Alvin Lucas, on Behalf of Himself and All Others Similarly Situated v. Wisconsin Electric Power Company, a Wisconsin Public Utility Company

96 L.Ed. аp manifestly becomes thus hearing evidentiary was parent that an de necessary nor warranted

neither to the consid the facts essential

termine constitutional issues eration err did not

presented, the court and that refusing one. See grant Townsend 9 L. Sain, (1963); Ermen Van Ed.2d 1968). (7th Burke, Cir. F.2d 329 complains, appeal petitioner

On court time, district first trav to file a ordered him should proce This respondent's return. erse to presented point never was dural But late. too comes district court and totally timely, find it we even respondent’s re A traverse

merit. pleading under 28 permissive turn ais nec order is no court U.S.C. § 81(a), Fed.R.Civ.P.

essary. See Rule

Affirmed. LUCAS,

Alvin behalf of himself on situated, similarly all others Plaintiff- Appellant,

WISCONSIN POWER ELECTRIC COM PANY, public utility a Wisconsin com pany, al., Defendants-Appellees. et

No. 71-1113.

United Appeals, States Court

Seventh Circuit.

Argued May En Banc 1972.* Aug. 2,

Decided 8, 1973. Denied Jan.

Certiorari See 93 S.Ct. 928. * January Judge the Northern A. Grant of originally Robert This heard case by designation. Indiana, sitting panel District this court con- before a rehearing subsequently en Knoch, Judge sisting set It was of Senior Circuit Judge Sprecher, banc. District and Chief Circuit Wilson, Wis., Milwaukee,

Mark E. plaintiff-appellant. for Wis., Gorske, Milwaukee, Robert H. Warren, Gen., Madison, Atty. Robert W. Ray Wis., Rodgers, Counsel, Paul Gen. Counsel, Druley, Deputy M. Asst. Gen. Utility Regulatory National Assoc. Comnrs., C., Washington, for defend- D. ants-appellees. Judge, SWYGERT,

Before Chief EILEY, ENOCH, Judge, Circuit Senior PELL, FAIRCHILD, CUMMINGS, SPRECHER, STEVENS Circuit Judges. Judge.

STEVENS, Circuit appeal dispute This arises out of a monthly billing plaintiff’s over of $9.89 residential electric service for No- vember, question presented 1969. The Company’s pro- is whether the Power posed resolving dispute— method of by terminating plaintiff’s unless service disputed paid five bill within days proscribed by 1 of the Civil § —is Rights Act of 17 Stat. now protects 42 U.S.C. 1983.1 The statute Although changes there were minor citizen of the United States or other person language jurisdiction of the statute when it was within the thereof deprivation any rights, privileges, codified as § 1979 of the Revised Statutes 1874-1878, it has thereafter remained or immunities secured the Constitu- unchanged. laws, It now reads: tion and shall be liable to the “Every person who, any party injured law, under color of in an action suit statute, ordinance, regulation, custom, proper proceeding equity, or other usage, any Territory, State or redress.” subjects, any subjected, or causes to be alleged arrearage. plaintiff deprivation pay of his fused to rights de- notified course the Power federal constitutional acting him that his would be discon- “under color stat- fendant ordinance, regulation, custom, July ute, nected on

usage” of the State of Wisconsin. filing complaint July After his plaintiff temporary prоposes for a to act moved Because defendant restraining resolved, parties appar- dispute order. before has been agreed ently informally that his service contends he will be de- litigation liberty prived property due would continue while law;2 days process proposed pending.3 later, plaintiff A few because join complaint termination amended his com- is consistent discon- approved missioners the Wisconsin Public nect rules which have been de- Public Commis- Service Commission individual Service sion, complaint fendants. contends that Power Com- amended argument pany’s “under his in this he em- threat is made color of” court phasized impartial We con- absence “an law. shall consider both describing background dispute decision tentions after maker” to resolve the particular dispute before of this service and the Pow- could be discontinued.4 Company’s procedures er disconnect as The defendant commissioners moved approved the Wisconsin Commission. ground complaint to dismiss the on the provisions that the relevant of the Wis- I. provide consin Administrative Code “do 599,051 Plaintiff is one of the cus- process plaintiff law tomers of the defendant Wisconsin Elec- similarly all The motion situated.” Company. represen- tric As a Power supported by describing the affidavits class, tative also on his regulations own commission’s disconnect behalf, complaint he July filed a on the rules of the defendant Power Com- 1970, requesting three-judge relating court pany collections. The affi- enjoin be convened to the enforcement davits also described both formal and 113.13(4) regulations of the § procedures informal which the commis- Commission, Wisconsin Public Service employs disputes sion to resolve between prevent and to regulated utility. defendant Power Com- The customers and a pany “terminating plaintiff electrical serv- affidavits indicated that alleged arrearages ices for without procedures. had not invoked these prior, adequate hearing.” notice and required Every to furnish is complaint alleged plaintiff reasonably adequate to com- service and paid monthly had regu- bill in cash on ply variety of commission with a December but failed to obtain as detailed rules which lations well as stamped receipt. paid Thereafter each must file with commis- charges, сurrent covering consistently re- rule sion.5 The commission’s deprive any person quire attempt “[N]or shall hearing, State not he does life, liberty, property, five-day provided -without due establish that notice * * process law; regulation Company’s United is in- for Constitution, adequate. gravamen States Amendment XIV. of his com- The real plaint commission and the as to both the 3. The record discloses no formal action in pro- require Company is the failure response temporary to the for a motion re- impar- hearing prior before an vide for a order, stay requiring straining but a serv- tial decision maker. pending ice be continued tlie outcome of appeal plaintiff argues, assume, was entered some months 5. We as regulation later. the defendant Power state’s Company “pervasive.” aAs objects Although plaintiff apparently utility, Electric Power Com- Wisconsin regulation because commission’s pany operates the close and con- under specifically require a notice be does tinuing regulation given Pub- as as not re- well because unpaid If (§ “2. the arrears remain guarantees and disconnects deposits, specified period following provision the end of 113.13) contains notice disconnection by plaintiff in this specifically attacked arrangements satisfactory for litigation: made, payment have not been (a) “(4) RULE. DISCONNECT disconnected service be a cus- disconnected be Service further notice de- bill tomer’s current customer.” utility’s filed rules fined acceptance of is the commission’s period set paid reasonable within a adequate compli- these “filed rules” as rules.” forth said 113.13(4) at- ance rule, the defendant Pursuant to that tacks as unconstitutional. rules detailed had filed Power the Director affidavit among describing, regulations other Rates and Research Division of com- procedures. things, its collection in which mission described manner arrearages applicable amount- section involving service, complaints customer stated $20 to between $5 including situations required, collection action when utility threatens to invoke the discon- following steps should taken: nonpayment, rule nect handled complaints the commission. Formal sent A notice written shall “1. brought stating no less than customer, 25 to the might procedure citizens. Such a ar- is in amount the customer utility’s lead tо the notifying modification of a rears, him that and procedures, apparently disconnect if be disconnected service will purpose. has not been invoked that paid for are not with- such arrears average However, affiant days. received an in five reg- undertaking utility of service of such Relevant lie Service Commissioners. chapter shall be effective without the written ulations are found approval of the commission after hear- Wisconsin statutes: ing. 196.02 Powers of Comm’n * ** regu- “(1) supervise to and 196.37 Rates utility state, every public in this late When the commission feels that rates necessary things and all and do unjust, unreasonable, are insufficient of such in the exercise convenient unjustly discriminatory, or it can fix * * * jurisdiction. power and reasonable rates. “ * * * (4) (a) inquire into the Penalty 196.60, 196.62 management of all business provide penalties These sections for * * public utilities *. charged. for in rates discrimination * * * inspect “(g) books, accounts, records, 196.78 Dissolution papers, and any voluntarily public utility, public utility may and A not memoranda of any officer, oath, except itself, to examine under the consent dissolve * * * agent employee in rela- hearing. of the commission after a and affairs.” tion its business Merger 196.80 196.03 Service merger of utili- No consolidation utility required “(1) Every public approval permitted ties reasonably adequate service to furnish ” * * * the commission. and facilities. are, regulations 196.06 Books The Commission’s require can a uniform The commission course, than much more detailed accounting. system of statutory chapter provisions of Reports 196.12 sampling. are which the above to the must furnish The challenge Company The does not long list and of records commission regulations. power impose these state’s accounts. Illinois, Cf. Munn v. Changes 196.20 York, 77; Nebbia v. New any utility L.Ed. change rule No purports obligation L.Ed. to curtail per propounded inter- complaints detailed Plaintiff week two informal about rogatories per- Company concerning to the Power or threatened either actual resolving taining procedures It was to its service. terminations disputes the records record with customers and practice make a written relating specific request complaint plaintiff’s claim. each such response, defendant identified disconnection to withhold actual personnel Company han- who inquire intо the relevant various until he could complaints “great that dled indicated of all com- The bulk facts. during disputes pre- agree- plaints” mutual had been settled was regular reached, persons sented to other than If no settlement ment. was Company personnel. Of the total affiant the commission indicated cases, disputes presented to the in- authorized to initiate a formal were was Commission, vestigation. However, Com- he did not de- Public Service 35 to pany happened officers, had 2 to the Better Business what com- scribe Bureau, plaint to the resolved and 1 Milwaukee Jour- interrogatory agreement nal. answers stated between the customer utility. number of service terminations nonpayment of bills in 1968 and Company The defendant filed Power 9,- 10,691 respectively, specifical- complaint an answer to the then answers described ly denying payment it received great billing pro- Company’s detail plaintiff on or about December cedures, computers way in which 1969,6 admitting had noti- employed, no cus- stated that plaintiff fied his electric billings tomer were corrected plaintiff did would be discontinued errors, although computer due to to- comply Company’s filed agency tal of errors due human procedure delinquent respecting rule ac- brought had been attention counts. averred Company. re- Most the errors adequate remedy had an sulted either from incorrect meter read- courts of the State Wisconsin for ings errors; or in all clerical dispute resolution over the al- cases the errors had been corrected leged nonpayment; injunctive that re- when became known.7 inappropriate; lief was ease Company proper declaratory The defendant Power took was not either for a plaintiff’s Although deposition. judgment three-judge tes- or for a his federal accounting court; timony plaintiff’s indicated denied that claim was might significant discrepancy part typical class; have arisen in definable specifically because of move from one address either denied § January, possibly 113.13(4) another be- the rules which the Pow- Company given monthly er cause he two re- had filed had with commis- ceipts plaintiff’s rights Company sion violated to a Power clerk who under had the Fourteenth failed Amendment to the to return them to him Unit- promise, ed States accordanсe her Constitution. with assume we Apparently actually interrogatory explained the bill for 7. The answers was also part part plaintiff’s consumption latter November and first details of electricity accounting According plaintiff’s together December. affi- deposition testimony, payments davit and the dis- bills made. The rendered and puted names, addresses, years $18. bill bills totaled over titles How- ever, interrogatories employees assigned answered of all 37 Company clearly arrearage receiving payments performing cus- set $9.89, apparently plaintiff which is all the Com- tomer the office service at where trying December, pany any paid event, In claims his bill in collect. to have analysis together schedules, our not affected the exact their work dispute. great amount set forth detail. present purposes the factual II. nothing dispute more than involves discussing principal Before is- question actually whether made the sues, appropriate put certain payment December, 1969, cash leged al- preliminary matters to one side. complaint.8 amended First, plaintiff’s challenge is di City employed by Plaintiff was practices rected at the one of litigation the time the Milwaukee at several utilities in the State although and, he sub- was commenced 113.13(4) Wisconsin. Section job permit- sequently lost his and was appeal Wisconsin Administrative Code is not prosecute in forma ted self-implementing, but rather contem inability pauperis, he no made claim plates further action each of the pay rendered. electrical bills when subject provisions. utilities to its dismiss, response motion rules which the defendant Com Power relying apparently on pany pursuant regulation filed to that developed by facts affidavits or discov application do not have state-wide ery, the district court dismissed regulation itself does not foreclose complaint for failure to state a claim procedural safeguards plain granted on which relief can be requests. satisfied, tiff We are there failure to state a substantial federal fore, three-judge that a court should not question. The court held the de Regents be convened. See Board of Company fendant Power was a Project, New Left Education rights company whose en had not been 30 L.Ed.2d 697. larged by regulation the commission Second, express opinion we no plaintiff challenged. Since litigation appropriate- whether this was Company did not act on behalf of the ly commenced as class action. Mani- given rights state and was under festly, there is room to doubt whether rights state law over and above all of the customers of Elec- possessed law, which it under common Company tric Power desire acting the court held that changes to make the in its “under color of” state law within the procedures which disconnect meaning of 1983. The court held our requests. See Ihrke v. Northern States decision in Kadlec v. Bell Tele Illinois (8th F.2d Power 1972). Cir. phone Co., Cir., 407 F.2d cert. plaintiff’s alle- view denied, 846, 90 gations, however, plain- assume we 95, applicable, L.Ed.2d and Public Util typical utility. tiff customer of the is a Pollak, ities Commission 451, U.S. 813, 72 S.Ct. 1068 distin Third, plaintiff, L.Ed. note that we guishable. response sugges to the course, makes claim the defend no that Kadlec, tion that neither our decision any obligation ant Power has analysis nor the district court’s anyone provide to electric service to issue, gave appropriate “state action” ef pay who is unable to his bills. For Supreme fect to Court decisions such purposes decision, we assume that Wilmington Parking as thority, Au Burton typical the defendant’s customer is sol 856, 715, 81 6 L. U.S. S.Ct. required vent and a be make Ed.2d and Public Utilities Commis security deposit reasonable as a condi Pollak, sion v. tion to the initiation or continuation 813, 96 L.Ed. 1068 we decided re assumption service. We stress this be view case en banc. We reaffirm argument cause in court before this Kadlec. plaintiff’s suggested counsel that allege pro- 8. Plaintiff does not pute that subsequently arose or because he posed paid disconnect would be in bills; plaintiff’s theory violation of current it is regulations commission either proposed because he disconnect is under- moved a new location after the dis- color or —not in defiance of —state law. sidering applicability possible fact affected issues Act, receiving plaintiff welfare as- Johnson 28 U.S.C. is now suggestion, question reject troublesome deci- whether sistance. We indigency Although present plaintiff’s sions such as Alabama Public Service Co., Railway might question wheth- Commission Southern relevant to the be the util- L.Ed. for er it ity be reasonable would credit, require it can- a federal court abstain him further to extend validity procedure requested analysis when our review control action, 599,051 designed pay- of state administrative to treat which is hand.9 with an even customers We turn to the merits. do note that should also we We III. litiga of this the outcome believe complaint pur amended was dismissed particularly plaintiff tion, since court, F.Supp. because the district capaci ports representative in a to act 337, concluded that there was insuffi- plaintiff’s ty, may lack of turn understanding cient “state involvement” on which of the remedies available predicate jurisdiction. Defend- federal Although indicated in his to him. he argue plaintiff deposition ants event he unable read process.” has not denied “due write, been he neither advised though argued pre- case is as thus might nor he seek knew that the as sented a “state action” issue and sistance of the Public Serv process” “due issue. Because of attempting ice Commission resolve confusion that con- “state action” dispute, affirmatively alleged his he however, cept generated,11 has it is use- adequate representative that he is an identify ful to two different reasons For class customers. of the entire analyzing participation state’s chal- sufficiency testing purposes lenged conduct; one is constitu- reason presumed claim, must statutory. tional and the other knowledge of the as had the same any law the action citizen. other Whether Amendment Fourteenth oí as an individual action considered against prohibition types is a certain action, apparent class conduct a state. It contains disability particular unique re the cipient of a self-executing against prohibition pri formal cannot be the of a notice conduct, discriminatory vate adequacy.10 measure of its constitutional procedures by private citizen which one unfairly Finally, disposition deal For note with another. we that our necessity to invoke the Fourteenth the case avoids the eon- explicitly Indeed, L.Ed. importance requiring recognized all regulated public of a customers “Only by sifting weighing 1.1 facts pay promptly bills in order to fore- their circumstances can the in non-obvious Horticul- stall discrimination. Midstate volvement of the State conduct Pennsylvania Co., Inc. v. Railroad tural significance.” be attributed its true Bur 88 L.Ed. Wilmington Authority, Parking ton v. 96. 715, 722, 860, 856, 365 81 6 U.S. S.Ct. opportunity 10. L.Ed.2d that 45. “The fact “readily apрli- Later the Court noted that hearing misapprehension was lost because cable formulae not be fashioned” appropriate remedy as to the was not re- very “largeness” govern- and that by judicial until moved decision ment, involving “a of relation- multitude rectify error, too late fur- ships” requires us to con- remember process basis for a nish the claim that due respecting leasing agree- clusions state Compare of law has been denied. O’Neil ments “can be determined Irrigation Co., v. Northern 242 Colorado peculiar framework of the facts or cir- 26, 20, 7, 37 61 L.Ed. present.” S.Ct. 123.” 725-726, Id. cumstances at 81 Surety Baldwin, American v. Co. 287 S.Ct. at 861-862. 646

