Petitioner brought suit against respondent, a privately owned
and operated utility corporation which holds a certificate of
public convenience issued by the Pennsylvania Utility Commission,
seeking damages and injunctive relief under 42 U.S.C. § 1983 for
termination of her electric service allegedly before she had been
afforded notice, a hearing, and an opportunity to pay any amounts
found due. Petitioner claimed that, under state law she was
entitled to reasonably continuous electric service, and that
respondent's termination for alleged nonpayment, permitted by a
provision of its general tariff filed with the Commission, was
state action depriving petitioner of her property without due
process of law and giving rise to a cause of action under § 1983.
The Court of Appeals affirmed the District Court's dismissal of
petitioner's complaint.
Held: Pennsylvania is not sufficiently connected with
the challenged termination to make respondent's conduct
attributable to the State for purposes of the Fourteenth Amendment,
petitioner having shown no more than that respondent was a heavily
regulated private utility with a partial monopoly and that it
elected to terminate service in a manner that the Commission found
permissible under state law.
Cf. Moose Lodge No. 107 v.
Irvis, 407 U. S. 163.
Public Utilities Comm'n v. Pollak, 343 U.
S. 451;
Burton v. Wilmington Parking Authority,
365 U. S. 715,
distinguished. Pp.
419 U. S.
349-359.
483 F.2d 754, affirmed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ.,
joined. DOUGLAS, J.,
post, p.
419 U. S. 359,
BRENNAN, J.,
post, p.
419 U. S. 364,
and MARSHALL, J.,
post, p.
419 U. S. 365,
filed dissenting opinions.
Page 419 U. S. 346
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Respondent Metropolitan Edison Co. is a privately owned and
operated Pennsylvania corporation which holds a certificate of
public convenience issued by the Pennsylvania Public Utility
Commission empowering it to deliver electricity to a service area
which includes the city of York, Pa. As a condition of holding its
certificate, it is subject to extensive regulation by the
Commission. Under a provision of its general tariff filed with the
Commission, it has the right to discontinue service to any customer
on reasonable notice of nonpayment of bills. [
Footnote 1]
Page 419 U. S. 347
Petitioner Catherine Jackson is a resident of York, who has
received electricity in the past from respondent. Until September,
1970, petitioner received electric service to her home in York
under an account with respondent in her own name. When her account
was terminated because of asserted delinquency in payments due for
service, a new account with respondent was opened in the name of
one James Dodson, another occupant of the residence, and service to
the residence was resumed. There is a dispute as to whether
payments due under the Dodson account for services provided during
this period were ever made. In August, 1971, Dodson left the
residence. Service continued thereafter, but concededly no payments
were made. Petitioner states that no bills were received during
this period.
On October 6, 1971, employees of Metropolitan came to the
residence and inquired as to Dodson's present address. Petitioner
stated that it was unknown to her. On the following day, another
employee visited the residence and informed petitioner that the
meter had been tampered with so as not to register amounts used.
She disclaimed knowledge of this, and requested that the service
account for her home be shifted from Dodson's name to that of one
Robert Jackson, later identified as her 12-year-old son. Four days
later, on October 11, 1971, without further notice to petitioner,
Metropolitan employees disconnected her service.
Petitioner then filed suit against Metropolitan in the United
States District Court for the Middle District of Pennsylvania under
the Civil Rights Act of 1871, 42 U.S.C. § 1983, seeking damages for
the termination and an injunction requiring Metropolitan to
continue providing power to her residence until she had been
afforded notice, a hearing, and an opportunity to pay any amounts
found due. She urged that, under state law she had an
Page 419 U. S. 348
entitlement to reasonably continuous electrical service to her
home [
Footnote 2] and that
Metropolitan's termination of her service for alleged nonpayment,
action allowed by a provision of its general tariff filed with the
Commission, constituted "state action" depriving her of property in
violation of the Fourteenth Amendment's guarantee of due process of
law. [
Footnote 3]
Page 419 U. S. 349
The District Court granted Metropolitan's motion to dismiss
petitioner's complaint on the ground that the termination did not
constitute state action, and hence was not subject to judicial
scrutiny under the Fourteenth Amendment. [
Footnote 4] On appeal, the United States Court of
Appeals for the Third Circuit affirmed, also finding an absence of
state action. [
Footnote 5] We
granted certiorari to review this judgment. [
Footnote 6]
The Due Process Clause of the Fourteenth Amendment provides:
"[N]or shall any State deprive any person of life, liberty, or
property, without due process of law." In 1883, this Court, in the
Civil Rights Cases, 109 U. S. 3,
affirmed the essential dichotomy set forth in that Amendment
between deprivation by the State, subject to scrutiny under its
provisions, and private conduct, "however discriminatory or
wrongful," against which the Fourteenth Amendment offers no shield.
Shelley v. Kraemer, 334 U. S. 1
(1948).
We have reiterated that distinction on more than one occasion
since then.
See, e.g., Evans v. Abney, 396 U.
S. 435,
396 U. S. 445
(1970);
Moose Lodge No. 107 v. Irvis, 407 U.
S. 163,
407 U. S.
171-179 (1972). While the principle that private action
is immune from the restrictions of the Fourteenth Amendment is well
established and easily stated, the question whether particular
conduct is "private," on
Page 419 U. S. 350
the one hand, or "state action," on the other, frequently admits
of no easy answer.
Burton v. Wilmington Parking Authority,
365 U. S. 715,
365 U. S. 723
(1961);
Moose Lodge No. 107 v. Irvis, supra, at
407 U. S.
172.
Here, the action complained of was taken by a utility company
which is privately owned and operated, but which, in many
particulars of its business, is subject to extensive state
regulation. The mere fact that a business is subject to state
regulation does not, by itself, convert its action into that of the
State for purposes of the Fourteenth Amendment. [
Footnote 7] 407 U.S. at
407 U. S.
176-177. Nor does the fact that the regulation is
extensive and detailed, as in the case of most public utilities, do
so.
Public Utilities Comm'n v. Pollak, 343 U.
S. 451,
343 U. S. 462
(1952). It may well be that
Page 419 U. S. 351
acts of a heavily regulated utility with at least something of a
governmentally protected monopoly will more readily be found to be
"state" acts than will the acts of an entity lacking these
characteristics. But the inquiry must be whether there is a
sufficiently close nexus between the State and the challenged
action of the regulated entity so that the action of the latter may
be fairly treated as that of the State itself.
Moose Lodge No.
107, supra, at
407 U. S. 176.
The true nature of the State's involvement may not be immediately
obvious, and detailed inquiry may be required in order to determine
whether the test is met.
