt. Vail brought an action in federal court seeking to enjoin New York’s statutory contempt procedures. In finding that the lower federal court should have abstained, the Supreme Court held that “[wjhether disobedience of a court-sanctioned subpoena, and the resulting process leading to a finding of contempt of court, is labeled civil, quasi-criminal, or criminal in nature, we think the salient fact is that federal court interference with the State’s contempt process is ‘an offense to the State’s interest ... likely to be every bit as great as it would be were this a criminal proceeding.’” Id. at 334, 97 S.Ct. 1211 (quoting Huffman, 420 U.S. at 604, 95 S.Ct. 1200). In subsequent cases, the Supreme Court has found that Younger abstention- should apply in other civil proceedings. In Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977), the state of Illinois had brought a civil action to recover welfare payments that allegedly had been obtained through fraud. Simultaneously, the state obtained a writ attaching money in a credit union belonging to the welfare recipients. The recipients brought an action in federal court challenging the Illinois attachment procedures. The Supreme Court held that the lower federal court should have abstained. The Court noted that “the State was a party to the suit in its role of administering its public assistance programs” and concluded that “the principles of Younger and Huffman are broad enough to apply to interference by a federal court with an ongoing civil enforcement action such as this, brought by the State in its sovereign capacity.” Id. at 444, 97 S.Ct. 1911. In Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979), the Supreme Court held that the federal courts should abstain from deciding whether provisions of the Texas Family Code were,, unconstitutional when there was a pending civil court proceeding brought by the State for temporary custody of allegedly abused children. The Court noted that the case: was like Huffman in that “the State here was a party to the state proceedings, and the temporary removal of a child,in a child-abuse context is, like the public nuisance statute involved in Huffman, ‘in aid of and closely related to criminal statutes.’ Moore, 442 U.S. at 423, 99 S.Ct. 2371 (quoting Huffman, 420 U.S. at 604, 95 S.Ct. 1200).” In two cases, the Supreme Court expanded the Younger doctrine to require federal courts to abstain in favor of certain types of state administrative proceedings. In Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982), an attorney was charged with ethical violations and faced disciplinary proceedings before a local ethics committee. The attorney brought a federal action challenging the constitutionality of the- disciplinary rules. The Court established a three-part test to determine if Younger abstention was appropriate: first, is the state proceeding judicial in nature; second, do the state proceedings implicate important state interests; third, is there an adequate opportunity in the state proceedings to raise constitutional challenges. Id. at 432, 102 S.Ct. 2515. The Court answered all three questions in the affirmative and concluded that Younger abstention was required. The Court noted that “the State’s interest in the present litigation is demonstrated by the fact that the Middlesex County Ethics Committee, an agency of the Supreme Court of New Jersey, is the named defendant in the present suit and was the body-which initiated the state proceedings against respondent Hinds.” Id. at 434-35, 102 S.Ct. 2515. In the second case requiring abstention due to a pending state administrative proceeding, Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986), a teacher retained an attorney and threatened litigation when she was not rehired because of her pregnancy. She was then terminated because she went outside the “Biblical chain of command” in attempting to resolve the dispute. The teacher filed a complaint with the Ohio Civil Rights Commission, alleging that she was subjected to sex discrimination when she was not rehired and that she was unlawfully penalized for asserting her rights when she was terminated. The Commission notified Dayton that it was investigating the matter and later initiated administrative proceedings against Dayton by filing a complaint. Dayton brought a federal action to enjoin the Commission’s proceedings, arguing that the Commission’s investigation or imposition of sanctions would violate the Religion Clauses of the First Amendment. Applying the three-prong test from Mid-dlesex, the Court held that Younger abstention was required. In determining that Dayton had an adequate opportunity to raise constitutional challenges, the Court noted that even if Dayton could not raise constitutional claims in the administrative proceedings, “it is sufficient ... that constitutional claims may be raised in state-court judicial review of the administrative proceeding.” Id. at 629, 106 S.Ct. 2718. In Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987), Pennzoil and