*1 laws. state listing services multiple Construction, and Real-Estate Annot., Validity, Effect of 190(3) Agreement, 45 A.L.R.3d Multiple-Listing Brokers' I reach the other issues disposition, would not Given this stage at this ripe for determination which would litigation. Hicks, JJ., J. Brachtenbach, concur with Stafford denied March 1981. Reconsideration 31, 1980.] En December 46096. Banc. [No. Brokerage In the Matter Litigation. Antitrust Washington, Respondent, v. Coldwell State Brokerage al, Co., et Banker Residential Petitioners. *2 Holman, Preston, Thorgrimson, & by Hugh Ellis F. Smith, A. E. Monroe Bangasser, Stephen and Richard Baetz, Todd, Jones, Hall Davis, Wright, & Riese petitioners. Boeder, General, Thomas L. Gorton, Attorney
Slade Assistant, M. Beau- John R. Ellis and James Senior laurier, Assistants, for respondent. Pro- J. —This arises under the Consumer case
Dolliver, 19.86, alleged trade tection and concerns unfair practices companies and restraint of trade 12 real estate (brokers). 19.86.020, .030. engaged Attorney General the brokers
in illegal tying arrangements, conspiracies restraint trade, the sale competition and unfair methods development development lots and houses. The the brokers builders who wished required stated purchase broker development grant selling lots con- right development exclusive to sell the houses to be lots. This arrangement structed the development *3 economic called a list-back. brokers used deal, dis- power, and threats of disparagement, refusals into to coerce to enter the list-back paragement builders complaint requested amended arrangements. State's penalties, civil injunction, injured parties, restitution for attorney's fees. costs and complaint. the filed motions dismiss
Three brokers Company moved Brokerage Coldwell Banker Residential filed on the that three other cases ground dismiss action operation violations alleging the State had been dismissed multiple listing real estate services County v. Tacoma-Pierce See State trial other courts. Serv., Listing 622 P.2d Multiple Inc.,. Roberts, Scott, Inc., & Sherwood John complaint motion basis to dismiss the filed exhaustion administra- jurisdiction, doctrines exemption remedies, transactions" "permitted tive from the Consumer Protection reviewing
After memoranda and exhibits submitted issues, parties oral hearing argument on the judge trial denied the motions to dismiss. The doctrines of primary jurisdiction and exhaustion rem- since, were apply edies held not to under 18.85 which relates to real salespersons, estate brokers and neither Director of the nor the Real Commission, nor the real estate division of the busi- professions ness and of the Department administration Licensing has licensing authority to deal alleged antitrust violations. The court further ruled that the exemption under RCW apply 19.86.170 does not as antitrust violations not specifically permitted are language of RCW 18.85. & discretionary
Scott and Roberts sought Sherwood court of the denial their motions on the of primary jurisdiction permitted and the transaction exemption. We accepted review and affirm the court. trial
First, brokers contend should be dismissed under permitted actions or transactions exemption of RCW which provides: 19.86.170
Nothing chapter apply shall to actions or trans- actions ... or officer acting [1] permitted by any statutory authority regulatory body of this state or the United actions or transactions specifically permitted within the States: ... [2] Provided, further, That statutory authority granted any regulatory board or commission established within Title 18 RCW shall not be construed be a violation . . chapter 19.86 RCW . (Italics ours.) The italicized language leg- was added islature 1974 and is before the for the first time. It may argued, here, we although need decide portion first of RCW simply requires 19.86.170[1] acquiescence on the regulatory agency and that *4 Indeed, no affirmative action is needed. allege brokers that, practice because the list-back obtaining arrange 11 years, ments has continued for permit the conduct was ted the Director Licensing, Real Estate believe, how- We division. and the real estate Commission intent as ever, legislative interpretation the correct requirements is that relates RCW 19.86.170 it inmet must be proviso [2], which was enacted regulated persons those involving actions and transactions however, exemption, To claim this Title 18. activity was prove the brokers must authorized agency within acting authority and that statute permit specifically took overt affirmative actions the brokers. engaged actions or transactions Regulated Comment, Scope See The 19.86.170. Washington Consumer Industries Under the Exemption 415, 420-21, Protection 426-28 10 Gonz. Rev. (1975). aby The brokers show neither. Mere nonaction Title 18 board or commission under RCW business, pro- of a or occupation actions taken members Further- permission. fession does not amount specific more, nothing in or any RCW 18.85 statute authorizes Department Licensing or the Real Commis- Estate not permit arrangements. sion to list-back are brokers from Act of RCW exempt the Consumer Protection because Research, in Allen v. American Land events App. P.2d upon 25 Wn. relied defendants, prior occurred the enactment of the proviso. point. not in case is
Next, pri the brokers contend that the doctrine must be mary jurisdiction applies and that matter referred Director before and the real estate division Commission function of doctrine
it can be heard the courts. The determining guide court primary jurisdiction exercising from whether it should refrain has special competence until an administrative the court. arising before proceeding resolved issue Administrative Law 19.01 Davis, The doc 3 K. courts necessarily power "does allocate between trine whether agencies, governs it issue, not initially will particular decide a *5 302 finally whether court or will agency decide the Davis, Administrative Law
issue.'" K. the Seventies of (1976). 19.01
We have had
prior opportunity
one
to exam
ine and apply the
of
In
primary jurisdiction.
doctrine
Schmidt v. Old
Co.,
Union Stockyards
478, 484,
Wn.2d
58
(1961)
United
v.