Amendment, denied, 90, 846, must establish that cert. 396 U.S. 90 S.Ct. rights impaired by 95, exclusively 24 been a state.12 L.Ed.2d relied have on the Thus, interpretation case, the issue identified did in this 1983 and not de § any process” Instead, is cide the “due label whether constitutional issue. deprived accepting parties’ therefore, of of Wisconsin has in State plaintiff liberty property simply of his or with- consider issues vitation process and, of, first, out due of law. “state action” terms second, process,” our “due we believe statutory language pro holding precise more if we dis will be considering separate vides a reason for against (a) cuss the claim the commis alleged relationship the state’s to the against (b) sioners then claim wrong. inapplicable 1983 un Section is Company. the Power col- less the defendant has acted “under usage. law, or of” state custom is a violation of Four primary Whereas the focus teenth de con Amendment for a state to prohibition upon prive any person “life, liberty, the ac stitutional state, statutory prohibi property process tion of the without due of law.”13 encompasses private conduct, tion When defendant commissioners act part capacity they of which is in attrib unques effectiveness in their official sup tionably utable to the fact derives act “under color of” state law appearance port, meaning or at least va 1983; within the we lidity, from a state law or custom. therefore need not concern ourselves Parking Wilmington Neither Burton statutory v. with the the case issue in Authority, 715, 856, 81 365 U.S. S.Ct. The real commissioners. 45, 6 L.Ed.2d nor Public Utilities Com question con the commissioners is 451, Poliak, mission v. 343 U.S. 72 S. stitutional —whether behalf 813, 1068, Ct. 96 L.Ed. arose under deprived § State of Wisconsin consideration when 1983 involved a рrocess law. As private of” conduct is “under color however, Company, need Power we meaning of that law within the stat any not reach issue un constitutional Conversely, ute. Bell Kadlec v. Illinois statutory less a hurdle is first overcome. 624, Telephone Cir., F.2d question statutory is whether always clear, 12. gests plaintiff’s “It as it has been receiving interest Rights since the Civil Cases protected by [109 U.S. electric service is the Four 3, 18, 835], 3 S.Ct. ‘In- Citing 27 L.Ed. teenth Amendment. Bell v. Bur rights dividual invasion of individual son, 535, 539, 402 U.S. 91 S.Ct. subject amendment,’ not the matter of the Goldberg Kelly, 29 L.Ed.2d p. page at [Id.] S.Ct. at 254, 262, abridging conduct individual L.Ed.2d the Court reiterated rights Equal does no violence to the statutory entitlements are interests so signifi- Protection Clause unless some protected. statutory The Wisconsin cant extent State of its mani- scheme, chapter Wis.Stat.Anno., see festations has been found have become especially 196.22, in §§ 196.03 and involved in it.” Id. at at public utility dicates that a must furnish adequate nondiscriminatory Lodge Irvis, See also Moose everyone rates to within its area of serv pays prescribed ice who reasonable (1972) ; Dowling, Dombrowski charges complies with all other neces (7th 1972). F.2d 194-196 Cir. sary theory and reasonable rules. The public utility unjustifiably that a cannot process requirement applies, The due See, g., refuse service is not new. e. course, “only deprivation to the of an Shepard Light Co., v. Milwaukee Gas encompassed interest within the Four (1862) (1873 reprint p. Wis. 318 protection.” teenth Amendment’s Fuen 349). Thus, assume, deciding, we Shevin, tes v. plaintiff’s 1983, 1996, that interest in (1972). continued elec 32 L.Ed.2d 556 analysis question by protected Court’s of in tric Fuen service is the Four tes, 84-90, sug 1996-1999, id. 92 S.Ct. teenth Amendment. Company 113.13(4) enjoin “under invalid, acts color of” state or to defend- § not, it, enforcing law when it disconnects service. If ant commissioners from merely if its 1983 even would it does violate remove a restriction on § deprive plain- utility’s conduct otherwise freedom.15 The action of right. plaintiff tiff state of a federal seeks to re- strain has neither enhanced the Com- direct our at- shall therefore first We pany’s powers plain- nor diminished tention to the claim that the Constitu- rights. tiff’s “state action” requires the defendant com- tion promulgating 113.13(4) regu- of the § enforcing, enjoined missioners deny plaintiff proc- lations did not 113.13(4) modify, required § ess of law. Administrative Code proposed then consider whether plaintiff really What seeks is not an action of the defendant Power injunсtion action, the state’s is “under color of” state law within but an affirmative command that ‍‌‌‌‌‌‌​​‌‌‌​‌​‌​‌​‌‌​​​​‌​‌​‌​‌​​​‌‌​‌​‌​‌​‌​​‌​‍it act meaning of 1983. § effectively. essence, more In he con- tends that there is state inaction in the A. face circumstances which are consti- tutionally intolerable. It is no means When the defendant commis equivalent clear that “state inaction” is sioners, predecessors, adopted or their “state action” Fourteenth Amend- they 113.13(4), and later when ac purposes. Obviously, ment a state cepted Company’s five-day the Power not violate the Fourteenth Amendment conforming thereto, rule notice by failing pro- to enact into law the were, course, acting the state. grams policy judgments advocated Unquestionably, therefore, this in case particular group. citizen or We volves “state action.” But assume, however, deciding, seeks to vindicate litigation there are situations which the state’s abridged this was not slightest duty grant is so the failure act plain clear action. To declaring might request judgment process tiff’s for a violate the due clause.16 Similarly, Supreme recently Lodge Irvis, Moose 407 U.S. enjoin proper held it the enforcement 32 L.Ed.2d 627 n. how regulation applica- ever, opin of a state which in its its earlier Court construed required tion ion in club to adhere to Folíale as based the affirmative policy approval by regulatory agency its announced of discrimination. practice. Lodge challenged Irvis, Moose not clear thus 176- 1965, 1973-1974, 32 L.Ed.2d what the Court’s attitude would have part ease, As to been the Poliak situation had the Pub question Utility there was no taken there was lic Commission no action particular investigating approv “state action” and that ac- at all instead of tion, required application challenged activity. which in its some cir discrimination, deprived plaintiff racial cumstances a state also be under rights. affirmatively duty prevent his Fourteenth Amendment racial to act Wilmington discrimination. Burton v. undisputed 15. It is that at common law a Parking Authority, 81 S.Ct nonpay- could cut off service for be viewed either as can ment of bills. involving a case a failure of the state to duty should, prevent an affirmative Such to act act discrimination under cir proper respect imposed duty act, is afforded to our demo cumstances which system government, involving participation cratic arise or as a case discriminatory itself, rare situations. act and hence Public Utilities Commis Pollak, sion v. state action rather than inaction. suggests analysis 96 L.Ed. own circumstanc Court’s involving rights suggests ines cases fundamental facts Burton the “action” al may give duty. Wilmington Parking rise such a That case ternative. The Au governmental essence, thority, agency involved therefore, refusal —in Dela of the State of ware, merely protect a form of inaction —to did not condone discrimina rights. tory claimed First Amendment conduct lessee-restauranteur. analysis so, actually plaintiff. Even “inaction” claim available to If those alleged shortcomings in satisfy remedies reveals standards of due process procedures Wisconsin’s administrative articulated recent policy involve decisions, which a decisions the state has no consti may offending duty require provide the Federal make tutional other procedures merely they might Constitution. because be policy.20 better a matter of

