*1 MOTOR VEHICLE BOARD OF NEW CALIFORNIA аl. v. ORRIN FOX CO. et W.
et al. Argued No. 77-837. October 3-4, 1978 Decided December 1978* * Together 77-849, with No. Northern Motor Car Dealers California Assn, al., et al. v. Orrin W. Fox Co. et appeal also on from the same court. *2 BreNNAN, J., opinion Court, delivered J., in which C. Burger, Stewart, White, JJ., joined. Marshall, RehNQuist, Mar- J., filed a concurring opinion, post, p.
shall, J., 111. filed Blackmun, opinion an concurring result, in the J., joined, which post, p. Powell, J., 113. filed dissenting opinion, post, Stevens, p. 114. L. Mukai,
Robert Deputy Attorney General of California, argued the cause for appellants in No. 77-837. With him on the briefs were J. Younger, Evelle Attorney General, and Stephen Egan, J. Deputy Attorney General. James R. McCall argued the cause and filed briefs for appellants in No. 77-849. *3 Coleman, Jr.,
William T. argued the for appellees cause in both cases. With him on the brief were Boudreau, Girard E. Jr., George R. Baffa, Norin T. Grancell, Smith, M. Otis and Robert W. Culver. delivered opinion the of the Court.
Me. Justice Brennan Under the California Automobile Act, Franchise a motor vehicle manufacturer must secure approval the of the Califor- nia New Motor Vehicle Board opening before a retail motor vehicle dealership within the market area of an existing fran- chisee, if only and if that existing protests franchisee establishment of the competing dealership. The Act also directs the Board to notify the manufacturer of this statutory requirement upon the filing of timely protest a by an existing franchisee. The Board is required to hold a hearing on the merits of the protest dealer before sending the manu- facturer the notice requirement.1 of the pertinent provisions
1 The of the Automobile Franchise Act are as follows: Establishing
“3062. or relocating dealerships “(a) Except as provided otherwise in (b), subdivision in the event that
A three-judge District Court for the Central District of judgment California entered declaring a the absence of such a requirement prior-hearing denied manufacturers a franchisor seeks to enter into a franchise establishing an additional motor dealership vehicle within a relevant market area where the same line-make represented, is then relocating or existing an dealership motor vehicle writing notify franchisor shall in first Board each franchisee in such line-make the relevant market area of his intention to establish dealership an additional or existing to relocate an dealership within or days into that market area. Within 15 receiving such notice or within days any after the appeal procedure end of provided by franchisor, such franchisee protest file with the board establishing to the relocating dealership. or protest filed, When such a is the board inform the timely shall franchisor protest that a has been filed, that a required hearing pursuant to Section and that the franchisor shall not establish or proposed relocate the dealership until the board has held provided thereafter, Section nor if the board has determined good that there is permitting cause for not such dealership. multiple protests, hearings may event of expedite be consolidated to disposition of the issue. purposes section, “For the of this reopening in a relevant area market dealership of a operation year that has not been in for one or shall more be deemed the establishment of an dealership. additional motor vehicle “3063. Good cause
“In determining good whether cause has been established for not enter- ing relocating into or an additional line-make, franchise for the same board shall take into existing circumstances, consideration the including, *4 but not limited to:
“(1) Permanency of the investment. “(2) Effect on the retail motor vehicle consuming business and the public in the relevant market area. “(3) injurious Whether it is public to the welfare for an additional franchise to be established. “(4) Whether the franchisees of the same line-make in relevant
market area providing adequate are competition and convenient consumer care for the motor vehicles of in line-make the market area which adequacy shall include the of motor facilities, vehicle sales and service equipment, supply parts, qualified of personnel. vehicle service “(5) Whether the establishment an additional franchise in- would 100 process due man- proposed procedural
their franchisees Supp. 440 F. 436 by Amendment, the Fourteenth dated jurisdiction appeals in (1977). probable We noted 77-849,2 (1978). 77-837 and No. 434 U. 1060 both No. We now reverse.3
I disparity power between automobile bargaining 4 prompted and some Congress manufacturers and their dealers competition public crease and therefore be in the interest.” Cal. Veh. 3062, (West Supp. 1978). Code Ann. 3063 §§ 2 Appellants in No. made defendants in intervention 77-849 were order the District uneontested Court. 77-837, application appellants On No. RehNQüist Mr. Justice stayed (1977) (in chambers). judgment, Court District 434 U. S. Appellants argue in No. 77-837 should District Court have Co., Comm’n abstained under the rule of Railroad v. Pullman 312 U. S. (1941), arguing might that the state courts have construed the Auto- mobile Franchise Act so as to limit or avoid the federal constitutional question. correctly The District Court refused to abstain. Abstention may appropriately where, ambiguity in the here, be denied there is no Constantineau, challenged state statute. See Wisconsin 400 U. S. 4 congressional reported A Committee in 1956: production highly “Automobile one of the most concentrated industries States, grave in the United a matter of concern to officers of the Govern- Today charged ment with enforcement antitrust there exist laws. only passenger-ear manufacturers, produce 3 of which in excess percent passenger of all cars sold in the United States. There are approximately 40,000 distributing dealers to the franchised automobile public produced by average an cars these manufacturers. Dealers have $100,000. disparity power investment of about This in economic vast factory arbitrarily strength bargaining has enabled the to determine parties rules rules which two conduct their business affairs. These incorporated in the the manu- agreement are sales or franchise which prepared signature. facturer has for the dealer’s dependent exceptions completely are few on the manu- “Dealers with supply their to the facturer for of cars. the dealer has invested When required franchise, sense the extent to secure a he becomes in a real
