state action requirement in New York

1993Corp. v Duffy, 479 US 335 ) and, consequently, a violation of the Supremacy Clause of the US Constitution (see, Metropolitan Package Store Assn. v Koch, 89 AD2d 317 , mot to dismiss appeals granted 58 NY2d 1112 , appeal dismissed 464 US 802 ), our inquiry focuses on whether the CMSA may nonetheless be upheld by reason of the State action immunity doctrine (see, e.g., Parker v Brown, 317 US 341 ) which, in turn, provides that the State action is immune if the State has articulated a clear and affirmative policy to allow anticompetitive conduct and the State provides active supervision of antico

1985The Appellate Divisions reviewing these proceedings agreed and, in each case, rejected respondent’s contentions that the statute was protected by the State action exception to antitrust enforcement under Parker v Brown ( 317 US 341 ) or by application of the 21st Amendment.

1989Moreover, it has been recognized that the concept of State action is "an elusive principle not reducible to ritualistic incantations or precise formalism (see, Sharrock v Dell Buick-Cadillac, 45 NY2d 152, 158 , supra [citing Burton v Wilmington Parking Auth., 365 US 715, 722 ]; see also, Tribe, American Constitutional Law, op. cit, at 1148-1149)” (SHAD Alliance v Smith Haven Mall, 66 NY2d 496, 505 ).

1971The State action test is set forth in Burton v. Wilmington Parking Auth. ( 365 U. S. 715, 725 ) where the United States Supreme Court, in condemning racial exclusion by a private restaurant renting space in a public authority building said: “ The State has so far insinuated itself into a position of interdependence with Eagle that it must be recognized as a joint participant in the challenged activity, which, on that account, cannot be considered to have been so ‘ purely private ’ as to fall without the scope of the Fourteenth Amendment ”.

1993Corp. v Duffy, 479 US 335 ) and, consequently, a violation of the Supremacy Clause of the US Constitution (see, Metropolitan Package Store Assn. v Koch, 89 AD2d 317 , mot to dismiss appeals granted 58 NY2d 1112 , appeal dismissed 464 US 802 ), our inquiry focuses on whether the CMSA may nonetheless be upheld by reason of the State action immunity doctrine (see, e.g., Parker v Brown, 317 US 341 ) which, in turn, provides that the State action is immune if the State has articulated a clear and affirmative policy to allow anticompetitive conduct and the State provides active supervision of antico

1993Corp. v Duffy, 479 US 335 ) and, consequently, a violation of the Supremacy Clause of the US Constitution (see, Metropolitan Package Store Assn. v Koch, 89 AD2d 317 , mot to dismiss appeals granted 58 NY2d 1112 , appeal dismissed 464 US 802 ), our inquiry focuses on whether the CMSA may nonetheless be upheld by reason of the State action immunity doctrine (see, e.g., Parker v Brown, 317 US 341 ) which, in turn, provides that the State action is immune if the State has articulated a clear and affirmative policy to allow anticompetitive conduct and the State provides active supervision of antico

1993Corp. v Duffy, 479 US 335 ) and, consequently, a violation of the Supremacy Clause of the US Constitution (see, Metropolitan Package Store Assn. v Koch, 89 AD2d 317 , mot to dismiss appeals granted 58 NY2d 1112 , appeal dismissed 464 US 802 ), our inquiry focuses on whether the CMSA may nonetheless be upheld by reason of the State action immunity doctrine (see, e.g., Parker v Brown, 317 US 341 ) which, in turn, provides that the State action is immune if the State has articulated a clear and affirmative policy to allow anticompetitive conduct and the State provides active supervision of antico

1988(See, Under 21, Catholic Home Bur. for Dependent Children v City of New York, 65 NY2d 344 , 360, n 6, supra; Matter of Esler v Walters, 56 NY2d 306 .) Third, and finally, as recently as 1985, in SHAD Alliance v Smith Haven Mall ( 66 NY2d 496, 505 , supra), a majority of our Court of Appeals, per Titone, J., opined that "[abrogation of a State action requirement * * * would have broad and mischievous consequences”.