Getty Oil Co. had negotiated an agreement in which Pennzoil was to buy a substantial number of Getty’s shares. Texaco eventually purchased the shares at a higher price. Pennzoil brought an action in Texas state court, claiming that Texaco had tortiously induced Getty to breach the agreement to sell its shares to Pennzoil. A jury reached a verdict in favor of Pennzoil and found actual damages of $7.58 billion and punitive damages of $3 billion. Under Texas law, Pennzoil had the power to secure a hen on Texaco’s property in Texas. Pennzoil also had the power to get the judgment enforced by state officials so that it could take possession of Texaco’s assets. Texaco could suspend execution of the judgment by filing a bond equal to at least the amount of the judgment, interest, and costs. Texaco did not challenge the judgment or the execution of the judgment on federal grounds in state court. Instead, Texaco filed an action in the United States District Court for the Southern District of New York, arguing that the judgment and the bond and hen provisions violated federal law and various provisions of the U.S. Constitution. Texaco sought an injunction to prevent Pennzoil from taking any action to enforce the judgment. The district court issued the injunction and the Second Circuit affirmed. The Supreme Court held that the federal courts should have abstained under the Younger doctrine. The Court found that Texas’ interest in administering certain aspects of its judicial system was sufficiently important to require abstention. The Court noted that [b]oth Juidice and this case involve challenges to the processes by which the State compels compliance with the judgments of its courts. Not only would federal injunctions in such cases interfere with the execution of state judgments, but they would do so on grounds that challenge the very process by which those judgments were obtained. So long as those challenges relate to pending state proceedings, proper respect for the ability of state courts to resolve federal questions presented in state-court litigation mandates that the federal court stay its hand. Pennzoil, 481 U.S. at 18-14, 107 S.Ct. 1519. The Court rejected the notion that Texas’ interest in the proceeding was only as an adjudicator of wholly private disputes, noting that “[o]ur opinion does not hold that Younger abstention is always appropriate whenever a civil proceeding is pending in a state court. Rather, as in Juidice, we rely on the State’s interest in protecting ‘the authority of the judicial system, so that its orders and judgments are not rendered nugatory.’ ” Pennzoil, 481 U.S. at 14 n. 12, 107 S.Ct. 1519 (quoting Juidice, 430 U.S. at 336 n. 12, 97 S.Ct. 1211). The Court also noted that the same concern that may justify Pullman abstention - avoiding unwarranted determination of federal constitutional questions - may also weigh in favor of Younger abstention. The Court held that “it was entirely possible that the Texas courts would have resolved this case on state statutory or constitutional grounds, without reaching the federal constitutional questions Texaco raises in this ease.” Pennzoil, 481 U.S. at 12, 107 S.Ct. 1519. The Seventh Circuit has applied the three-part Middlesex test on several occasions. See, e.g., Crenshaw v. The Supreme Court of Indiana, 170 F.3d 725, 727-28 (7th Cir.1999); Majors v. Engelbrecht, 149 F.3d 709, 711-14 (7th Cir.1998). As to the first prong of the test, this court finds that the proceedings before the Illinois Liquor Control Commission are judicial in nature. The plaintiffs argue that the proceedings are not judicial because they lack some of the procedural protections of court proceedings. In particular, they complain that, with little or no evidentiary support, the Commission issued ex parte nonreviewable orders requiring them to continue providing products to the distributors during the pendency of the proceedings before the Commission. However, the absence of certain features of court process does not necessarily render a proceeding other than a judicial proceeding. In New Orleans Public Service, Inc. (NOPSI) v. Council of City of New Orleans, 491 U.S. 350, 370-71, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989), the Supreme Court noted that a “judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.” Id. (quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 29 S.Ct. 67, 53 L.Ed. 150 (1908)). Under this standard, the proceedings before the Commission are judicial. Under the second prong of the Middle-sex test, the question is whether the state proceedings implicate important state interests. While the parties vigorously dispute whether the Fair Dealing Act is designed to protect and further the public interest or protect the economic interests of certain Illinois distributors, states have the primary responsibility for regulating liquor distribution. The state has an important interest in regulating liquor distribution, and the Act implicates this interest. However, careful review of the cases applying Younger