101 from retail car dealers legislation protect 25 to enact States by the manufacturers.5 oppressive acts perceived abusive and Among Franchise Act.6 is its Automobile California’s version his captive his manufacturer. The substantial investment economic inability business, to convert personal funds the dealer in own dependence single uses, upon a manu- easily facilities to other difficulty obtaining automobiles, supply and the facturer for making the all contribute toward from another manufacturer franchise factory. hand, the other easy prey domination On dealer an for any single manufacturer, dealer is standpoint from of the automobile directly factory-dealer system are expendable. attrib- The faults of Rep. superior position of the manufacturer.” S. utable to the market Macaulay, 2073, Sess., (1956). 2 Law and Cong., 2d See also S. No. 84th Their Dealers Manufacturers and the Balance of Power: Automobile 5 1221-1225; Day Act, S. Dealers’ in Court 15 U. C. See Automobile §§ (1976); Cal. Veh. Code Ann. Ariz. Rev. Stat. Ann. §3060 §28-1304.02 (West (1973); Fla. seq. 1978); 12-6-120 Supp. et Colo. Rev. Stat. § (f) 1977); Rev. (1977); (Supp. Haw. Ga. Code 84-6610 Stat. § §320.641 seq. (1967); Code (1976); et Iowа Idaho Code Stat. §49-1901 §437-33 (1977); Mass. (1977); Transp. Ann. 15-207 Gen. 322A.2 Md. Code § § (3) (West 1978-1979); Stat. Ann., 93B, Supp. Neb. Rev. Laws ch. § 1977); (c) (Supp. (1974); III 60-1422 N. H. Rev. Ann. 357-B:4 Stat. § § (5) 1975); 20-305 (Supp. M. Ann. 64-37-5 N. C. Gen. Stat. N. Stat. § § 1977); Ohio Rev. Code (1978); (Supp. N. D. Cent. Code §51-07-01.1 1978); Stat., (j) (Supp. (Supp. 1977); 47, Ann. Okla. Tit. §565 §4517.41 (Purdon 1978-1979); Laws Ann., 63, Supp. R. I. Gen. Pa. Tit. Stat. § (3) (c) (1977); 1977); S. D. (Supp. C. Code 56-15-40 § §31-5.1-4 (c) (1976); Tenn. Code Ann. 59-1714 Comp. Laws Ann. 32-6A-5 § § 1977-1978); Code 1978); 9, (Supp. Va. (Supp. Ann., Tit. Vt. Stat. § 1978); (Supp. 1978); (Supp. 47-17-5 Wis. Stat. 46.1-547 W. Va. Code § § 1978-1979). (1957 Supp. Ann. and §218.01 adopted special regulations applicable to dealers first California (a), Stats., ch. manufacturers of automobiles in 1923. 1923 Cal. §§ (b). required apply for certification These dealers and manufacturers exemption identifying plates from special license as a condition requirements. former registration In 1957 the cer generally applicable automobile procedure licensing provision, and all tification became required qualify continue for and apply dealers for licenses to were Stats., registration exemption. 7. to hold the 1957 Cal. ch. *6 102 other
its
safeguards,
protects
the Act
the equities of existing
by
dealers
prohibiting automobile
adding
from
manufacturers
dealerships to the market areas of its existing franchisees
where the effect of such intrabrand competition would be
injurious to the existing franchisees and to
public
interest.7
addition,
it
1,
became unlawful on and
1957,
after October
to act as a
dealer
having procured
without
prohibition
license.
Ibid. The
on un-
activity
licensed
was extended to manufacturers and motor vehicle trans-
by
porters
Stats.,
1967
557,
Cal.
ch.
1. That statute made it unlawful
§
any person
for
dealer,
act as a
manufacturer,
transporter
or
of motor
vehicles without a
valid license and
Department
certificate issued
Motor Vehicles.
The 1967 statute
also created the
§2.
New Motor
Board,
Vehicle
originally empowered to
licensing
handle
of new auto-
mobile retail dealerships and to review
Department
decisions of the
Motor
disciplining
Vehicles
powers
dealers.
Its
expanded
were
in 1973
by the Automobile
empower
Franchise Act to
the Board to deal with the
establishment of new franchises and the
existing
relocation of
franchises.
Legislature
The California
expressly stated
passed
this Act was
“in
order to avoid
independent
undue control of the
new motor vehicle dealer
by the vehicle manufacturer or distributor and to
insure
dealers
obligations
fulfill their
under their
provide adequate
and
franchises
and
sufficient service to
generally.”
consumers
Stats.,
996,
1973 Cal.
ch.
1.§
The Act
procedures
also sets forth rules and
governing franchise cancella-
tions, delivery
preparаtion obligations
warranty
reimbursement.
Cal.
3060, 3061,
See
Veh.
Ann.
(West
Code
1978).
and 3065
Supp.
§§
helpful
For a
discussion of
purpose
served
such laws—the
promotion
dealing
of fair
protection
and the
of small business —see Forest
Dodge,
Home
Karns,
Inc. v.
2d
Wis.
To enforce this prohibition, requires Act an automobile manufacturer proposes who to establish a new retail automo- bile dealership or State, to relocate an existing one, first to give notice of such intention to the California New Motor Vehicle Board and to each its existing franchisees same “line-make” of automobile located within the “relevant market area,” defined “any area within a radius of 10 miles from the site of potential new dealership.” [the] If *7 any existing franchisee within the market protests area to the Board within 15 days, the Board required is to convene a hearing within days 60 to determine whether good there is cause for refusing to permit the establishment or relocation of the dealership.9 The Board is required also to inform the franchisor, upon the filing of a timely protest,
“that timely a protest has been filed, a hearing is required . . ,. and that the franchisor shall establish or relocate the proposed dealership until the board has held a hearing . . . nor , if thereafter, the board has de- cause, termined that there good for not permitting such 10 dealership.” Violation of statutory requirements by a franchisor is a misdemeanor ground and for suspension or revocation of a license do business.11 Ann. 32-6A-3 to 32-6A-4 (1976); §§ Tenn. Code Ann. 59-1714 (Supp. § 1978); Ann., Vt. Stat. (c) (9) Tit. (Supp. 1977-1978); § Va. Code (d) (Supp. 46.1-547 1978); W. § Va. (i) (Supp. 1978); Code 47-17-5 § Wis. Stat. (8) (3), (1957 Ann. Supp. 1978-1979). §§218.01 8 See Cal. Veh. (West Code Ann. 507 1978). Supp. § days Within 30 after hearing, or of a officer, decision of
the Board must render its decision, or the establishment or relocation of proposed franchise approved. is deemed See Cal. Veh. Code Ann. (West Supp. 1978). §3067 supra. See n. 11California Veh. Code (West Ann. 11713.2 Supp. 1978) provides: “It shall be unlawful and a violation of manufacturer, this code for any other among manufactures, Corp. Motors General Appellee W. Orrin Appellee cars. Chevrolet Buick makes, General appellee with agreement franchise signed Fox Co. dealership Buick newa to establish May Motors appellee with agreed Muller Chevrolet Appellee Pasadena. franchise existing Chevrolet transfer its Motors to General The 1975. in December Canada, Cal., to La from Glendale were Muller and relocation of Fox establishment proposed dealers. Buick and Chevrolet by existing respectively protested by the required responded, as Motor Vehicle Board New filed been had protests notifying appellees that Act, or relocate to establish they were not therefore and that hearings required held the Board had until dealerships was there determined if the Board nor thereafter Act, Before either dealerships. permitting such for not cause good however, appellees hearing, Board to a proceeded protest action. instant brought and Muller Motors, Fox, General II *8 nature clarify to important it outset At the the dissent Appellees and before challenge us. process due dealership to entitling protesting statute characterize notice of a in the-form adjudication summary administrative restraining injunction temporary of a the effect having at to franchise of its right exercise Motors’ General appellee disagree. will. We injunc- of an of attributes none notice has Board’s
The constitute which would of duty, violation no It creates tion. Motors from appellee restrain General Nor it does contempt. this under distributor, branch licensed or distributor branch, manufacturer code: to relocate, or refuse into, terminate modify, replace, enter To “(1) 3060) (commencing with Section
renew a in violation Article franchise Chapter 6 Division 2.” exercising any right it had previously enjoyed; General Motors had no interest in franchising was immune from regulation. state It was the Act, not the Board’s notice, that curtailed General Motors’ to franchise will. at California Vehicle Code explicitly conditions a motor vehicle manufacturer’s right to terminate, open, or relocate a dealer- ship upon the manufacturer’s compliance with procedural requirements enacted in the Automobile Franchise Act and, if necessary, upon approval of the New Motor Vehicle Board.12 The Board’s notice served only to inform appellee General Motors of this statutory scheme and to advise it of the status, pending the Board’s dеtermination, its franchise permit applications.
