*1 et al. v. RONWIN HOOVER et al. 14, May Argued January 1984 Decided 82-1474.
No. *2 Powell, J., opinion Burgee, J., Court, delivered of the C. which Marshall, JJ., joined. J., and Brennan Stevens, and filed a dissent- ing opinion, JJ., Blackmun, p. which White joined, post, and 582. Rehnquist, J., J., part O’Connor, took no in the decision of the case. part took no in the consideration or decision case. Hoover, se,
Charles R. for pro argued the cause petitioners. him on With the briefs Donn were L. Lankford Jefferson Kessler. E. von G. Ammon brief Philip filed a this Rule under Court’s respondents et al. as Bar of Arizona 19.6, petitioners. support the cause and filed a Ronwin Edward argued
Respondent se. pro brief the cause for Wallace argued General
Acting Solicitor curiae affirmance. With urging as amicus United States Baxter, Attorney General Assistant him brief were on the * C. Garrison Nancy H. Grossman Barry John Garvey, of the Court. the opinion delivered Justice Powell *3 whether the state-action This case presents question Sherman Act under the actions immunity doctrine of by examinations Committee grading bar applies of, to the Rules the Arizona by, according and appointed Court. I for Ronwin was an unsuccessful candidate
Respondent in to the Bar of Arizona 1974. Petitioners were admission Committee on four members of Court’s (Committee).1 Examinations and Admissions The Arizona *Briefs of amici curiae urging reversal were filed for National Melchior, Ashman, Kurt W. Allan by Conference of Bar Examiners and Chilton; Thumann, Jan Henry T. C. and for the State Bar of California Rosenthal, Jr., M. Richey, Herbert Truitt A. and Robert M. Sweet. A brief of amici curiae was filed for the State of Colorado et al. Sachs, Attorney Stephen H. Charles 0. Monk II Maryland, General of Jones, Woodard, H. Linda Duane Attorneys General, Assistant Attorney McMahon, Thomas P. Colorado, Attorney General First Assistant Gen- Miller, Perkins, Thomas J. eral, Attorney Iowa, John R. General of As- Abrams, Attorney General, Robert sistant Attorney York, General of New Constantine, Lloyd Leech, Jr., Attorney General, Assistant William M. Jr., Attorney Haynes, Tennessee, General William J. Deputy Attorney Mattox, Attorney Richards, Jim General, David R. Texas, General of Follette, Attorney General, Executive Assistant Bronson C. La Attor- Zaleski, ney Wisconsin, and Michael L. General of Attorney Assistant General. 1Although petitioners represent only four of the seven members of the February Committee at examination, the time of the 1974 bar Ronwin named all seven original members in his complaint. Apparently, three of
Constitution vests the court to who authority determine State. Hunt v. law in the practice should be admitted to Maricopa County System Employees Comm’n, Merit P. Ariz. 2d 259, 261-262, 1036, 1038-1039 (1980); see also Ariz. §32-275 Rev. Stat. Ann. Pursuant to that Court established the authority, Com mittee to examine recommend admission applicants the Arizona Bar.2 The Arizona Court Rules, in 1974,3 the court and effect adopted by delegated certain to the Committee responsibilities while court reserving the ultimate The authority grant deny admission. join, original apparent, defendants to this action did not for reasons not petition for certiorari in this There is no claim that mem- Court. these participate bers in or of the Committee failed dissented from actions of the Committee. years, procedure unique in Arizona is not to that State. In recent burgeoning number of candidates for admission to law and subjects complexity increased that must be tested have combined to make and administration of bar examinations a burdensome task. result, although highest As a court each State retains ultimate au *4 thority bar, for granting denying or admission to the each those courts delegated responsibility has to a preparing, subordinate committee grading, Klein, Leleiko, administering and the F. examination. See S. & (1978). Mavity, J. Bar Admission Rules and Student Practice Rules 30-33 parties disagree wording The on the of the Rules at the time Ronwin disagreement took the bar examination. The centers around the effective promulgated date of some amendments in contend that 1974. Petitioners the February amendments took effect before Ronwin took the 1974 bar examination; Ronwin submits that in March became effective 1974. amending Ronwin concedes the that Court order the Rules provided January that the amendments would in become effective 1974. Notwithstanding directive, argues this Ann. he that Ariz. Rev. Stat. (1982) provided § 12-109 Rules amendments to the Court’s may not days publication become effective until 60 and distribution. after 11, January Since the the Ronwin Court released amendments on the possible submits that earliest 12. effective date was March § only Ronwin has applied misread 12-109. That section to Rules that regulated pleading, practice, judicial in procedure proceedings and in state By terms, its jurisdiction courts. the statute did not limit of the Ari- zona Court to establish the to law in terms admission (1976). § See Ariz. Rev. State. Stat. Ann. 32-275 examine “shall appli the Committee Rules provided Rules and “recommend on enumerated subjects cants” found to to practice” applicants for admission to court th[e] 28(a) (1978).4 They Rule the requisite qualifications. have “utilize or to such grading the Committee authorized also Committee deems its appropriate as the system scoring Bar Examination. to use the Multi-State discretion,”5 28(c) 110 Ariz. xxxii (1973), amended, xxvii, A as Rule VII or court “grading scoring,” respect Even with authority final Committee. did not delegate to file the formula it intended the Committee Rules directed examination with court 30 days prior use grading Also, after the exami grading the examination.6 giving of those whom it con- applicants list nation and compiling 28(a) provided: Rule appli- . The . . examination and admission “Examination Admission. membership in the Bar of Arizona shall conform to this cants for a purpose, For such committee examinations and admissions Rule. appointed by consisting of seven active members of the state bar shall be applicants . The examine this court. . . committee shall and recommend to practice applicants this court for admission to found com- who are necessary qualifications requirements mittee to have the and to fulfill the prescribed by governors approved the rules board of this court respecting examinations . and admissions. . . The court will consider then grant deny the recommendations and either admission.” 5According complaint, to Ronwin’s the Committee announced before February grade passing examination that the on the test would be but grades using assigned scoring system. a system, scaled this Under graded examinations were first without scale. reference Thus, assigned each examination was score” “raw based on number correct answers. The Committee then converted the raw score into by establishing score on a scale of zero to 100 the raw score be that would *5 equivalent “seventy.” 19, deemed the See n. infra. 6 28(c) provided: Rule VII B “The Committee on Examinations and Admissions will file the with (30) thirty days Court upon before each the formula examination which the Multi-State Bar applied Examination results will the be with portions other of the total examination results. addition Committee (30) thirty will file days with pro- before each examination posed grading Ariz., formula for the entire examination.” 110 xxxii.
563
to
law in the
practice
State,
sidered
Committee
qualified
was directed to submit its recommendations
to the
court
28(a).
final
Rule
Under the Rules and
action.
Arizona case
admit
law,
deny
the court had
to
or
admis-
only
authority
Finally,
sion.7
a
entitled to seek
rejected applicant
individualized review of an adverse recommendation of the
with the
by
directly
Committee
court.8 The
filing petition
7
4,
231, 233,
supra; Application
Courtney,
See n.
83 Ariz.
319 P. 2d
(1957) (“[T]his
991,
may
powers,
court
in the exercise of its inherent
993
practice
admit
with or without favorable action
to
of law
Com
(CA9) (“[W]e
Lockwood,
499,
mittee”);
F. 2d
501
Hackin v.
find the
solely
grant
deny
in the Arizona
power to
or
admission is vested
(1966).
Court”),
denied,
Application Burke,
also
cert.