Burton v. Wilmington Parking
Authority, supra.
Petitioner advances a series of contentions which, in her view,
lead to the conclusion that this case should fall on the
Burton side of the line drawn in the
Civil Rights
Cases, supra, rather than on the
Moose Lodge side of
that line. We find none of them persuasive.
Petitioner first argues that "state action" is present because
of the monopoly status allegedly conferred upon Metropolitan by the
State of Pennsylvania. As a factual matter, it may well be doubted
that the State ever granted or guaranteed Metropolitan a monopoly.
[
Footnote 8] But assuming that
it had, this fact is not determinative in considering
Page 419 U. S. 352
whether Metropolitan's termination of service to petitioner was
"state action" for purposes of the Fourteenth Amendment. In
Pollak, supra, where the Court dealt with the activities
of the District of Columbia Transit Co., a congressionally
established monopoly, we expressly disclaimed reliance on the
monopoly status of the transit authority. 343 U.S. at
343 U. S. 462.
Similarly, although certain monopoly aspects were presented in
Moose Lodge No. 107, supra, we found that the Lodge's
action was not subject to the provisions of the Fourteenth
Amendment. In each of those cases, there was insufficient
relationship between the challenged actions of the entities
involved and their monopoly status. There is no indication of any
greater connection here.
Petitioner next urges that state action is present because
respondent provides an essential public service required to be
supplied on a reasonably continuous basis by Pa.Stat.Ann., Tit. 66,
§ 1171 (1959), and hence performs a "public function." We have, of
course, found state action present in the exercise by a private
entity of powers traditionally exclusively reserved to the State.
See, e.g., Nixon v. Condon,
286 U. S.
73 (1932) (election); Terry v. Adams,
345 U. S. 461
(1953) (election); Marsh v. Alabama,
326 U.
S. 501 (1946) (company town); Evans v. Newton,
382 U. S. 296
(1966) (municipal park). If
Page 419 U. S.
353
we were dealing with the exercise by Metropolitan of some
power delegated to it by the State which is traditionally
associated with sovereignty, such as eminent domain, our case would
be quite a different one. But while the Pennsylvania statute
imposes an obligation to furnish service on regulated utilities, it
imposes no such obligation on the State. The Pennsylvania courts
have rejected the contention that the furnishing of utility
services is either a state function or a municipal duty.
Girard Life Insurance Co. v. City of Philadelphia,
88 Pa. 393
(1879); Baily v. Philadelphia, 184 Pa. 594, 39 A. 494
(1898).
Perhaps in recognition of the fact that the supplying of utility
service is not traditionally the exclusive prerogative of the
State, petitioner invites the expansion of the doctrine of this
limited line of cases into a broad principle that all businesses
"affected with the public interest" are state actors in all their
actions.
We decline the invitation for reasons stated long ago in
Nebbia v. New York, 291 U. S. 502
(1934), in the course of rejecting a substantive due process attack
on state legislation:
"It is clear that there is no closed class or category of
businesses affected with a public interest. . . . The phrase
'affected with a public interest' can, in the nature of things,
mean no more than that an industry, for adequate reason, is subject
to control for the public good. In several of the decisions of this
court wherein the expressions 'affected with a public interest,'
and 'clothed with a public use,' have been brought forward as the
criteria . . . , it has been admitted that they are not susceptible
of definition, and form an unsatisfactory test. . . ."
Id. at
291 U. S. 536.
See, e.g., Tyson & Brother v. Banton, 273 U.
S. 418,
273 U. S. 451
(1927) (Stone, J., dissenting).
Page 419 U. S. 354
Doctors, optometrists, lawyers, Metropolitan, and Nebbia's
upstate New York grocery selling a quart of milk are all in
regulated businesses, providing arguably essential goods and
services, "affected with a public interest." We do not believe that
such a status converts their every action, absent more, into that
of the State. [
Footnote 9] We
also reject the notion that Metropolitan's termination is state
action because the State "has specifically authorized and approved"
the termination practice. In the instant case, Metropolitan filed
with the Public Utility Commission a general tariff -- a provision
of which states Metropolitan's right to terminate service for
nonpayment. [
Footnote 10]
This provision has appeared in Metropolitan's previously filed
tariffs for many years, and has never been the subject of a hearing
or other scrutiny by the Commission. [
Footnote 11] Although the Commission did hold
Page 419 U. S. 355
hearings on portions of Metropolitan's general tariff relating
to a general rate increase, it never even considered the
reinsertion of this provision in the newly filed general tariff.
[
Footnote 12] The provision
became effective 60 days after filing when not disapproved by the
Commission. [
Footnote
13]
As a threshold matter, it is less than clear under state law
that Metropolitan was even required to file this provision as part
of its tariff or that the Commission would have had the power to
disapprove it. [
Footnote 14]
The District Court observed that the sole connection of the
Commission with this regulation was Metropolitan's simple notice
filing with the Commission and the lack of any Commission action to
prohibit it. [
Footnote
15]
Page 419 U. S. 356
The case most heavily relied on by petitioner is
Public
Utilities Comm'n v. Pollak, supra. There, the Court dealt with
the contention that Capital Transit's installation of a piped music
system on its buses violated the First Amendment rights of the bus
riders. It is not entirely clear whether the Court alternatively
held that Capital Transit's action was action of the "State" for
First Amendment purposes or whether it merely assumed,
arguendo, that it was, and went on to resolve the First
Amendment question adversely to the bus riders. [
Footnote 16] In either event, the nature of
the state involvement there was quite different than it is here.
The District of Columbia Public Utilities Commission, on its own
motion, commenced an investigation of the effects of the piped
music and, after a full hearing, concluded not only that Capital
Transit's practices were "not inconsistent with public convenience,
comfort, and safety," 81 P.U.R.(N.S.) 122, 126 (1950), but also
that the
Page 419 U. S. 357
practice "in fact, through the creation of better will among
passengers, . . . tends to improve the conditions under which the
public ride."
Ibid. Here, on the other hand, there was no
such imprimatur placed on the practice of Metropolitan about which
petitioner complains. The nature of governmental regulation of
private utilities is such that a utility may frequently be required
by the state regulatory scheme to obtain approval for practices a
business regulated in less detail would be free to institute
without any approval from a regulatory body. Approval by a state
utility commission of such a request from a regulated utility,
where the commission has not put its own weight on the side of the
proposed practice by ordering it, does not transmute a practice
initiated by the utility and approved by the commission into "state
action." At most, the Commission's failure to overturn this
practice amounted to no more than a determination that a
Pennsylvania utility was authorized to employ such a practice if it
so desired. Respondent's exercise of the choice allowed by state
law where the initiative comes from it and not from the State,
[
Footnote 17] does not make
its action in doing so "state action" for purposes of the
Fourteenth Amendment.
