| Jackson v. Metropolitan Edison Co.
(No. 73-5845)
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| Syllabus
| Opinion
[ Rehnquist ] | Dissent
[ Douglas ] | Dissent
[ Brennan ] | Dissent
[ Marshall ] |
| HTML version
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Jackson v. Metropolitan Edison Co.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
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." [n1] 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 [p360] State in private conduct be attributed its true significance.
Id. at 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. [n2] Id. at 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, [n3]
is not determinative in considering [p361] whether Metropolitan's termination of service to petitioner was "state action" for purposes of the Fourteenth Amendment.
Ante at 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. [n4]
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, [n5] [p362] 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 358, its underlying analysis is [p363] 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 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 [n6] for civil rights complaints wherever, by direct or [p364] 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, 80 (1972); 407 U.S. 67, 80 (1972); Goldberg v. Kelly, 397 U.S. 254 (1970); Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153 (CA6 1973).
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.
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 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 724.
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.
4. Our disclaimer of reliance upon this factor in Public Utilities Comm'n v. Pollak, 343 U.S. 451, 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.
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.
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).