Plaintiff contends that disconnec- nonpayment, tion for ar- least if the The two “remedies” which customers rearage disputed, permitted should frequently is be have most invoked are infor- dispute the credit first been unless mal. record The indicates most by impartial disputes resolved an decision maker. credit are resolved an offi- forcefully through good he Company Less contends that also cial of the regulation require adequate failed no- offices of the commission. informal proposed disposition tice of the disputes termination.17 We in either of these points. ways legal remedy shall comment on really both a not for an aggrieved customer, but the fact argue requir Defendants easily most customer controversies are ing pretermination hearing a would be minimize the resolved tends to need for costly, provide an incentive to dis special procedure a to handle a formal pute arrearages, delaying plaintiff’s. case such as would, discontinuance in ef of service The formal remedies available fect, compel the to extend primary alterna include two nonpaying credit If customers.18 First, seek tives. emergency he has arguments valid, presumably these are state courts. If relief might the cost increased. of service be service would cause a the termination of pоlicy give Such considerations must harm, irreparable he customer if however, way, if the Constitution com paid disputed check, or had bill greater procedural safeguards mands be receipt, had con had saved other may fore a termination effected.19 be hand, vincing payment at evidence of “due We therefore consider whether presumably court would a Wisconsin process” requires hearing before pend temporarily enjoin the disconnect impartial arbiter before service be merits;21 hearing on full disconnected. weighty fre are controversies more provided by quently a chancellor resolved answer Second, equally the eus short notice.22 consideration of remedies which Shevin, joint participant in, See, Rather, g., U.S. it was 19. e. Fuentes beneficiary of, challenged direct dis Stanley Illinois, ; (1972) especially n. U.S. at crimination. See 656-658, Although 31 L. 723-725, 92 S.Ct. 856. “eoeonspirator” ill Ed.2d 551 suits a au word principles thority, partnership familiar procedures Moreover, the available 20. if agency proper made it to ascribe law standards, satisfy process the act of responsibility the refusal serve a approving the Pow- the commissioners patron to the state black itself. procedure Company’s er disconnect deprived one citizens state therefore of its process deprive plaintiff of due equal protection of its laws. approval Thus, “act” of law. failing follow the the “inaction” receiving 17. He has admitted notice which by plaintiff requested procedures gave him time obtain and to counsel together. considered complaint file a federal district proposed termi- court before date payment proof plaintiff’s fact, 21. might nation. rebutted, even en- summary judgment. titled Co., Compare Midstate Horticultural Perhaps recent ex Pennsylvania notable most Railroad Inc. Papers” “Pentagon ample case. 88 L.Ed. 96. stitutionally may A third formal forestall the disconnect defective.23 tomer pro remedy disputed paying also the Power amount under is available. If the refund; plaintiff’s Company wrongfully suing such for a cuts off then test and may electricity, frequently required in in procedure he sue tort for his ac is a rent, damages.24 Thus, disputes taxes, other ar tual over or Wisconsin being utility provide rearages, con the customer of without considered the required Co., gas light company York Times v. New can be United States that a damages pecuniary F.Supp. (S.D.N.Y.1971), pay revers loss and 324 for 328 (2d Cir., remanded, annoyance F.2d 544 ed 444 and when for inconvenience 713, 1971), reversed, banc, the en because cus- initial service is refused by illegal 2140, agree 29 L.Ed.2d 822. to abide tomer refuses to Shepard company Milwaukee v. rules. Dredge v. & Co. Lakes Dock Great (1873 (1862) Light Co., 15 Wis. 318 Gas reprint, 1070, 293, Huffman, 63 p. 349). at We can see rea- 1407, Supreme refus- 87 L.Ed. the Court why different the law would be son dispute be- ed intervene in a state tax termination there an unlawful general where is pay taxpayer tax and the cause the could that while rule is service. courts, sue for a refund in the state procedure such may for non- service terminate utilities being “plain, ad- a considered per- payment charges, their act at remedy. complete” equate, If a dispute as to there bona fide il when is a taxpayer pro- procedure deprived a liability the due. If amount certainly law, be cess of would not ulti- the service and customer cuts off complete. id., adequate, plain, See mately dispute, prevails the the 300-301, 297-298, 63 S.Ct. 1070. wrongful damages termi- for in is liable Lindsey Normet, 56, v. 405 92 annotation, 112 of service. See nation 36, sought a tenant 237, part II at 241 later A.L.R. case possessory brought action defend Co., service; Sims Alabama v. Water 205 nonpayment his landlord for of rent on ; (1921) Ala. 87 689-690 So. ground premises the that the were unin Nelson, 209 Ala. Mobile Electric Co. habitable and gation there was no obli therefore theory 554, 96 So. pay law the rent. State did peril” “at rule stated in the was permit possessory in not such a defense Kentucky Utilities Co. Warren Ellison litigate particu In order that action. Ky. Cafe, 558, 21 S.W.2d bring dispute, lar the had his tenant (1929) : against If own the the action landlord. publie company “If a service discontin- paid disputed had not in tenant fact the passes consumer, it ues its service to judgment rent, pos prevail the landlord would Therefore it on its own case. sessory Thus, action. in order to retain know rules have been vio- must that its possession dispute, litigating while after correct bill has been sub- lated pay accruing tenant not had to justified applying in it is mitted before (a requirement upheld Lindsey, rent in applies cut-off If rule rule. 862), also so to do and cus- rent, obligation pay had the back company damaged thereby, tomer disputed. pay which If he did he naturally damages Rowing is liаble for rent, possessory in back he lose discontinuing the from its act in serv- posses action and therefore would lose ice.” prosecuting sion own while was Light Electric See also Steele Clinton Thus, suit landlord. Su Co., supra, & Power 193 A. at preme procedure Court sustained a A.L.R. at 236. required payment disputed of a case, payment fact In this charge order maintain the status made, Company’s termination would quo litigating dispute. while liability wrongful and it would incur remedy damages. recognized 24. At note of a least such the existence We damage jurisdictions provision pre- other Wis.Stat.Ann. common law treble sumably 196.64, See, courts Wisconsin is available Wisconsin. may applicable. e.g., Light not consider Steele v. Clinton Electric & Company this case has Power A. The Power Conn. (407.1(g)) annotation, file commis- A.L.R. 232 and rule on respon- 237-243, generally providing it shall not be anno- sion A.L.R. and see injury any damage, tation, loss caus- sible for 1192-1197. See A.L.R. nonpay- suspension ed of service also Oklahoma Natural Gas Co. v. assume, (10th 1940). Young, bills. ment of service We 116 F.2d 720 Cir. apply course, this rule would held impartial empowered judgment roneous, finality. re tribunals has no billings grant disputes wrong- If solve over should terminated appropriate fully, relief. must in dam- answer ages; potential injury a cus- recognize practical matter, we As a tomer suffer from a loss of electric- disputes nominal most so ity Company’s measure of the risk judicial remedies are sel- amount although Thus, of error. in a sense the dom, ever, cases the if In most invoked. Company judge case, the is of its own it “hearing” actually pro- only held is that peril acts at its it whenever exercises by Company itself. the Power vided judgment. fair Plaintiff contends therefore procedure Third, requires dis- the reference of since the conclusion of inpartial putes billing “hearing” by arbiter to an over the conducted the Power required Company only preliminary he either suffer is to is a before itself a the inconvenience of pay termination of the tentative determination ultimate protest. rights disputed parties, a amount under of the the of fairness practice, simply hearing argues, appraised it is the must be Company permit procedure to be fair to the Power of the entire made context judge by its own final cred- the effective available state. is ul If disputes. timately required adjudicate an- least three There are at a cus argument. liability arrearage, tomer’s must, swers to an for provide course, judicial a full First, dispute that a the fact hearing, which, noted, as we it does have injured party may that an be so trivial ap in this But a standard case. lesser injustice rather than elect suffer only plies to determinations are legal rights other to assert —in though they tentative in character even words, minimus non the maxim de significant im an immediate and certainly suitably applies curat lex —-is Morales, litigant. pact Bianchi v. construing Federal no reason 526, 170, L.Ed. special proce requiring as Constitution hearing “proce type 928.26 In this safeguards dural for such matters. by process an be satisfied dural due will an met once are constitutional commands inquiry the determination limited to hearing opportunity is afforded. for a possibility there a reasonable whether protected opportunity is That judgments claimed amounts in the five-day requirement of a state enforced being licensee.” rendered availability together notice, with the 535, 540, Burson, 91 S. Bell 402 U.S. judicial remedies.25 effective 1586, 1590, L.Ed.2d 90. Ct. specific dis- examine the Whether we Second, in which the in those cases pute plaintiff Power and the Company between judgment is er- Power certainly case, present there is jus- In the was not where the termination itself objection procedure a constitutional tified. remedy which, providing a in mer- while deal here with “[W]e discourage cases, frivolous will itorious opportunity Fuentes v. an be heard.” claims. Shevin, opinion Holmes, in a brief 26. Mr. Justice 556 n. 29 32 L.Ed.2d Bianchi, held Fuentes, for a unanimous Court Contrary to the situation possessory actions to foreclose plaintiff notice did receive advance here only permissible mortgage in which opportunity to be heard. deprive payment did not defense was Court continued: mortgagor process since of law and facts decisive issues “Since determining action, immediate may very while rights repossession suits rights, possessory determine ulti- did not quite simple, there is a likeli- be often rights. Other defenses could many mate fore- defendants would hood that proceedings to deter- sensing other opportunity, asserted go the futil- their parties. rights of the particular ity mine ultimate in the the exercise Id. case.” pos experience Company, that a of “reasonable its with the determination certainly sibility” always рurports represent, must be made an im class he possibility partial supporting proce “there reasonable tribunal. Armstrong “meaningful,” judgment dure must be reflected amounts” they Manzo, contra- records “appropriate only by oral state- dicted customer’s case,” reexamined nature of the Cen ment and if have been Mullane v. correcting possible purpose tral Hanover Bank & Trust argues, sense, error. L.Ed. agent “impar- Company’s any particular It need not take form and accounting pro- governed establishing tial”; certainly aim underlying impartially validity” “probable must all cedures deal integrity The'purpose customers and must have claim.27 tentative regulatory comply prevent unfair and commission’s determination “is Company’s requirements. deprivations property” incentive The of mistaken electricity paying moving party proba sell is the “has little customers when great bility succeeding to collect merits at least as as the desire on the of the of 28 partiality past dispute.” The due accounts. litigation, subsequent in arise participation the Even without particular dis- characterize a independent hearing examiner, of an Company and a a clerk cussion between impartial arbiter, the some other tenta customer, under- dissatisfied tive the made Power determination Company conclusion that mine the the Company process the due stand satisfies specific records, after a verified ard as thus defined.29 objection made, a rea- is will establish necessity participa for the judgment possibility in favor of sonable particu impartial tion at a of an arbiter utility. the of stage constitutionally protected a lar of possibility” test “reasonable procedure part, depends, the char on v. Burson restated Bell has been po and the acter the interest at stake language slightly re different in other may result from error which tential cases; involving hold those nor cent cases neither interests absence. cases greater temporary import imply rigid than the requirement there is a supra 267, Family Corp., at 1020.” at 90 27. v. 395 S.Ct. Sniadach Finance Shevin, 1820, 407 92 v. U.S. at 23 L.Ed. Fuentes U.S. 337 89 S.Ct. (Mr. concurring). 556 32 L.Ed.2d 2d Justice Harlan S.Ct. fol- note 33 The Court’s prior 28. nature and form “The lows : hearings, legitimately moreover, are develop Leeway “33. remains many potential open to variations hearing un- minimize that will form of legis- subject, point, are at pre- delay necessary while cost adjudication.33 the lation —not Since serving the and effectiveness fairness requirement reason for the essential preventing hearing seizures the prevent prior hearing of a is to unfair seeking party goods where deprivations property, and mistaken probability of succeed- writ has little however, it is the hear- axiomatic that dispute.” ing Id. on the merits ing provide real “[D]ue must test. holding need not only by we process In view our kinds of afforded pro- question due whether “hearing” reach “notice” and aimed preclude establishing the state validity, clause would at cess or at least litigant losing pay requiring validity, underlying probable either impartial before an against alleged arbitration cost of claim debtor before assessing tribunal, court costs or at least deprived property he can be of his litiga- * * though in normal Family minimal *.’ Sniadach Finance v. large might disproportionately Corp., so tion at at U.S. (Harlan, these J., concurring). involved to the amount in relation See impartial Burson, disputes supra, resort deter as to Bell at v. U.S. 1589; Goldberg Kelly, arbitration. S.Ct. v. money, possible loss or even When consider use of we the for both judicial service, squarely procedures re- pro we of electric mal which are impartial jected Wisconsin, vided contention State and the compo- procedures hearing is an informal examiner essential which are available Thomas, process. Company through good v. nent Shirck of due of (7th commission, F.2d Cir. 1027-1028 fices of have no we 1971).30 present exist- opportunities In the case doubt the customer’s meaningful pro- provide forestall, wrongful procedures remedy, or to satisfy Power the risk that tection termination of service the stand procedural process when ard of will cut off as defined succeeding probability little “has Bell v. See Burson. also F.C.C. dispute 265, 275-277, merits” custom- WJR, of a with a 1353; er. 93 L.Ed. Cafeteria and Res McElroy, taurant Workers supervision of the Commission 886, 894-895, together Company, Power conduct of the maintaining own with its self-interest expo avoiding good-will and customer premised, of This conclusion damage liability, pro potential sure adequate course, no on the existence significant impar guarantee vides Shevin, tice. Fuentes arrearages. tiality collecting 32 L.Ed.2d 556 10,000 Company’s expеrience with about re invalidated state year, has resulted a which terminations plevin procedures the authorized which disputes lit no in a and almost few any property advance seizure of without par igation, that routine indicates the any notice, notice Without whatsoever. independent ticipation is arbiter an of opportunity to have no the debtor would “probable the establish not essential protest, disputed pay amount under a validity” possibility of of a claim. corrected, or a have clerical mistake preliminary at a an occasional error ac protective remedial or initiate routinely stage procedure which is of a possession being deprived proce of tion before the entire fair not invalidate does goods or The rationale chattels. dure. hearing “liberty” purpose “property” mandated the within the Four- 30. The cases, by Amendment; Regents, the in 446 F.2d those Roth v. Board teenth 1971), (7th pretermi- in followed Shirck Cir. did whether a Court not decide protect Thomas, hearing in- the career the Board— v. before School nation hardly impartial ac- teachers decision maker— terests of non-tenured an However, “wholly process. in a taken on a basis tion satisfied day, companion unlike the is not same reason.” standard decided case possibility” Perry Sindermann, of Bell test 408 U.S. “reasonable held that It is also relevant L.Ed.2d 570 Court v. Burson. S.Ct. application Supreme the “due that: Court’s * * * Leslie, process” guarantees Groppi property in interest “Proof course, not, re- entitle him to L.Ed.2d 404 U.S. S.Ct. would proof in would ob- that there are situations But such assumes instatement. ligate college hearing grant impartial no need for an which there is officials right request, in- he be notice and where could decision maker if the at his grounds adequately opportunity for his non-re- an be heard formed is sufficiency.” challenge respected. their tention and (Em- Roth, Id. at Court reversed added.) Roth, phasis Regents Board agrees clearly our Quite .. . L.Ed.2d impartial judgment (1972), disposition mak- decision vacated our Indeed, Shirck, Shirck, even in Shirck. er contention Thomas v. hearing Roth the dissenters 33 L.Ed.2d 764 ground an im- not include that teacher’s would a nontenured would mandate expectancy employment partial is not of future arbiter. encourage inapplicable disputes adding cаse.31 to this credit de- Fuentes is notice, give Power tail Plaintiff’s discussions with wise to cus- pe- place tomers more took over six-month information in a stereo- might typed might the five if no more than form not riod. Even that be involved, appropriate specific cases, days prescribed rule involved regulatory adequate questions policy, fore- time in which not an is- had seeking re- informal sue of constitutional stall termination dimensions. arrearage view, by paying under analyze Whether we the consti filing protest, in a state or even suit tutional action issue terms of the did, all, (He have time to after court. taken, of Wisconsin has State suit.) can There file this federal more or in terms of its to act ef failure timing quarrel with the serious fectively, plaintiff’s we find no merit Company’s notice. against commission claim defendant suggested, however, been ers. required in- content of the notice is adequate. It advises customer B. bill service will be terminated unless the argues de Plaintiff days, paid is within five acting Company, Power “under fendant dispute him how he over tell law, deprive color of” threatened to arrearage resolved. satisfied We are right. him of a federal The federal de- such an omission fatal is not a not, course, any asserted is enti Obviously notice. custom- fect service; tlement to continued Company personnel er know would simply procedural right op a fair billing He to correct are available errors. portunity analysis of to be Our heard. might realize that informal assistance plaintiff’s claim the commission commission; but since available deprivation discloses no ers procedure the commission does not right. are also We convinced that legal ag- remedy provide fact to an challenged Company’s action Power grieved customer, inappro- not “under color of” state law within priate might misleading to even be meaning of 1983. § specific imply remedy a is available ju- possible record, As action in that forum.32 far As we view the private concerned, remedies are the cus- Electric that of a dicial is Wisconsin “joint presumed law, company. a to The state is neither tomer is know the beneficiary” participant” know a nor a to that he should consult “direct least lawyer rely potential rather than in the sense on a of that action adversary legal description Burton Wil- for a of his were used in v. those words rights. Parking mington Authority, it 365 U.S. Whether would be unwise certainly opportunity require notice to de- 31. does not a The existence notice judicial processes “pres- possibility before to invoke of commission scribe amply specific distinguish this case informal assistance as a termination sure” or precedents really remedy. remedy on which the Court a com- from is Such Fuentes, complaint parable also relied where to a to the Better Busi- newspaper; it no advance notice and there- or local had received ness Bureau case; particular opportunity in a heard before be effective fore no to be well satisfy any rights See, g., Arm- were affected. e. but need not be described to constitutionally procedural strong Manzo, re- mandated 62; 1187, quirement. L.Ed.2d Sniadach 337, Family Corp., Finance served a 33. Plaintiff’s 1820, L.Ed.2d 349. law, on is bottomed common on regula- policy might and on the statutes 32. As a matter of it be desir- the Wisconsin Service the Commission insist on a de- tions of Public able for prepared scription of the it Commission. function perform, but Constitution Federal all-encompassing, 45.34 It such are ob- factors 81 S.Ct. viously bring private general con- revenues insufficient true that coverage every tax-pay- utility, duct within of this federal like those of other Wisconsin, contribute statute.36 business support; true that it is also the state’s provision The “under color of” many others, must business, like encompasses conduct regulatory variety comply supported by That as is state action.37 become 1983 is to Unless controls.35 assumption predi- ments. Whether the Burton in note the discussion See government, Pollak, cated on the action of the see supra. Nor is P.U.C. Lodge the reference to Pollah Moose L.Ed. 16, supra, v. Irvis discussed note comparable. the fail case involved That upon failing prohibit its inaction Com Utilities the Public or refusal of ure challenged conduct, or indeed whether of Columbia the District mission of prohibit justified special concern was because Capital Transit Co. asserted, pas First Amendment claim was we playing music transcribed similarly assumed, deciding govern explained sengers. The Court in this case that the defendant commis- participation as follows: ment’s reasoning sufficient sioners’ involvement was the court find “We appropriate sufficiently it to review the make for us be- close relation below a deprivation. claimed constitutional That and the Government tween the Federal however, support assumption, necessary does service to make radio the Power the view Amendments. to consider those us finding paral- law, rely acted “under color of” state on we do not this relation presented question having op- been Capital lel Transit fact that the mere Pollah. the streets of erates a under author- the District Columbia Compliance regula- with state economic rely upon ity Congress. we Nor do may provide private company tions that, of such federal fact reason the authorization, Capital prosecution, Act a defense to a Sherman now en- Transit see, g., Brown, e. Parker v. monopoly joys of street substantial 87 L.Ed. railway transportation in the and bus inapplicability of that federal statute do, however, We District of Columbia. imply to certain conduct does not operates recognize Capital Transit entirely an apply. different federal statute regulatory super- under the its service Rights We do view Civil Commis- Utilities vision of Public species Act of 1871 as either a of or Columbia which of the District of sion legislation. for, anti-monopoly substitute by Congress. agency is an authorized rely particularly upon the fact that We course, held, 36. “The has never agency, protests pursuant that discrimination an otherwise program, ordered an the radio private entity would be violative of the investigation and, after formal Equal private the Protection Clause if investigation public hearings, ordered its entity any receives sort of benefit or ground the the dismissed on State, all from the if it service at or safety, were comfort and convenience subject regulation any in is to state de- * * * thereby. impaired * * * gree whatever. [S]uch “We, therefore, appropriate it find to holding utterly would emasculate restriction, any, examine into what private distinction between as distin- place Fifth Amendments First and ** guished from State conduct upon the Federal Government under the Lodge Irvis, 163, 173, Moose v. 467 U.S. ease, assuming that the ac- facts of 1965, 1971, 92 32 L.Ed.2d S.Ct. 627 Capital operating Transit in tion of service, together radio action permitting in the Commission of operation, apart con- “Quite from this Court’s Federal amounts sufficient ‘under color struction of the identical the First Government action to make Act, provision 2 1866 § of’ applicable there- Amendments Fifth history legislative 1 of the 462-463, to.” at 343 U.S. at 72 S.Ct. Act, lineal ancestor of § 1871 added.) (Emphasis 826-821. provision 1983, also indicates purposes Thus, assumed the Court question en- here was intended to in govern- decision that there was sufficient supported compass only conduct ment in the matter to raise involvement Kress S. H. action.” Adickes v. and Fifth Amend- state issues under First