385 U. S.
87 Ariz.
“2. A of said shall be served the chairman or days within some member Committee and the Committee shall petition applicant’s response such service transmit said file and a to the fully advising this Court as to the for its decision and Committee’s reasons admitting contesting applicant petition. or assertions made said Thereupon this Court papers together shall consider the so filed with petition response order, and hearings give and make such such hold may such directions as it in its adapted prompt discretion deem best to a rights obligations applicant judged and fair decision as in the light obligation public of the Committee’s and this see Court’s only qualified applicants attorneys are admitted to at law.” Ariz., at xxxv-xxxvi. 28(c) G, Rule XII applicant challenge Under who wished particular question of an answer to a first had to submit his claim to for review. applicant request Committee was entitled to agreed only if Court review three members of the Committee applicant grade with the that his answer had not received the it deserved. provided grant deny request The Rule also that the court could such Id., its discretion. at xxxvi-xxxvii. *6 response required to file a the Committee to such a Rules prompt petition for a and fair decision called on the and applicant’s the Arizona Court. claims February bar examination in the Arizona took Ronwin pass, Committee failed to recommended to He 1974.9 deny that it him admission to the the Arizona accepted the recommendation. court Ronwin Bar, and the petitioned the manner in to review which the the court Com- graded particu- and examination. mittee conducted provide alleged the Committee had failed him he that lar, examination, had failed to file model answers its with grading period speci- with the court within the time formula applied pass-fail proc- Rules, in had a “draconian” fied group, formula that measured rather ess, had used performance, applicants failed individual, had to test than required testing, on which the Rules and an area of law “pressure-cooker examination atmo- had conducted the sphere.” alleged He further that Committee’s conduct deprived proc- an him due discretion, constituted abuse of equal protection, ess and and violated the Act.10 Sherman petition subsequent petitions his The court denied and two rehearing.11 sought Ronwin then review the Arizona give The Arizona Court Rules instructed the Committee to Id., year July February. two examinations each one in and —one xxxii. alleged He also the Committee had violated his constitutional rights refusing, grades released, after been him provide had with questions and portion answers to the Multi-State of the examination. 28(c) provides, Rule XII F 2 respect petition ag with grieved applicant, Court “shall consider” petition response, hearings give and “hold such such directions may adapted its discretion deem prompt best to a and fair deci Ariz., sion.” 110 at xxxvi. Ronwin no makes claim that the court failed comply Rules, although with its disagrees course —he with the —of judgment denying petition. Thus, court’s his peti of his court’s denial rejection tion must be construed as a arguments consideration and petition including made in the claim Ronwin’s that the Sherman Act was — violated.
565 in Court’s action this Court. We denied his peti- (1974). 419 U. 967 tion certiorari. S. in later, four March years 1978,
Some Ronwin filed this action in the States District Court for United of District Arizona. Petitioners were named as defendants the suit in their as individual members of the capacity Committee.12 Ronwin his complaint petitioners renewed had conspired § 1 restrain trade violation of of the Sherman Act, § 209, 1, by Stat. U. S. C. the num- “artificially reducing bers of of attorneys State Arizona.”13 The competing of Ronwin’s is that gist argument Committee of which majority constituted a had set the petitioners scale February examination with reference to the number of new attorneys they desirable, rather than with thought ref- erence “suitable” level to some of competence. Petitioners moved to dismiss the under Federal complaint Rule of Civil 12(b)(6) for Procedure failure to state a claim upon which petitioners’ spouses Also named as defendants were and the Arizona State Bar. The District Court dismissed the suit these as to defendants and Appeals the Court of affirmed the Ari dismissal. Ronwin v. State Bar of (CA91981). zona, 692, 694, challenged aspect 686 F. 2d n. 1 Ronwin this Appeals’ opinion cross-petition the Court of in a conditional for certiorari. (1983). Hoover, cross-petition. We denied the Ronwin v. S. 13 The complaint averment a Sherman Act violation in Ronwin’s is as follows: “scoring
“The system formula,” aforesaid conduct supra], [the or see n. combination, which the conspiracy Defendants entered into as a or in- did among tended to and result in a restraint trade and commerce by artificially reducing competing attorneys Several States the numbers of Arizona; and, in the consequence conduct, State of in further of said Plain- among artificially prevented entering tiff was those competition from into attorney as an in the thereby State of Arizona deprived further right compete an attorney legal deriving as for the business from involving States, including Several States Arizona.” United App. 10-11. adequacy conclusory
The of these averments of intent far from certain. however, Appeals, complaint Court of found sufficient. Accord- ingly, we address the “state action” issue. granted, Federal Rule of Civil Pro- and under be
relief could 12(b)(1) jurisdiction. subject-matter for lack cedure acting alleged particular, petitioners Committee, that, liability Parker under v. immune from antitrust were argued Petitioners also 317 U. S. Brown, damage the conduct of which he suffered no Ronwin *8 complained had not the Committee's conduct af- and that granted The District Court commerce. fected interstate complaint finding petitioners' that the failed to after motion jurisdiction, justiciable the court had no claim, that state a standing.14 that Ronwin lacked Appeals the Ninth Circuit reversed the The complaint. Arizona, v. Bar Ronwin State dismissal of the (1982). Appeals The Court of read the District 686F. 2d 692 ruling to state a claim a that Ronwin had failed Court’s holding grading procedures examination are immune that bar laws under Parker v. Brown. It rea from federal antitrust ultimately might although petitioners be able that, soned they immunity, to show that are entitled to state-action District Court should not have decided this issue on a Rule 12(b)(6) 686 F. 2d, motion. See at 698. The court stated progeny, pe that under Parker and its the mere fact that appointed by titioners were state officials Supreme Court was insufficient to confer state-action immu nity Relying reading on F. 2d, them. 686 at 697. on its opinions Appeals several recent of this Court,15the Court petitioners might noted that the be able to invoke the state- 14The District Court also requesting denied Ronwin’s motion the trial judge to recuse himself. The Appeals Court of held District that Court had 2d., not abused its in denying discretion the motion. 686 F. Hoover, 701. Ronwin finding. We declined to review that supra. v. 15 Community Boulder, Communications Co. v. (1982); 455 40 U. S. Liquor Aluminum, Retail Inc., Dealers Assn. v. Midcal California (1980); New Motor Vehicle Board U. S. 97 v. Orrin W. Fox of California Co., (1978); Lafayette Co., U. S. 96 Light Louisiana Power & v. U. S. they
action doctrine, but reasoned first must show that acting pursuant “clearly were ato articulated and affirmatively expressed policy.” . Id., . . state at 696. Therefore, dismissal for failure to state a claim im proper. standing The court also held Ronwin had bring this action. The case was remanded to the District Court for further action.16 granted Appeals’
We certiorari to review the Court of application of the state-action doctrine. S. (1983). We now reverse.
II starting any analysis point involving the state-action reasoning doctrine is the v. Parker Brown. In Parker, implications the Court the antitrust considered of the Califor- Agriculture nia Prorate Act—a state statute that restricted competition among producers Relying food California. principles sovereignty, *9 of federalism and state the Court de- prohibiting clined to construe the Sherman Act as the anti- competitive acting through legislature: actions a State its nothing language
“We find of the Sherman Act or history suggests purpose in its which that its was to agents restrain a state or its officers or from activities by legislature. system govern- directed its In a dual in which, ment under the the states are Constitution, sovereign, only Congress may constitutionally save authority, unexpressed purpose subtract from their nullify agents a state’s control over its officers lightly Congress.” is not to be S., attributed to 317 U. at 350-351.
Thus, under the Court’s Parker, rationale in when a state legislature adopts legislation, its actions those constitute
16 Appeals give The Court of also held District Court should opportunity Ronwin the petitioners’ sufficiently show that actions af jurisdiction fected interstate commerce to fall within the of the Sherman Act. did holding. Petitioners not seek review this exempt ipso are id., 351, State, see facto operation laws. of the antitrust years Parker, the Court decision
In the
since the
scope
cases to determine
in several
has had occasion
departed,
It
never
how
has
doctrine.
of the state-action
reasoning. Applying
Parker
from Parker’s basic
ever,
Arizona,
350,
433 U. S.
v. State Bar
doctrine
Bates
supreme
(1977),
court,
state
when
held that a
the Court
occupies
position
legislative capacity,
acting
same
in a
legislature.
Therefore,
decision of a
as that of a state
judi
legislatively
acting
supreme
rather than
court,
state
liability
exempt
cially,
Act
as state action.
from Sherman
is
Virginia
Bar,
773,
U.
v.
S.
See also Goldfarb
analysis
activity
required
when
at issue
Closer
directly
legislature
supreme court,17
that of the
but
not
pursuant
is carried out
others
to state authorization.
g., Community
Boulder,
e.
Co. v.