We also find absent in the instant case the symbiotic
relationship presented in
Burton v. Wilmington Parking
Authority, 365 U. S. 715
(1961). There, where a private lessee, who practiced racial
discrimination, leased space for a restaurant from a state parking
authority in a publicly owned building, the Court held that the
State had so far insinuated itself into a position of
interdependence with the restaurant that it was a joint participant
in
Page 419 U. S. 358
the enterprise.
Id. at
365 U. S. 725.
We cautioned, however, that, while "a multitude of relationships
might appear to some to fall within the Amendment's embrace,"
differences in circumstances beget differences in law, limiting the
actual holding to lessees of public property.
Id. at
365 U. S.
726.
Metropolitan is a privately owned corporation, and it does not
lease its facilities from the State of Pennsylvania. It alone is
responsible for the provision of power to its customers. In common
with all corporations of the State, it pays taxes to the State, and
it is subject to a form of extensive regulation by the State in a
way that most other business enterprises are not. But this was
likewise true of the appellant club in
Moose Lodge No. 107 v.
Irvis, supra, where we said:
"However detailed this type of regulation may be in some
particulars, it cannot be said to in any way foster or encourage
racial discrimination. Nor can it be said to make the State in any
realistic sense a partner or even a joint venturer in the club's
enterprise."
407 U.S. at
407 U. S.
176-177.
All of petitioner's arguments taken together show no more than
that Metropolitan was a heavily regulated, privately owned utility,
enjoying at least a partial monopoly in the providing of electrical
service within its territory, and that it elected to terminate
service to petitioner in a manner which the Pennsylvania Public
Utility Commission found permissible under state law. Under our
decision, this is not sufficient to connect the State of
Pennsylvania with respondent's action so as to make the latter's
conduct attributable to the State for purposes of the Fourteenth
Amendment.
We conclude that the State of Pennsylvania is not sufficiently
connected with respondent's action in terminating petitioner's
service so as to make respondent's
Page 419 U. S. 359
conduct in so doing attributable to the State for purposes of
the Fourteenth Amendment. We therefore have no occasion to decide
whether petitioner's claim to continued service was "property" for
purposes of that Amendment, or whether "due process of law" would
require a State taking similar action to accord petitioner the
procedural rights for which she contends. The judgment of the Court
of Appeals for the Third Circuit is therefore
Affirmed.
[
Footnote 1]
Metropolitan Edison Company Electrical Tariff, Electric Pa. P.
U. C. No. 41, Rule 15. This portion of Metropolitan's general
tariff, filed with the Utility Commission under the notice-filing
requirement of Pa.Stat.Ann., Tit. 66, § 1142 (1959) (since the
general tariff involved a rate increase), provides in pertinent
part:
"(15) --
Cause for discontinuance of service."
"Company reserves the right to discontinue its service on
reasonable notice and to remove its equipment in case of nonpayment
of bill. . . ."
Its filed tariff also gives it the right to terminate service
for fraud or for tampering with a meter, but Metropolitan did not
seek to assert these grounds below.
[
Footnote 2]
The basis for this claimed entitlement is Pa.Stat.Ann., Tit. 66,
§ 1171 (1959), providing in part:
"Every public utility shall furnish and maintain adequate,
efficient, safe, and reasonable service and facilities. . . . Such
service also shall be reasonably continuous and without
unreasonable interruptions or delay. . . ."
Mrs. Jackson finds in this provision a state law entitlement to
continuing utility service to her residence. She reasons that,
under the Due Process Clause of the Fourteenth Amendment, she
cannot be deprived of this entitlement to utility service without
adequate notice and a hearing before an impartial body: until these
are completed, her service must continue. Because of our conclusion
on the threshold question of state action, we do not reach
questions relating to the existence of a property interest or of
what procedural guarantees the Fourteenth Amendment would require
if a property interest were found to exist.
MR. JUSTICE BRENNAN, dissenting,
post at
419 U. S. 364,
concludes that there is no justiciable controversy between
petitioner and respondent because whatever entitlement to service
petitioner had was previously terminated by respondent in
accordance with its tariff. We do not believe this to be any less a
determination of the merits of the action than is our conclusion
that whatever deprivation she may have suffered was not caused by
the State. Issues of whether a claimed entitlement is "property"
within the meaning of the Due Process Clause,
Board of Regents
v. Roth, 408 U. S. 564
(1972), and whether, if so, its deprivation was consistent with due
process,
see Arnett v. Kennedy, 416 U.
S. 134 (1974), are themselves constitutional questions
which we find no occasion to reach in this case.
[
Footnote 3]
Section 1 of the Fourteenth Amendment provides in part:
"No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws."
[
Footnote 4]
The decision is reported at
348 F.
Supp. 954 (1972).
[
Footnote 5]
The decision is reported at 483 F.2d 754 (1973).
[
Footnote 6]
415 U.S. 912 (1974).
Compare Kadlec v. Illinois Bell
Telephone Co., 407 F.2d 624 (CA7),
cert. denied, 396
U.S. 846 (1969);
Lucas v. Wisconsin Electric Power Co.,
466 F.2d 638 (CA7 1972),
cert. denied, 409 U.S. 1114
(1973),
with Palmer v. Columbia Gas of Ohio, Inc., 479
F.2d 153 (CA6 1973),
modified in Turner v. Impala Motors,
503 F.2d 607 (CA6 1974).
Cf. Ihrke v. Northern States Power
Co., 459 F.2d 566 (CA8),
vacated as moot, 409 U.S.
815 (1972).
[
Footnote 7]
Enterprises subject to the same regulatory system as
Metropolitan are enumerated in the definition of "public utility"
contained in Pa.Stat.Ann., Tit. 66, § 1102 (17) (1959 and Supp.
1974-1975). Included in this definition are all companies engaged
in providing gas, power, or water; all common carriers, pipeline
companies, telephone and telegraph companies, sewage collection and
disposal companies; and corporations affiliated with any company
engaging in such activities. Among some of the enterprises held
subject to this regulatory scheme are freight forwarding and
storage companies (
Highway Freight Co. v. Public Service
Comm'n, 108 Pa.Super. 178, 164 A. 835 (1933)), real estate
developers who, incident to their business, provide water services
(
Sayre Land Co. v. Pennsylvania Public Utility Comm'n, 21
D. & C.2d 469 (1959)), and individually owned taxicabs.
Pennsylvania Public Utility Comm'n v. Israel, 356 Pa. 400,
52 A.2d 317 (1947). In
Philadelphia Rural Transit Co. v.