655 apparent, forms, tive,” from the either real or it may support various take sup- such affirmative person state.38 Absent private quite that a clear is pri- inapplicable port, ‍‌‌‌‌‌‌​​‌‌‌​‌​‌​‌​‌‌​​​​‌​‌​‌​‌​​​‌‌​‌​‌​‌​‌​​‌​‍unless statute law color state not act under comfort, incen- vate conduct.39 or “aid, some he derives Pape, 167, 1598, g., 81 144, 163, [365 U.S. e. Monroe v. Co., 90 S.Ct. 398 U.S. & 1611, ; 473, v. L.Ed.2d Screws 492] 5 26 L.Ed.2d 111, States, 91,] 163, Irvis, at Lodge U.S. [325 United 407 U.S. v. In Moose 1031, 1040, (1972), it 89 L.Ed. 1495. 1965, at 65 S.Ct. L.Ed.2d 627 92 S.Ct. granting there situations argued of a In of these latter some that the state’s holding regulation liquor in that the official uses exercised is a out license and authority appear- give grantee make his actual sufficient over authority discriminating private to take the in that he has action ance club’s taking. particular In other he is taken “under action race action on the basis of disagreed, palpable power is so law. The Court cases abuse color of” state may any regulation noting or observer did not the victim foster encourage is exceed- racial discrimination: be aware that the official well or any holding pains ing authority, his was at so “The District Court wholly opinion authority point it con- what trans- its out of parent. out ‘pervasive’ the misuse of nature these cases to be the sidered enough regulation private authority clubs alone to warrant Pape, recovery. See, g., Pennsylvania Liquor As e. Monroe v. Board. Control Classic, noted, applicant supra; for a club that court United States physical altera- make such must U.S. 61 S.Ct. license premises (1941) ; the board L.Ed. Catlette Unit- tions require, (C.A. States, 4th of the names F.2d 902 Cir. must file a list ed acting 1943). Thus, and em- members and addresses of its official always keep capacity ployees, finan- and must extensive of his official virtue granted board is records. The color a state statute or cial acts under overtly premises inspect law, the licensed whether or not he other patrons, guests any authority support or mem- time when on that relies action, present. or not that action bers are and whether type regula- private person detailed this “However law. A violates state particulars, it can- or be in statute tion some acts ‘under color of’ any way official, he, or en- to in not be said law when like the other foster courage way consciously pursuant Nor can discrimination. racial acts some comfort, gives aid, to make the State him be said some law that partner incentive, Maryland, even a sense a or realistic cf. Griffin enterprise.” joint L.Ed. venturer the club’s S.Ct, (Em- 176-177, (1964) ; Flemming Id. at at 1973. v. South 2d 754 phasis added.) Co., 224 F.2d Elec. & Gas Carolina (C.A. 1955), appeal dis- 4th Cir. language ap- 38. “To understand how missed, 76 S.Ct. plies helpful persons, ; (1956) when he acts L.Ed. 1439 application state of- to consider its conjunction official, as with a state legal usage, the word ficials. other Price, [383 States v. United ‘color,’ authority,’ as in ‘color of ‘color 267] title,’ law,’ office,’ * * ‘color of ‘color of H. & Adickes v. S. Kress ‘colorable,’ suggests a kind of hold- 211-212, ‘appearance, out and means sem- opinion (separate at 1630-1631 simulacnm,’ blance, but not neces- (Emphasis Brennan). Mr. add- Justice sarily reality. Black, H. Law See ed.) Dictionary (rev. 1968). 331-332 4th ed. parties However, appears in that all in 39. It should be noted § as the word actually Lodge 163, 1983, Irvis, 92 it both 407 covers actions Moose U.S. agreed (1972), Myers 1965, by State, 32 L.Ed.2d 627 see authorized S.Ct. 932, Anderson, 368, club could discriminate that a 35 S.Ct. (1915) ; it do so. Id. at S.Ct. 59 L.Ed. 1349 Nixon v. Hern- chose to question don, was whether its hold- L. 1965. S.Ct. liquor (1927) ; Wilson, this dis- license made a state Ed. 759 Lane v. of” taken “under color an act crimination U.S. 59 S.Ct. 83 L.Ed. 1281 supra. authority (1939), note state law. See state and misuse of ways by State, see, in the not intended case, believe that affirmative We the voked defendants in this significant,40 entirely support must be measured different issue would be presented. us, the effec either contribution to its On the record before conduct, per however, appears of defendant’s or tiveness it that the termination haps conflicting plaintiff’s na completed its can defiance service policy,41 bring simply by throwing the into proper tional statute the switch play. significant disconnecting proper There is no such af the wires.43 support firmative of Wisconsin Second, granted the in state has effect proposed plain Electric’s termination of monopoly protection to Elec- tiff’s service. сompetitor may tric. No invade Company’s powers Company’s It is true that area of service without respects by permission two are in at least enhanced of the commission. Custom- First, ers, plaintiff, state has autho- like are therefore denied state. pri- company practical remedy to enter an electric rized and often effective taking patronage property certain circum- vate under their elsewhere authority in- unfairly by supplier. If when treated It stances.42 Immediately passage [,] in 40. Moose after whatever form it have taken * * * Lodge quoted 33, supra, represent vigilant fidelity in note Court principle said: that no the constitutional holdings any significant way indicate that where lend “Our shall State priv- impetus authority for the discrimination is the sordid business ‘significantly ate, the must have State racial discrimination.” passage indicates, itself discrim- involved inations,’ with invidious Mr. As that Justice Mulkey, agree in- Reitman v. the state Brennan would 369, 380, “significant.” 18 L.Ed. volvement must be 2d order for the dis- be that he would find that a lesser well degree criminatory satisfy action to fall within the of state involvement would prohibition.” significance ambit of the constitutional test when racial discrim- (Emphasis support At 1971. is involved. But the ination added.) analysis, provided by the his- which is setting in which the torical Ku Klux example, 41. enacted, is, For the “fundamental value” Klan Act of course, completely erasing inapplicable racial discrimination all its the is- presented forms Mr. Justice seems underlie here. sue dissenting opinion in Moose Brennan’s provides Wis.Stat.Ann. 196.171 Lodge, at 1977 where he entering buildings at reasonable times on quotes separate opin- as follows from Iris authority appropriate from the written ion in Kress Adickes v. S. H. & “inspect- purpose officer for the 144, 190-191, repairing, installing ing, examining, 26 L.Ed.2d 142: meters, removing pipes, fittings, wires “The state-action reflects the doctrine supplying regulating works for judgment profound equal that denials of gas, electricity supply or water treatment, particularly denials on ascertaining quantity gas, of tricity elec- singularly color, account of race or supplied.” or water grave government when has or shares responsibility presumably possible for them. Government While might organ the society disconnect social to which all our the Power authority promotion liberty, for the under the of the statute look justice, equal treatment, 42, supra, re- in note such as fair cited setting worthy goals moving meter, there is no indication norms and so, have to do for social conduct. Therefore some- thing this case that society uniquely in a hence no indication that the state amiss government, any significant support where authoritative statute lends community values, That oracle of involves it- the termination of service. Company might, statute, later self ingly, racial discrimination. under Accord- * * * bearing its meter has no the cases that have remove question long as the Com- come before us before us as [in which] pany rights significant under the condemned state involvement need exercise discrimination, the termination in racial however subtle order to effect statute may it and indirect have been itslf. utility’s giv- to dis- of electrical service available follows threat arrearage is en residential unless area is somewhat unrealis- service continue Assuming, paid however, rea- tic. promptly effective that an alter- is more might protection mo- of its native source of service be availa- son of the state’s ble, unlikely nopoly. it is most who one by pay- could not forestall a disconnect may support be kind well That disputed protest amount under regu present in all transactions between could have a connection installed new companies customers.44 and their lated five-day and credit extended within a sig however, stated, As we believe period practical matter, ab- As support must evalu be nificance of that competition deprive sence of not does brings § determine whether it ated to remedy. the customer of an effective play;45 federal otherwise the into supersede areas soon vast statute would hand, On the other commission regulation.46 administrative provide informal as customers with significance reason the For that practical well as formal remedies. As a position monopoly must defendants’ pervasive matter, the commission’s particu of the in the context considered signifi- regulatory powers that lend real juris controversy federal lar to even the informal com- most cance invoked 1983 is diction under § legal matter, plaint by a customer. As a regulation utility, in- defend the detailed are satisfied We significant cluding specific requirement monopoly that the no ant’s will have five-day plaintiff’s Compаny notice impact adhere the resolution to its comparable pursuant 113.13(4), in- dispute, filed $9,89 other rule as ability Company’s evitably com disputes.48 no inhibits the if there were Even arbitrarily. assumption entry, If to treat its customers mission control performing its as- sources alternative commission is there would be sufficiently regulation non ticular act —discrimination 44. At least if tlie controversy guests showing require not and was white inclusive to —in might necessity persuaded that the state the fact as a condition convenience and entry. other areas have been involved quotation in note See club’s activities. contrast, sig- 45. “In Indiana was so 37, supra. nificantly involved affairs High School that these Central Catholic expulsions 10,000 Although dis- are almost there 48. justifiably be deemed could year, nonpayment each connects Isenbarger, Bright state action.” v. disputes arisen, rarely in those (7th 1971). 445 F.2d Cir. five- indicates the record cases opportunity day provided an notice express Compare the Court’s disclaimer perhaps all almost to resolve all— monopoly of reliance on the factor disputes. plaintiff’s past— Pollak, P.U.C. quoted in note 96 L.Ed. charge initial con- utilities Most 34, supra. require a de- also fee and nection anticipated point posit month’s more 47. “It essential of one or overlooks the —that requirements long simply charges. as such As the state must involved uniformly enforced, activity be no there can al- with some of the institution are question po- deprive leged injury upon do not to have inflicted process activity law. plaintiff of due customer but with the that caus- tential pay injury.” Miles, fees has to customer ed the Powe v. But company get (2d 1968). new with a F.2d Cir. pay might the old Bright Isenbarger, bill with well 445 F.2d See also 412, (7th 1971) Further- company a refund. and sue Cir. : services, given played more, electric the nature “In this case the state role no them, provide required expulsion equipment plaintiffs.” defendant’s Lodge forth, even be that well in Moose and so monopoly, Irvis, countenanced L. a state source alternative would find attention Ed.2d 627 directed its involvement, par supply. to the state 658 faithfully,