See,
Communications
(1982) (municipal regulation
U.
of cable television
S.
industry);
Liquor
Retail
Dealers Assn. v. Midcal
California
(1980)
price-fixing
(private
Aluminum, Inc.,
HHH-1t—I plan determining At issue here is the Arizona of admissions petitioners’ to the use thereunder of a for- bar, alleged petitioners conspired mula. Ronwin has to use dispute regulation sovereign Ronwin does not of the bar is a func Arizona, In Bates v. Bar State tion of Court. 350, (1977), regulation U. the Court noted that “the S. activities protect of the bar is at the power public.” core the State’s Like Bar, wise, Virginia 773, (1975), v. U. S. Goldfarb lawyers Court stated: “The interest of the regulating especially States in great lawyers since primary governmental are essential to the function administering justice, historically and have courts.’” been ‘officers Griffiths, also In re profes S. 722-723 Few other power public.” sions are as close to “the core of protect the State’s profession govern Nor is trade or other primary as “essential administering justice.” mental function *11 His lawyers.19 among competition formula to restrain as state offi- qualified that, although petitioners is argument Committee, they of as members capacity in their cials a Court. As of the Arizona acted independently actions are the Committee's continues, result, argument than those rather representative, of a those to immunity. are not entitled therefore itself, of court the Committee can be the actions of agree We cannot exercise of its sovereign Court’s from the divorced Ari in Bates v. Bar State The Court’s opinion powers. In Bates, two S., 360, directly pertinent.20 at zona, focuses on the formula complaint, supra, see Ronwin’s He competition.” describes it as follows: as the means used to “restrain (0 100) scale; grade not on a Zero to One Hundred “The Defendants did known, system. were After raw scores rather used a “raw score” particular equal passing value as picked Defendants a raw score Seventy Thereby applicants Bar who grade of number of would passing depended upon the exact raw score value chosen as grade receive a (70); Seventy by applicant than Bar a equal to rather achievement each pre-set App. standard.” 10. trying “procedure commonly
Apparently Ronwin was to describe scoring.” known as test standardization” or “sealed Brief for State scoring, Bar of California as Amicus Curiae 7. viewed as This method (ETS) by Testing the fairest the Educational for the Service Multistate Bar (MBE), Duhl, Examination see The Bar Examiners’ S. Handbook 61-62 (2d 1980), published Examiners, ed. The National of Bar Conference described as follows: (number answers),
“In reports addition to the ‘raw’ scores of correct ETS applicant. tests, MBE, ‘scaled’ score for each In a series of such as the are which intended to measure levels competence, important it is to have represents a standardized score which competence the same level of dependable test to test. The raw score is not purpose for this since the difficulty level of varies from possible test to It test. is not to draft two exactly difficulty. tests of the same level Scaled scores are obtained reusing questions some from earlier tests which have been standardized. analysis A statistical questions scores on the reused determines how many points are to be added to provide or subtracted from the raw score to applicant’s scaled particular score. Thus a represents score scaled competence same level from examination to examination.” 20Although the Court of Appeals recognized similarity between this Bates, case and it found the Virginia Bar, facts v. supra, Goldfarb
571 attorneys suspended temporarily from the were violating disciplinary of the law in Arizona for rule Ameri- (ABA) prohibited lawyer most can Bar Association ad- Supreme incorporated vertising. The Arizona Court had the advertising prohibition Supreme into local ABA’s the Court provided also that the Board of Rules.21 Those Rules Gover- acting Bar Association, nors of the Arizona State on the disciplinary committee, of a local Bar could recommendation suspension or of a member of recommend the censure the violating advertising the Rules, Bar for ban. Under automatically recommendation Board Governor’s would aggrieved party object if become effective the did not objected, days. party If the recommendation within he Supreme was to have the Arizona Court entitled review the findings and recommendations of the Board of Governors and plaintiffs challenged The local committee. the Rule on grounds. Sherman Act and First Amendment This Court ultimately that the ABA Rule concluded violated the First it Amendment, but first held that the State Bar Association liability was immune from Sherman Act because its enforce- disciplinary reaching ment of the Rules action. In was state although only conclusion, this that, Court noted the State suspended Bar was suit, named as a defendant in the attorneys’ complaint was with the The State. Court stated: appellants’
“[T]he against claims are the State. The party Court is the in interest; real adopted rules, and it is the ultimate trier of fact process. and law in the Wilson, enforcement In re analogous. to be more misplaced. court’s reliance on Goldfarb Judge Ferguson noted, As the dissent of procedures involved Goldfarb by approved that were not legisla- the state contrast, petitioners performed by ture. required here functions by Court Rules and that approved are not effective unless court itself. 29(a) provided: Rule of the Court of Arizona “The duties and obligations of [of members prescribed Bar] shall be as the Code of Responsibility Professional of the . American Bar Association. . (1970). Although the State Bar P. 2d Ariz. part role is plays rules, its in the enforcement [State Bar] completely court; the acts as defined *13 supervision.” agent continuous the court under its the 361. Id., at respect holding opinion the state- in Bates to with and
The unanimous. doctrine were action holding applies logic in Bates with of the Court’s peti-
greater actions. The and its force to the Committee body members of an official selected here each tioners were Supreme appointed Indeed, the Arizona Court. and gave state officers. The court were is conceded compiling in discretion and of the Committee the members grading supervisory retained strict examination, but the bar authority powers full over its actions. The and ultimate subjects specified Supreme the to be tested, Rules and Court applicants general qualifications required of for the Bar. the respect specific to the conduct of which Ronwin com- With plained grading of an examination formula— —establishment 28(c) explicit. Rules Rule VII A authorized the were appropriate “grading scoring to determine an or Committee 28(c) system” required Rule VII B Committee to grading Supreme its formula submit to the Court at least 30 prior days giving grading to examination.22 After authority examination, the Committee’s was limited to 22 Followingpetitioners’ request rehearing Appeals, for a in the Court of parties debated whether and complied to what extent the Committee purposes with this Rule. For of determining application of the state- doctrine, action it is sufficient that the pro Rules contained an enforceable calling vision for grading Moreover, submission of the formula. the Rules procedure contained a review aggrieved applicant bring that allowed an Supreme to the Court’s attention comply failure of the Committee to 28(c) filing requirements with the in Rule VIIB. The record reveals that Ronwin, fact, alleged petition in his review in the Arizona Court Committee had grading not filed its formula within the time supra, provided in the Rule. rejected petition. The court See at 564. recommendations Court. The court
making final decision to grant deny itself made the admission 28(c) XII F Rule for a practice. Finally, provided detailed mandatory procedure review which candi aggrieved challenge date could the Committee’s formula.23 and the holding of these Court’s and reason light provisions Bates, that, we conclude ing although necessarily the administration of the admis delegated Committee, sions the court itself process approved formula and retained sole particular grading authority who should be admitted to the practice determine of law Thus, in Arizona. the conduct that Ronwin challenges Bates, that of the Arizona Court. reality 361. S., It therefore is from Sherman Act exempt U. *14 Parker v. Brown.24 under state-action doctrine of liability challenge procedure disappointed applicant any This a “[f]or allowed a decision than “a substantial cause” Committee other claimed failure to 28(c) 1(C). satisfactory grade.” noted, a F award Rule XII As we have 28(c) 1(C) advantage of challenge Ronwin took full Rule XII F in his supra, not, action of the and the court. He Committee at 564. did however, challenge particular grade assigned to of his answers. amicus, General, The on of Solicitor behalf the United States as con opinion Community Communications Co. v. Boul tends that our recent in der, (1982), precludes a finding U. S. that the Committee’s action Contrary was attributable to the Arizona Court. Solicitor reasoning Boulder suggestion, our in supports General’s the conclusion we Boulder, today. analysis reach we reiterated the Bren of Justice opinion Lafayette Light Co., v. Louisiana Power & nan’s in 435 U. S. grounded concepts We noted that the state-action doctrine is in sovereignty. S., of federalism and state 455 U. at 54. We stated that Parker did not confer state-action immunity automatically municipal ities, municipality because the of a are actions not those the State itself. S., holding Boulder, may 455 U. at 53. Under our municipalities be eli gible immunity, only pur ac[t] state-action but “to the extent that clearly affirmatively policy.” suant to a articulated and expressed state J.). Id., 54; Lafayette, supra, Brennan, (opinion see also at 411-412 reasoning Boulder, today Consistent with our our decision rests on our complains clearly conclusion that conduct Ronwin action of the State. Bates explicit authority for this conclusion. suggested argument, that we not Ronwin should
At oral approve intent to attribute to the activity anticompetitive petitioners in the absence of the proof petitioners had devised court was aware that the purpose num- of which was to limit the formula the lawyers argument misconceivesthe in the State. This ber of The that state doctrine. reason basis of the state-action liability is not that the is immune from Sherman Act action anticompetitive fashion, in an but that State has chosen act suggestion “There is no itself has chosen to act. State leg- purpose [Sherman] in the Act’s to restrain state action history.” at 351. Parker, S., The Court did islative suggested suggest it that a state Parker, since, not nor has liability only exempt sovereign if the action is from antitrust wisely from its offi- acted after full disclosure subordinate only requirement The is that the action that of cers. be “the acting sovereign.” supra, Bates, at 360. The as a clearly anticompetitive not, here, action at issue whether was that of the Arizona Court.25
HH >
dissenting opinion
The
if
would,
Justice
Stevens
adopted,
dramatically
were
alter
the doctrine of state-action
immunity.
reply directly.