abstention convinces this court that abstention is not warranted here. In virtually any case in which a federal plaintiff is challenging the constitutionality of a state statute, there is a strong argument that an important state interest is implicated. After all, the state legislature and the governor have determined that the statute was important enough to be enacted. However, the Supreme Court has noted that Younger abstention is not “always appropriate whenever a civil proceeding is pending in a state court.” Pennzoil, 481 U.S. at 14 n. 12, 107 S.Ct. 1519. There must be something more than a state’s interest in the constitutionality of its own statutes for Younger to apply. The key question the Middlesex test is designed to answer is whether the state proceeding “is the type of proceeding to which Younger applies.” NOPSI, 491 U.S. at 367, 109 S.Ct. 2506. The Supreme Court noted that “our concern for comity and federalism has led us to expand the protection of Younger beyond state criminal prosecutions, to civil enforcement proceedings and even to civil proceedings involving certain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions.” Id. at 368, 109 S.Ct. 2506 (citations omitted). The proceedings in the Commission are not criminal prosecutions. Nor are they enforcement actions brought by a state actor or state agency in civil court, as in Huffman or Trainor. The defendants argue that the proceedings before the Commission are administrative enforcement actions. As the defendants note, Section 35(c)(1) gives the Commission the power to prohibit or suspend a supplier from selling its products in Illinois if the supplier is found to have flagrantly or repeatedly violated Section 35. Although this is consistent with an enforcement action, here, private parties, i.e., the distributors, are pursuing relief through the Commission, and the primary remedy sought by the distributors - an order under Section 35(d) that the suppliers violated the Fair Dealing Act - is similar to a remedy that a private party could obtain in a civil action. Thus, the present action is distinguishable from proceedings such as disciplinary actions against attorneys or nurses brought by a public agency, where Younger abstention has been required. See Crenshaw, 170 F.3d at 728; Majors, 149 F.3d at 712-13. The defendants note that Younger abstention may be appropriate even if the administrative proceedings are initiated by a private party. In Dayton Christian Schools, the administrative process was initiated when a teacher filed a complaint with the Ohio Civil Rights Commission. However, in that case, upon receiving the complaint, the Ohio Civil Rights Commission took over responsibility for investigating and pursuing the complaint. The Illinois Liquor Control Commission is not prosecuting this action but is instead a forum for private parties to adjudicate their disputes regarding their distributorship agreements. Here, the preliminary orders issued by the Commission were at the request of private parties, the distributors, and the Commission did not investigate or convene a hearing. The orders reflect no factfinding or investigation by any state agency, which suggests that the state has no more interest in the resolution of this dispute than it does in any private civil action taking place in the context of a regulated industry. This court thus eon-eludes that the proceedings before the Illinois Liquor Control Commission are not enforcement proceedings. In Pennzoil, the Supreme Court reaffirmed that Younger abstention is not “always appropriate whenever a civil proceeding is pending in a state court.” 481 U.S. at 14 n. 12, 107 S.Ct. 1519. In several prior cases, the Supreme Court had cautioned that, although Younger abstention was appropriate in that instance, the Court was not holding that abstention was required whenever there was a state proceeding involving a federal plaintiff. See Moore, 442 U.S. at 423 n. 8, 99 S.Ct. 2371 (“[Cjontrary to the suggestion of the dissent, we do not remotely suggest ‘that every pending proceeding between a State and a federal plaintiff justifies abstention unless one of the exceptions to Younger applies.’ ”); Juidice, 430 U.S. at 336 n. 13, 97 S.Ct. 1211; Trainor, 431 U.S. at 445 n. 8, 97 S.Ct. 1911. Of course, in certain instances Younger abstention may be appropriate even though the state proceedings involve what is primarily a private dispute. This is the case when the “civil proceedings involv[e] certain orders that are uniquely in further-anee of the state courts’ ability to perform their judicial functions.” NOPSI, 491 U.S. at 368, 109 S.Ct. 2506. Thus, in a dispute between private parties, Younger abstention was required when the federal plaintiff was challenging the state courts’ civil contempt order, Juidice, 430 U.S. at 336, 97 S.Ct. 1211, or a state court’s procedure for enforcing judgments, Pennzoil, 481 U.S. at 13, 107 S.Ct. 1519. Here, however, the plaintiffs’ constitutional challenges do not implicate the state courts’ ability to perform