signed must of The decision is as we of court mission district affirmed. assume, the extent course power is enhanced utility’s economic J., FAIRCHILD, C. concurs the re- entry offset of control commission sult. in a coordinated embodied other controls short, the com- regulatory scheme. SPRECHER, Judge, Circuit dissent- merely entry one control mission’s ing, SWYGERT, with whom Chief affecting regulation of its factors Judge, joins. safeguard- purpose of for the definitely ing respectfully At least I interest. dissent. I the overall presented in respect the issues find the existence state action and ac- with tivity monoply law, litigation, factor I under color ingredient necessary firmly proc- procedural provide the not believe plaintiff. private support conduct ess was accorded added state service— —the of electric termination of state an issue which will transform I. civil regulatory policy a federal into interpretation of constitutional rights 1983.50 under case Congressional amendments1 enactments in Kadlec decision reaffirm our necessarily We 2 influenced Co., Telephone F.2d 624 407 Bell Illinois in effect at the time of common law (7th 1969), de- more recent Congress and our adoption Cir. their or ratification. Cleaners, Inc. v. in Particular passed cision the Fourteenth Amendment 189 F.2d completed Edison Commonwealth and ratification was 1972). (7th that Wis- We conclude (42 Cir. Klux Act 1868. The Ku U.S.C. § in termi- 1983) action April consin Electric’s was enacted 1871. delinquent nating account service to people ac What about “state understood best, derives, days notice any statute, after five tion” or “under color of insignificant support from State usage, dinance, regulation, custom, or not “under and is therefore applied utilities State” as within part custom state law or color of” 1866-1871 was as much “original understanding” of the Four 1983. intendment of § Douglas law and liis dissent to the common

50. Mr. Justice reference 163, 182, Lodge Irvis, when institutions to British Moose adopted.” viewed was framed the instrument “monopoly” aspect critical. Amendment should of that case as The Fourteenth liquor light exist license in the of conditions He construed concluded practice adopted “monopoly” a black and ratified. denies when it was (E.D. person Humason, he could otherwise that which See In re 46 F. indicated, 1891). we do Wash. obtain. As we have monopoly position of Wis believe Lines, Inc., Moragne Marine v. States any denied Mr. Lucas consin Electric 1772, 1783, 375, 392, that, monopoly, thing for the he would always (1970) : “It lias L.Ed.2d 339 obtain, given has it been able to nor duty court of the common-law been the any significant Company ad the Power major legislative impact perceive thе vantage respect to terminations the new interweave and to innovations Company had would not have which the body policies legislative the inherited Furthermore, monopoly. principles many of them of common-law — regulated, since electric rates legislative deriving exer- earlier “monopoly does not have tions.” Doug advantage price” Mr. Justice Pennsylvania a defect las saw as Original Munro, “The See Frank system. liquor license ‘Equal Understanding Protection ” ; (1950) Laws,’ Grossman, 50 Col.L.Rev. 108- 1. Ex Parte Understanding Original Bickel, “The 69 L.Ed. 527 Decision,” Segregation Harv.L. (1925) language : “The of the Constitu interpreted safely except Rev. 1 tion cannot be publicly the state to sumed mitting main and ten nopolies monopolies teenth Amendment and the natural tion, such as was rected Whatever tional between ture electric depended short regulation as resources 1359. “any negroes as a class.” along would supply, by way monopolistic the correlative original monopolies. companies. monopolies, tended to action of a a regulated; with increased, upon in public public regulation trade public easements, were supply not admit of free medieval water, doctor’s common law distinction whether guilds and a discrimination given disappear, exclusive power When as State these artificial As an gas, obligation of sub- fees as England private doctors, fostered a franchise example population telephone and these natural Ku Klux Act competitive.5 * services, eminent and leaving enterprise ** their they as- competi- business early occupa- became fur- mo- and na- do- of- di as in was Wisconsin the 1866-1871 Milwaukee 24 Munn v. ^[539] consequence, clothed with a more than his treatise De Portibus ty was said tial element in the law of used we Harg.Law Tracts, 78, and ‘affected with a ceases to be from whence right cepted ever since. “Looking, then, L.Ed. in find that when said at (1858), the Wisconsin in also which the Constitution large.” 77 without Illinois, a manner make it of Gas by clear (1877): two pages juris privati only.’ and Lord Chief period. Property Light Co., 6 came objection hundred what the 94 U.S. public prior to the common affect to 534-535 [546-547]: public interest, interest when the communi- years ago, does become Justice as an essen- common law has been and Shepard property [property] Wis. Maris, 1 property protects, 125-126, during public Hale This law, ac- in it nishing reasonably adequate very “The fact of this exclusive prices.6 persons all at reasonable upon company conferred ferryboat early operators gas city, as enraged As manufacture sell charg public by England be consumed thereof, the citizens therein poor obligation providing imply ing exorbitant tolls part company Matthew furnish Lord Justice service. Chief ought ferry city wrote, un reasonable to be the supply and citizens Hale “Each wit, public . on reasonable terms. regulation, der monopolies give time, a as were the com- attendance at due boat Odius law, they repug- more and take but a reasonable mon are still due order genius spirit our Waite said to the toll.”7 Chief Justice nant obligations Cases, (16 generally, Slaughter-House two 4. assumed applied; and, Wall.) en- if he L.Ed. —to serve all who service, Rehnquist’s performance quoted upon of his in Mr. dissent Justice tered Surety Casualty manner’.” ‘workmanlike Weber Aetna & do to Wyman, sxipra at 166 : note “Wherever C.Ct. (1972). monopoly is found the situation L.Ed.2d 768 virtual apply shall that all who this demands law paragraph 5. are dis The statements this facilities, adequate served, Wyman, “The Law of tilled compensation dis- reasonable Callings of the Trust Public Solution ; in- in crucial otherwise crimination Problem,” 156-73, 217- 17 Harv.L.Rev. inconvenience, oppression, ex- stances (1904) ; Origin Burdick, “The injustice rem- will be no there tortion of Public Service Com Duties Peculiar panies,” wrongs.” these industrial edies 616-38, 514-31, 11 Col.L.Rev. ; Barnes, (1911) “Government 743-64 Regulation Maris,” Tracts Collection “De Jure Corpora Service Public England (Har- Law of Relative Marquette tions,” L.Rev. 65 1787). grave ed. per- Burdick, supra “A note 518: son, holding out himself to serve great public venience to be republican duty tolerated to the always imply institutions, necessity convenience public meet the con- on the occasion and are correspond- necessity; tolerates jurisdiction violation tive itive ^[******] “We have held that here is writ, to restrain positive public injury, writ, and that we it.” as a law to preroga- positive pos- railroads of the N.W.R.R., Wisconsin, said torney general perity of life. “And all writ, right. Every person suffering or about to suffer their bless the strict disregard sion becomes freely make vate judges, great still influence is gate mon law for resistance so public power, and all are right; “But such their existence.” And in ^[*****] oрpression in attorney general little injunction. maximum fixed dangerous fewer persons up Attorney regard and so restraints of and are ordinary outside 35 Wis. courage in wrongs them, held England aggregations private persons so granting corporate duty, measure of could public, formidable, their who used so exacting so private beneficially large, practically above great corporations General for the various, remedy remedies of When and public litigate public and by the had the common their oppression, integrity wrongs. rates public little 530-531, apply for the their of average go occasion ably and capacity restraining legislature, capital Chicago so in excess rights state at- few duty oppres- private control, private powers far to equity them; ^[*] Their many pros- com- 595: law, ‍‌‌‌‌‌‌​​‌‌‌​‌​‌​‌​‌‌​​​​‌​‌​‌​‌​​​‌‌​‌​‌​‌​‌​​‌​‍pri- liti- her and so of & power mean linois was trol ed, the milk established a wherever the ades of the 1860’s and In interest’ guished 54 S.Ct. at 515. The Court distin- that fere, by v. New public pelled to resort” 78 L.Ed. nopolies sented an accurate law treatment of the natural mo- background mon linois demonstrates that nopoly pendent upon ed in the so this case no utility. goes the cepted A recent exhaustive “The adequate “We for the dairy industry no more than that an affectation doctrine of Munn to fix milk York, “public price system, can, sense of phrase virtue of its We think the in replaced in 1934 business are in and which citizens were public monopolistic New reason, asserting Milk in the nature of where the Court declared public as well could saying utilities”: suggestion public as it existed ‘affected with a history prices. York analysis Control good.” regulate needed that those the Court observ- say phrase, grants that there is subject not, appellant legislature of Munn police study of the case 1870’s.8 The practice. once that at of the Board with Id. at in the dec- protection. in the ac- and upholding industry, way powers, to con- Nebbia things, engag- public public “com- inter- fran- is al- v. Il- v. Il- com- mo- pre- had de- It public. on privilege conducting