Philadelphia, 309 Pa. 84, 93, 159 A. 861, 864 (1932), the
court estimated that there were 26 distinct types of enterprises
subject to this regulatory system, and a fair reading of
Pennsylvania law indicates a substantial expansion of included
enterprises since that case. The incidents of regulation do not
appear materially different between enterprises. If the mere
existence of this regulatory scheme made Metropolitan's action that
of the State, then presumably the actions of a lone Philadelphia
cab driver could also be fairly treated as those of the State of
Pennsylvania.
[
Footnote 8]
It is provided in Pa.Stat.Ann., Tit. 66, § 1121 (Supp.
1974-1975), that issuance of a certificate of public convenience is
a prerequisite for engaging in the utility business in
Pennsylvania. The requirements for obtaining such a certificate are
described in Pa.Stat.Ann., Tit. 66, §§ 1122, 1123 (1959 and Supp.
1974-1975). There is nothing in either Metropolitan's certificate
or in the statutes under which it was issued indicating that the
State has granted or guaranteed to Metropolitan monopoly status. In
fact, Metropolitan does face competition within portions of its
service area from another private utility company and from
municipal utility companies. Metropolitan was organized in 1874, 39
years before Pennsylvania's adoption of its first utility
regulatory scheme in 1913. There is no indication that it faced any
greater competition in 1912 than today. As petitioner admits, such
public utility companies are natural monopolies created by the
economic forces of high threshold capital requirements and
virtually unlimited economy of scale. Burdick, The Origin of the
Peculiar Duties of Public Service Companies, 11 Col.L.Rev. 514
(1911); H. Trachsel, Public Utility Regulation 7-8, 52 (1947).
Regulation was superimposed on such natural monopolies as a
substitute for competition and not to eliminate it:
"The primary object of the Public Utility Law is not to
establish monopolies or to guarantee the security of investments in
public service corporations, but to serve the interests of the
public."
Highway Express Lines, Inc. v. Pennsylvania Public Utility
Comm'n, 195 Pa.Super. 92, 100, 169 A.2d 798, 802 (1961);
cf. Pottsville Union Traction Co. v. Public Service
Comm'n, 67 Pa.Super. 301, 304 (1917).
[
Footnote 9]
The argument has been impliedly rejected by this Court on a
number of occasions.
See, e.g., Civil Rights Cases,
109 U. S. 3,
109 U. S. 8
(1883). It is difficult to imagine a regulated activity more
essential or more "clothed with the public interest" than the
maintenance of schools, yet we stated in
Evans v. Newton,
382 U. S. 296,
382 U. S. 300
(1966):
"The range of governmental activities is broad and varied, and
the fact that government has engaged in a particular activity does
not necessarily mean that an individual entrepreneur or manager of
the same kind of undertaking suffers the same constitutional
inhibitions. While a State may not segregate public schools so as
to exclude one or more religious groups, those sects may maintain
their own parochial educational systems."
[
Footnote 10]
See n 1,
supra. The same provision appeared in all of
Metropolitan's prior general tariffs. The sole reason for
substituting the new general tariff, which contains all the terms
and conditions of Metropolitan's service, was to procure a rate
increase. This was the sole change between Metropolitan's
Electrical Tariff No. 41 and its predecessor.
[
Footnote 11]
Petitioner does not contest the fact that Metropolitan had this
right at common law before the advent of regulation. Brief for
Petitioner 31.
[
Footnote 12]
Petitioner concedes that the hearing was solely devoted to the
question of the proposed rate increase.
Id. at 30.
[
Footnote 13]
See Pa.Stat.Ann., Tit. 66, § 1148 (1959); Pa.P.U.C.
Tariff Regulations, § II, "Public Notice of Tariff Changes." These
provisions specify that utility companies must give 60 days' notice
to the public before changing their rules filed in their general
tariff. Since Pa.Stat.Ann., Tit. 66, § 1171 (1959), provides
that,
"[s]ubject to . . . the regulations or orders of the commission,
every public utility may have reasonable rules and regulations
governing the conditions under which it shall be required to render
service,"
the Commission arguably had the power to disapprove utility
rules. There is no evidence that it has ever even considered the
provision in question. When the 60-day notice period passed, the
provisions became effective.
[
Footnote 14]
Pennsylvania P.U.C. Tariff Regulations, § VIII, "Discount for
Prompt Payment and Penalties for Delayed Payment of Bills," is the
only authority cited for a state-imposed requirement that
Metropolitan file its termination provision as part of its general
tariff. This section requires the filing of "penalties" imposed
upon customers for failures to pay bills promptly. Respondent
argues that this applies only to monetary penalties. There is no
Pennsylvania case law on the question.
[
Footnote 15]
"The only apparent state involvement with the activity
complained of here is in Tariff Reg. VIII of the Pennsylvania P. U.
C. . . . [T]he purpose of Tariff Reg. VIII is to insure that public
utilities inform their patrons of any possible penalty for failing
to pay their bills. As in
Kadlec, defendant here acted
pursuant to its own regulations and out of a purely private,
economic motive. No state official participated in the practice
complained of, nor is it alleged that the state requested or
cooperated in the suspension of service."
348 F.
Supp. at 958.
[
Footnote 16]
See 343 U.S. at
343 U. S. 462.
At one point, the Court states:
"We find in the reasoning of the court below a sufficiently
close relation between the Federal Government and the radio service
to make it necessary for us to consider those Amendments."
Ibid. Later, the opinion states:
"We, therefore, find it appropriate to examine into what
restriction, if any, the First and Fifth Amendments place upon the
Federal Government . . .
assuming that the action of
Capital Transit . . . amounts to sufficient Federal Government
action to make the First and Fifth Amendments applicable
thereto."
Id. at 462-463. (Emphasis added.) The Court then went
on to find no constitutional violation in the challenged
action.
[
Footnote 17]
As in
Moose Lodge No. 107 v. Irvis, 407 U.
S. 163,
407 U. S. 173
(1972), there is no suggestion in this record that the Pennsylvania
Public Utility Commission intended either overtly or covertly to
encourage the practice.
See n 15,
supra.
MR. JUSTICE DOUGLAS, dissenting.
I reach the opposite conclusion from that reached by the
majority on the state action issue.