their judicial functions. They do not “involve challenges to the processes by which the State compels compliance with the judgments of its courts.” Id. at 13-14, 107 S.Ct. 1519. Rather, the plaintiffs are merely challenging the constitutionality of a single statute regulating a narrow class of contractual relationships. The third prong of the Middlesex test asks whether the federal plaintiffs will have an adequate opportunity to present their constitutional challenges in the state proceedings. Although the Liquor Control Commission lacks the power to declare a state statute unconstitutional, see Texaco-Cities Serv. Pipeline Co. v. McGaw, 182 Ill.2d 262, 230 Ill.Dec. 991, 695 N.E.2d 481, 489 (1998), the plaintiffs can raise their constitutional challenges on administrative review in the Illinois state courts once the Commission has issued a final order. In Dayton Christian Schools, the Supreme Court held that “it is sufficient ... that constitutional claims may be raised in state-court judicial review of the administrative proceeding.” 477 U.S. at 629, 106 S.Ct. 2718. The Supreme Court noted that it has “repeatedly rejected the argument that a constitutional attack on state procedures themselves ‘automatically vitiates the adequacy of those procedures for purposes of the Younger-Huffman line of cases.’ ” Id. at 628, 106 S.Ct. 2718 (quoting Moore, 442 U.S. at 427 n. 10, 99 S.Ct. 2371). However, unlike the situation in Dayton Christian Schools, the Fair Dealing Act bars any judicial review of the Commission’s preliminary orders, including the ex parte orders here requiring the suppliers to continue providing products to the distributors, until the Commission has issued final orders. Fair Dealing Act, Section 35(f)- Thus, until the Commission issues final orders (and the Act does not set a time limitation for the Commission to issue a final order), the suppliers are subject to a mandatory injunction requiring them to continue doing business with the distributors, despite the suppliers’ claims that they have no contractual obligation to maintain their relationships with the distributors. The plaintiffs/suppliers have no opportunity to present their constitutional challenge to the orders until the administrative proceedings are complete. The plaintiffs argue that the provision of the Act authorizing the Commission to issue such orders violates the Contracts Clause. Prior to the Act, when suppliers terminated or declined to renew a distributorship agreement, they could of course be subject to an award of damages (or even specific performance) if they were found to have breached the agreement. But there was little possibility that they would face a mandatory injunction requiring them to continue doing business with the distributors. Even in rare circumstances where a court would consider such an injunction, the movant would be forced to demonstrate, among other things, irreparable harm in order to obtain such relief. In contrast to the plaintiffs here, the non-moving party would receive notice and an opportunity to be heard before a court would issue an injunction. See Fed.R.Civ.P. 65(a); ILCS 5/11-102. Moreover, in state and federal court, a party subject to a preliminary injunction has an immediate right to appeal. See 28 U.S.C. § 1292(a)(1); Ill. Sup. Ct. R. 307(a)(1). Thus, although the plaintiffs’ constitutional attack on the Act’s provision authorizing the Commission to issue preliminary orders does not “automatically” vitiate the adequacy of the state proceedings, here, the open-ended delay (ie., until the Commission issues a final order) before plaintiffs can bring their constitutional challenges, coupled with the onerous and unreviewable preliminary orders entered against plaintiffs lead this court to conclude that the state proceedings do not provide plaintiffs with an adequate opportunity to present their constitutional challenges. “The decision whether to abstain ‘does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction.’ ” Barichello v. McDonald, 98 F.3d 948, 955 (7th Cir.1996) (quoting Moses H. Cone Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 16, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). Although the court agrees that the proceedings before the Illinois Liquor Control Commission are “judicial in nature,” the second and third prongs of the Middlesex test lead this court to conclude that the Younger abstention doctrine does not require this court to decline jurisdiction over the federal actions. B. Pullman Abstention The Pullman doctrine originated with the Supreme Court’s decision in Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). In Pullman, the Texas Railroad Commission issued an order requiring that any train with a sleeping car must carry a Pullman conductor. It had been the practice to assign a Pullman conductor to trains with two or more sleeping cars and to assign a porter to trains with only one sleeping car. Conductors were white and porters were black. The Pullman Company, the affected railroads and the Pullman porters