1987In the past, in interpreting the State Due Process Clause we have at times performed an interpretive analysis (e.g., Sharrock v Dell Buick-Cadillac, 45 NY2d 152, 159-160 [noting that, unlike the 14th Amendment of the Federal Constitution, the State due process provision lacks express reference to a State-action requirement]) and a noninterpretive analysis (e.g., Cooper v Morin, 49 NY2d 69 , cert denied 446 US. 984 [rejecting the reasoning of Bell v Wolfish, 441 US 520 ]).

1987In the past, in interpreting the State Due Process Clause we have at times performed an interpretive analysis (e.g., Sharrock v Dell Buick-Cadillac, 45 NY2d 152, 159-160 [noting that, unlike the 14th Amendment of the Federal Constitution, the State due process provision lacks express reference to a State-action requirement]) and a noninterpretive analysis (e.g., Cooper v Morin, 49 NY2d 69 , cert denied 446 US. 984 [rejecting the reasoning of Bell v Wolfish, 441 US 520 ]).

1986State-action analysis begins with "careful attention to the gravamen of the plaintiffs complaint” (Blum v Yaretsky, supra, p 1003 ).

1985Rather, we formulated a method of determining whether governmental conduct could be inferred or discovered in a transaction that historically had been characterized as "private." It is also instructive to note that the framers of the proposed New York State Constitution of 1967 — whose aim was to modernize the Constitution to meet changing needs and understandings — adopted a view and articulation of the free speech right that clearly included a State action requirement ( see , 12 Proceedings of 1967 Constitutional Convention of the State of New York, at 3 [text of proposed free speech provisi

1985Structurally and functionally, a shopping center is very different from the "company town” in Marsh v Alabama ( 326 US 501, 502 ), which consisted of "residential buildings, streets, a system of sewers, a sewage disposal plant and a 'business block.’ ” The Mall is closed to the public after business hours and the owner does not perform "the full spectrum of municipal powers” or "[stand] in the shoes of the State” (Lloyd Corp. v Tanner, 407 US 551, 569 ). .

1985The State action requirement, consistently recognized and reaffirmed in our decisions (see, e.g. , Under 21 v City of New York , 65 N.Y.2d 344 , 360-361, supra; Matter of Wilson , 59 N.Y.2d 461, 476-477 , supra) , performs a vital function.

1985The State action requirement, consistently recognized and reaffirmed in our decisions (see, e.g., Under 21 v City of New York, 65 NY2d 344 , 360-361, supra; Matter of Wilson, 59 NY2d 461, 476-477 , supra), performs a vital function.

1985Princeton Univ. v Schmid , 455 US 100 ), which did not involve a shopping center, does not rest on an abandonment of a State action requirement for the court noted that its prior decisions had "observed that the State Constitution serves only to limit the sovereign power which inheres directly in the people and indirectly in their elected representatives" (84 NJ, at p 558, 423 A2d, at p 627 ; see also , Brown v Davis , 203 NJ Super 41, 495 A2d 900 ).

1985Princeton Univ. v Schmid, 455 US 100 ), which did not involve a shopping center, does not rest on an abandonment of a State action requirement for the court noted that its prior decisions had "observed that the State Constitution serves only to limit the sovereign power which inheres directly in the people and indirectly in their elected representatives” (84 NJ, at p 558, 423 A2d, at p 627 ; see also, Brown v Davis, 203 NJ Super 41, 495 A2d 900 ).

1985Rather, we formulated a method of determining whether governmental conduct could be inferred or discovered in a transaction that historically had been characterized as "private." It is also instructive to note that the framers of the proposed New York State Constitution of 1967 — whose aim was to modernize the Constitution to meet changing needs and understandings — adopted a view and articulation of the free speech right that clearly included a State action requirement ( see , 12 Proceedings of 1967 Constitutional Convention of the State of New York, at 3 [text of proposed free speech provisi

1985Structurally and functionally, a shopping center is very different from the "company town” in Marsh v Alabama ( 326 US 501, 502 ), which consisted of "residential buildings, streets, a system of sewers, a sewage disposal plant and a 'business block.’ ” The Mall is closed to the public after business hours and the owner does not perform "the full spectrum of municipal powers” or "[stand] in the shoes of the State” (Lloyd Corp. v Tanner, 407 US 551, 569 ). .