writ behalf chises for the Scheiber, Emi- “The Road To Munn: bedded common-law doctrines Concept kept Domain and the of Public nent alive American courts Fleming Purpose Courts,” them, many relying the State line of cases — History Bailyn, heavily Law American tracts as Hale’s the fountain apposite notes: 330-31 Scheiber doctrine —that dealt with types property riparian admiralty law, even “That certain tlie limits ownership pub- police power, in their and the constitu- e., use, surrounding i. lic their ‘affected with tional conditions exer- public interest,’ longer and thus no of eminent Id. at cise domain.” 354- juris privati only, concept em- was a present their application, Id. their activities.” that under- standing certainly most included at 513.9 cover- age of being the state-like action then that, to hold Nebbia was effect of by public exercised utilities under care- vitally and “public utilities” while ful and detailed state control. public essentially inter- with a “clothed inter- est,” public some also has emphasis The common law on the mo- variety great of other business- est nopolistic public character of a interest multitude of reasons es for a business pervade judi- has continued to welfare, health, morality, con- analysis cial of what constitutes “state competi- resources fair servation of purposes action” for of the Fourteenth tion.11 Amendment corresponding and the “un- pe- very clearly appears language der color” of the Ku Klux Act. regulation by pervasive riod 1866-1871 Lodge In Moose Irvis, No. 107 v. mo- limited to natural the state was 1965, 32 L.Ed.2d enjoyed nopolies, utilities which majority opinion both the privileges public and to extensive Douglas Mr. Justice in his dissent compelled citizens were resort. agreed Lodge that the Moose was not “a only powers police later that state place public accommodation” or a regulation encompass extended “public enterprise undertaking.”12 great private other endeav- varieties of Despite having distinguished private regardless or to Thus, ors. of whether public club enterprise, from a opin- “original understand- both what extent ions are monopolis- concerned ing” with the the Fourteenth Amendment aspects liquor tic of the club’s limit license. and the Ku Act is deemed to Klux virtually occurring subsequent grain all 9. The in effect that found “public Munn decision. in Munn elevators were not util- ities” : “Munn and held no fran- Scott majority Rehnquist 12. Mr. in the Justice They chise from the state. owned the opinion said: property upon their elevator was situated and conducted their business as apparently holding “Far itself private they citizens. No doubt felt at place public out as a accommodation. liberty they pleased to deal with whom Lodge quite ostentatiously pro- Moose they might and on such terms as deem open claims the fact that it is not just enterprise to themselves. Their public large. at Nor is it located fairly monopoly, could not be called a operated surroundings in such that although it was referred de- private although name, discharges monopoly.’ cision as ‘virtual This performs a function or a service that meant tegically that their elevator was stra- would otherwise all likelihood be large por- that situated and performed by Id. at State.” public highly tion of the found it incon- at 1972. S.Ct. venient to deal with others.” Id. at Douglas stip- Mr. Justice noted it was at 514. S.Ct. Lodge ap- ulated that Moose pear “does not “Plainly railroads, any public 10. characteristics,” the activities of their to have charges practices, nearly so touch and that its “role aas center of commun- society the vital ity activity” economic interests open question. remains an police reg- power be invoked to He stated: charges, their ulate and no additional private club, definition, “[A] clothing formula of affection or public with a public not in the domain. And fact justify interest needed to gets that a club some kind of regulation. evidently And this is true of permit municipality from the State or transporta- supplying all business units tion, ipso public does not make it enterprise facto light, heat, power and water undertaking, more communities, irrespective they of how grant than the permit to a householder of a powers.” obtain their Id. at operate puts incinerator (emphasis added). at 515 public householder domain.” 180, 92 Id. at The Court cites scores of such instances businesses, interest various companies responded themselves have success Rehnquist trie Justice Mr. fully urged acts, “state by saying: their as Douglas dissent operation action,” from the are excluded prohibition of the effect “The limited against with in accordance the antitrust laws obtaining li- additional club Brown, Parker 317 U.S. (1943). number maximum censes when 307, 87 L.Ed. 315 municipal- to a allotted retail licenses issued, ity when considered Light been Co., the court conclud- In Gas liq- availability together ed 1140: F.2d restaurant, hotel, and retail uor from lengthy gave here Commission “[T]he conferring far short licensees falls practices consideration to each monopoly upon licensees a club attack, full and after and rates under any given dispensing liquor mu- adversary hearings into ordered them nicipality as a whole.” or in the State major effect, some modifica- 177, 92 1973.13 Id. at S.Ct. at conduct cannot be tions. Defendants’ attempts of The successful action characterized as individual from the utilities to exclude themselves intimate when we consider the state’s operation of the antitrust laws has rate-making involvement with ground they been process. Though prac- the rates and monopolies, rather on basis regulated originated tices with the activity exempt “state ac their Georgia utility, Power, make the facts tion.” gas companies recent antitrust cases where emerged plain from the charged prac products Com- Commission as companies conspir tices of electric mission. gas acies energy to eliminate natural as * * * * * * competitive source with electrici exclu Parker ty Georgia view is that the (Gas Light Co., “Our Power Co. v. practices applies to rates and sion 1971), (5th 440 F.2d de Cir. cert. monopoly public enjoying nied, utilities 31 L. policy under their status state when (1972)), offering Ed.2d 244 or that practices subjected to and are rates underground free electric service lines meaningful regulation supervi and to new in return for home builders “all sion to end that state electric” installations were invalid an judg the result of the considered Light (Washington titrust “tie-ins” Gas regulatory Virginia ment of the state authori Co. v. Electric & Power 438 F.2d 248 (4th Cir. 1971)), elec ty -* ^{[*] [*]} ” doubt, in fact 13. In can be no and “There Public Utilities Commission Pol argue Light Washington lak, does not Gas L.Ed. reg- contrary, upon the SCO is a to ulatory the Court relied possessing state, approval both regulatory arm of the commission necessary authority powers practice to investigation, after a and full gas Instead, piping qualify programs buses, under Parker. radio into as though providing necessary company argues governmental even ac rely VEPGO’s [“under- was aware of tion. SCO The Court said it did operated ground company distribution”] ac- the fact residential the bus public utility it made no investi- before tivities on the streets or that it enjoyed gave approv- By gations monopoly. affirmative and no a substanial its (or disapproval) however, factors, the VEPCO mention of al these importance plans, their and that VEPCO’s conduct indicated in a agency regulatory аc- and not case therefore ‘individual’ ‘state’ where the does not approval. argument is make an not without affirmative tion. is inevit- merit but conclusion equates Washington Light administrative 14. The one court Gas able unless Co. adminis- with abandonment went even and silence further held adminis- duty. just as sensible trative trative “silence” constituted “state ac- e., consent, tion,” i. saying means infer silence at 438 F.2d 252: any utility public fense. 196.60. II. If § give any preference shall unreasonable utility public A as com- Wisconsin advantage any or person or sub- shall plete interchangeable gov- fully and ject any person prej- to an unreasonable the mind could ernment-substitute as disadvantage, penal- udice may it company A conceive. electric ized not less than nor more than $50 enjoys state-bestowed, state-protected $1,000 for each offense. If 196.62. § state-regulated monopoly and natural any public utility any prohibited shall do every compelled re- citizen is act, person it shall be liable to the in- exchange monopoly sort. its mar- jured thereby damages. in treble 196.- § state-guaranteed ket its and return on investment, its it must furnish reason- ably adequate pow- Commission is at a reasonable vested with jurisdiction er supervise and charge reg- just indiscriminately and all and every public ulate utility territory, protected and do customers within all things necessary complete full and convenient it must submit government power jurisdiction. exercise supervision of such both through 196.02(1). authority It shall have § Com- the Public Service inquire management pub- municipality into of all mission keep lic itself utilities informed serves. to the manner and method in which the legislative Under Wisconsin enact- conducted, business obtain utility ments, public extend necessary any public from in- all premises render electric service to the 196.02(4). formation. § Commis- receiving person already of a such serv- books, inspect sion has the utility; public ice oth- another accounts, papers, records and memoran- every utility operates er words, under any utility, public da and to examine monopoly. a state-fostered Wis.Stat. agents under officers, oath of its Ann. 196.495. shall No § employees. 196.02(5). The Commis- rendering commence service unless require system sion can a uniform shall first obtain a certificate from the accounting. Each § 196.06. state Public Service author- Commission utility must furnish to the Commission izing 196.49, it to transact business. §§ reрorts covering every aspect in detail Every license, permit 196.50. or fran- of its reports business. All 196.12. § granted by chise the Commission is an pertaining public and records utilities permit. 196.54, indeterminate 196.- §§ possession of the are Commission 55, 196.56. open inspection public by the at all Every public utility required to fur- reasonable times. The Com- 196.14. § reasonably adequate nish and fa- service may mission value or revalue all the charge. just and cilities at reasonable property any public utility. 196.05. § any public 196.03. for unlawful § If the Commission finds that the rates utility charge greater or less com- charges unreasonable, unjust, or are in- pensation by any performed for service discriminatory unjustly sufficient or or any utility public it. 196.22. If dis- § preferential or otherwise unreasonable by greater charging a or criminates less unlawful, or it fix shall determine and compensation, penalized be charges. reasonable rates and 196.37 § $1,000 less for than nor more than $100 d). offense, agent each and officer its or regard power offending In to the so Commission’s shall fined be not less than jurisdiction every services, pub- nor more $50 than for each of- $100 and over approval. Indeed, eventually so, the latter inference if it to do chose likely affirmatively spoke seems more one when we modi- and first SCO gas company finally promotional remember that even the fied and ended possessed practices upon concedes that ade- SCO the suit bas- which was quate regulatory powers stop ed.” VEPCO written tory fix reasonable lie er measurements, obligation any lawful, organized, consolidated, of. § ed, reasonably Commission utility sion all inadequate, cient, preferential, ices are uct. No hearing. utility the Commission utility manner affect or public § 196.37(2). rate approval rules and 196.19(2). otherwise unjust, shall or shall shall which demanded finds that undertaking § regulations practices, find be 196.20. Whenever file with the of the Commission purports unreasonable, regulations shall be effective without service which unreasonable the service unjustly shall No cannot be merged any change determine any acts in lieu there- to curtail dissolved, regulations, discrimina- service which Commis- or serv- or insuffi- obtain- or can aban- prod- aft- any un- re- vate public utility vide building, ty of function between a works tertwining supply of to the service for the gas, ^[*] tricity gas or electric current or ing, utilities. This Finally, ascertaining ^[*] meters, electricity ownership repairing, ^[*] or water and to summary public purpose § room or “Any gas, the Wisconsin statutes supplying 196.58(5). utility. pipes, furnishing public enter regulate or water electricity or and, further, officer or installing supplied.” demonstrates quantity place supplied fittings, regulation inspecting, any dwelling, or service of public purposes or regulating both or water agent or transmitting municipality wires and § removing gas, or water examin- 196.171. utility, identi- public store, elec- pro- pri- any in- approval consent and doned without government places Where mo- 196.79, 196.78, §§ the Commission. nopoly power private hands, even in 196.80, 196.81. recipient power cases where the of the public utility “government- is not a or a addition, any public In shall substitute,” acceptance per- indeterminate (or found “state action” the concomitant to a mit deemed have consented governmental action”). “federal purchase property actual- future Railway Department v. Han- Employes’ ly used useful for the convenience son, L. public, by municipality the enactment Ed. compensation un- it serves for the Act) (Railway au- federal statute Labor der terms and conditions determined thorizing agreements shop union the Commission. 196.57. While “governmental gave action,” since ownership, remain under how- sup- monopolistic power unions over ever, subject all utilities employees. Lathrop ply of railroad regulation municipality Donohue, 1826, 820, v. 367 U.S. 81 S.Ct. they municipality serve. has (1961), the Court found 1191 power quality char- to determine the and Supreme action in the Wisconsin product or serv- of each acter kind attorney requirement Court’s an other furnished rendered and all ice integrated must bar be a member upon and which terms conditions law, practice association if he to wishes public permitted to oc- be lawyers monopoly supply because a highways cupy streets, other and was created.15 public places municipality. within 196.58(1). The Commission shall by pri- action is also carried on State original jurisdiction with perform public and parties concurrent func- vate who a govern- ordinarily performed by tion a municipalities require extensions to also, Bigwood, a See and for mobile homes F.2d restrict sites Lavoie v. 457 private monopoly 7, (1st 1972) over 14 : concomitant Cir. find that “[W]e appellant adequately alleged sites.” of those ‘state allocation asserting purpose in tо action’ a town Alabama, parks agency. plainly public mental Marsh v. domain * * 276, 90 L.Ed. 265 *. Like U.S. 66 S.Ct. streets the com (1946), prívate pany corporation Alabama, town Marsh v. supra, “company process to Terry owned a town” was held the elective v. carry (“In Adams, supra, system on state action. short and the transit Pollak, shopping are ac- Public district Utilities Comm’n town and its supra pub- freely used [343 cessible to and S.Ct. nothing general (1952)], predominant L.Ed. 1068 and there lic distinguish purpose character park other town them are municipal.” except shopping the fact center belongs pri- property to a the title to the pri- founded in Restrictive' covenants corporation.” at vate Id. vate action serve the same function and 277.) zoning have the same effect ordinanc- as through delegates aspect promulgated governmental es Where a state private groups, process the elective sanction and therefore constitute state they subject Shelley Kraemer, re- action. become to the same Terry Adams, (1948). straints as the state. S.Ct. L.Ed. 97 L.Ed. 1152 only Not is the electric defendant company in this ease “accessible to and freely general;” Newton, used