brought an action in federal court to enjoin the order, claiming that it violated the Equal Protection, Due Process, and Commerce Clauses of the U.S. Constitution. They also claimed that the order was not authorized by Texas law. A lower federal court enjoined enforcement of the Commission’s order, finding that the order was not authorized by the Texas statutes relied upon by the Commission. The Supreme Court concluded that the lower court should not have reached the merits; instead, the lower court should have retained the case on its docket until the state court determined if the Commission had authority to issue the order. The Court noted that “[i]n this situation a federal court of equity is asked to decide an issue by making a tentative answer which may be displaced tomorrow by a state adjudication. The reign of law is hardly promoted if an unnecessary ruling of a federal court is thus supplanted by a controlling decision of a state court.” Id. at 500, 61 S.Ct. 643. “If there was no warrant in state law for the Commission’s assumption of authority there is an end of the litigation; the constitutional issue does not arise.” Id. at 501, 61 S.Ct. 643. More recently, the Seventh Circuit noted that Pullman abstention applies only where “the resolution of a federal constitutional question might be obviated if the state courts were given the opportunity to interpret ambiguous state law.” International College of Surgeons (ICS) v. City of Chicago, 153 F.3d 356, 365 (7th Cir.1998) (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716-17, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996)). Pullman abstention is warranted only when (1) there is a substantial uncertainty as to the meaning of the state law and (2) there exists a reasonable probability that the state court’s clarification of state law might obviate the need for a federal constitutional ruling. Id. No state court has had an opportunity to construe the Fair Dealing Act. However, for purposes of the Commerce Clause challenge, there is no uncertainty as to the meaning of the Fair Dealing Act. The Act specifically and repeatedly exempts Illinois wineries from the application of the Act. The defendants do not explain how a state court could clarify the Act so that a ruling on the Commerce Clause challenge would be unnecessary. With respect to the Contracts Clause challenge, defendants have a stronger argument for Pullman abstention. In their attack on Section 35 under the Contracts Clause, plaintiffs argue that Section 35(b) imposes substantial new restrictions on their existing contractual relationships with distributors. Defendants contend that Section 35(b) does not impose new restrictions but instead merely clarifies existing law. According to the Act itself, Section 35 was intended only to clarify obligations under existing Illinois law. Defendants maintain that Section 35(b)’s requirement that suppliers act in good faith was already part of state law. It is conceivable that a state court could construe the “good faith” provision in Section 35(b) as not imposing any new obligations on parties to existing contracts. However, defendants do not address the provisions in Section 35(b) requiring a supplier to act without “discrimination or coercion” and prohibiting a supplier from retaliating against a distributor for lobbying on behalf of legislation. Defendants do not contend that these obligations were present under Illinois law before passage of the Fair Dealing Act. Thus, though there is some question as to whether a supplier’s obligation under Section 35(b) to act in “good, faith” is a new requirement or merely a clarification of existing law, it is unlikely that a state court’s clarification of existing law would obviate the need for a decision on the Contracts Clause issue. Moreover, the potential for delay militates against Pullman. abstention here. The Supreme Court has indicated that the risk of delay is a consideration in determining if abstention is appropriate. Harris County Commissioners Court v. Moore, 420 U.S. 77, 83-84, 95 S.Ct. 870, 43 L.Ed.2d 32 (1975). When there is a pending state proceeding that will likely resolve the unsettled state-law questions, there is less risk of delay. See id. Here, while there are pending state proceedings, they are before the Illinois Liquor Control Commission and not in the state courts, and it is not clear that the Commission will construe all the challenged portions of Section 35(b) during the proceedings. In their petitions to the Commission, the distributors appear to be claiming that the terminations or decisions not to renew were based on retaliation for the distributors’ lobbying for the Fair Dealing Act. The Commission may not have to resolve what “good faith” or “discrimination or coercion” means in order to resolve the present disputes. Of course, the Commission would have to construe these provisions if it were addressing the constitutional challenge to these provisions under the Contracts Clause. However, as noted above, the Commission