Moreover, the Board’s notice can hardly be characterized as an administrative order. Issuance of the notice did not involve the exercise of discretion. The notice neither found nor assumed the existence of any adjudicative facts. The notice did not terminate or suspend any right or interest that General Motors was then enjoying. The notice did not deprive General Motors personal property, or terminate any of the incidents of its license do business. 12The Legislature California expressly identified the state interests being served the Franchise Act general as “the economy of the state and public welfare . . which made it “necessary regulate and to license
vehicle dealers [and] manufacturers . . . .” The statute states: “[T]he distribution and sale of new motor vehicles in the State of vitally California affects the general economy of the state public and the welfare and ... promote order to public welfare and in the exercise police of its power, it is necessary regulate and to license dealers, vehicle manufacturers, manufacturer branches, distributors, dis- tributor branches, representatives of vehicle manufacturers and *9 doing distributors business in California in order to avoid undue control of independent new motor vehicle dealer the vehicle manufacturer or distributor and to insure that dealers obligations fulfill their under their provide franchises and adequate and sufficient service to gen- consumers erally.” 1973 Cal. Stats., ch. 1.§ Shevin, v.
Thus, this is not case like Fuentes U. Burson, upon relied (1972), and Bell U. S. 535 (1971), or summarily finds which a state official appellees, and based adjudicative assumes the existence of certain facts There suspends enjoyment thereon of an entitlement. facts, adjudicative not of yet has been either the determination suspension. or a discretion, the exercise appellees argue the state Notwithstanding this, all that deprives liberty pursue scheme them of their their lawful contend occupation process Appellees due of law. without hearing they prior trial-type that absent a individualized constitutionally franchises are entitled to establish or relocate applications approval proposals for are while their such awaiting argument Board on Appellees’ determination. rests assumption process pro- that General Motors has due right right tected interest to franchise at will—which asserted passage survived the Franchise California Automobile Act. question
The narrow us, then, before is whether California statute, may, by temporarily rule or delay the establishment or relocation of automobile Board’s dealerships pending the adjudication protests Or existing dealers. stated issue is conversely, whether, Court held the District argues, right delay and the dissent to franchise without is the sort of suspended only interest be on a case- by-case through prior basis trial-type hearings. individualized disagree with
We
the District Court and the dissent. Even
if the
to franchise had
protected
constituted a
interest
when California enacted the Automobile Franchise
Cali-
Act,
Legislature
constitutionally
fornia’s
was still
empowered to
general
regulation
enact a
scheme of business
imposed
upon
reasonable restrictions
right.
exercise of the
“[T]he
liberty
that a
cannot
fact
be inhibited
process
without due
law does
mean that it can under
no circumstances be inhib-
Rusk,
Zemel v.
ited.”
381 U.
141,S.
At least since
*10
the demise of the concept of “substantive
process”
due
in the
area of economic regulation,
this Court has recognized that,
“[¡legislative bodies have broad scope to experiment with
economic problems . . . .” Ferguson v. Skrupа, 372 U. S. 730 (1963). States may, through general ordinances, restrict
the commercial
use
property, see Euclid v. Ambler Realty
Co.,
In particular,
the California Legislature was empowered to
subordinate the
rights
franchise
of automobile manufacturers
to the conflicting rights of their franchisees where necessary to
prevent unfair or oppressive
practices.
trade
“[Sjtates have
power to legislate against what are found to
injurious
be
prac-
tices in their internal commercial and business affairs, so long
as their laws do not run afoul of
specific
some
federal consti-
tutional prohibition, or of some valid federal law. . . .
[T]he
due process clause is
[not]
be so broadly construed that the
Congress and state legislatures are put
in a straitjacket
when they attempt
to supрress business and industrial condi-
tions which they regard as offensive to the public welfare.”
Lincoln Union v. Northwestern Co.,
Further,
the California Legislature had the authority to
protect
the conflicting rights of the motor vehicle franchisees
through customary and
procedural
reasonable
e.,
i.
safeguards,
by providing existing dealers with notice and an opportunity
Vehicle
New Motor
tribunal —the
impartial
heard
an
to be
*11
upon
inflict
to
permitted
franchisor
Board —before their
be
cannot
safeguards
procedural
loss. Such
grievous
them
may,
process.
of due
States
franchisor
deprive the
said to
regula-
secure
businesses to
require
here,
done
California has
See,
practices.
specified
in
engaging
tory approval before
Drug
Snyder’s
Pharmacy v.
Dakota Board
g.,
e.
North
of
Poster
St. Louis
permit);
Stores, supra (pharmacy-operating
per-
Louis,
(1919) (billboard
269
Co. v.
U. S.
Adv.
St.
(1917) (securi-
Co.,
These was Legislature holding the California that Court erred delаy exercise appellees’ powerless temporarily to and the dealership Buick or Chevrolet or undertake a grant to from location to an- business facilities one right to move one’s trial-type hear- a individualized providing prior without other of scheme general enacted reasonable having Once ing. for provide required to California was regulation, business provi- time the every each and individualized prior of consummation delaying of Act had the effect of sions In the area plans particular individuals. business power the state statutes within regulation “[g]eneral business individuals, person property or passed affect are a chance them point ruin, giving to the without sometimes way only rights protected to heard. Their are be or power, their immediate they complex can be in a society, Invest- rule.” Bi-Metallic over those who make the remote, Colorado, ment Co. v. 239 U. S.