In Evans v. “predominant 15 L.Ed.2d 373 are its character Unit- purpose ed municipal.” States . senator had willed a tract of . . Wis- city Macon, Georgia, actually compelled land consin citizens are only. people park muni- for its facilities. And used as a white use cipalities segregated kept park city could take it serves desired, facilities, over those so years, let blacks use some time operate directly. brought them It is diffi- it also. was remove Suit imagine thoroughly city city resigned, cult its state- trustee. The a more integrated government-substitute resignation than accepted, and the Geor- public utility; gia Supreme the one here is involved held that the senator particularly example. eminent bequeath property had reversing, to a limited class. Su- utility operates as an defendant preme 301-302, Court said at agent supervision under the of the state 490: regulation of the defendant Public jointly Commissioners, pri who “The service rendered even Service acts, park responsible satisfaction vate is munici this character pal every requirements open of “state action” nature. It being of state law.16 person, white there “under color” selective * ** A determined whether element other than race. remains * * * integral part park here is more like a fire de involved was an act merely a partment police department action or was of such state traditionally community. disassociated serves act through Mass recreation the use from its business.17 Amendment,” Black, “The Court 1966 Term: The Fourteenth Under Equal (1957). Action,’ Protec- Forward: ‘State 208 S.Cal.L.Rev. tion, Proposition 14,” and California’s (1967) ; Williams, III that the I Part 81 Harv.L.Rev. 69 While conclude substantially Twilight Action,” 41 involved “The of State Tex.L. state was (1963) Alstyne Karst, action, opposite ; & conclusion Rev. Van disconnect an 347 ; holding Action,” (1961) 14 3 not necessitate a “State Stan.L.Rev. would Lewis, Meaning Action,” Mr. Jus “The a act. State diconnection was Horowitz, Lodge (1960) ; Rehnquist v. 60 No. 107 Col.L.Rev. 1083 tice Moose Misleading Irvis, L. “The for Action’ 92 32 Search ‘State 666 paid by plain- III. and bourn Street was plaintiff tiff; then moved to plain- court dismissed district Street, he Paul was 3328 West where St. upon the motion of of action tiff’s cause charged paid at four and he least month- Commis- Public defendant Service ly being prior to statements notified (in motion the defendant sioners of his West threatened disconnection Electric Power pay the Paul failure to St. service for joined) failure the action for to dismiss Cly- disputed one item West $9.89 complaint a to state the amended bourn. granted upon claim which relief could be acknowledged generally It has been state a substantial for failure utility company judicially public a plain- question. Therefore the federal engaged municipality supplying or a allegations be taken true tiff’s must as gas electricity has the per- (1) he that: sonally on December off to a utility’s to cut service customer the defendant went to just nonpayment by for him a Michigan Street, Mil- office 231 at West bill, may adopt enforce, as a payment waukee, in cash for and made regulation charge reasonable for the conduct of for his current electrical service business, supplied Cly- a rule that service 2714 his residence West located to a cut off because of Street, Milwaukee; customer be (2) his re- bourn payment. Annotation, payment; his default in 112 stamped ceipt was for (1938).18 A.L.R. 237 A reason for the (3) plaintiff cur- make continued to remedy “is rule for payments limit refused utilities but rent compensation arrearage; disputed for the sеrv- pay collection of one for the impracti- ice cable, actions at (4) law notified leading number infinite dis- service would be that his electrical very of actions against small bills July 6, to collect continued on consumers, many of scattered Although sparse, it record here is financially mere irre- them sponsible.” renters and and some does affidavits contain some Electric Steele Clinton v. interroga- by the defendants to answers Light & 123 193 Power Conn. appears it that the From these tories. A. 615 disputed payment in the amount was charge present subsequent But case does not involve $9.89; that a nonpayment undisputed Cly- As accounts. premises West at 2714

made Holiday 1971) ; (1972), v. Inns Cir. Smith his discussion Ed.2d (6th Authority, America, Inc., Wilmington Parking F.2d Cir. v. Burton Neigh Square 1964) ; Tompkins v. Colon F.Supp. (S.D.N.Y. bors, Inc., direct con not mention F.Supp. ; Moses, Authority 1968) and the Anderson nection between (S.D.N.Y.1960). In racial discrimination. restaurant’s stead, emphasizes properly the Court’s rule, multiple 18. If this not an established links between reliance ground that government well contested on the the restaurant. That could monopoly highly gives anoth- favored and the concern with discussion ordinary advantage licensing aspects liquor merchant monopoly er over seem pay- who, recognition make when his debtor fails to the extent to indicate ment, might great court action collect. must initiate of state be so involvement dealing stop despite only The merchant’s threat exist state action would need the consumer coercive effect since the act minimal nexus between com plained regulation. next merchant. The find the the state utility’s authority serv- threat to discontinue vital for such There substantial highly Parking Wilmington ef- elsewhere is ices available view. Burton discourages totally Bigwood, Authority, supra; fective coercion and Lavoie v. litigation. Note, 1972) ; (1st Bee “Public Utilities McQueen F.2d 7 Cir. Requirement 1971) ; Druker, (1st Cash and the Poor: The 438 F.2d 781 Cir. Consumers,” Deposits Washington Light ‍‌‌‌‌‌‌​​‌‌‌​‌​‌​‌​‌‌​​​​‌​‌​‌​‌​​​‌‌​‌​‌​‌​‌​​‌​‍Virginia From Domestic Co. v. Gas (1969). Co., (4th Yale L.J. 448 & Electric Power 438 F.2d stands, plaintiff’s record contrary general now ac- le- paid gal principles The governing count was full. defendant such conduct. problem, has threatened to discontinue The however, critical is the ex- paid service the same account is tent to which the state has insinuated it- time, clearly problems second discrim- self into the discontinuance inatory practice under payment Wisconsin stat- dispute. service where is in 196.60, utes. 196.62. Wis.Stat.Ann. §§ September 27, 1932, On the Wisconsin assuming Even the order dismiss Commission, upon Public prior Service was vacated and the case remanded for notice, hearing investigation held a and utility, proceedings, further proposed guaranty relative to standard contended its answer that $9.89 deposit proce- and rules and disconnect merely paid,19 account was not created a hearing public utility At the dure. one dispute payment. bona fide Nei- as to authority contested the Commission’s operation ther situation calls into subject establish rules on the on the “general regarding rule” discontinuance ground governed pure- that such rules service. fact either situation calls ly managerial equiva- function entirely into effect different rule: lent company’s confiscation of the dependence “[B]ecause the consumer’s property. The Commission found that utility provides with an over- position “untenable.” On November whelming bargaining advantage, discon- 1935, the Commission issued its order tinuance can not be used to coerce a cus- effective January entitled “Re paying tomer into a bill when there is Deposit Guarantee and Rules Dis- dispute concerning bona fide its validi- Procedure,” connect 11 Public Utilities ty.” Note, Duty “The of a Utili- Public (New Rep. Series) (1935). ty Adequate To Render Its Service: Commission said at 443-44: Scope Enforcement,” 62 Col.L.Rev. subject “The which has been the (1962). See Steele Clinton chief bone of contention between the Light supra, Electric Co., & Power le- Commission and the is the utilities 615; Annotation, atA. A.L.R. gal limitations which attach 241. Additional reasons for rule this privilege of disconnection or refusal are that the alternative enables the utili- approach of service. the sub- Our ty pass judgment on its own case20 ject that, under been modern con- encourages fraudulent tactics.21 ditions, light, heat, power, water, and Therefore, plaintiff’s prime whether ac- communication service are ne- paid payment life, any count was was in dis- cessities of one which pute, vitally health, business, the threatened cut-off of affect opinion duty consumer, 19. The district court said: to each consumer. effect, complains “In system, once taken on to the becomes system dependent prime refusal of the Wisconsin Electric Power on that for a necessity business, cоmfort, health, to extend credit.” Lucas v. Co., pure Wisconsin Electric Power 322 P. and even life. He must have the Supp. 337, (E.D.Wis.1970). daily hourly. suddenly This is water To plaintiff complains deprive water, not what of at all. him of order paid pay One who contends that he has his all force him to an old bill claimed to seeking unjust, puts bills is not credit. him at an dis- enormous advantage. He cannot wait Light surrender, Steele v. Clinton Electric & Power water. He must and swallow choking injustice. Conn. 193 A. 613 sense of Such power company in a water or munici- City Auburn, pality places mercy. Wood v. Me. the consumer at its 32 A. always It can claim that some old bill Maine, enjoining unpaid. Judicial receipt may Court of have been shutting lost, off of water because of a dis- the collector have embezzled puted bill, money yet pay said: the consumer must city, company, “The again, perhaps again. as a water cannot still He resist, do as it will with its water. It owes a cannot lest he lose the water.” Certainly opin- expense. undue ion, therefore, We the are of the customer. comfort privilege deprived the be no one should as just disconnection should except and be considered sufficient for services technically extra-legal remedy point- frequently a to be been As has cause. utility only courts, to after invoked the enforce customer a

ed the out legal rights resort a any of above to having to the subscribed used, dependent wholly court of law. It should not be becomes services places frequently thereby in the utility as it has been too upon the disadvantage. up past, compel pay a a customer to to at enormous himself an equal delinquent an unrea- parties on account within are not the Since disconnecting period impose other un- sonable or privilege footing, pow- refusing conditions burdensome a reasonable constitutes service arbitrarily facts are weapon which, not warranted erful may exercised, ease.” capriciously be used short, unduly. a coerce customer proceeded The Commission then to set exer- privilege be is which should a “principles interpreta- forth nine only to cised with caution extreme including following: tions” requirements compliance with insure may denied at “6. Service not be equitable and enforce- both one location customer’s because at able law. pay previous bill failure to a at a loca- tion. principle, “In connection supreme judicial court of Maine not denied at “7. Service (1895) 87 Auburn Me. Wood v. a who same location to customer one of 29 L.R.A. 293, 32 Atl. paid has but who the current bill subject leading owing delinquent cases old bills still some (Id. disconnection, company. 445.) answer to the said in . . .” may ap- the customer contention that including “principles,” Each of the ply sum recover courts two, supported or was above pay compelled threat he under of numerous cases. der the citation oblige person ‘To a disconnection: concluded, “With Commission vio- such a course follow interpretations foregoing principles and juristic lation the fundamental following in mind we believe