does not have the authority to decide the constitutionality of a state statute, and it is unclear when the proceedings before the Commission will be completed. Thus, there might be substantial delay before the parties have the opportunity to present their constitutional arguments to the Illinois state courts on administrative review and obtain a construction of the provisions in Section 35(b). In the meantime, plaintiffs remain subject to the preliminary orders by the Commission requiring them to continue doing business with the distributors. Further, because the Act bars any. court from overturning preliminary orders of the Commission, the plaintiffs have no opportunity to challenge the preliminary orders. This court concludes that Pullman abstention is not required. C. Burford Abstention The Burford abstention doctrine grew out of the Supreme Court’s decision in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). The Sun Oil Company filed a lawsuit in federal court challenging the validity of an order by the Texas Railroad Commission giving Burford permission to drill four oil wells in an East Texas oil field. Sun Oil claimed the order violated the Due Process Clause and violated state law. In order to manage the oil industry, the Texas legislature had created a complex administrative scheme for addressing issues concerning local oil well drilling. The Railroad Commission had primary responsibility for administering local drilling. All direct review of the Commission’s orders was consolidated in a single state district court. This consolidation was designed to permit the court to develop expertise regarding the regulations and the industry and to ensure uniformity in the administration of the scheme. The Supreme Court found that the lower federal court should have dismissed the case. The Court noted that Texas had created a complex state administrative scheme and that review of the Commission’s decision in the designated state court was “expeditious and adequate.” Id. at 334, 63 S.Ct. 1098. In contrast, review in the federal courts would lead to “[d]elay, misunderstanding of local law, and needless federal conflict with the state policy.” Id. at 333-34, 63 S.Ct. 1098. Later Supreme Court cases have clarified that Burford abstention is appropriate (1) when there are difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at the bar; or (2) where the exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. NOPSI, 491 U.S. at 361, 109 S.Ct. 2506. The defendants argue that abstention is justified on both of these grounds. The first type of Burford abstention requires that the federal suit raise difficult questions of state law. Plaintiffs are challenging the Fair Dealing Act under the United States Constitution. As noted above in discussing the appropriateness of Pullman abstention, the challenge based on the Commerce Clause does not raise difficult questions of state law. The Contracts Clause challenge raises questions about the meaning of Section 35(b) and whether the Act alters state law by limiting the circumstances in which a supplier can terminate or not renew a distribution agreement. For example, it is not clear precisely what the Act requires in Section 35(b) when it obligates suppliers to act in “good faith,” and without “discrimination or coercion.” Of course, to evaluate the Contracts Clause challenge, this court would not have to provide a definitive construction of these provisions. Rather, the court would have to determine only if the provisions changed state law and substantially impaired the contractual relationship between the suppliers and distributors. Moreover, these cases are unlike Burford in that the plaintiffs here are not merely challenging a single decision by a state administrative body. Instead, the plaintiffs are making a broad constitutional challenge to the Act itself. This court cannot conclude that the arguably “difficult questions of state law bearing on polk cy problems of substantial public import” transcend the result in the case at bar. See NOPSI, 491 U.S. at 361, 109 S.Ct. 2506. Under these circumstances, the first type of Burford abstention is not warranted. The Seventh Circuit has found that two essential elements must be present to justify the second type of Burford abstention. . First, and most obvious, the state must offer some forum in which claims may be litigated.... Second, that forum must be special - it must stand in a special relationship of technical oversight or concentrated review to the evaluation of those claims. The ability to point to a specialized proceeding is a prerequisite of, not a factor in, the second type of Burford abstention. ICS, 153 F.3d at 363-64 (quoting Property & Casualty Ins. Ltd. v. Central Nat’l Ins. Co. of Omaha, 936 F.2d 319, 323 (7th Cir.1991)). In ICS, the plaintiffs were challenging the denial of a permit by the Chicago Landmarks Commission. The decisions of the Commission were subject to review in the Circuit Court of Cook County pursuant to the Illinois Administrative Review Act. The