No. 81-2432.United States Court of Appeals, Third Circuit.Argued March 2, 1982.
Decided May 17, 1982. Rehearing and Rehearing In Banc Denied June 24, 1982.
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James J. Rodgers (Argued), Richard P. Brown, Jr., Joseph B. G. Fay, Morgan, Lewis Bockius, Philadelphia, Pa., for appellants.
David H. Allshouse (Argued), Deputy Atty. Gen., Leroy S. Zimmerman, Atty. Gen., Allen C. Warshaw, Deputy Atty. Gen., Chief, Civil Litigation, Harrisburg, Pa., for appellees.
Jon A. Baughman (Argued), Thomas B. Schmidt, III, Nancy J. Gellman, Richard M. Bernstein, Pepper, Hamilton Scheetz, Philadelphia, Pa., for amicus curiae Jockeys’ Guild, Inc.
Appeal from the United States District Court for the Eastern District of Pennsylvania.
Before HUNTER, WEIS and HIGGINBOTHAM, Circuit Judges.
[1] OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge.
[4] The Pennsylvania legislature enacted the Pennsylvania Horse Racing Act in 1967. 15 P.S. §§ 2651-2675 (1980). The Pennsylvania Horse Racing Commission was established pursuant to this Act and was given broad authority over horse racing and betting:
[5] 15 P.S. § 2652(a) (1980). The present appeal focuses on one such rule, Rule of Racing 9.15 (“Rule 9.15”). Rule 9.15 contains a jockey fee scale which was initially promulgated by the Commission in 1968 and was amended in 1978 to increase the schedule of fee payments. Appendix at A-22. [6] Shortly before this action was filed in the district court, the Pennsylvania Division of the Horseman’s Benevolent and Protective Association, which represents owners-trainers of racing horses at various tracks in Pennsylvania, and three other individuals filed a lawsuit in the Commonwealth Court of Pennsylvania challenging the authority of the Commission to promulgate a rule setting the fees to be paid to jockeys. The Commonwealth Court held that the Commission exceeded its legislative authority and could not regulate the amount of compensation paid to jockeys. Gilligan v. Pennsylvania Horse Racing Commission, 46 Pa. Commw.Ct. 595, 407 A.2d 466 (1979). AfterPursuant to the provisions of this act, the State Horse Racing Commission shall have power to supervise generally all thoroughbred horse race meetings in this State at which pari-mutuel betting is conducted. The commission may adopt rules and regulations not inconsistent with this act to carry into effect its purposes and provisions and to prevent circumvention or evasion thereof.
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the Commonwealth Court’s decision, the district court rejected the defendants’ argument that the state action exemption o Parker applied, relying on the decision of the Commonwealth Court in the Gilligan case.
[7] The Commission then appealed the Commonwealth Court’s decision to the Supreme Court of Pennsylvania. In September 1980, the Supreme Court reversed the Commonwealth Court, holding that the Commission was authorized by the legislature to promulgate a jockey fee schedule. Gilligan v. Pennsylvania Horse Racing Comm’n, 492 Pa. 90, 422 A.2d 487 (1980). In light of the decision of the Pennsylvania Supreme Court, holding unambiguously that the Commission had authority to set jockey’s fees, the district court held that the defendants were immune from antitrust liability under the Parker doctrine. [8] DISCUSSION[9] In Parker, the United States Supreme Court held that the Sherman Act was inapplicable to certain state action.[3] A raisin packer sued the California State Agricultural Commission to enjoin enforcement of the State’s Agricultural Prorate Act. That Act authorized the State Director of Agriculture and the Agriculture Commission to adopt marketing programs regulating the sale of certain produce. The plaintiff attacked the program as violative of the Sherman Act. The Supreme Court held that state regulatory programs were immune from the proscriptions of the Sherman Act. The Court found no language or legislative history of the Sherman Act indicating congressional intent to proscribe the behavior of a sovereign state. The Court held that state regulatory programs could not violate the Sherman Act because the Act is directed against “individual and not state action.” Id.
