Fisher v. City of Berkeley

RESPONDENT: City of Berkeley
LOCATION: Kings County Superior Court: Hanford Courthouse

DOCKET NO.: 84-1538
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: Supreme Court of California

CITATION: 475 US 260 (1986)
ARGUED: Nov 12, 1985
DECIDED: Feb 26, 1986

Jon Smock - on behalf of Appellants
Laurence H. Tribe - on behalf of Appellees

Facts of the case


Media for Fisher v. City of Berkeley

Audio Transcription for Oral Argument - November 12, 1985 in Fisher v. City of Berkeley

Warren E. Burger:

Mr. Smock, I think you may proceed whenever you're ready.

Jon Smock:

Mr. Chief Justice, and may it please the Court:

This case comes before this Court on appeal from a decision of the California Supreme Court.

The California court upheld a local price-fixing ordinance adopted without benefit of any authorizing state legislation.

The ordinance plainly in our view places irresistible pressure on the owners of 23,000 private rental units in the city of Berkeley to coalesce and combine in obedience to that ordinance.

Berkeley makes it a crime to engage in conduct which federal law commands.

The ordinance is plainly in conflict with both the letter and spirit of overriding policy favoring price competition in the marketplace, a policy mandated by Section 1 of the Sherman Act, the Magna Carta of free enterprise.

We seek reversal of the California decision because it is plainly wrong.

The decision is wrong because it ignores the intent of Congress in the recent enactment of the Local Government Antitrust Act of 1984, an Act that expressly refused to grant the very same exemption sought by Berkeley before this Court, and an Act, I might add, that was not even cited by the California court in its opinion.

The decision is wrong because it validates local anticompetitive action, here naked price-fixing, in the complete absence of any state authorizing legislation.

It is wrong because it creates a new and untested rule for the determination of the municipal exemption from federal antitrust policy, ignoring the teachings of this Court in its Boulder and Lafayette opinions.

Indeed, the only redeeming virtue of this decision is its candid admission that it found itself, in its own words,

"forced to wander off the map without benefit of trail or compass. "

Byron R. White:

What was your allegation when you... you brought this suit, I take it?

Jon Smock:

The suit was filed, Justice White, in the Superior Court in 1980 prior to this Court's decision in Boulder.

Byron R. White:

What was your claim?

Jon Smock:

The claim was for facial invalidity of the ordinance.

Byron R. White:

Because of?

Jon Smock:

Because of constitutional deficiencies of a number of sorts: due process, equal protection, and several others.

We did not at that time specifically raise the antitrust issue.

Byron R. White:

But you did later?

Jon Smock:

But we did later, and it was fully considered by the California Supreme Court.

Byron R. White:

How did you raise it?

Did you say that this ordinance violates the Sherman Act?

Jon Smock:

Not in terms of violation.

We raised it in terms of preemption.

Byron R. White:

Well, I know.

But how could it be preempted if it wasn't in conflict with the Sherman Act, if it wasn't violative of the Sherman Act?

Jon Smock:

We don't believe, Your Honor, that a strict violation is necessary because the policy underlying the Sherman Act is for free competition in the marketplace.

Here you have local regulation, adopted without benefit of state authorization, ignoring this Court's test in Boulder, and we believe that that constitutes preemption.