'Primary jurisdiction,'
. . . applies
orig-
where a claim is
inally cognizable
and comes into play
courts,
in the
whenever
the claim requires the resolu-
enforcement of
which,
tion
been
scheme,
issues
under a regulatory
have
placed
within the special competence
an admin-
istrative
body,
judicial
a case such
process is sus-
pended
pending
referral
such
issues
to the
body
administrative
for its views."
The doctrine has
been further articulated
the United
Court. See
v. Chicago
Ricci
Mercantile
Supreme
States
Exch.,
289,
525,
409 U.S.
L. Ed.
(1973);
34
2d
1. The agency authority administrative has the to resolve the issues that would it by be referred to the court. Stockyards, Schmidt v. Old Union supra. In the case of actions, statutory authority agency way some must limit applicability of the antitrust laws (Ricci Chicago Exch., v. Mercantile see supra at 302-03; United America, States v. Corp. supra); Radio
2. agency special competence must have over all or some controversy which renders the bet- (Schmidt v. ter able than Old to resolve the issues Union Stockyards, supra);
3. The claim before the court must involve fall within the scope pervasive regulatory scheme so that a danger judicial conflict with action would exists that Corp. Amer- States v. Radio United scheme. supra ica, at 350. doctrine have federal cases stated
While Chicago (e.g., applicable v. Mercan Ricci antitrust cases Trucking supra; States, v. Exch., Co. United McLean tile (1944)), Ct. 370 321 U.S. L. Ed. 64 S. requirements met. None of must be listed above requirements in this are met case. granted powers *6 pertain licensing the of real estate brokers
RCW 18.85 to agents. Department of Neither the Director Licensing, the nor real estate Real Estate Commission the expertise Those has the antitrust issues. division engaged resolve industry in real are not of an estate pervasive agency regulation by Com of such as the scheme (Ricci Chicago modity Exchange v. Mercantile Commission supra), Exch., Commerce Commission Interstate (McLean Trucking supra), States, Co. v. or the United (Nader Allegheny Inc., Airlines, v. Civil Aeronautics Board (1976)). 290, 643, L. Ed. 2d Ct. 426 U.S. 96 S. Compare Corp. supra. America, v. United States Radio nothing granting Department There is RCW 18.85 Licensing, the or the real estate Real Estate Commission any authority regulate indus division to so the real estate try applicability to limit Ricci as of the antitrust laws. Chicago supra. Exch., v. Mercantile may appropriate specific be to refer to an issues procedure where secure for initial determination would " [ujniformity consistency regulation in the of busi- particular agency" ness entrusted to a where judiciary functions review exercised, "the limited rationally by preliminary be] [would more ascertaining interpreting the circum- resort stances better insight gained through agencies underlying legal that are by specialization, equipped than courts experience, flexi- and more procedure." ble Airlines, Nader v. Allegheny Far supra 303-04, quoting at States, E. v. supra. United case, In present Conference however, uniformity considerations of regulation and of technical expertise require prior do not resolution Department the Real Estate Commission or the real estate division.
The State
damages
injunction
seeks
and an
as reme
complaint.
any
dies
It makes no challenge
regula
tion or to
licensing procedures
governed
RCW 18.85.
Thus,
action brought
does not turn on a determination
of a possible violation of a licensing practice
determina
—a
tion that would be
expertise
facilitated
Rather,
agency.
applied
the standards
be
in the antitrust action are within the conventional compe
tence
the courts and the
judgment
agencies
is not
likely
helpful
to be
application
of these standards
Airlines,
Allegheny
facts of this case. See Nader v.
supra.
Moreover,
an administrative
not
agency should
accorded
if
powerless
Kresge
S.S.
Co. v. Port
Long
grant
requested.
the relief
view,
805,
18 Wn. App.
Defendants suggest provides also RCW 19.86.920 a justification primary jurisdiction agency. That portion of the statute to which states: defendants refer is, however, legislature the intent of the this act
shall not prohibit be construed to which practices acts in are reasonable to development pres- relation and ervation of business or which injurious are not . . public interest.
They
in
argue
the conduct
could
be reviewed
if
the administrative
entities to determine
it
is a
practice
reasonable business
or not
injurious
view,
public. Under defendants'
all violations of the anti-
trust
proviso
restraint
trade
the Consumer Protection
Act
automatically
would
regulatory
be referred
applicability upon
bare assertion of the
interpre-
We do not believe this is
reasonable
If,
fact,
arrange-
in
the list-back
legislative
tation
intent.
in RCW
exceptions
can be shown to come within the
ments
above,
determine
properly
noted
a court can more
19.86.920
Pro-
of the Consumer
there have been violations
whether
to court
Act. To
review
require
prior
administrative
tection
ritual.
empty
would be an
pass
action
is
application
of the doctrine of
case,
mandatory in
rather is within
any given
"not
but
court”;
on an atti-
"'predicated
sound discretion of the
it is
v. Department
Kerr
judicial
tude of
self-restraint'".
Game,
(1975),
14 Wn.
P.2d 467
App.
denied,
hold the
court did
Utter, C.J., Williams, and Forrest Rosellini Tern., Hamilton, JJ. Pro concur. com- J. dissent Brachtenbach, (dissenting) My— County Multiple case of State v. Tacoma-Pierce panion Serv., Listing P.2d refer- largely point incorporated this case and is ence. statutory relates different circumstance multiple listing associations.
provisions governing subject brokers are all of estate case. companion mandates discussed dissent, require I upon mentioned would Based allowing decision before maintenance litigation. Hicks, JJ., J. Brachtenbach, concur with
Stafford