1985(Significantly, the California statutes do prohibit sales below cost [see, 21 Cal 3d 431, at p 458, 579 P2d, at p 494 ]).

1985Council (96 Wn 2d 230, 635 P2d 108 ), a majority of the court actually rejected the abrogation of a State action requirement.

1985Council (96 Wn 2d 230, 635 P2d 108 ), a majority of the court actually rejected the abrogation of a State action requirement.

1985Control, 664 F2d 353, affg 512 F Supp 936 ).

1985Princeton Univ. v Schmid , 455 US 100 ), which did not involve a shopping center, does not rest on an abandonment of a State action requirement for the court noted that its prior decisions had "observed that the State Constitution serves only to limit the sovereign power which inheres directly in the people and indirectly in their elected representatives" (84 NJ, at p 558, 423 A2d, at p 627 ; see also , Brown v Davis , 203 NJ Super 41, 495 A2d 900 ).

1985Princeton Univ. v Schmid, 455 US 100 ), which did not involve a shopping center, does not rest on an abandonment of a State action requirement for the court noted that its prior decisions had "observed that the State Constitution serves only to limit the sovereign power which inheres directly in the people and indirectly in their elected representatives” (84 NJ, at p 558, 423 A2d, at p 627 ; see also, Brown v Davis, 203 NJ Super 41, 495 A2d 900 ).

1985Dealers v Midcal Aluminum, 445 US 97, 105 , supra).

1983As the Court said in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349 , 95 S.Ct. 449, 453 , 42 L.Ed.2d 477 (1974): “ ‘In 1883, this Court, in the Civil Rights Cases, 109 U.S. 3 [ 3 S.Ct. 18 , 27 L.Ed. 835 ], affirmed the essential dichot omy set forth in [the Fourteenth] Amendment between deprivation by the State, subject to scrutiny under its provisions, and private conduct, “however discriminatory or wrongful,” against which the Fourteenth Amendment offers no shield.’ “Careful adherence to the ‘state action’ requirement preserves an area of individual freedom by limiting the reach of fe

1983As the Court said in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349 , 95 S.Ct. 449, 453 , 42 L.Ed.2d 477 (1974): “ ‘In 1883, this Court, in the Civil Rights Cases, 109 U.S. 3 [ 3 S.Ct. 18 , 27 L.Ed. 835 ], affirmed the essential dichot omy set forth in [the Fourteenth] Amendment between deprivation by the State, subject to scrutiny under its provisions, and private conduct, “however discriminatory or wrongful,” against which the Fourteenth Amendment offers no shield.’ “Careful adherence to the ‘state action’ requirement preserves an area of individual freedom by limiting the reach of fe

1983As the Court said in Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349 , 95 S.Ct. 449, 453 , 42 L.Ed.2d 477 (1974): “ ‘In 1883, this Court, in the Civil Rights Cases, 109 U.S. 3 [ 3 S.Ct. 18 , 27 L.Ed. 835 ], affirmed the essential dichot omy set forth in [the Fourteenth] Amendment between deprivation by the State, subject to scrutiny under its provisions, and private conduct, “however discriminatory or wrongful,” against which the Fourteenth Amendment offers no shield.’ “Careful adherence to the ‘state action’ requirement preserves an area of individual freedom by limiting the reach of fe

1983Recently, in the case of Lugar v Edmondson Oil Co. ( 457 US 922 , _, 102 S Ct 2744, 2754 ), the United States Supreme Court discussed the question of fair attribution and held in relevant part: “As a matter of substantive constitutional law the state action requirement reflects judicial recognition of the fact that ‘most rights secured by the Constitution are protected only against infringement by governments,’ Flagg Brothers, supra, 436 U.S., at 156, 98 S.Ct., at 1733.

1983Recently, in the case of Lugar v Edmondson Oil Co. ( 457 US 922 , _, 102 S Ct 2744, 2754 ), the United States Supreme Court discussed the question of fair attribution and held in relevant part: “As a matter of substantive constitutional law the state action requirement reflects judicial recognition of the fact that ‘most rights secured by the Constitution are protected only against infringement by governments,’ Flagg Brothers, supra, 436 U.S., at 156, 98 S.Ct., at 1733.