Ill scheme Appellees dissent that the California argue and the power state impermissible delegation constitutes an private citizens because the Franchise Act requires the Board to delay franchise establishments and relocations only when protested by existing franchisees who have unfettered discre- tion whether or not protest.
The argument has no merit. Almost any system of private
or quasi-private law could be subject to the same objection.
Court approval of an eviction, for example, becomes necessary
only when the
protests
tenant
his eviction, and he alone
decides whether he will protest. An otherwise valid regula-
tion is not rendered invalid simply because those whom the
regulation is designed to safeguard may elect
forgo
pro-
its
tection. See Cusack Co. v. Chicago,
IV
Appellees next contend that
the Automobile Franchise Act
conflicts with the Sherman Act, 15 U. S.
1C.
et seq.13
They
argue
that
delaying the establishment of automobile deal
erships whenever competing dealers protest, the state scheme
gives effect to privately initiated restraints on trade, and thus
is invalid under Schwegmann Bros. v. Calvert Distillers Corp.,
The dispositive answer is that
the Automobile Franchise
Act’s regulatory scheme
a system
is
of
clearly
regulation,
artic-
ulated and afflrmatively expressed, designed
displace
to
unfet-
tered business freedom in the
of
matter
the establishment and
relocation
automobile dealerships. The regulation is there-
fore outside the reach of the antitrust
laws under the “state
actiоn” exemption. Parker v. Brown,
presented is purely one of law. simply because, exemption this not lose does Act dealers existing it accords framework, regulatory of its part their franchisor before heard to be opportunity and an notice to subject them likely to dealership to locate a permitted is only Protests serve competition. illegal possibly injurious and significant not mandate They do action.14 Board trigger to order authority to has the Board contrary, delay. theOn if it concludes protest on a dealer immediate an interim The duration requires. so interest public supervision. regulatory ongoing subject is restraint Dis Calvert v. Schwegmann Bros. upon reliance Appellees’ the State Schwegmann, misplaced. Corp., supra, is tillers viola- conduct private immunize to authorize attempted here. done that has not California laws. of the antitrust tive statutory their faith good who invoke dealers Protesting determi of Board the form a action governmental a proposed permitting for not cause good there nation Railroad Eastern Act, the Sherman dealership do not violate Inc., Freight, 365 U. S. Motor v. Noerr Presidents Conference Pennington, 381 S.U. Workers and Mine (1961), (1965)15 because Act with the Sherman conflict argue Appellees also invoke dealers permits auto Franchise Act Automobile competi- restraining intrabrand purpose power for the state *13 the . . . way stating that of merely another “This is tion. 14 protests have “117 challenge appellants: state, Appellees without 1974). Of (July 1, the became effective 3062 Act filed under since been only been merits, one has hearing on the these, only gone to a have 42 injunc temporary 117 automatic Thus, of by the Board .... sustained permanent only matured into ever Board, one tions issued 10 13. Appellees n. injunction.” Brief for 15 Board Motor Vehicle protests the New before press sham Dealers who dealerships competing delaying of of establishment purpose the sole for Cali See federal antitrust laws. under the to be vulnerable suits (1972). Trucking Unlimited, U. S. Transport v. Motor Co. fornia
Ill anticompetitive sense, effect. this statute will have an policy is a conflict between the statute and the central there liberty.’ . Act—‘our charter of economic . the Sherman . constitute this of conflict cannot itself Nevertheless, sort For if an invalidating sufficient reason for the . . . statute. enough in to competition were, itself, adverse effect on and of in engage invalid, power render a state statute the States’ Exxon effectively destroyed.” regulation economic would be Maryland, (1978). Governor Corp. 117, U. S.
Reversed. Me. Justice concurring. Marshall, I Although join separately I opinion Court, of the write Automobile emphasize why, my the California view, Clause. As Franchise Act is not violative of the Due Process ante, statute, the Court at the California observes, 100-103, dis- like its state and federal to redress the counterparts, seeks parity power economic between automobile manufacturers By empowering and their franchisees. New Motor Vehicle superintend Board to or relocation of a the establishment it more for franchise, statute makes difficult a manufac- its accept turer force franchisees to unfair conditions by threatening trade to overload their markets with intra- competitors.1 brand
1Although history Act, legislative there is little on the California statutory ability for need on their constraints manufacturers’ to coerce variety See, g., dealers is reflected in a of state and federal enactments. e. ante, 5; Rep. Cong., Sess., statutes cited at 101 2850, n. H. No. 84th 2d R. (1956); Rep. Cong., Sеss., (1956); 4-5 S. No. 84th 2d 2-4 Forest Dodge, Karns, (1965). Home Inc. v. 2d 2d 214 Wis. 138 N. W. generally Macaulay, See Law and the Balance of Power: The Automo bile Manufacturers and Their Dealers 139 opinion, dissenting post, 121, suggests existing at protest entry competitor value,” franchisees to of a new “little protests since less than were successful two-thirds were 1% *14 necessarily inci- delay because litigation This arises lag unavoidable time inquiry. Given the to the Board’s dent hearing, Board’s protests of and the filing between re- or permit the establishment had to elect whether State of Board’s determination dealerships pending the location of proposed transac- enjoin temporarily their To legality. legit- franchisors of deprive their would new dealers and tions eventually dealership was profits in cases where the imate go the other the transactions approved. allowing On hand, burden franchisees to bear the existing forward would force ultimately Board dis- illegal competition of in cases where the policy of approved dealership. Perhaps the new because franchisees and the economic imbalance between redressing were existing manufacturers would thwarted if franchisees be unprotected left until the Board made its Cаli- decision, Legislature option.2 fornia chose the former immediately or Assuming appellees’ opening interest I relocating implicates Clause, franchise the Due Process do outweighs protecting not believe it the interest the State existing competition franchisees from unfair and economic pending completion inquiry. Board’s coercion See Goldberg Kelly, (1970); v. 397 U. 262-263 Board 254, Roth, Regents (1972). The state 564, U. S. 570-571 impose delay on legislature has decided to the burdens In appellees existing rather than on franchisees. view of the lapse the short public substantial interest at stake and however, may hearing. figures, in advance of These indi- abandoned merely successfully cate that the California statute has served a deterrent any event, Legislature legitimately function. the California could con- "right depend upon clude that the to be heard does not an advance show- ing surely prevail Shevin, hearing.” that one will at the Fuentes v. U. S. supra. sought protect aspiring See n. The State also have they disap franchisees from the economic loss would incur if the Board proved they applications operations. their after had commenced *15 time between notice and hearing, the Due Process does Clause a contrary dictate legislative decision.