Seventh Circuit found that the second type of Burford abstention did not apply because the Circuit Court of Cook County was not a “special forum” designated to hear such appeals. The Seventh Circuit noted that the deferential standard of review employed by the Circuit Court further distinguished the scheme from that in Burford, where the courts were “working partners.” ICS, 153 F.3d at 364 (quoting Burford, 319 U.S. at 326, 63 S.Ct. 1098). Under ICS, it is clear that the second type of Burford abstention is not required. As in ICS, the Illinois Liquor Control Commission’s findings are subject to review under the Illinois Administrative Review Act. There is no special forum. Moreover, even if there were a special forum, abstention would not be warranted because a decision here would not disrupt any coherent policy and would not lead to additional cases that might threaten the state’s ability to develop a coherent policy. The Fair Dealing Act creates substantive law regulating distribution agreements and establishes procedures to resolve disputes. Prior to the Act, the Illinois Liquor Control Commission never had the power to address disputes over the termination or renewal of distributorship agreements, and the Commission and the Illinois courts have not yet construed the Act. At this point, there is no body of law or series of precedents that could be undermined by a decision here. These federal cases present challenges to the constitutionality of the Act and are not likely to produce additional cases that could disrupt the state’s efforts to create a coherent policy in the future. “Unlike a claim that a state agency has misapplied its lawful authority or has failed to take into consideration or properly weigh relevant state law factors,” the constitutional challenges here “would not disrupt the State’s attempt to ensure uniformity of an essentially local problem.” NOPSI, 491 U.S. at 362, 109 S.Ct. 2506 (quotation omitted). This court concludes that abstention is not appropriate under the Younger, Pullman, or Burford doctrines. The motions to dismiss are denied. II. Plaintiffs’ Motions for a Preliminary Injunction The plaintiffs in these related actions have moved for a preliminary injunction enjoining the members of the Commission from applying or enforcing the Fair Dealing Act. To be entitled to a preliminary injunction, a plaintiff must show a likelihood of success on the merits, irreparable harm if the preliminary injunction is denied and the inadequacy of any remedy at law. If plaintiff succeeds in making this preliminary showing, the court must balance the harm to the plaintiffs if the preliminary injunction is wrongfully denied against the harm to the defendants if it is improperly granted. Finally, the court must assess the impact of an injunction on the public interest, meaning, persons not directly concerned in the dispute. Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir.1999). A. Likelihood of Success on the Merits (1) Constitutionality under the dormant Commerce Clause (a) The Illinois Winery Exemption Appears to Violate the Dormant Commerce Clause Plaintiffs contend that the Fair Dealing Act is unconstitutional under the dormant Commerce Clause of the U.S. Constitution. In particular, they contend that the Illinois winery exemption, which excludes Illinois wineries from most provisions of the Act, renders the Act unconstitutional because it discriminates against out-of-state manufacturers. Plaintiffs argue that the exclusion has no legitimate purpose, but rather is designed to protect and support the local Illinois wine industry. The Supreme Court has adopted a two-tiered approach to analyzing state economic regulation under the Commerce Clause. When a state statute directly regulates or discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests, the Court has generally struck down the statute without further inquiry. Brown-Forman Distillers v. N.Y. State Liquor Auth., 476 U.S. 573, 579, 106 S.Ct. 2080, 90 L.Ed.2d 552 (1986). When, however, a statute regulates evenhandedly and has only indirect effects on interstate commerce, the Court examines whether the state’s interest is legitimate and whether the burden on interstate commerce exceeds the local benefits. Id. There is no clear line separating state regulation that it essentially per se invalid from that which calls for a balancing approach. Id. Once, however, a state law “is shown to discriminate against interstate commerce ‘either on its face or in practical effect,’ the burden falls on the State to demonstrate both that the statute ‘serves a legitimate local purpose’ and that this purpose could not be served as well by available nondiscriminatory means.” Maine v. Taylor, 477 U.S. 131, 138, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986) (quoting Hughes v. Oklahoma, 441 U.S. 322, 336, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979)). Where state regulation is found to have either a discriminatory purpose or a discriminatory effect, it constitutes “economic protectioni