We therefore
con-
dissent
*15
Supreme
it
cedes,
must,
as
that “the Arizona
exercises
Court
sovereign power
respect
with
to
to
Arizona
admission
challenged
Bar,” and “ifthe
court,
conduct were that of the
it
” Post,
wouldbe immune under Parker.
is
at 588. It also con-
holding
petitioners’
exempt
liability
Our
that
conduct is
from
under
precludes
petitioners’
Sherman Act
need to address
contention that
Noerr-Pennington
liability
immune
are
under the
doctrine.
Pennington,
Mine
Workers v.
Railroad
Eastern
(1965);
The dissent
summary
A
of the court’s commands
Court.29
prefers
why
apparently
suggests
not to
the dissent
address
Court established the Com-
them. The
examining
recommending
purpose of
for the sole
mittee
28(a).
applicants
to the Bar. Rule
Its Rules
for admission
applicants
provided:
of
.
.
“The examination and admission
.
Rule. . . . The committee shall exam-
shall
to this
conform
[qualified applicants]
applicants
ine
and recommend
to this
year.
.
will be held each
. . .”
court. .
. Two examinations
28(c)
(1973),
577 the substance of the this case. including complaint The as two court denied his as well petition petitions rehearing. there was state action supra, Thus, at 564. again by rejecting court itself Ronwin’s claim.30 explicitly Finally, 30 591-592, states, 15, post, The at n. that we “advanced the the dissent ” ory Supreme that the relevant ‘state action' was Court’s denial petitions postexamination (Emphasis of filed with the court. Ronwin’s holding supplied.) Our The dissent inaccurate. based on the court’s every stage process, participation including direct of the admissions authority deny. to admit or The retention the sole critical action in deny this case was the court’s decision to Ronwin admission to the Bar. suggestion The dissent’s the Arizona Court never made this simply ignores decision Arizona law. The Arizona Court has it, Committee, and not the stated on several occasions that makes the deny applicants. Application decision to admit or admission to Burke, Ariz., 338, 2d, 171-172, P. at the court stated: grant deny is not the function of the committee to “[I]t admission to the solely power bar. That in the . rests Court. . . The committee’s duty flag’ ’put up applicants bounden is to the red as to those about whom exists, has some doubt. If such doubt substantial then its recommenda- applicant tion may any questions should be withheld. The feel that raised qualifications case, as to his character or are without substance. In such may directly he apply analysis to this court for admission. In the final —it being judicial duty resolving questions, have the those function —we way (Emphasis one or the . . .” supplied.) other. vein, 88, 92, In a Application Levine, similar the court stated in 97 Ariz. (1964): 205, P. 2d “If the committee fails to recommend the admission of he applicant, an may challenge the committee’s original application conclusions this Court.... This Court will why direct the committee to show cause applicant has been refused a favorable recommendation and on the applicant’s petition and the response, using independent committee’s our judgment, de novo necessary determine whether the qualifications have been shown.” Application Kiser, 327, 393, See also 107Ariz. 487 P. 2d Thus, repeatedly respon- its has affirmed sibility dissent, as the final decisionmaker on admissions to the Bar.
relying on the
absence
the record
specific
before us of a
order
admitted,
court at the time Ronwin was not
have us
nevertheless would
hold that the Committee rather than the court
made
final decisions
*18
Rules,
the
makes clear that the Arizona
law, as well as
case
on
final decision
each applicant.31
made the
Court
the actions of the
State Bar
supra.
Virginia
n.
Unlike
are
the
governed by
of the Committee
Goldfarb,
in
the actions
carefully
Rules
reserve
court
Rules. Those
court’s
the
to admit or
and that
deny,
the
to make
decision
authority
Bates,
action here.32 See
is the critical state
decision
the
applicants
who took
examination
and denials
to admissions
correct, there
February
the
were
would have been no
1974.
If
dissent
since,
respect
took that examination
under
with
to those who
valid action
independent power
law,
to act. Ronwin’s
Arizona
the Committee had no
averment,
certainly
complaint
no such extreme
and
this Court will
makes
discharge
the
of Arizona failed to
not assume that
Court
its
noted, supra,
576-577,
Moreover,
responsibility.
as we have
Ronwin’s
by
specifically rejected
the court.
claims were
true,
course,
questions
framing
particu
It is
examination
and
judgment
larly
grading of
examinations involved the exercise of
by
necessarily
This discretion
and discretion
the examiners.
dele
Committee, just
supreme
gated
as must be unless state
to
Rules,
grading. By
its
courts themselves undertake
gave
respect
directions to the
with
affirmative
Committee
nondiscretionary function,
authority
every
reserving
the ultimate
to
lawyers
control the number of
admitted to the Arizona Bar. Ronwin
“conspiracy
of applicants
avers
to limit the number”
admitted. He
discriminatory
respect
makes no claim of animus or
intent with
himself.
apparently
grading
Ronwin
would have us
believe that
examinations
separates
qualified
unqualified appli-
an exact science that
from the
Ideally, perhaps, this
cants.
should
true. But
be
law schools
bar
examining
identify grade
ap-
committees must
below which students and
plicants
pass.
setting
passing grade
fail to
No
adoption
of a
of a
except multiple
formula can
choice exams —the discretion
eliminate —
by
grader. By
very nature,
therefore, grading
exercised
its
examina-
necessarily separate
competent
incompetent
tions does not
from the
except very roughly identify
qualified
practice
those
and those
law
or —
—
best,
At
qualified.
identify
applicants
not
a bar examination can
those
qualified
who are more
qualified.
law than those less
“[a]ny possible
Justice Stevens’ dissent states
that the
claim
challenged
conduct is that of the
squarely
State
Court is
fore
(1975).”
by
Virginia
Bar,
Post,
closed
v.
State
U.