Mr. Justice Blackmun, with whom Mr. Justice Powell joins, in concurring the result.
I agree with the Court when it (a) concludes that District Court rightly refused abstain under the rule of Railroad Comm’n v. Co., Pullman 312 U. (1941); (b) that the appellees’ delegation-of-power argument is un- meritorious; and (c) that the appellees’ antitrust claims are also without merit.
We are concerned here, only basically, with the issue of the facial constitutionality of provisions certain of the California Automobile Franchise Act, Cal. Veh. Code Ann. §§ 3063 (West Supp. 1978); we are not confronted with issue of constitutionality of the Act applied. as
It seems to me we that should recognize forthrightly the fact that California, under its Act, accords the manufacturer and the would-be franchisee process no at all prior telling them not to franchise at will. This utter absence of process would indicate that the State’s action is free from on attack procedural process due grounds only if the manufacturer and the franchisee possess no liberty or property protected interest under the Fourteenth Amendment. Indeed, that is way I analyze would the case.
Meyer
Nebraska,
I litigation regard procedural this as not on due focusing process at all. Instead, essentially it centers a claim of on process. substantive due Appellees have conceded that Cali- may fornia legitimately regulate automobile franchises and provide may legitimately State part regulatory its only scheme. The issue, then, is whether Cali- fornia declare quo the status to be maintained *16 pending hearing. view, a In my California’s declaration to this effect is no more a necessary power than of incident its regulate to at all. quo pending Maintenance of the status agency final many action is regulatory common cоntexts. here, widely situation for example, is not dissimilar to the adopted withholding routine of the of announced effectiveness utility increases in rates specified until conditions been have fulfilled. asserting right right a to franchise at will and a to franchise without delay, appellees essentially are asserting right a to be free from regulation. any state economic But claim appellees the to have be free from state economic regulation is by foreclosed the process cases, substantive due such Ferguson Skrupa, 726 (1963), U. which the Court cites.
To For summarize: me, appellees the have demonstrated presence the of liberty no or property interest; having none, they have claim procedural no safeguards; and their claim to be free from state regulation economic by is foreclosed process substantive due cases. Perhaps this is what Court saying is opinion. its I am, however, somewhat unsure of I prefer that. recognize on; facts head when one does, the answer, it seems to isme, inevitable and imme- diately forthcoming.
Mr. Justice dissenting. Stevens, This case does not constitutionality involve the adopted substantive rules govern California to operation of motor vehicle dealerships and the condition's that must be satisfied engage in that business. The in- case volves the validity procedure grants private that parties an exclusive to cause harm to other private parties with- out even alleging that any general rule been has or violated is about to be violated.
In order to demonstrate that this is fair characterization procedure, this it is necessary to review the statutory scheme as a whole, to identify the purpose specific provision challenged in this case, and to explain the actual operation of provision. It will then be apparent there no precedent for the Court’s approval of this unique and arbitrary process and that the three-judge District Court was correct in concluding that it deprived appellees of their liberty and property without process due of law guaran- teed the Fourteenth Amendment.
I As the Court recognizes, California’s Automobile Franchise Act is a member of family of state statutes that were *17 enacted to protect retailers from some of the risks associated with unrestrained competition. Like grocers the retail and retail druggists who convinced many so legislatures to author- ize price resale maintenancе,1 and the gasoline retail dealers who convinced the Maryland Legislature prohibit to oil com- pany ownership of service stations,2 the retail automobile dealers have been successful in persuading Congress vari- and ous state legislatures that competition unrestrained in car business is an not unmixed blessing.3 Many States have 1 These efforts were also reflected in the Miller-Tydings Fair Act, Trade which was enacted Congress in 1937 as an amendment 1 of the § Sherman Act. 693, 50 Stat. 15 U. S. C. 1. See generally Schwegmann Bros. v. Distillers, Calvert Corp., 341 U. 390-395. Corp. See Exxon v. Governor Maryland, 437 U. S. (1978). 3The currently statutes in force are collected in opinion Ante, Court. at n. 5. These statutes passed were essentially in three waves, the first in the late 1930’s, the second in the mid-1950’s, and the regulate dealer franchise statutes enacted automobile competition Unquestionably, in business. and limit this statutory inhibit rules holds, the Court mere fact is not reason for them.4 competition invalidating a in Automobile general rules the California contained they stand Franchise Act are two kinds. establish First, in satisfy engage dealer must in order the business ards that a in through licensing California. These standards are enforced appellees Because case are regulations.5 the dealer this they properly licensed, question and because do not valid ity of these these are not relevant here. rules, standards Second, regulating there are rules contractual relation ships such covering between and their dealers, manufacturers matters as franchise not Again, terminations.6 these rules are relevant because this neither termination nor case involves any question concerning the contract between a manufac existing turer and an dealer. sum, substantive rules in the California nothing statute have to do with case. this early third in the late 1960’s and 1970’s. The first two waves resulted regulating relationships statutes the contractual between dealers manufacturers, primarily designed equalize bargaining were power groups. only of the two The third wave extended this well- type established of statute into additional States but also resulted in the passáge provisions, case, relating such as the one involved in this to the opening generally Hewitt, of new franchises. See C. Automobile Franchise Agreements (1955); 165-167 Macaulay, Society Changing Law and — Continuing Relationship Large Corporation Between a and those who Manufacturers, Dealers, it: Legal Deal with Automobile their and the System, 483, 513-521; L. Note, Wis. Rev. 70 Harv. L. Rev. (1957); Comment, 1243-1246 56 Iowa L. Rev. 1060 4By token, legislative judgment the same thаt manufacturers have greater bargaining power than dealers and have sometimes used it *18 abusively by threatening to overload dealers’ markets with intrabrand competitors provide justification statutory procedure does for a deprives liberty all manufacturers and all prop new dealers of their erty process. without due (West 1978). Supp. Cal. Veh. Code Ann. 11700 § 6 §§3060, 3061, 3064, 1978). (Supp. and 3065