The injury alleged took place when respondent discontinued its
service to this householder without notice or opportunity to remedy
or contest her alleged default, even though its tariff provided
that respondent might "discontinue its service on reasonable
notice." [
Footnote 2/1] May a State
allow a utility -- which in this case has no competitor -- to
exploit its monopoly in violation of its own tariff? May a utility
have complete immunity under federal law when the State allows its
regulatory agency to become the prisoner of the utility or, by a
listless attitude of no concern, to permit the utility to use its
monopoly power in a lawless way?
In
Burton v. Wilmington Parking Authority, 365 U.
S. 715 (1961), we said:
"Only by sifting facts and weighing circumstances can the
nonobvious involvement of the
Page 419 U. S. 360
State in private conduct be attributed its true
significance."
Id. at
365 U. S. 722.
A particularized inquiry into the circumstances of each case is
necessary in order to determine whether a given factual situation
falls within "the variety of individual-state relationships which
the [Fourteenth] Amendment was designed to embrace."
Ibid.
As our subsequent discussion in
Burton made clear, the
dispositive question in any state action case is not whether any
single fact or relationship presents a sufficient degree of state
involvement, but rather whether the aggregate of all relevant
factors compels a finding of state responsibility. [
Footnote 2/2]
Id. at
365 U. S.
722-726.
See generally Moose Lodge No. 107 v.
Irvis, 407 U. S. 163
(1972).
It is not enough to examine
seriatim each of the
factors upon which a claimant relies and to dismiss each
individually as being insufficient to support a finding of state
action. It is the aggregate that is controlling.
It is said that the mere fact of respondent's monopoly status,
assuming
arguendo that that status is state conferred or
state protected, [
Footnote 2/3]
"is not determinative in considering
Page 419 U. S. 361
whether Metropolitan's termination of service to petitioner was
'state action' for purposes of the Fourteenth Amendment."
Ante at
419 U. S.
351-352. Even so, a state-protected monopoly status is
highly relevant in assessing the aggregate weight of a private
entity's ties to the State. [
Footnote
2/4]
It is said that the fact that respondent's services are
"affected with a public interest" is not determinative. I agree
that doctors, lawyers, and grocers are not transformed into state
actors simply because they provide arguably essential goods and
services and are regulated by the State. In the present case,
however, respondent is not just one person among many; it is the
only public utility furnishing electric power to the city. When
power is denied a householder, the home, under modern conditions,
is likely to become unlivable.
Respondent's procedures for termination of service may never
have been subjected to the same degree of state scrutiny and
approval, whether explicit or implicit, that was present in
Public Utilities Comm'n v. Pollak, 343 U.
S. 451 (1952). Yet, in the present case, the State is
heavily involved in respondent's termination procedures, getting
into the approved tariff a requirement of "reasonable notice."
Pennsylvania has undertaken to regulate numerous aspects of
respondent's operations in some detail, [
Footnote 2/5]
Page 419 U. S. 362
and a "hands-off" attitude of permissiveness or neutrality
toward the operations in this case is at war with the state
agency's functions of supervision over respondent's conduct in the
area of servicing householders, particularly where (as here) the
State would presumably lend its weight and authority to facilitate
the enforcement of respondent's published procedures.
Cf.
Adickes v. S.H. Kress & Co., 398 U.
S. 144 (1970);
Reitman v. Mulkey, 387 U.
S. 369 (1967);
Railway Employes' Dept v.
Hanson, 351 U. S. 225
(1956);
Shelley v. Kraemer, 334 U. S.
1 (1948).
In the aggregate, these factors depict a monopolist providing
essential public services as a licensee of the State and within a
framework of extensive state supervision and control. The
particular regulations at issue, promulgated by the monopolist,
were authorized by state law and were made enforceable by the
weight and authority of the State. Moreover, the State retains the
power of oversight to review and amend the regulations if the
public interest so requires. Respondent's actions are sufficiently
intertwined with those of the State, and its termination of service
provisions are sufficiently buttressed by state law to warrant a
holding that respondent's actions in terminating this householder's
service were "state action" for the purpose of giving federal
jurisdiction over respondent under 42 U.S.C. § 1983. Though the
Court pays lipservice to the need for assessing the totality of the
State's involvement in this enterprise,
ante at
419 U. S. 358,
its underlying analysis is
Page 419 U. S. 363
fundamentally sequential, rather than cumulative. In that
perspective, what the Court does today is to make a significant
departure from our previous treatment of state action issues.
Mr. Justice Brandeis, in
Liggett Co. v. Lee,
288 U. S. 517
(1933), in speaking of the competition among the States to ease the
opportunities and methods of incorporation, said: "The race was one
not of diligence, but of laxity."
Id. at
288 U. S. 559
(dissenting opinion). One has only to peruse the 84-part Utility
Corporations Report by the Federal Trade Commission (under the
direction of its able counsel the late Robert E. Healy) to realize
that state regulation of utilities has largely made state
commissions prisoners of the utilities.
See especially
S.Doc. No. 92, 70th Cong., 1st Sess., pt. 73-A (1936); and
see
id. pt. 72-A, p. 880. In this connection, it should be noted
that successful attempts by public utilities to exclude themselves
from the antitrust laws have been based on the assertion that their
monopoly activity constitutes "state action."
See Washington
Gas Light Co. v. Virginia Electric & Power Co., 438 F.2d
248, 250-252 (CA4 1971);
Gas Light Co. of Columbus v. Georgia
Power Co., 440 F.2d 1135, 1138-1140 (CA5 1971).
By like token, the tariff prescribing termination of service
procedures was possible only because of "state action." And it
would be compatible only with administrative abdication of
authority to equate "administrative silence with abandonment of
administrative duty."
Washington Gas Light Co. v. Virginia
Electric & Power Co., supra, at 252.
Section 1983 was designed to give citizens a federal forum
[
Footnote 2/6] for civil rights
complaints wherever, by direct or
Page 419 U. S. 364
indirect actions, a State, acting "in cahoots" with a private
group or through neglect or listless oversight, allows a private
group to perpetrate an injury. The theory is that, in those cozy
situations, local politics and the pressure of economic overlords
on subservient state agencies make recovery in state courts
unlikely. I realize we are in an area where we witness a great
retreat from the exercise of federal jurisdiction which the
Congress has conferred on federal courts. The sentiment here is
that state courts are as hospitable as federal courts to federal
claims. That may well be true, in some instances. But it is for the
Senate and the House to make that decision. We should not tolerate
an erosion of the policy Congress expressed in drafting § 1983.