at 359-361. Our
also is
opinion,
wholly
v. Louisi
Lafayette
reasoning
consistent with
Court’s
(1978)
ana Power
Light
Community
&
Co.,
The dissent sovereigns plaintiffs look behind the actions of state Act conspiracies perceived to restrain their claims base among commissions, or others who committees, trade sovereign. holding necessarily Such a must advise v. Brown doctrine. For exam- emasculate the Parker would ple, per- legislature a law based on studies if a state enacted advisory given, committee, the formed, or dis- advice exempt liability sent find the Sherman Act would party A but not the committee. dissatisfied with the new by alleging could law circumvent state-action doctrine that the advice reflected an undisclosed committee’s collec- knowledge tive legislature. desire to restrain trade without certainly plaintiff would survive a motion to summary judgment despite dismiss—or even fact — squarely exempt the suit falls within the class of cases found *20 liability from in Sherman Act Parker.34 34The amicus curiae brief of the National Conference of Bar Examiners points many processes out that have like those at States bar admission in this for issue case. See Brief National Conference of Bar Examiners as 1, 2, Amicus Curiae Typically, supreme 8. is state court the ultimate decisionmaker and a committee or pursu board conducts the examinations customary court It lawyers recognized standing ant to rules. is for of integrity bodies, usually on public duty serve these and with little as a compensation. Duhl, 95, noor See S. The Bar Examiner’s Handbook 99 1980). (2d virtually States, In significant percentage ed. all a who of those pass. take the bar examination fail to See 1982 Bar Examination Statis tics, (1983). Thus, 52 Bar Examiner 24-26 every year, there are thou who, Ronwin, aspirants sands of like disappointed. example, are For in (the year examination), Ronwin first took the Arizona bar 43,798 applicants nationwide, 10,440 who took bar examinations failed (1975). pass. 44 Bar Examiner 115 of Bar National Conference in its amicus Examiners, brief, cautions that affirmance of the Court of In case a summary, this turns on narrow and issue: specific who admission to the denied Ronwin Arizona Bar? The dis- effect, sent in that since there is no court in argues, order of record, the denial must have been the action the Commit- tee. This the incontrovertible fact that argument ignores only under law of Arizona Court had deny to admit or admission to law: authority is not the function of the committee to grant deny “[It] the bar. That power admission to rests solely Application Burke, . . .” Court. 87 Ariz. supra). (1960) (see 338, 169, 351 P. 2d n. 336, 30, all if Thus, argument the dissent’s were accepted decisions made with to admissions and respect denials those who took the examination 1974 are void. February Ronwin alone did not that he was a victim: his allege complaint avers Appeals in this case could well invite numerous suits. It is no answer to that, say course, likely Ronwin, such suits are to be frivolous. who 1974, litigating failed the bar has been his claim for a decade on the basis complaint basically challenges of a motive the Arizona Commit- tee. His purpose claim that the formula was devised for the limiting competition. allegation If such an sufficient survive motion dismiss, examining boards and committees would have to bear the sub- “discovery litigation stantial particularly upon burdens” attendant re- futing charge improper Areeda, Immunity motive. See Antitrust (1981). Lafayette, Action” 435, “State after L. Harv. Rev. More- over, brought damages Act, Ronwin has a suit for under the with Sherman damages. the threat of question treble There can be no that the threat of being damages particularly sued for subjective where the issue turns — intent or performing motive —will deter “able citizens” this essential public service. Fitzgerald, See Harlow v. 457 U. S. view, our challenged by State, as the action Ronwin was that of the *21 motive of the Committee in its recommendations to the court was immate- think, particularly below, rial. nevertheless We in the view of decision that the consequences of an affirmance should be understood. The conse- by quences of reversal the today only Court Our will have limited effect. any attention has not been drawn in profession trade or other which licensing directly sovereign of its by members determined itself— here the State Court. artificially prevented among from enter- those
that he “was ing ” attorney competition in the state of Arizona into respect February action with the Committee’s unwilling to assume that are examination. We comply law, state and allowed failed to with Court respect with to make the decisions alone the Committee February event, In the record is examination. petition complaining postexamination explicit that Ronwin’s rejected an order about his denial That there was state action at least as to Court. not be clearer. Ronwin could
V properly District Court dismissed We conclude upon complaint claim for failure to state a which Ronwin’s judgment granted. Therefore, relief can be Appeals
Reversed. part took no in the Rehnquist decision this Justice part case. no in took the consideration Justice O’Connor or decision of case. this Stevens,
Justice with whom Justice White Justice join, Blackmun dissenting. 14th-century guild regulated London the bakers’ quality product. of the craft
economics and the In the of its year adjudged Lughte- 1316, it was one Richard de burghe punishment “should have the of the hurdle” because he sold certain loaves of in bread the bread had been London; baked Suthwerke, London, rather than loaves proper weight.”1 were not “the had vio- Thus Richard Riley, 1 H. Memorials of XIIIth, XIVth, London and London Life and XVth Centuries punishment 119-120 is described “[b]eing footnote as through drawn on a principal hurdle streets of Id., City.” n. 5. *22 lated a restriction the in- guild designed protect economic bakers2 as terests the local well as a restriction designed from the of inferior protect public purchase products. For centuries the common law of restraint of trade has been concerned with restrictions on into entry particular pro- fessions and As the case occupations. Suthwerke illustrates, baker the restrictions imposed Eng- medieval lish important served two but guilds quite different purposes. limited the number who guilds persons might engage in a craft in order sure particular to be that there was enough available members to earn guild work to enable an adequate livelihood.3 also They protected public by ensuring that apprentices, and master craftsmen journeymen, would have the skills that for their work. required were numer- ous occupations today, licensing requirements4 may serve principal gild preserve “The reason the existence was to to its monopoly gild own members the trade. No one not merchant of buy except imposed by town could or sell there conditions under gild. Foreigners coming Eng from other countries or traders from other prohibited buying selling any might lish towns were or way that interfere with gildsmen. They buy the interest of the must and sell at places only provided such times and such and as were such articles gild regulations.” Cheyney, E. An Introduction to the Industrial and History England Social 52-53 gilds authority usually govern “The craft existed under the of the town ment, though frequently they obtained a charter authorization even from the They primarily crown. were regulate preserve formed and monopoly of occupations town, just their own gild in their own as the regulate merchant existed to general. trade of town in No one carry could being subject organization trade without which Id., controlled that trade.” at 55. pointed Professor Handler has out: “Entry licensing into guarded by various fields of endeavor is numerous dentists, restrictions. are physicians surgeons, Licenses demanded of and optometrists, pharmacists druggists, nurses, midwives, chiropodists, and veterinarians, public architects, accountants, lawyers, engineers certified surveyors, reporters, plumbers, shorthand master undertakers embalmers, brokers, agents, junk dealers, pawnbrokers, real estate ticket dealers, detectives, dealers, liquor private peddlers, auctioneers, milk *23 guild purposes of the medieval of broad both either or restrictions. entry, prices, regulation private market or of
The risk that profits monopoly may designed on mem- output to confer be consuming expense public industry of at of an bers development of concern both the central has been jurispru- of trade and our antitrust of restraint common law may risk that the free market time, same dence. At the public purveyors adequately protect of inferior from not legitimate justification provided goods has and services entry variety regulation public into a of occu- of wide proscribed by regulation generally pations. Private public regulation generally laws; consistent with antitrust potential policy. arises, however, A conflict when- antitrust licensing private delegates power parties government ever may by limiting served the num- whose economicinterests be may particular competitors engage in a ber of who trade. private parties licensing fact have used to advance their own competition expense restraining interests public generally The Gellhorn, interest. See Abuse of Occu- pational Licensing, 44 U. L. Rev. 6 Chi. potential may conflict with the antitrust laws be ways. may
avoided in either of two formu- The State itself governing procedures late the standards and administer the pilots steamship engineers, master weighmasters, guides, forest mo- picture operators, tion boats, itinerant employment agencies, retailers on produce, commission merchants of farm and manufacturers of frozen des- serts, feeds, concentrated factory, and commercial fertilizers. No can- nery, place public assembly, laundry, storage warehouse, shooting cold gallery, bowling alley parlor, place and billiard storage explosives or operated can be nor reg- can industrial house work be carried on without istration or minnows, license. Licenses required are also for the sale fishing nets, use of operation institutions, and the corre- educational spondence schools, filling stations and pictures motor vehicles. Motion cannot licensed, be exhibited unless registered.” and canal boats must be Handler, (1937) M. Cases and Regulation Other Materials Trade 3-4 (footnotes omitted). particular applicants quali-
that determine whether not are governs entry profession, fied. When the State itself into a giving power the evils associated with over a market to those inhibiting entry who stand to benefit into that market reason, are absent. For that state action of kind, even specifically designed output regu- if it is to control and to prices, late does not violate the antitrust laws. Parker v. *24 (1943). Alternatively, may Brown, 317 U. S. the State parties delegate private authority to to formulate the qualifications particular standards and to determine applicants. authority delegated that is When to those with a competitive stake conditions within the market, there public power private is a risk be for that will exercised bene- policies displacing compe- risk, To fit. minimize that state “clearly affirmatively expressed” must be tition and must appropriately supervised. Community be Communica- (1982); v. Boulder, tions Co. U. S. Retail California Liquor Aluminum, Inc., Dealers Assn. v. Midcal 445 U. S. 97, 103-106 respondent
In this case has been unable to obtain a license practice alleges to law Arizona. He that this is not be- any competence lawyer, cause of doubts about his as a but petitioners engaged anticompetitive because have in an con- spiracy in which have used the Arizona examination bar artificially permitted persons prac- limit the number of alleged tice law in that State. con- Petitioners claim that the § spiracy Act, is not actionable under of the Sherman § represents U. C. because it of the State. S. decision petitioners identify any body But do not that has de- state public entry cided that is in the limit of even interest to fully qualified persons Indeed, into the Arizona Bar. conspiracy alleged any regulatory product is not the except all; scheme at there is no evidence criterion competence adopted Arizona as the basis has been respond- granting conspiracy licenses to law. allegedly participants alleged private; ent has are market competitive position through protect attempting their powers. Yet the holds that this con- of their misuse immunity spiracy from the antitrust in the is cloaked State’s competitive my judgment, ideal Sherman In laws. easily escaped. may so Act not be Arizona members of the Court’s I Petitioners are and Admissions. The Arizona on Examinations Committee Supreme ap the Committee recommend Court established plicants Bar; to the Arizona it consists seven for admission from list of nominees Bar selected members of the State supplied Bar Association’s Board of Petitioners administered 1974 bar exam Governors.5 complaint, respondent took and failed. his ination which alleged respondent that after the scores each candidate petitioners particular known, selected a score which were *25 grade. complaint alleges equal passing would adjust petitioners would in to formula order persons limit number of enter market who could compete with members of the In manner, Arizona Bar. this respondent “artificially prevented entering from into attorney competition as an in the State Arizona.”6 petitioners The Arizona Court has instructed “[a]ll applicants recommend for re- admission to the Bar who passing grade general a in ceive are examination and who qualified found to be . . .”7 otherwise . There is no indica- any competence appropriate tion that criterion other than regulating under the Court’s Rules for admission respect respondent’s application the Bar.8 Indeed with 28(a). Sup. 5 Ariz. Ct. Rule