This case concerns only the procedure that must be fol- lowed after a licensed manufacturer and a licensed dealer have decided either to establish a new dealership or to relocate an existing dealership. The statute contains no substantive rules pertaining to the location of dealerships or the number of dealers that may operate in any given area. It includes no limitations on the manufacturer’s use of the new franchise as a means of increasing its power to bargain with existing franchisees.7 Nor does it impose any burden on the manu- facturer or the new dealer to obtain a license or an approval public from a agency before the new operation may com- mence business.8 It does not even authorize public agency, 7Cf. Haw. Rev. Stat. (b) (22) 437-28 (B) § (1976); W. Va. Code 47- § (i) (2) 17-5 (Supp. 1978). 8 Cf. Fla. Stat. §320.642 (1977); Ga. Code (f) (8) 84-6610 (Supp. § 1977); Iowa Code 322A.4 (1977); Comp. D. Laws Ann. 32-6A-3, §§ 32-6A-4 (1976); Tenn. Code Ann. (c) (20) § 59-1714 (Supp. 1978); Wis. Stat. Ann. (3) (f) §218.01 The Court cites Forest Home Dodge, Inc. v. Karns, 29 Wis. 2d N. W. 2d 214 (1965), as reflective of the purposes served statutes such as the one at issue here. Ante, at 102 n. 7. However, the Wisconsin statute involved the Forest Home decision is considerably different from the California statute and the purposes of the former should not be uncritically imported into the latter. The Court is similarly mistaken in its characterization of the California statute as one, like Wisconsin’s, that “require[s] businesses to secure regulatory approval engaging in before specified practices.” Ante, at 108 (emphasis in original). As the Court recognizes itself at an earlier point, the California requires statute approval only in certain limited circumstances, e., i. “if necessary” because of a competitor’s protest. Ante, at 105. As such, the clearly statute does allow competitors to appellee “restrain [s] from exercising [they] [a] had previously enjoyed.” Ante, at 104-105. The Court also mischaracterizes the California statute it when describes it as “prohibiting automobile manufacturers from adding dealerships to the market areas of its existing franchisees where the effect of such intrabrand competition injurious would be to the existing franchisees public interest.” Ante, at 102. There is no express such prohibition in the *19 hearing a to determine acting motion, on its own to conduct operation new is desirable or undesirable.9 whether the entirely I is free although assume that California short, or relocation adopt policy against state a establishment reflected in this policy of motor no such franchises, vehicle statute.10 actually presump-
On the embodies contrary, statute while con- presumption, favor of new locations. That tion knowledgeable businessmen do sistent with fact with normally large capital associated make the commitments dealership change,11 will welcome the a new unless the market lan- predicate. on It rests on the does not rest that economic Motor guage interpretation the New the statute its Vehicle Board. curiously potential grants group
The statute defined area protestants competitors 314-square-mile within the sur- — rounding the new location who handle the same line and make whether cars—the to demand a to determine (1973); Iowa Code California statute. Cf. Colo. Rev. Stat. 12-6-120 § (1977); (P) 1975); (Supp. 322A.4 N. M. Stat. Ann. 6^37-5 S. D. § § Comp. 32-6A-3, Ann. Laws 32-6A-4 §§ (f) (8) (1977); (Supp. 9 Cf. Fla. Stat. Ga. Code 84-6610 §320.642 § (1977); 1977); Comp. Code Ann. Iowa 322A.4 S. D. Laws 32-6A-4 § § (1976); (c) (20) 1978); (Supp. Term. Code Ann. 59-1714 Stat. Ann. Wis. § (3) (f) (1957). §218.01 ante, statutory quоted purpose Court, The statement of at 105 policy against n. includes no reference to a new or relocated dealer By ships. comparison, (1977); such statutes as Fla. Stat. Ga. §320.642 (f) (8) (c) (20) (Supp. 1977); Code 84^6610 Tenn. Code 59-1714 Ann. § § (Supp. 1978); (3) (f) (1957), public Stat. Ann. 218.01 Wis. authorize deny applications approval dealerships officials to cases for of new all “adequate existing providing where dealers in representation” the area are of the relevant line and make of cars. Pashigian, Analy Automobiles,
11 B. Distribution of An Economic supra System (1961); sis of the Franchise Comment, n. at 1065-1067. good
“there is cause permitting dealership.” for not such *20 This language repeated is separate two Cali- sections the fornia statute.13 Notably, the place does not the bur- statute den of establishing good there permit is cause to the dealership go to forward on the new dealer or the manufac- 14 turer; places it the burden of demonstrating there is cause not good permit new opening the place to take on the (West California Veh. Code Supp. 1978) Ann. provides, in § part: protest “When such filed, is the board shall inform the franchisor that a timely protest filed, has hearing required been that a pursuant to Section 3066, and that the franchisor shall proposed not establish or relocate the deаlership until the board held a provided has in Section thereafter, nor the good board has determined that there is cause if for 'permitting not dealership.” such (Emphasis added.) Section 314-square-mile 507 defines the encompasses competitors area that standing with challenge dealerships. new 13In portion addition quoted of 3062 supra, in n. § § provides: determining “In good whether entering cause has been established for relocating into or an additional line-make, the same franchise for board shall take into existing consideration the circumstances, including, but not limited to: “(1) Permanency of the investment. “ (2) Effect on the retail motor vehicle consuming business and the pub-
lic in the relevant market area. “(3) injurious Whether it is public to the Welfare for an additional franchise to be established.
“(4) Whether the franchisees of the same line-make in that relevant market providing adequate area are competition and convenient con- sumer care for the motor vehicles of the line-make in the market area which shall include adequacy of motor vehicle sales and service facili- ties, equipment, supply parts, qualified vehicle personnel. service “(5) Whether the establishment of an . additional franchise would competition increase public be in the (Emphasis interest.” therefore added.) 14Cf. Iowa Code (1977); 322A.4 Comp. S. D. 32-6A-3, Laws Ann. §§ 32-6A-4 generally See Comment, supra 3,n. at 1062-1063. objecting If dealer.15 the scales evenly are balanced, pre- sumption prevail. will
The California Board’s actual administration of the statute analysis. confirms this Of the protests first 117 filed under only law, was sustained the Board.16 In other words, over of the contested new dealerships or reloca- 99% tions were found to be consistent with policy statute.