317 U.S. at 352, 63 S.Ct. at 314. [10] The Parker doctrine was recently discussed and reaffirmed i California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980). I Midcal, the Supreme Court set forth the appropriate standards for the state action exception as follows:
[11] 445 U.S. at 105, 100 S.Ct. at 943. If these two standards are satisfied, the challenged restraint is immunized from antitrust liability. [12] The Midcal requirements are satisfied in the case before us. The ruling of the district court is amply justified by the Pennsylvania Supreme Court’s decision in Gilligan.[4] I Gilligan, the court held that the Commission was authorized by the Horse Racing Act to promulgate the jockey fee scale at issue in this case. The court stated explicitly that the Act reflected a “clear legislative policy” to vest the Commission with broad supervisory powers over the “previously unlawful activity of thoroughbred horse racing.” 422 A.2d at 489. The court stated:First, the challenged restraint must be “one clearly articulated and affirmatively expressed as state policy”; second, the policy must be “actively supervised” by the State itself.
[13] 422 A.2d at 490 (emphasis in original). [14] Furthermore, the court observed that the rulemaking powers of the CommissionA pervasive system of regulation and supervision of the otherwise criminal activity was thus contemplated by the Commission’s broad legislative mandate, and a general rule making power was clearly and unmistakably conferred.
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should be construed liberally in light of the broad supervisory task necessary to accomplish the express legislative purpose:
[15] 422 A.2d at 490-91 (emphasis added). [16] The Pennsylvania Supreme Court also attached importance to the fact that when the legislature amended the Horse Racing Act in 1976, including the section enumerating the powers of the Commission, there was no attempt by the legislature to curtail the Commission’s authority to set jockey fees, authority which it had been exercising since 1968. Thus, the court concluded that “the legislature’s acquiescence in the Commission’s exercise of its rule-making power to set jockeys’ fees manifests approval thereof.” 422 A.2d at 491. [17] In Princeton Community Phone Book, Inc. v. Bate, 582 F.2d 706, 717 (3d Cir.), cert. denied, 439 U.S. 966, 99 S.Ct. 454, 58 L.Ed.2d 424 (1978) we discussed the problem of discerning when state authority to restrain competition exists. We noted that:The breadth of the Commission’s powers is required for the prevention of corruption and the maintenance of high standards and public confidence in racing. The imposition of a jockey fee schedule is simply part of a comprehensive scheme of regulation consistent with — indeed, necessary to accomplish these legislative goals.
[18] As the Gilligan decision demonstrates, the action complained of in this case was clearly contemplated by the legislation in question. Indeed, in this regard Gilligan could not have been more explicit.[5] [19] It is also clear that the jockey fee scale is “actively supervised” by the Commonwealth, within the meaning of that term as set forth in Midcal. In Midcal, the Supreme Court struck down the California wine-pricing system because the state neither established the prices, reviewed their reasonableness, regulated the terms of the fair trade contracts, monitored market conditions, nor engaged in any “pointed reexamination” of the program in question. 445 U.S. at 105-06, 100 S.Ct. at 943. Th Midcal Court stressed that the state simply authorized price-setting and enforced the prices established by private parties. The Court made clear its concern: “The national policy in favor of competition cannot be thwarted by casting such a gauzy cloak of state involvement over what is essentially a private price-fixing arrangement.” Id. 445 U.S. at 106, 100 S.Ct. at 943. [20] In the instant case, however, there is no question about the Commonwealth’s involvement in the challenged activity. The state Commission sets the jockey fees, pursuant to formal notice and hearing procedures. Appendix at 22. Furthermore, the Complaint does not allege a need for more state supervision; it alleges that the present supervision is biased in favor of the jockeys and that the Commission did not exercise sufficient independent judgment[T]he state need not have contemplated the precise action complained of as long as it contemplated the kind of action to which objection was made.
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over the level of the fee scale. Complaint §§ 19 and 26. Appendix at A-10, A-11, A-12. The record does not support such an assertion. However, even if this averment were true, the promulgation of a jockey fee scale by means of Rule 9.15 differs from the scheme which the Supreme Court struck down in Midcal.
In Midcal, private parties were authorized to set prices by themselves, without the further involvement of the state. Here, the regulation promulgated by the Commission itself contains the fees. There is no such abdication of price-fixing activity to private parties by the Horse Racing Commission. It is the state Commission itself which sets the fees.[6]
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while a zoning board had broad statutory authority to regulate land use “for the purpose of monitoring health, safety, morals or the general welfare of the community,” the Colorado legislature “did not foresee contemplate or intend” that zoning officials would engage in the conduct complained of in that case use of their zoning authorization to promote their own interests and economic benefit. Id. at 76.330. In the present case there is no allegation to the effect that the Commission defendants used their authorization to promote their own personal and economic interests.
