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SUPREME COURT OF THE UNITED STATES

Syllabus

Fisher v. City of Berkeley

475 U.S. 260

No. 84-1538. Argued November 12, 1985 -- Decided February 26, 1986

APPEAL FROM THE SUPREME COURT OF CALIFORNIA

A Berkeley, California, ordinance, enacted pursuant to popular initiative, imposes rent ceilings on residential real property in the city. The rent ceilings are under the control of a Rent Stabilization Board. Appellant landlords brought suit in California Superior Court challenging the constitutionality of the ordinance on Fourteenth Amendment grounds and seeking declaratory and injunctive relief. The Superior Court upheld the ordinance, but was reversed by the California Court of Appeal. In the meantime, based on the intervening decision in Community Communications Co. v. Boulder, 455 U.S. 40, the question arose as to whether the ordinance was unconstitutional because it was preempted by the Sherman Act. The California Supreme Court held that there was no conflict between the ordinance and the Sherman Act.

Held: The ordinance is not unconstitutional as being preempted by the Sherman Act. Pp. 264-270.

(a) The rent ceilings established by the ordinance and maintained by the Rent Stabilization Board were unilaterally imposed by the city upon landlords to the exclusion of private control. Thus, the rent ceilings lack the element of concerted action needed before they can be characterized as a per se violation of 1 of the Sherman Act. A restraint imposed unilaterally by government does not become concerted action within the meaning of 1 simply because it has a coercive effect upon parties who must obey the law. And the mere fact that all competing landlords must comply with the ordinance is not enough to establish a conspiracy among landlords. Pp. 265-267.

(b) While the ordinance gives tenants some power to trigger its enforcement, it places complete control over maximum rent levels exclusively in the Rent Stabilization Board's hands. Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, and California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97, distinguished. Pp. 267-270.

37 Cal.3d 644, 693 P.2d 261, affirmed.

MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. POWELL, J., filed an opinion concurring in the judgment, post, p. 270. BRENNAN, J., filed a dissenting opinion, post, p. 274.


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