The conclusion that there is policy no state against new dealerships.is further confirmed statutory limitation on persons who have standing to object to proposed new opening. Most significantly, public no agency has inde- *21 pendent right to initiate an objection, to schedule a hearing, or prohibit to such a change.17 Nor any does member of the consuming public standing have complain.18 to Indeed, even neighboring dealers who might be severely affected new competition are without standing they unless handle the same line of cars as the new dealer. if a Finally, manufacturer is by whatever means —to persuade its able — dealers in the relevant area not to protest, the statutory policy will have been wholly vindicated any without action part on the of responsible state -officials.
Properly analyzed, the statute merely confers a special benefit on a limited group private persons likely who are to oppose the establishment or a relocation of new car dealer- ship. Because persons those may suffer economic injury as a consequence of new competition, they given are two quite rights. different One is relatively meaningless, the other is 15Cal. Yeb. (b) Ann. (West Code 3066 Supp. (‘‘The 1978) § [existing] franchisee shall the proof have burden of to establish good there is cause not to enter into a franchise establishing or relocating an additional motor dealership”). vehicle ante, at 14; See 110 n. Appellees Brief for 10 n. 13. 10, supra. Cf. statutes cited in n. 18Cf. Iowa Code 322A.7 significant. The first is an right administrative of action to try persuade the Board that there good is cause for'not permitting the new competitor to enter the market. It is obvious that right this is little less value, since than 1% protests are successful. Indeed, since about two-thirds protests were abandoned any advance of hearing,19 it is fair to infer that an opportunity prevail at the itself not the primary object of protest.
The second gives statute cоmplaining dealer is unqualified entitlement to an order that is tanta mount to a preliminary injunction absolutely prohibiting the opening of the new dealership until after relatively mean ingless hearing has been completed.20 “injunction” issues any without showing of probable on success1 with merits, out proof of irreparable provision harm, without for or bond other compensation to indemnify the new dealer against loss caused delay. The entirely uninformative “I words protest” enough are to entitle private one party to obtain an order restraining the activities a potential competitor.21 Violation of that subjects order the manufac 19See Appellees Brief for 10 n. 13. 20Cal. Veh. Code Atm. (West Supp. 1978). §§ statutory California’s scheme be contrasted with ap another proach that also affords existing dealers a cause of action to block new *22 dealerships, but so considerably does with process. more Under N. M. Stat. (P) Ann. 64-37-5 (Supp. 1975), § is it unlawful for a manufacturer to establish an additional in community franchise a where the same line- currently make is represented “if such addition inequitable would be to the existing dealer.” The statute makes “the sales and service needs of the public” relevant “in determining equities the of the existing dеaler.” Existing given dealers private are a of cause action in state courts to prohibition enforce this and expressly are afforded right the to seek either an injunction, damages, or §§64-37-11, both. 64-37-13 (Supp. 1975). It is apparent from the statute the normal incidents of civil practice— for example, requirement the adequate of an complaint, judicial con sideration of the any merits before relief is apply in these au afforded — thorized suits. also See Colo. Rev. (1) Stat. 12-6-120 (h), §§ 12-6-122 122
turer and franchisee to criminal penalties and revocation of their licenses.22
In sum, new franchisees and their are not franchisors merely identified the in of statute as essence new class a parties defendant in a new class of designed lawsuits extremely rare franchise; instances to block the with- rather, assuring out they these “defendants” that will receive notice against probable-cause the claims them, a or a finding, hearing any kind,23 subjects the statute them to an imme- injunction diate against pursuit the right of their to establish or a dealership relocate car upon filing protest by of a a competitor-“plaintiff.” injunctive duration of the precisely relief is defined by the statute,25 but the facts these cases demonstrate that (3) (1973); Ann., Mass. Laws 93B, §4(3)(i) (Wеst. Gen. ch. Supp. 1978-1979). 22Cal. (a) (a) Veh. Code Ann. (3), (10), (Z), 11713.2 §§ (West. 1978). 40000.11 Supp. addition, gives statute every “defendants” the burden in informing “plaintiffs” case of when their cause of action arises. 24Put in the more language traditional process analysis, due recognizes California scheme part on the of manufacturers and prospective dealers to establish or relocate dealerships. automobile It permanently allows the deprive State persons right upon those of that hearing Finally, demonstration of cause. here, and what is at issue it private persons allows power to invoke the deprive the State to manu prospective facturers and rights temporarily dealers of their without process at all. protest filed, injunction Once a and an automatically has been granted, (a) (West. Cal. Veh. Code Supp. 1978) Ann. 3066 requires hearing. Although Board to set a hearing must be held within 60 days provision, under that usually this time limit is avoided when the protest Board hearing refers the to a officer, upon statutory whom no time imposed. Moreover, limit is after the officer hearing decision, reaches a days Board either take adopting another 30 that decision, or an period reaching indefinite of time in independent an decision. The Board mаy also refer the decision back to the officer with directions to take additional and reach a evidence new decision. *23 may many relief for com- dynamic,
the last months.26 petitive delays entirely plans such the business frustrate for dealership happened the new in one of these cases— —as passage “The manner in which the of the Act and the administration present plaintiffs thereof have affected the is revealed in the uncontradicted documentary by only affidavits and parties. exhibits submitted the early 1974, Buick dealer in Pasadena terminated his franchise in and a replacement May 1975, dealer had been plain not established until when tiffs agree General Motors and Orrin Fox Co. executed W. a franchise by ment. promptly nearby Protests were filed Buick dealers located in the May 22, May cities of Monrovia and 29, San Gabriel on about 1975. On 1975, the advising protests Board sent letters to General Motors of the stating 'you may and proposed dealership not . . . establish until hearing the Board has provided held a Code, for Section 3066 Vehicle nor thereafter if the Board good has determined that there is cause for permitting dealership.’ such additional The letter also advised that the Board would fix hearing accordingly. later a time for the and wоuld advise July 8, 1975, On assigned August 1975, the Board 12, the dates of 11 and hearing. for the
“However, requests by as the result of protesters for continuance protracted stipulation, litigation and and concerning in the courts prehearing depositions, protests to take were reset for September They on pending 1976. therefore were still when the present filed, April 13, action was on 1976. foregoing that,
“The provisions Act, recital shows under the of the protesters prevent plaintiff were able to being Fox from established as potential (although geographically remote) competitor rather for more fifteen (including than months the entire 1976 Buick year), model without being given official consideration to the merit or lack of merit of the protests. understandably many Fox at assesses thousands of dollars its damages delay. occasioned such