[23] Appellants also argue that there are factual disputes in this case which should have prevented the district court from entering summary judgment and that they should have been given an opportunity for discovery. Both claims are without merit. [24] First, the state action exemption cases clearly indicate that this issue involves a question of law, generally an issue of statutory construction. Thus, the question of whether a governmental entity is subject to Sherman Act liability has generally been resolved on a motion to dismiss or a summary judgment motion. See, e.g., Princeton Community Phone Book, 582 F.2d 706. In the present case, any factual disputes that exist are on matters which are irrelevant to the issue before us; the applicability of the Parker doctrine. Second, it is important to note that this case had been pending in the district court for over two years before the summary judgment motion was filed. Plaintiffs chose, however, not to take any discovery in over two years of litigation; rather, they chose to rest on the allegations of the complaint in responding to the summary judgment motion. [25] Finally, appellants argue that the decision in the Gilligancase lacks an adequate factual basis and that the Commission never properly explained how its fee schedule deters criminal influence on thoroughbred horse racing. The state action doctrine was developed to avoid this sort of inquiry by federal court into state legislative wisdom. In Parker itself, for example, the Supreme Court did not inquire into the necessity for or wisdom of the California marketing programs regulating the sale of certain produce, holding simply that these programs were immune from attack under the antitrust laws. Again, in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), the Court held that the policy of restricting lawyer advertising was affirmatively expressed and actively supervised by the state and thus not subject to antitrust attack. However, the Court did not inquire into the wisdom of this policy. In Bates, the Court considered the necessity of the policy; but it did so only to determine whether the state had a compelling interest which could not be advanced by some other means which were less intrusive into the first amendment rights involved in that case Id. at 363-79, 97 S.Ct. at 2698-2706. [26] The application of the Parker doctrine requires a federal court to make only the two determinations articulated in th Midcal decision: whether the scheme in question is a clearly articulated state policy and whether it is actively supervised. The district court would not be justified in looking into the wisdom or efficiency of using the regulation in question as a means of accomplishing the intended objectives.[7]
[27] CONCLUSION
[28] 19. For the foregoing reasons, the judgment of the district court will be affirmed.
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony. . . .
[I]t is not necessary to point to an express statutory mandate for each act which is alleged to violate the antitrust laws. It will suffice if the challenged activity was clearly within the legislative intent. Thus, a trial judge may ascertain, from the authority given a governmental entity to act in a particular area, that the legislature contemplated the kind of action complained of.
Cited in Community Communications Co., Inc. v. City of Boulder,
___ U.S. ___, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982) (footnote omitted). In Lafayette, the Court considered an antitrust counterclaim against two Louisiana cities that allegedly pursued various anticompetitive activities in their operation of electric power companies. The Court agreed that Congress did not intend to exempt local governments per se from antitrust scrutiny. Justice Brennan noted that municipal decisions might express only “purely parochial interests” rather than state policy. 435 U.S. at 416, 98 S.Ct. 1138. That concern is not presented in the case of a state agency responsible for articulating statewide policy. See, e.g., Metropolitan Edison Co. v. Public Service Comm’n, 127 Pa. Super. 11, 191 A. 678 (1937). For a general analysis of th Lafayette decision, see Areeda, “Antitrust Immunity For `State Action’ After Lafayette,” 95 Harv.L.Rev. 435 (1981).
Our precedents thus reveal that Boulder’s moratorium ordinance cannot be exempt from antitrust scrutiny unless it constitutes the action of the State of Colorado itself in its sovereign capacity, see Parker, or unless it constitutes municipal action in furtherance or implementation of clearly articulated and affirmatively expressed state policy, see City of Lafayette, Orrin W. Fox Co., and Midcal.
___ U.S. at ___, 102 S.Ct. at 839-841 (emphasis added).
Thus, the Court in Boulder noted that the Parker exemption reflects Congress’ intention to embody in the Sherman Act the federalism principle that the States possess a significant measure of sovereignty under the federal Constitution. The Court noted that this principle is inherently limited in that “we are a nation of States, a principle that makes no accommodation for sovereign subdivisions of states.” ___ U.S. at ___, 102 S.Ct. at 839 (emphasis in the original). Boulder is instructive in this case insofar as it supports the proposition that interpretation of legislative intent is a matter of state law and that federal antitrust courts should defer to state court interpretations of such questions. ___ U.S. at ___ nn. 15 16, 102 S.Ct. at 841 nn. 15 16.
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