principle procedure . . . guide adopted rules should be something he asserts to be who along action lines.” these future Id. debt, him, shall denies who separate A rule was set forth judicial action have proof.’ burden guarantee deposits, and disconnect. existing covering presently these rule primary “It is our belief subjects substantially the same as the as- rule function of a disconnect order in the 1935 of the Commis one collecting legitimate sist utilities sion; apparently it has been modified utility without resort- bills for slightly by subsequent time to time Various to court of law. Wis.Adm.Code, Commission orders. representatives pointed out, and 113.13.22 ch. PSC § that the cost the Commission concedes beyond dispute attempting accounts the state to collect small through prohibitive. has insinuated the Commission Further- courts is problem more, put of dis- into the entire customers itself such suits present should not defendant codification of rule “principles expressly service. What- nine threaten to discontinue include the utility’s are, interpretationspresumably threat ever the facts re- Therefore, guidelines. is unlawful electric service discontinue his main effect as pay account at it is on an if the because based old even did not the dis- puted guidelines account, location. different 7 dictate (1972). Although stove, of its 1935 order. connection virtue such items aas legislature, stereophonic addition, phonograph, In the Wisconsin a table and a utility investing “deserving process the defendant with bed pro- are of due power authority tection,” Shevin, 67, the enter into Fuentes v. 407 U.S. 88, plaintiff’s dwеlling 1983, 1998, to remove the 92 S.Ct. 32 L.Ed.2d 556 “meters, pipes, fittings, requirements proc- wires and works “the of due regulating supply” supplying embracing” ess should be more when an joint electricity party necessity of become a absolute has of modern life such as resorting self-help electricity utility Lindsey with is involved.24 See v. procedures subject, 862, as in this Normet, 89, 405 56, U.S. 92 S.Ct. case, opportunity for (1972) (Douglas, J., to abuse and 31 L.Ed.2d 36 dis- trespass. senting possi- part). unlawful Whether it is utility accomplish ble for the the dis- century “For more than a the central throwing continuance of service meaning procedural process of due self-help switch before or after tres- rights been clear: ‘Parties whose are to pass not a detail which would affect heard; be affected are entitled to be per- impact activity of state’s they may and in enjoy order that mitting it. right they must be notified.’ Baldwin v. Hale, 223, sufficient I would hold that there is 1 223, 68 17 Wall. L.Ed. * * * give ju- 531, equally state action federal court It is fundamental opportu- under Fourteenth Amend- risdiction to notice and an nity granted ment all and that the defendants acted to be heard ‘must be at a purposes meaningful under meaningful color law for time and jurisdiction Armstrong 1 Manzo, under section Civil manner.’ v. 380 U.S. Rights (Ku Act, 545, 1187, Act of 1871 Klux U. 42 552, 1191, 85 14 L.Ed.2d 1983).23 S.C. § 62.” Shevin, Fuentes v. 1983, 1994, L.Ed.2d IV. (1972). Judge agree approach I Stevens’ question The next is whether the rules process only that due be assessed must governing disconnection of electric serv- after consideration remedies promulgated by ice the defendant currently plaintiff, available to approval with the tacit defendant disagree I is available what satisfies deprivation Commissioners resulted process remotely approaches due or even plaintiff’s liberty property suggests majority opinion it. three process of law in contravention of possible judicial remedies, all of which the Fourteenth Amendment and 42 U.S. require the customer to take the initia- C. 1983. § remedy (1) equitable injunc- tive: It has now been that 42 established tion; (2) payment protest under jurisdictional U.S.C. 1983 and its § refund; (3) remedy suit for at law counterpart, 1343(3), apply 28 U.S.C. § damages. property rights well as as regard equitable Fourteenth relief, Amendment its terms. it has Lynch Corp., Household Finance v. been noted above that the Wisconsin Su- preme early L.Ed.2d Court held as 1874 that However, Regents Project, inasmuch as a “note” to PSC New Left Education 113.13(4) provides, “Some utilities practices (1972). rules or that are more lib- particulars eral to customers some than the Wisconsin Public Service above,” I rules enumerated would electricity as a Commission described agree Judge Stevens that rules necessity “prime life.” Re Guarantee applica- issue here are not of state-wide Deposit Pro- Rules Disconnect three-judge tion. Hence a court was cedure, (New Rep. 11 Public Utilities required Series) to be convened. Board judicial attorney ac- general procure shall have the burden could the state offending pub- proof. only injunction tion and It is case an persons principle could to the state that this since dues lic suspended.’ Auburn, “for individuals not do so as Wood go wrongs so little 29 L.R.A. Me. A. . average up measure 376-378.” far to make Attorney prosperity of life.” General Not did the Wisconsin R., Chicago R. 35 Wis. & W.N. opinion in its in Pabst the Court discuss case, (1874). present the 530-531 In unequal utility battle cus- between and attorney general the not to has come tomer, inequitable which renders it to plaintiff’s aid. place the burden on the to ini- individual equity. It Supreme tiate court action at law or Later the Wisconsin also, quotation City as noted in Corp. Milwau- in of said Pabst v. Wood, requirement of kee, concluded 527, 213 N.W. 193 Wis. protest pay- payment under (1927): limited to ment of revenue to the state. the cost of “For the small consumer authority utility public The has that a proceeding equity an such a in [for right no lawful to discontinue service propor- injunction] out of would be so account, nonpayment disputed for of a pro- to be the amount involved tion to or or an account for a different location public a hibitive. To hold an older account when a account current necessity supplying of an absolute paid, support has theory no a been lends compel a con- urban life can modern right that a has the illegal pay excessive and sumer ju- principles to reverse the of burden depriving the a threat of rates under action, eq- dicial uity. law25 in whether or then de- the service and consumer of illegally recovery feat for excess Shevin, Fuentes has consumer collected because the equity ‘would be a in resorted to suit seizure the Court discussed the juristic a violation of principle fundamental goods hearing, without notice procedure. princi- That is no different than seizure which ple de- claimant, is that not the power: electric judicial proc- fendant, shall resort something ; ess that he who asserts hearing, a later an individual’s “At debt, him, denies a possessions be due who him if can returned to 25. As an in opinion). er’s chant to some of which he sued the ice because he company judgment apparatus Stevens preme Court, containing another Shepard service, proper waukee Gas supplied Wisconsin remedy several caused has cited the last examide suit appealed gas for Milwaukee who Shepard Light in affirmed. company for $100 and costs. The company gas company’s regulations, fixtures. refused (footnote tort shop however, and he gas damages. to the was a regulations agreed but was denied serv- for to be objected. continued to 6 Wis. aggrieved Shepard He 23 of damages, sign hardware fitted Shepard demanded recovered The lower December, majority with contract Shepard Shepard brought custom- Judge ^[539] deny mer- Mil- case Su- gas gas im- to the Wisconsin was had and aside the Co., written written reaffirmed tions, invalid court nonsuited Shepherd dlelight. three Court affirmed on a pealed tomers hunted Gas Court, Light jury 11 Wis. he recovered in the total amount held appeals during regulations). application application verdict for [sic] that under the circumstances nonsuit Co., Shepard gas to the Wisconsin 243 [234] which time for invalidity v. Milwaukee Gas him company. Supreme nuts damages for Shepard Wis. and ordered had been (which $1500, for recovered He failure to file (1860). Shepard’s then contained Court, bolts (1862). $1600 waived, Milwaukee judgment appealed Supreme a trial. was regula- which Light Trial after can- cus- ap- set mistakenly unfairly anticipation, in fact taken no- without tice, Damages trial, place. even be mere the first their own wrongful dep- summary jurisdiction for This to him motion. awarded hearing given any judi- would not be rivation. But no later damage upon cial case, award can undo fact courts taking subject urgent emergency. arbitrary that was most Much less procedural process could have been the intention to already power upon confer parties occurred.” one im- to a contract such vital provided complaint portance. hardship for is no the ad- consumers at utilities company resort to the same tribu- initiated must be ministrative level nals, upon procеss, protection like persons. least 25 Wis.Stat.Ann. against fraud, provides as the law comparable the ad- This is 196.26. individuals.” inadequate remedy held ministrative Education, process U. McNeese 373 v. Board Due tolerates in the variances 1433, hearing “appropriate 622 668, S. 83 S.Ct. 10 L.Ed.2d form of to the (1963), case,” of a 50 residents school where nature of the Mullane v. Central percent, Co., was district or 10 whichever Hanover 339 Bank & Trust U.S. less, segregation complaint 652, 657, file could 94 L.Ed. 865 superintendent (1950), “depending upon impor- with the state and investigation Certainly, involved,” instruction. tance of the Boddie interests “may Connecticut, mo- 371, 378, Commission on its own v. S. U.S. (§ 196.28) 780, 786, (1971). tion” make or the defendant Ct. 28 L.Ed.2d 113 dealing utility’s procedures that, prior informal I hold discontin- to the satisfy complaints power disputed with procedural cannot be said uance of of a ac- because right process. count, disputant to an due is entitled to some impartial judge hearing impartial inter- who kind before an ar- —one representatives in the outcome of a case him est before biter other than required public utility. —is to meet the minimum process. standards son, In Murchi- re I hold would also that some notice rea adequate in time sonable in content (1955); Tumey Ohio, L.Ed. 942 clearly he must advise the customer 510, 523, 71 L.Ed. right hearing has the to such a if (1927). disputes charges leading to the Shepard Light v. Milwaukee Gas indi threatened If he disconnection.26 hearing, Wis. 537 [539] cates his desire for the ly obvious Supreme Court he would further rea determin- be entitled to gas invalidity company’s place of a sonable notice as to the time regulation hearing. said: regulation utility re- “Another ... The defendant is not infallible. company to the during serves any It admitted to 646 errors a re- year. time cut communication of off cent calendar There is no reason pipe, why present the service shall find it preliminary informal necessary so, protect negotiations utility do between and custom- fraud, works abuse or either er which unearthed these errors would five-day upon taking 26. The “notice of disconnection” looked with Court disfavor present my not, opinion, advantage uneducated, case did of “an uninformed any meaningful requirement. legal help serve notice with little consumer access to hearing, familiarity legal pro- Notice must be of a not of dis- and little with require Shevin, connection. Nor would I cedures.” Fuentes presumed customer “be law.” to know the The notice tell him should what 556 n. pertinent Recently law is. disconnec- hearing threatened were disconnections notice continue if accounts, upon disputed un- tions based disconnec- prior to required threatened provided customer 10,000 less until dis- Despite tion. notice adequate and reasonable each defendant connections impartial hearing arbiter. year before 71 a year, calendar recent in a disputes their persons far with so went Commis- Public Service contact the as to Bureau, a Better Business sion, officer. newspaper aor larger likely number much that a is not proffered advantage aof take would hearing. every- eases, perhaps In those the uniform benefit

one would procedure.27 WILLIAMS, Petitioner- Allen James Appellant, hand, amount small the other On relatively number small involved America, persons confronted who UNITED STATES Respondent-Appellee. plaintiff's similar to a situation disappear. The problem to No. 71-2920. cause opera- complex of error likelihood Appeals, States United tions,28 increasing probability that Circuit. Ninth pay a containing a check a letter Aug. venality stolen, lost or bill differences employees even honest very only real opinion make greater problem29 but one intelli- persons are unable

numbers gently cope.30 Northern Ihrke See (8th Cir. Co., 459 F.2d 566 Power States Co., 342

1972); Gas Palmer Columbia (N.D.Ohio 1972).

F.Supp. 241 proper Finally, is a I believe that this barred that it class action Act, 28 U.S.C. Johnson utility possible on effect since its constitu- purely

rates incidental to issues involved.

tional conclusion, the dis- I ‍‌‌‌‌‌‌​​‌‌‌​‌​‌​‌​‌‌​​​​‌​‌​‌​‌​​​‌‌​‌​‌​‌​‌​​‌​‍reverse enjoin this and similar

trict court posit Are Policies Scored daily why and Cancellation 27. news- There is no reason Hearing.” paper columns the few se- “action” should readers whom serve lected pleasant treatment In contrast 30. monopoly prompt, fair treat- have a description impliedly reflected ment. handling com- method theoretical Commission, plaints within 28. disavowed The defendant recounting daily items almost “computer among there annual error” handling slightly actual agency.” more abrasive Of course human errors “due to Today, Chicago g., See, complaints. e. computer viewpoint, in- from one May 2, page op- error; computer 4. capable anyone Nor can makes errors. erator Administering Miller, Ju- “Problems many go errors undetected how know Fed- under Actions in Class Relief dicial year. of a the course 23(b)(3),” F.R.D. eral Rule Times, 504-505 See, g., June New York e. 1972, page 33, De- “Phone entitled article

Case Details

Case Name: Alvin Lucas, on Behalf of Himself and All Others Similarly Situated v. Wisconsin Electric Power Company, a Wisconsin Public Utility Company

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jan 8, 1973

Citation: 466 F.2d 638

Docket Number: 71-1113

Court Abbreviation: 7th Cir.