6 See App. 10-11. 28(c) Sup.
7 Ariz. 8 Ct. Rule VIII. certainly suggest any Petitioners do not the existence of other criterion contrary, under Arizona law. To the argument expressly at oral acknowledged policy that there is no adopting state criterion but com petence admission Arg. to the Bar. Tr. of 22-24. Oral for admission, the Arizona Supreme Court wrote: “The prac tice of is not a law but a privilege right, conditioned solely upon that a have requirement person the necessary Application mental, and moral physical qualifications.” Ronwin, 357, 358, 113 Ariz. 555 P. 2d 316 (1976), cert. denied, short, S. one looks in in vain law, briefs, Arizona or the petitioners’ pronouncements of Court for an articulation any policy beside that of admitting only competent attorneys to practice in Arizona. not
Thus, does state respondent challenge any He policy. contests neither decision license those who wish to nor practice law, the decision to level require certain measured in a bar competence, examination, as as a pre- he Instead, condition to licensing. challenges alleged de- cision to exclude even competent attorneys Arizona order to the interests of the Bar. protect As have we often reiterated cases that involve the suffi- ciency of a a federal court not dismiss pleading, may a com- for failure to state a plaint claim unless it appears beyond construed, even doubt, when the complaint liberally no him plaintiff can set of facts which would entitle prove to relief.9 The allegations must be taken complaint true for of a decision purposes pleadings.10
A judge reading of this kind is complaint understandably somewhat It seems that mem- skeptical. highly improbable bers of the profession entrusted the State *26 9 Orleans, See McClain v. Real Estate Bd. New 232, 444 U. S. Country Regional Planning Lake Estates v. Tahoe (1980); 246-247 Agency, Trustees Hospital Building v. Co. 391, 397, (1979); 440 U. S. n. 11 Rhodes, Rex Hospital, 425 U. Scheuer 738, (1976); 746 v. 416 U. S. S. (1974); Conley Gibson, (1957). 232, 41, 236 v. 355 U. S. 45-46 Beto, Rowe, curiam); Hughes (per (1980) Cruz v. 5, 10 v. 10 See U. S. curiam); Co. v. (per Transport (1972) Motor 319, U. S. California Unlimited, McKeithen, Trucking Jenkins v. (1972); 508, 404 U. 515-516 S. Equipment, Process (1969) Walker 411, opinion); (plurality 395 U. S. Machinery (1965). Corp., Inc. v. Food 172, & Chemical 174-175 382 U. S. system obligation public an administer examination to with betray competence applicants’ would that measure that will system private secretly serve their subvert that trust, respondent probability not Nevertheless, that will ends. dismissing justification complaint. prevail is no at trial pleadings may appear re on the face of that a “Indeed covery unlikely very but that is not the test.” remote (1974). 232, 236 The Court 416 U. S. Rhodes, v. Scheuer complaint justify purport of this dismissal not does probability respondent pre will low reference to the substantially Instead, it broadens doctrine vail at trial. immunity, elephant gun using an to kill a antitrust flea.
II respondent challenging If a restraint of im were trade sovereign posed by governed by this case would itself, be (1943), Brown, Parker v. which held that the S. apply sovereign Act not Sherman does acts States. points See Supreme at 350-352. As the Court id., out, sovereign power respect exercises Court with challenged if Bar; admission to Arizona hence the conduct were that of the it would be immune court, under Parker. majority’s Ante, 567-569.11 The conclusionthat the chal lenged action was that of the Arizona is, Court how plainly wrong. Respondent alleged ever, that the decision place lawyers limit artificial on the number of was made by petitioners the Court. There is —not petitioners contention no made that decision at the direc tion or behest of Court. That court is not petitioner, respondent’s nor was it named as a defendant complaint. sug petitioners Nor, unlike the Court, have gested played any part that the establishing standards for the bar examination Arizona,
11 See Bates v. State Bar 433 U. S. 359-360 *27 any independent reject any or made decision to admit or applicant for admission to the Bar.12 individual Because challenging respondent is not the conduct of the Arizona simply Supreme inapplicable. is Court, Parker challenged Any possible that the claim conduct is that of squarely Supreme by the is State Court foreclosed Goldfarb Virginia Bar, v. U. S. 773 There State an anti- brought challenging trust action was minimum-fee sched- county published by by association ules bar and enforced pursuant Virginia its mandate from State Bar Supreme regulate Court to of law that State. acknowledging agency Bar After state pursuant authority which the schedules had enforced granted simple Court, the State we stated a immunity: test for antitrust inquiry determining anticompet-
“The if threshold activity type itive state action the Sherman Act proscribe activity was not meant to is whether the required acting sovereign. the State Here we inquire question need not further into the state-action be- fairly Virginia cause it cannot be said that the State of through required anticompet- its Court Rules respondent. Respondents itive activities of either have pointed Virginia requiring to no activities; statute their simply leaving regula- state law does not refer fees, profession Virginia Supreme tion Court; al- though Court’s ethical codes mention advi- sory respondent fee schedules do not direct either petitioners imaginative It should be noted do not advance the argument on which this Court’s rests —that the examination decision merely advisory procedure is and that the Arizona itself (footnote applicant.” Ante, “made final decision on each at 578 omitted). Presumably petitioners are more familiar with how their own procedures precious work than is this Court. The Court shows little expertise” analysis deference to “administrative its facts. *28 590 type price supply require which or floor them, (empha- respondents’ Id., at activities.”
arose from
omitted).