Section 1983 addresses itself to grievances inflicted "under
color of any statute, ordinance, [or] regulation . . . of any
State. . . ." The regulatory regime imposed by Pennsylvania on
respondent utility seems to fit this statute like a glove.
Electrical service, being a necessity of life under the
circumstances of this case, is an entitlement which under our
decisions may not be taken without the requirements of procedural
due process.
Fuentes v. Shevin, 407 U. S.
67,
407 U. S. 80
(1972);
Goldberg v. Kelly, 397 U.
S. 254 (1970);
Palmer v. Columbia Gas of Ohio,
Inc., 479 F.2d 153 (CA6 1973).
[
Footnote 2/1]
Rule 15 of the tariff provides in part:
"Company reserves the right to discontinue its service on
reasonable notice and to remove its equipment in case of nonpayment
of bill or violation of the Pennsylvania Public Utility
Commission's or Company's Rules and Regulations; or, without
notice, for abuse, fraud, or tampering with the connections, meters
or other equipment of Company. Failure by Company to exercise this
right shall not be deemed a waiver thereof."
[
Footnote 2/2]
The court below in
Burton had relied heavily on a
number of facts indicating minimal state involvement, but we
regarded that court's analysis as unduly restricted in its
scope:
"While these factual considerations are indeed validly
accountable aspects of the enterprise upon which the State has
embarked, we cannot say that they lead inescapably to the
conclusion that state action is not present. Their persuasiveness
is diminished when evaluated in the context of other factors which
must be acknowledged."
365 U.S. at
365 U. S.
723
After discussing those additional factors in greater detail, we
concluded:
"Addition of all these activities, obligations and
responsibilities of the Authority, the benefits mutually conferred,
together with the obvious fact that the restaurant is operated as
an integral part of a public building devoted to a public parking
service, indicates that degree of state participation and
involvement in discriminatory action which it was the design of the
Fourteenth Amendment to condemn."
Id. at
365 U. S.
724.
[
Footnote 2/3]
It seems irrelevant that Metropolitan was organized prior to the
inauguration of utility regulation in Pennsylvania, and that a
utility of this sort is, for all practical purposes, a natural
monopoly. Whatever its origins, the existing situation presents a
monopoly enterprise subject to detailed state regulation; the
nature and extent of that regulation take on particular
significance in light of the lack of any alternative source of
service available to Metropolitan's customers.
[
Footnote 2/4]
Our disclaimer of reliance upon this factor in
Public
Utilities Comm'n v. Pollak, 343 U. S. 451,
343 U. S. 462
(1952), should not be read as holding that monopoly status is
wholly irrelevant; the "disclaimer," on its face, simply states
that monopoly status was not used as an ingredient of the finding
of federal governmental involvement in that case.
[
Footnote 2/5]
The Public Utility Commission is given extensive control over
utility rates, Pa.Stat.Ann., Tit. 66, § 1141
et seq. (1959
and Supp. 1974-1975), and over the character and quality of utility
services and facilities, §§ 1171, 1182-1183; it is given broad
power to receive and investigate complaints, §§ 1391, 1398, and to
regulate and supervise the activities, rules, and contractual
undertakings of utilities, §§ 1171, 1341-1343, 1360.
[
Footnote 2/6]
There is no requirement for an exhaustion of state remedies
before suing under § 1983 (
see Wilwording v. Swenson,
404 U. S. 249
(1971)), though suggestions for statutory changes in that regard
have been made. Judd, The Expanding Jurisdiction of the Federal
Courts, 60 A.B.A.J. 938, 941 (1974).
MR. JUSTICE BRENNAN, dissenting.
I do not think that a controversy existed between petitioner and
respondent entitling petitioner to be heard in this action. Under
Pennsylvania law, respondent's duty under Pa.Stat.Ann., Tit. 66, §
1171 (1959), to provide service was limited by § 25 of the General
Rules and Regulations, the Electric Service Tariff, on file with
the
Page 419 U. S. 365
Pennsylvania Public Utility Commission, to provision of such
service only to "customers," defined as "[a]ny person[s] . . .
lawfully receiving service from [the] Company." Petitioner, as the
Court notes, ceased being a "customer" in September, 1970, when her
account was terminated for nonpayment of bills. That termination
was pursuant to Rule 15 of the tariff quoted by the Court in
n 1. From September, 1970, to
September, 1971, respondent's "customer" was James Dodson; and his
delinquency in payment for service during that period, not
petitioner's delinquency before September, 1970, was the occasion
for the termination of service on October 11, 1971. An effort by
petitioner at that time to have service continued if she paid $30
on account on her delinquent 1970 bill failed when respondent
rejected the offer and shut off the service. In these
circumstances, petitioner had no basis, in my view, for the claimed
entitlement under § 1171 quoted by the Court in
n 2, and therefore no controversy existed between
petitioner and respondent which could be the subject of her action.
I would therefore intimate no view upon the correctness of the
holdings below whether the termination of service on October 11,
1971, constituted state action, but would vacate the judgment of
the Court of Appeals with direction that the case be remanded to
the District Court with instruction to enter a new judgment
dismissing the complaint.
See Golden v. Zwickler,
394 U. S. 103,
394 U. S.
109-110 (1969).
MR. JUSTICE MARSHALL, dissenting.
I agree with my Brother BRENNAN that this case is a very poor
vehicle for resolving the difficult and important questions
presented today. The confusing sequence of events leading to the
challenged termination makes it unclear whether petitioner has a
property right under state law to the service she was receiving
from the
Page 419 U. S. 366
respondent company. Because these complexities would seriously
hamper resolution of the merits of the case, I would dismiss the
writ as improvidently granted. Since the Court has disposed of the
case by finding no state action, however, I think it appropriate to
register my dissent on that point.
I
The Metropolitan Edison Co. provides an essential public service
to the people of York, Pa. It is the only entity, public or
private, that is authorized to supply electric service to most of
the community. As a part of its charter to the company, the State
imposes extensive regulations, and it cooperates with the company
in myriad ways. Additionally, the State has granted its approval to
the company's mode of service termination -- the very conduct that
is challenged here. Taking these factors together, I have no
difficulty finding state action in this case. As the Court
concluded in
Burton v. Wilmington Parking Authority,
365 U. S. 715,
365 U. S. 725
(1961), the State has sufficiently
"insinuated itself into a position of interdependence with [the
company] that it must be recognized as a joint participant in the
challenged activity."