“Plaintiff Muller Chevrolet existing took over an dealership in the Montrose section of Glendale in 1973. It apparent soon became physical Muller that completely inadequate its facilities were rapidly deteriorating and that a move to a new and larger much location was mandatory. In December Mr. Muller learned that the location of Volkswagen the current dealership adjacent community of La might Negotiations Canada become begun available. were that were con- tingent upon Volkswagen finding dealer a new site operation, for his upon ability parties to finance respective their moves. *24 or at cause the opportunity least new dealer to lose the participate in a market for favorable new models. the That statutory deprivation is temporary delay a per- rather than a denial does manent avoid the serious character of the harm suffered the dealer new while the status quo being is preserved.27
II Apart from some process substantive due cases which have nothing to do with procedural question presented by this year complex After a time-consuming negotiations, and agreement an was reached in December required and notice of intention to upon relocate was served the Board and surrounding- Chevrolet dealers January 16, on about days 1976. later, A few Chevrolet dealers Pasa- dena and Tujunga, respectively, filed with the Board saying, in letters effect, no more than T protest,’ February 6, on 1976, the Board responded by enjoining proposed pending relocation hearing on the protests. About two later, February weeks 23, 1976, on the Board 'ten- tatively’ hearing set the for through 25, June 23 1976, April 21, and on 1976, issued a formal order confirming worthy those It dates. of note here that hearing such was scheduled for a time more than four months injunction after the had been issued. appears
“It from a supplemental affidavit filed Mr. Sep- Muller on 17, tember 1976, that the hearing scheduled place took before a officer and that the latter rendered a decision favorable proposed to the relocation on August 20, about began 1976. Then thirty-day waiting period within which time the might Board upon act that decision before the proposed relocation could be approved deemed injunction finally (Vehicle lifted §3067). Code September On 14, 1976, before the end of waiting such period, Muller was advised that premises the new leasehold longer were no available for dealership his because of his long failure to possession take and otherwise assume the obligations of the lease. Muller thereupon 'gave up’ with respect litigation to this starting and is all over again in attempt his to find a new site for his business.” Supp. 440 F. (CD 1977) 439-440 Cal. (three-judge court). Shevin, Fuentes 407 U. (“[I]t 84-85 is now well settled temporary, deprivation nonfinal of property ‘deprivation’ is nonetheless a in the terms of the Fоurteenth Amendment”). interpretation authority
case28 the Court cites no for its novel hardly surprising Fourteenth Amendment. This is resolving conflicts summary procedure because this for precepts em- private parties flagrantly between violates prior bodied the Court’s cases. against another, private party one seeks relief
Whenever it is that some attention to the merits *25 fundamental Mullane v. request precede granting of relief. must Co., Central Bank & 313. 306, Hanover Trust U. S. challenged provides for no such consideration statute losing party to of what the merits nor even notice against merits of claim him involve.29 equally power deprive to It fundamental that the State’s any person liberty property may except or not be exercised at the behest of an decisionmaker. a somewhat official correctly context, different Court observed: very may things, [private] person nature of one “[I]n power regulate not be entrusted with the the business especially competitor. And another, a statute 28See, g., Ferguson Skrupa, 726; e. Lincoln 372 U. S. Union v. v. Co., 525, 536-537; Northwestern Board Phar 335 U. S. North Dakota macy Snyder’s Drug Stores, Inc., 156; Lee v. Williamson v. U. S. Optical Co., U. 483. S.
Although distinguished rights the Court has between economic and other scope giving requirements Clause, in to the substantive of the Due Process Co., 144, 152-153, 4, Unitеd States v. Carolene Products 304 TJ. S. n. it carefully explicitly pro has in applying avoided that distinction requirements Georgia g., Finishing, cedural E. of the Clause. North Inc. Di-Chem, Inc., 601, 608; Shevin, supra, v. v. 419 U. S. Fuentes at Accordingly, that, despite 89-90. I assume its curious citation of protection cases that establish a low level of substantive for economic rights, implying rights proce the Court is not do> merit the those protection dural afforded the Fourteenth Amendment. 29Although pleading the Court has endorsed the modern relaxation of rules, requirement complaints pro it has never receded from the that civil parties against vide defendant with “fair notice” claims them. Conley Gibson, 48. U. S.
which attempts power confer such undertakes an intolerable and unconstitutional interference with per- liberty sonal and private property.” Carter v. Carter Co., Coal 298 U. S. 238, 311.
More recently, the Court has applied principles these pro- cedural process due contexts similar to the one issue at here. For example, Shevin, Fuentes v. 407 U. 93, the Court had this say in invalidating a statute that private enabled parties unconditionally to exercise the power: State’s
“The statutes, moreover, abdicate effective con- state trol over power. state Private parties, serving their own private advantage, unilaterally power invoke state to replevy goods from No another. state partici- official pates in the decision to seek a writ; no state official reviews the basis for the claim to repossession; and no state official evaluates the need for immediate seizure. There is not even requirement plaintiff that the provide *26 any information to the court on these matters. The State acts in largely the dark.” Because the New Motor Vehicle given Board is no control over a competitor’s power temporarily enjoin the establish- ment or relocation of a dealership, body’s authority respect this is also wielded in the dark. The result is the unconstitutional exercise of government uncontrolled power. 30Sea also Mitchell v. T. Co., W. Grant 600, 416 U. Gibson 615-617; S. Berryhill, v. 411 U. 578-579; Washington ex rel. Seattle Title Trust 564, Co. v. Roberge, U. S. City Eubank 121-122; Richmond, U. S. 143-144. places Court great store in the fact that Legislature, the California rather than some adjudicative administrative or body, stands behind the deprivation at issue in Ante, this case. at But, 105. Fuentes indicates, legislative power abdication of private prone citizens who are to act arbitrarily is no less unconstitutional than arbitrary exercisе of that power by the state officials themselves.
There is no blinking the fact that the California statute gives private parties, serving their private own advantage, ability unfettered power invoke the of the State to restrain the liberty impair arrangements contractual of their competitors. new Such a blatantly statute prin- offends the ciples of notice, fair attention to the merits, neutral dis- pute resolution that inform the Due Process Clause Fourteenth Amendment. This simply statute bear cannot creative Court’s recharacterization general as a sub- —and stantively governing constitutional —rule when and how deal- erships may be established and relocated.31 I Accordingly, respectfully dissent. 31Although the my Court opinion reads ante, differently, see 106,1 at do imply there would be constitutional defect a statute
imposing general requirement a may no open dealer or relocate until after he has obtained approval an public from a agency. imply Nor do I that the appellees may have an interest suspended not be except on case-by-case If, basis. however, case-by-case State mandates a private determination of one party’s rights, the State not confer arbitrary power to make that determination on another private party.