(citations
supplied)
sis
(1977),the
Arizona,
must the restraint. that test is derived from nothing language Parker find itself: “We of the Sher- history suggests purpose man Act inor its which that its agents to restrain a state or its officers from activities legislature supreme [or court].” directed its S.,U. (emphasis supplied). sovereign at 350-351 Here, is the petitioners, Court, not and the court did not require petitioners grade they the bar did.13 examination as petitioners part agency The fact that are of a state under sovereign the direction of the is insufficient to cloak them sovereign’s immunity; in the that much was also decided in Goldfarb: (who surprising petitioners It is not must before the Court) did theory not advance on which this Court challenged
relies —that their actually conduct is conduct of the Arizona They surely Court. court, understand that are not but rather its subordinate. agency
“The Bar fact that the State is state for some purposes does not create an antitrust limited shield that anticompetitive practices foster allows the bene *29 by providing Bar, fit of its members. The State that County may Bar minimum deviation fees lead to voluntarily disciplinary joined in action, has what is essentially anticompetitive activity, private in a and that beyond posture it is reach of cannot claim the Sher (footnotes S., 421 U. at man Act.” 791-792 and citation omitted). purposes that, it clear for therefore made of the “Goldfarb every agency of a doctrine,
Parker not act state is that of Lafayette sovereign.” v. Louisiana Power the State as & (1978) Light (plurality opinion). 389, 435 U. 410 Co., S. “anticompetitive instrumentality of a Rather, actions state compelled by acting sovereign are not im not State mune from the 41. Id., 411, antitrust laws.” at n. See also (opinion 425 id., at of C. Cantor v. Detroit Edi Burger, J.); (1976)(opinion Co., 579, son U. S. C. J.). Burger, only An antitrust attack falls under Parker when chal lenges sovereign a decision of the and not the of the decision indisputably sovereign. state is Cali bar which not the See Liquor Aluminum, Retail Dealers Assn. v. Midcal fornia (1980).14 Inc., 97, U. S. 104-105 Here no decision sovereign, only Supreme Court, attacked;15 a Co., also New Motor Vehicle Board v. Orrin W. Fox California Co., Cantor v. Detroit Edison (1978); S., 489 U. S. at 593-595. 15 response dissent, to this theory Court has advanced the that the rejection origi relevant “state was the action” Court’s of an complaint containing including nal in “plethora charges, filed that court Ante, complaint the substance of the in this case.” at 576-577. See also ante, Presumably, complaint simply at 582. that deficient as a matter law; allegations respondent’s complaint of state if the current are taken respondent as true then the fact that failed the bar examination would have provided adequate ground respondent’s complaint for the dismissal respondent’s allegations. without review of Even if it were the case nor di- compelled was neither which conspiracy petitioners no claim Since there is is at stake. sovereign rected the court directed reduce the artificially petitioners utilize the cannot Arizona, petitioners of lawyers number immunity.16 antitrust sovereign’s is illustrated its diffi- analysis confused majority’s it thinks conduct which sovereign
culty identifying challenged that the To its conclusion support at issue here. Court, majority Arizona Supreme action is that of the is the court’s deci- challenges respondent what suggests admission deny respondent’s application sion to Ante, n. 30. I find the record to 577-578, nothing Bar. Respond- the court ever made such decision. indicate that *30 the that “announced complaint alleges only petitioners ent’s answer, 9. In their App. results” of the bar examination. this and added else of nothing signifi- admitted petitioners Id., 17. The not Supreme cance. at Rules of the Court do deny call for the court to the of a who has application person examination; they only any failed the bar rather state that . . . any decision of the Committee “applicant aggrieved by within after such file a verified may days pe- occurrence Supreme petitioner’s complaint that Court reviewed on its merits, would all that indicate is that the court has declined to exercise its power respect alleged poli- petitioners’ anticompetitive revision with to having cies. That is far different from required petitioners adopt to those policies place, in the first is requires. which what Goldfarb argues “[o]nly The Court au Court had the State,” ante, thority grant deny to admission to in the at 575- (footnote omitted), challenged and therefore concludes that conduct allegation is that of the court. But there is challenged policy no by adopted court; was by accepting at permitted most court has petitioners. the recommendations of Yet as Bates make and Goldfarb clear, challenged policy required by sovereign. must be The fact that the court power retained the disapprove proce of the examination by adopted petitioners dure is no Virginia different from the that the fact power Court retained the disapprove set fee schedules by the bar association in powers Similar of revision were held Goldfarb. Lafayette, Cantor, justify immunity insufficient to and Midcal. this Court for a
tition with review.” Ariz. Ct. Rule Sup. 28(c) XII. Yet the Court disavows reliance ante, 577-578, 30,17 Court’s denial of Ronwin’s at n. petition, supra.18 reason, see n. if good Thus, and with did not itself if Ronwin’s deny application, of Ronwin’s for review petition its denial irrelevant, if the criterion it ever only required petitioners employ it is difficult to competence, petitioners see should why have from the of federal immunity if, law as al- requirements took the initiative in criterion other leged, employing than “It is not . . enough that. competence. anticompetitive rather, state action; anticompetitive conduct ‘prompted’ activities must be direction of the State compelled by acting sovereign.” Goldfarb, S., as a at 791. U.
I—1HH is, course, It true that the Arizona Supreme Court delegated the task petitioners bar administering exam, and retained the to review or revise authority action taken petitioners. However, neither of these fac- majority’s quite While disavowal in its note 30 is at unequivocal, points opinion, ante, 576-577, other its see its ultimate state *31 holding, ante, 582, ment of rely its see at does seem to on the denial respondent’s petition truly majority, for review. If that is critical for the then it would follow that an respondent’s position individual in did not who petition file a for review challenge would be able to mount an antitrust free immunity from the majority barrier the easy erects. If it indeed is that to escape majority’s holding, then holding protect that will not bar exam against parade iners ante, 580, of horribles by majority discussed at and n. 34. 18The ante, 577, 30, cases the Court 581, cites at n. all instances involve applicant in which an passed who had the bar examination was neverthe less not recommended for admission. applicant judicial If the seeks re view, those eases indicate that the court will decide for itself whether to applicant. However, admit the none of those cases indicates that independent court makes decision, an all, deny or indeed decision at application person of a who has failed the bar examination. petitioners immunity under the to accord tors is sufficient Act. Sherman Bar’s restrictions held that the State Bates, the Court immunity, advertising attorney qualified antitrust policy requiring “the state 359-362, because
S.,U. at regula- part comprehensive anticompetitive of a restraint affirmatively tory system, clearly articulated and was one policy expressed policy, ac- and that State’s as state by policy- tively supervised Court as the the State (plurality opinion) Lafayette, S., at maker.” (footnote omitted). “adopted prin- This has since Court plurality opinion Lafayette, ciple, expressed in in that engaged anticompetitive municipalities in state restraints ‘clearly affirmatively or subdivisions must be articulated gain exemp- expressed policy’ in order to antitrust as state Community v. Communications Co. Boulder, tion.” 105).19 (quoting n. 14 S., Midcal, S., U. U. at nothing approaching clearly Here there is articulated affirmatively expressed policy favoring state an artificial lawyers limit on the number of in Ari- licensed to majority attempt argue Indeed, zona. does not petitioners satisfy only policy this test. The articulated competent lawyers be found Arizona law is that should be practice; only policy petitioners admitted indeed is this agreement type alleged articulate this Court. An respondent’s complaint entirely any “clearly unrelated to affirmatively expressed” policy articulated and of Arizona. may peti- permitted While the Arizona Court have grade respondent’s tioners to and score bar examination as give did, Parker itself indicates that “a state does not immunity to those who violate the Sherman Act authoriz- ing by declaring them to violate it, their action law- . ful.. .” 317 S., U. at 351. The *32 S., 51-52, 54; 19 Seealso 455 Midcal, 104-105; U. at S., New U. at Motor Vehicle S., Board v. Co., Orrin Fox 109. W. 439 U. at of California challenged may permit hardly it restraint, but has re- quired consequence affirmatively expressed of some it as a clearly policy. articulated What we said of a state home- permitted provision require municipal- rule but did not challenged competition adopt applies restraint on ities to fully here: requirement of ‘clear articulation and
“[Plainly expression’ affirmative is not satisfied when the State’s neutrality position respecting is of mere munici- one challenged pal anticompetitive. A actions State that they please municipalities hardly do as allows its can specific ‘contemplated’ anticompet- be said to have municipal liability sought. for which . . . itive actions is Acceptance proposition general grant of such a —that power necessarily implies to enact ordinances state specific anticompetitive authorization to enact ordi- wholly concepts nances—would eviscerate the of ‘clear expression’ prece- articulation and affirmative that our require.” (emphasis Boulder, S., dents 455 U. at 55-56 original). affirmatively Unless directed petitioners competition by limiting to restrain the number qualified lawyers of otherwise in Ari- admitted to simply position anything zona, cannot be said that its neutrality; more than one of mere authorization anti- competitive wholly satisfy conduct is insufficient test immunity. for antitrust See Midcal, S., 105-106; U. Lafayette, (plurality opinion).20 435 U. S., at 414-415 No also Cantor Co., S., v. Detroit (opinion Edison at 604-605 J.). Cantor, C. BURGER, the Court wrote: “Respondent could not lamp-exchange maintain the program without approval of Commission, may and now not abandon it without such approval. Nevertheless, have, there can no option be doubt that have, not to program such a primarily respondent’s, not the Commis- Indeed, respondent sion’s. program years regula- initiated the before the tory agency nothing was even unjust created. There is in a conclusion *33 Court to restrain affirmative decision ad- qualified persons the number limiting by competition the record. The al- present to the Bar is disclosed mitted than competence a factor other to introduce conspiracy leged is not of a process product examination into the bar state affirmatively expressed policy articulated clearly immunity.21 for antitrust does not qualify and hence IV in the com- alleged that has been enough