Our state action cases have repeatedly relied on several factors
clearly presented by this case: a state-sanctioned monopoly; an
extensive pattern of cooperation between the "private" entity and
the State; and a service uniquely public in nature. Today the Court
takes a major step in repudiating this line of authority, and
adopts a stance that is bound to lead to mischief when applied to
problems beyond the narrow sphere of due process objections to
utility terminations.
A
When the State confers a monopoly on a group or organization,
this Court has held that the organization assumes many of the
obligations of the State.
Railway
Page 419 U. S. 367
Employes' Dept. v. Hanson, 351 U.
S. 225 (1956). Even when the Court has not found state
action based solely on the State's conferral of a monopoly, it has
suggested that the monopoly factor weighs heavily in determining
whether constitutional obligations can be imposed on formally
private entities.
See Steele v. Louisville & Nashville R.
Co., 323 U. S. 192
(1944). Indeed, in
Moose Lodge No. 107 v. Irvis,
407 U. S. 163,
407 U. S. 177
(1972), the Court was careful to point out that the Pennsylvania
liquor licensing scheme "falls far short of conferring upon club
licensees a monopoly in the dispensing of liquor in any given
municipality or in the State as a whole."
The majority distinguishes this line of cases with a cryptic
assertion that public utility companies are "natural monopolies."
Ante at
419 U. S.
351-352, n. 8. The theory behind the distinction appears
to be that, since the State's purpose in regulating a natural
monopoly is not to aid the company, but to prevent its charging
monopoly prices, the State's involvement is somehow less
significant for state action purposes. I cannot agree that so much
should turn on so narrow a distinction. Initially, it is far from
obvious that an electric company would not be subject to
competition if the market were unimpeded by governmental
restrictions. Certainly the "start-up" costs of initiating electric
service are substantial, but the rewards available in a relatively
inelastic market might well be sufficient under the right
circumstances to attract competitive investment. Instead, the State
has chosen to forbid the high profit margins that might invite
private competition or increase pressure for state ownership and
operation of electric power facilities.
The difficulty inherent in this kind of economic analysis
counsels against excusing natural monopolies from the reach of
state action principles. To invite inquiry into whether a
particular state-sanctioned monopoly might have survived without
the State's express approval
Page 419 U. S. 368
grounds the analysis in hopeless speculation. Worse, this
approach ignores important implications of the State's policy of
utilizing private monopolies to provide electric service.
Encompassed within this policy is the State's determination not to
permit governmental competition with the selected private company,
but to cooperate with and regulate the company in a multitude of
ways to ensure that the company's service will be the functional
equivalent of service provided by the State. [
Footnote 3/1]
B
The pattern of cooperation between Metropolitan Edison and the
State has led to significant state involvement in virtually every
phase of the company's business. The majority, however, accepts the
relevance of the State's regulatory scheme only to the extent that
it demonstrates state support for the challenged termination
procedure. Moreover, after concluding that the State in this case
had not approved the company's termination procedures, the majority
suggests that even state authorization and approval would not be
sufficient: the State would apparently have to
order the
termination practice in question to satisfy the majority's state
action test,
see ante at
419 U. S.
357.
Page 419 U. S. 369
I disagree with the majority's position on three separate
grounds. First, the suggestion that the State would have to "put
its own weight on the side of the proposed practice by ordering it"
seems to me to mark a sharp departure from our previous
State-action cases. From the
Civil Rights Cases,
109 U. S. 3 (1883),
to
Moose Lodge, supra, we have consistently indicated that
state authorization and approval of "private" conduct would support
a finding of state action. [
Footnote
3/2]
Second, I question the wisdom of giving such short shrift to the
extensive interaction between the company and the State, and
focusing solely on the extent of state support for the particular
activity under challenge. In cases where the State's only
significant involvement is through financial support or limited
regulation of the private entity, it may be well to inquire whether
the
Page 419 U. S. 370
State's involvement suggests state approval of the objectionable
conduct.
See Powe v. Miles, 407 F.2d 73, 81 (CA2 1968);
Grossner v. Trustees of Columbia
University, 287 F.
Supp. 535, 547-548 (SDNY 1968). But where the State has so
thoroughly insinuated itself into the operations of the enterprise,
it should not be fatal if the State has not affirmatively
sanctioned the particular practice in question.
Finally, it seems to me, in any event, that the State has given
its approval to Metropolitan Edison's termination procedures. The
State Utility Commission approved a tariff provision under which
the company reserved the right to discontinue its service on
reasonable notice for nonpayment of bills.
The majority attempts to make something of the fact that the
tariff provision was not challenged in the most recent Utility
Commission hearings, and that it had apparently not been challenged
before. But the provision had been included in a tariff required to
be filed and approved by the State pursuant to statute. That it was
not seriously questioned before approval does not mean that it was
not approved. It suggests, instead, that the Commission was
satisfied to permit the company to proceed in the termination area
as it had done in the past. The majority's test puts potential
plaintiffs in a difficult position: if the Commission approves the
tariff without argument or a hearing, the State has not
sufficiently demonstrated its approval and support for the
company's practices. If, on the other hand, the State challenges
the tariff provision on the ground, for example, that the
"reasonable notice" does not meet the standards of fairness that it
expects of the utility, then the State has not put its weight
behind the termination procedure employed by the company, and again
there is no state action. Apparently, authorization and approval
would require the
Page 419 U. S. 371
kind of hearing that was held in
Pollak, where the
Public Utilities Commission expressly stated that the bus company's
installation of radios in buses and streetcars was not inconsistent
with the public convenience, safety, and necessity. I am afraid
that the majority has, in effect, restricted
Pollak to its
facts if it has not discarded it altogether. [
Footnote 3/3]
C
The fact that the Metropolitan Edison Co. supplies an essential
public service that is in many communities supplied by the
government weighs more heavily for me than for the majority. The
Court concedes that state action might be present if the activity
in question were "traditionally associated with sovereignty," but
it then undercuts that point by suggesting that a particular
service is not a public function if the State in question has not
required that it be governmentally operated. This reads the "public
function" argument too narrowly. The whole point of the "public
function" cases is to look behind the State's decision to provide
public services through private parties.
See Evans v.
Newton, 382 U. S. 296
(1966);
Terry v. Adams, 345 U. S. 461
(1953);
Marsh v. Alabama, 326 U.
S. 501 (1946). In my view, utility service is
traditionally identified with the State through universal public
regulation or ownership to a degree sufficient to render it a
"public function."
Page 419 U. S. 372
I agree with the majority that it requires more than a finding
that a particular business is "affected with the public interest"
before constitutional burdens can be imposed on that business. But
when the activity in question is of such public importance that the
State invariably either provides the service itself or permits
private companies to act as state surrogates in providing it, much
more is involved than just a matter of public interest. In those
cases, the State has determined that, if private companies wish to
enter the field, they will have to surrender many of the
prerogatives normally associated with private enterprise and behave
in many ways like a governmental body. And when the State's
regulatory scheme has gone that far, it seems entirely consistent
to impose on the public utility the constitutional burdens normally
reserved for the State.
Private parties performing functions affecting the public
interest can often make a persuasive claim to be free of the
constitutional requirements applicable to governmental institutions
because of the value of preserving a private sector in which the
opportunity for individual choice is maximized.
See Evans v.
Newton, supra, at
382 U. S. 298;
H. Friendly, The
Dartmouth College Case and the
Public-Private Penumbra (1969). Maintaining the private status of
parochial schools, cited by the majority, advances just this value.
In the due process area, a similar value of diversity may often be
furthered by allowing various private institutions the flexibility
to select procedures that fit their particular needs.
See Wahba
v. New York University, 492 F.2d 96, 102 (CA2),
cert.
denied, post, p. 874. But it is hard to imagine any such
interests that are furthered by protecting privately owned public
utility companies from meeting the constitutional standards that
would apply if the companies were state owned. The values of
pluralism and diversity are
Page 419 U. S. 373
simply not relevant when the private company is the only
electric company in town.
II
The majority's conclusion that there is no state action in this
case is likely guided in part by its reluctance to impose on a
utility company burdens that might ultimately hurt consumers more
than they would help them. Elaborate hearings prior to termination
might be quite expensive, and for a responsible company there might
be relatively few cases in which such hearings would do any good.
The solution to this problem, however, is to require only
abbreviated pre-termination procedures for all utility companies,
not to free the "private" companies to behave however they see fit.
At least on occasion, utility companies have failed to demonstrate
much sensitivity to the extreme importance of the service they
render, and in some cities, the percentage of error in service
termination is disturbingly high.
See Palmer v. Columbia Gas
Co. of Ohio, Inc., 342 F.
Supp. 241, 243 (ND Ohio 1972)
aff'd, 479 F.2d 153 (CA6
1973);
Bronson v. Consolidated Edison Co., 350 F.
Supp. 443, 448 (SDNY 1972). [
Footnote 3/4] Accordingly, I think that, at the minimum,
due process would require advance notice of a proposed termination
with a clear indication that a responsible company official can
readily be contacted to consider any claim of error
III
What is perhaps most troubling about the Court's opinion is that
it would appear to apply to a broad range of claimed constitutional
violations by the company. The Court has not adopted the notion,
accepted elsewhere, that different standards should apply to
state
Page 419 U. S. 374
action analysis when different constitutional claims are
presented.
See Adickes v. S. H. Kress & Co.,
398 U. S. 144,
398 U. S.
190-191 (1970) (BRENNAN, J., concurring and dissenting);
Grafton v. Brooklyn Law School, 478 F.2d 1137, 1142 (CA2
1973). Thus, the majority's analysis would seemingly apply as well
to a company that refused to extend service to Negroes, welfare
recipients, or any other group that the company preferred, for its
own reasons, not to serve. I cannot believe that this Court would
hold that the State's involvement with the utility company was not
sufficient to impose upon the company an obligation to meet the
constitutional mandate of nondiscrimination. Yet nothing in the
analysis of the majority opinion suggests otherwise.
I dissent.
[
Footnote 3/1]
The State's regulatory pattern makes it amply clear that it
expects utility companies to behave more like governmental entities
than private corporations. The rates are fixed by the Public
Utility Commission, as are the standards of service and the
company's system of accounting. Pa.Stat.Ann., Tit. 66, §§ 1141,
1149, 1171, 1182, 1183, 1211 (1959). The character of the
facilities is subject to state approval and continuing supervision,
and the State also requires that the service "shall be reasonably
continuous and without unreasonable interruptions or delay." §
1171. The certificate of public convenience confers certain eminent
domain rights upon the company, § 1124 (Supp. 1974-1975), as well
as the right of entry onto a customer's property to maintain and
inspect its equipment. Pa. P.U.C. Electric Regulations, Rule
14D.
[
Footnote 3/2]
In the
Civil Rights Cases, the Court suggested that
state action might be found if the conduct in question were
"sanctioned in some way by the State," 109 U.S. at
109 U. S. 17.
Later cases made it clear that the State's sanction did not need to
be in the form of an affirmative command.
McCabe v. Atchison,
T. & S. F. R. Co., 235 U. S. 151
(1914);
Nixon v. Condon, 286 U. S. 73
(1932);
Public Utilities Comm'n v. Pollak, 343 U.
S. 451 (1952). In
Burton v. Wilmington Parking
Authority, 365 U. S. 715,
365 U. S. 725
(1961), the Court noted that, by its inaction, the State had
"elected to place its power, property and prestige behind the
admitted discrimination," although the State did not actually order
the discrimination.
See id. at
365 U. S.
726-727 (STEWART, J., concurring). And in
Reitman v.
Mulke, 387 U. S. 369,
387 U. S. 381
(1967), the Court based its "state action" ruling on the fact that
the California constitutional provision "was intended to authorize,
and does authorize, racial discrimination in the housing market."
Even in
Moose Lodge No. 107 v. Irvis, 407 U.
S. 163,
407 U. S.
176-177 (1972), the Court suggested that, if the State's
regulation had in any way fostered or encouraged racial
discrimination, a state action finding might have been justified.
Certainly this is a less rigid standard than the Court's
requirement in this case that the Public Utility Commission be
shown to have ordered the challenged conduct, not merely to have
approved it.
[
Footnote 3/3]
I cannot accept the majority's characterization of
Pollak as not necessarily deciding the state action
question there presented.
Ante at
419 U. S. 356.
Whatever doubt on that score may have been created by the original
opinion has long since been resolved by this Court.
See Evans
v. Newton, 382 U. S. 296,
382 U. S. 301
(1966);
id. at
382 U. S.
319-320 (Harlan, J., dissenting);
Columbia
Broadcasting System, Inc. v. Democratic National Committee,
412 U. S. 94,
412 U. S. 119
(1973) (opinion of BURGER, C.J.);
id. at
412 U. S. 133
(STEWART, J., concurring).
[
Footnote 3/4]
In Bronson, Judge Tyler noted that the state utility commission
had found that 16% of the complaints investigated resulted in
adjustments in favor of the customer. 350 F. Supp. at 448 n.
11.