The conclusion to dismiss does not warrant a motion to survive plaint respondent likely that the at prevail further conclusion sufficiently significant respondent’s decision is participation that decision, comparable implementing like con- require that its conduct businesses, applicable by unregulated conform to federal law. Ac- duct may cordingly, though participa- even there be cases in which the State’s private in a so that it would be unfair to hold a tion decision is dominant it, implementing party responsible for his conduct in this record discloses omitted). Id., (footnotes no such unfairness.” at 594-595 petitioners appear argument, In this to have ad abandoned petition rehearing Appeals, for vanced the first time in the Court of actually grading approved by that the examination formula majority Court. appears Because to revive this abandoned ante, ante, contention, 572-573, 576, necessary at and n. see also it, though to address to the requires no more than brief reference Appeals’ opinion: Court of rehearing
“Defendants contend for the first time on Commit- Court, Court, tee’s formula ‘was submitted to the reviewed accepted response, Court.’ this Ronwin has tendered to purports court what be letter the Committee with the filed February 8,1974 28(c) (VII)(B). pursuant Court on If, to Rule as Ronwin alleges, the pre-determined Committee scored the examination to admit applicants, number the letter does not so the court. Accord- advise ingly, if the presented letter to us constitutes the submission Supreme Court, it cannot clearly be the basis for a articulated and affirma- tively expressed policy. state Although might proper dismissal have been if the facts were argue rehearing, as defendants now for the first time on those facts brought were never to the district court’s attention. Dismissal
trial, or even that his case is to survive for likely a motion summary judgment. For is clear that perfectly the ad that missions described policy Court’s Rules does not offend the Act. Sherman exami Any nation will a procedure place significant barrier to into entry moreover, significant measure of discretion profession; must be of employed the administration proce testing dures. Yet that ensuring only are licensed competent to serve the consistent with public entirely the Sherman Goldfarb, at 792-793.22 S., Act. 421 U. See The Court is concerned about that because danger thousands of fail to bar aspirants pass examinations every of of year, “affirmance the Court this case Appeals could well invite numerous suits” bar examiners’ mo- questioning tives; the Court fears that the burdens and trial discovery “ and “the threat treble damages” will deter ‘able citizens’ Ante, at this essential service.” 580- performing public 581, n. 34. The Court I A is, submit, unduly alarmed.23 improper was therefore on the basis information before the district (GA9 1981). Arizona, 692, court.” Ronwin v. Bar 686 F. 2d is, course, equally It improper rely for pre- this Court to on evidence not holding complaint sented District Court as a basis for not sufficient to withstand a motion Adickes v. H. to dismiss. See S. (1970). Co., 144, 157-158, Kress & 398 U. S. n. 16 generally Maricopa County Society, See Arizona v. Medical U. S. 332, (1982); Society Engineers 348-349 National v. United of Professional States, S. majority
23 The surprising suggestion makes the rather that under principles discussed, well-settled I have legislatures those who advise state legislation which competition restrains could be sued under the Sher Ante, persons man Act. complete 580. Such of course would have a defense since in they delegated power such a case would have been no which could be competition used to restrain for and hence cannot be liable Moreover, protects a restraint impose. did not the Sherman Act right doing to seek legislation, favorable if so is even the reason injure competitors. Transport Trucking Motor Co. v. California Unlimited, 404 (1972); U. S. 508 Eastern Railroad Presidents Conference case not necessar- in this would immunity of antitrust denial or even liability, prolonged threat realistic ily pose evi- must first sufficient produce Respondent litigation. their trust public have indeed abused dence that petitioners that no doubt will task summary judgment, to survive Moreover, motives will not petitioners’ formidable.24 prove If case. respondent’s proof relevant be necessarily a reasonable have adopted petitioners demonstrates the Arizona Bar on the admission to for regulating means will be unable to show of competence, respondent basis *35 even if subjective effect on the competition adverse requisite sinis- one or more bar examiners was tainted motivation of if Indeed, respondent even can show that ter self-interest. admission to the Bar for reasons “arbitrarily” he was denied he unrelated to unless can also show that his qualifications, of an his anti- anticompetitive scheme, this occurred as part claim will fail. trust
In there is true in the Court’s reliance on any event, irony In essence, these concerns. that a suggesting protective shield should be to be- special provided lawyers bakers, engineers, cause or the of any members —unlike other not have sufficient in may confidence the ability craft — of our legal to system identify reject unmeritorious claims to be to assume willing risks of ordinary litigation associated with the I performance of civic responsibilities. share the do not Court’s fear that the administration of bar Inc., Noerr Freight, v. Motor majority’s S. focus on cases not surely before the Court position reflects the weakness its respect with to the case that is here. 24In preserve secrecy order to questions, of bar examination the test vary year year; must to given, after a test may has been become apparent anticipated passing grade adjusted should be in to order provide roughly the same competence measure of prior in was used years. respondent’s proving Thus burden conspiracy alleged he has requires far than petitioners more evidence that exercised discretion in setting passing grade after the results were known. lawyers by court-appointed examinations cannot survive the scrutiny ordinary litigation per- with rather associated expected in sons most other walks of life are to endure. lawyers The Court also no doubt believes that at least —or to those leaders the bar who are asked serve as bar exam- always fiduciary responsibil- iners—will faithful to their be Though agree presumption ities. I would that the is indeed strong nothing sweeping language one, of the Sher- carving lawyers justifies inapplicable man out rules Act profession. specifically rejected other we Goldfarb parochialism. argument such that it is Indeed, unwise unnecessary require petitioners comply with simply upon “is Sherman Act attack wisdom the longstanding congressional policy commitment of free competition open markets embodied the antitrust ignore Boulder, laws.” S.,U. 56. We should not today. that commitment immunity hardly
Denial of antitrust this case would helpless cope exigencies; the State felt leave with should so, it wish to do Court remains free to *36 give petitioners engage pre- an affirmative direction to respondent alleged. cise conduct that has The laws antitrust hardly any inescapable create State; burdens for the simply require displace that decisions to the free market be overtly by public subject public made ity, officials accountabil- secretly conspiracy rather than in the in- course a volving representatives guild private of a accountable to the public indirectly Lafayette, if at all. id., at 56-57; (plurality opinion). S., at 416-417 U. “The national policy competition casting by in favor of cannot be thwarted gauzy such a cloak of state involvement over what is essen- tially private price-fixing arrangement.” Midcal, S.,U. at 106. practical by pale
The concerns identified when the Court compared principle govern with the that should the decision to this case is appli that applies rule of law this case. The re arbitrary in which economy areas of cable to countless the consum very costs on impose entry may straints on to avoid.25 designed laws were the antitrust which ing public Act has of the Sherman in the administration Experience associa private a real risk that there is demonstrated standards regulate professional merely tions that purport which competition to restrain use their may powers fact It is little short of irresponsible members.26 threatens their law simply hole in the fabric of antitrust a gaping tear will be unable respondent be confident may because we alleges. what he prove respondent alleged, proved, conspiracy has if would have no all; plainly procompetitive justification at it would be inconsistent with the immunity goals petitioners’ Act. Thus claim antitrust the Sherman arises in the least defensible context: anticompetitive activity general proposition
“[A]s a
. . . state-sanctioned
potential
outweigh
must fall like
other if its
its benefits. This
harms
private activity
does not mean that state-sanctioned and
are to be treated
figures
alike. The former
different because the fact of state sanction
powerfully
If,
justifi-
example,
in the calculus of harm and
benefit.
protection
safety,
strength
cation for the scheme lies in the
health
justification
forcefully
of that
attested to
the existence of a state
A particularly strong justification
enactment.
...
exists for
state-
sanctioned scheme if the State in effect has substituted itself for the forces
competition,
regulates private activity
sought
to be
same ends
Thus,
achieved
anticompetitive
Sherman Act.
scheme which
plausible
ground
State institutes on the
improve
per-
that it will
fostering
formance of the market in
efficient resource allocation and low
prices
scarcely
can
be
Co.,
S.,
assailed.” Cantor v. Detroit Edison
(Blackmun, J.,
at 610-611
concurring
judgment).
26See,
g.,
e.
Maricopa County
Arizona v.
Society,
Medical
I dissent. 27If, as likely, respondent’s seems proves insubstantial, claim it should be dealt with in the same manner as summary other such means of claims — judgment, perhaps coupled with attorneys’ an award of fees should it also develop that this case was “unreasonably vexatiously” brought. § 28 U. S. C. 1927.