# Amicus Brief — Community Communications Co. v. Boulder

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1982
- **Citation:** 455 U.S. 40

## Text

Office -S me Court U5. |
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No. 80-1350 JUN

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In The
SUPREME COURT OF THE UNITED STATES
October Term, 1980

COMMUNITY COMMUNICATIONS COMPANY, INC.,

Petitioner,
vs.
CITY OF BOULDER, COLORADO,
Respondent.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

AMICI CURIAE. BRIEF FOR THE CITY OF
AKRON, OHIO AND THE OHIO WATER
DEVELOPMENT AUTHORITY

SQUIRE, SANDERS & DEMPSEY ROBERT D. PRITT

JOHN D. CUMMINS Director of Law

GLENN M. YOUNG City of Akron

Counsel of Record 304 Municipal Building
21 Dupont Circle, N.W. Akron, Ohio 44308
Washington, D.C. 20036 (216) 375-2030

(202) 862-7000

Attorney for the
EBEN G. CRAWFORD City of Akron
WILLIAM H. BAUGHMAN
1800 Union Commerce Building
Cleveland, Ohio 44115
(216) 696-9200

Attorneys for the Ohio Water
Development Authority

TABLE OF CONTENTS
Page
Table Of ContentS ..scccccccccccceseee i
Table of Authorities ...secsescecseees i
INTEREST OF AMICI CURIAE .cccsceseseee 1
SUMMARY OF ARGUMENT ...cecececesccsses 6
ARGUMENT coccccccccccccccccccccccccces
CONCLUSION .ccccccccccccccccccccccccce Ol
TABLE OF AUTHORITIES
Cases
Brandel v. oa Cee sE dy
Ind. ’ N.E. 778,
781 (1967) cccccccccccccccccccsccccssee 19
Burns v. City of Enid,
Okla. ’ P.1038,
1039 (1923) ceccccccccccccccccccccccse 19
California Reduction Co. v.

Sanitary Reduction Works,
f 9 U.S. ’ 19- ( 05) eeeeeeeees 16

Canton v. Van Voorhis, 61 Ohio
App. 419, 421-22, 22 N.E.2d 651,

652, a al dismissed for want

of debatable question, 135 Ohio

Bes ies 20 Webo de 120 61939) cecoccee 17
City of Lafayette v. Louisiana

Power & Light Co., 435 U.S. 389

T1978

) es@e@eeeoeeeoeeee eee eeeeeeeeaeeeeee 17

aoj-

Page

District of Columbia v. Brooke,
214 U.S. 138, 148 (1909) e*eeeensee#neeseeeeee 19

Dover Township v. Witt, 7 N.J. Super.
f A. 4, (1950) eeeeeeeene 18
Gardner v. Michigan, 199 U.S. 325,
_ ( ) eeeeseeseeeeeeeeeeneaeeeeaeee eee 16
Glenwillow Landfill, Inc. v. Cit
of Akron, 465 F. Supp. 671 (N.D.
Ohio 1979), a al docketed sub
nom. Hybud Eauipnent Corp. v. City
of Akron, No. ~ 1 ( th re
Jan. 14, 1980) eeeseeaeaevoeaeeeeeeeeeeeneeaee 16
Grand Rapids v. DeVries, 123 Mich.
570, 82 N.W. 269, 273-74 (1900) ...... 19

Hodge v. Stout, 377 F.Supp.
131, 135 (B.D. Tenn. 1974) cccoccccccee 19

Hutchison v. Valdosta, 227 U.S.
303 (1912) eeeeseeeeeeeeeeeeeeeeeeeaeeeeee 19

Indianapolis v. Ryan, 212 Ind.
447, 7 N.E.2d 974, 976 (1937) weseeeee 19

Marangi Brothers v. Board of
Commissioners, 33 N.J. Super.

294, 110 A.2d 131, 138-39 (1954) eeee 19

O'Neal v. Harrison, 96 Kan. 339,

P. ( eeeeeeee eee eeeeeaeeeeee 19

Parker v. Brown, 317 U.S. 341

eeeeeeeeeeeeneneeeeeeeneeeeeeeeeeeee 4, 17
People v. A & C Trucking Co.,
88 Misc. 2d 988, 390 N.Y.S.2d
987, 992-94 (1977) eeeeeeeeeve eee eee eee 19
-ii-

Page
People v. Butcher, 28 Misc.2d
24, 209 N.Y¥.S.2d 723, 728 (1960) ..... 19

Sikeston v. Sisson, 363 Mo. 104,
249 S.W.2d 345, 346-47 (1952) eeeeeveee 19

Silver v. Los Angeles, 217 Cal.

App.2d 134, 31 Cal.Rptr. 545,

549-50 (1963) e@eeeeveveveeeeeeeeeeeeeeeee 18
Spokane v. Carlson, 73 Wash.

2d 76, 436 P.2d 454, 456 (1968) ...... 19
State v. Orr, 68 Conn. 101,

35 A.770, 771 (1896) eeeeoeeaeeeeeaeeeaeeneenee? 19

State v. Robb, 100 Me. 180,
60 A.874, 877 (1905) e@eeeeoeeeaeaevee eee eaeee 19

State, ex rel. Moock v. Cincinnati,

120 Ohio St. 500, 508-09, 166 N.E.

583, 585-86, cert. denied, 280

U.S. 578 (1929) eeeeseeeeeeeeeeeeeeeaeenenee 16

Strub v. Deerfield, 19 1I111.2d
401, 167 N.E.2d 178, 180 (1960) ...... 18

‘United Sanitation Services, Inc.
v. Tampa, 302 S0.2d 435, 436
(PFla.Ct.App. 1974) eeeeseeoeeeeeeeeeeeenenene 18
Valley Spring Hog Ranch Co.
v. Plagman, 282 Mo. 1, 220 S.W.1,
-5 (1920) eeoeeeeeeeeeeeeeeeeeeteeeeee 18

Wheeler v. City of Boston,
233 Mass. 395-133 HE. 123 N.E. 684,

686 (1919) eeeeeeaeeaeeeeeeeeeeeeaeeeeeen ee 18

~iii-

Constitutional Provisions,
Statutes and Ordinances

Ohio Const. Art. IVII, Sec. 3
(Page's 1979) @eeeeoseeeeaeeeeeweeeeaeeneaneeneeneneee

Toxic Substances Control Act,
15 GeSeCeo §2601, et seq. e*eeeeeeneeeees

Clean Water Act, 33 U.S.C.
§1251 et seq. eeeeeeeeveeeeeeeneneeeneeneeee

Safe Drinking Water Act, 42
GeSeGe § 300F et seq. eeeeeeeeneeeeneeeneee

Resource Conservation and
Recovery Act, 42 U.S.C. §6901,
et seq. eeeeoeeeeeeeeeeeeeeeeeeeenneeeneee

Clean Air Act, 42 U.S.C. §7401,
et seq. eeeeeeaeoeeeeeeaeeeeeeeeeeeee ee ee

Ohio Rev. Code Ann. §§6121.03 and
6123.03 (Page's 1977) @eeeeoeeeeeeeseeeeees

-iv-

Page

No. 80-1350

In The
SUPREME COURT OF THE UNITED STATES

October Term, 1980

COMMUNITY COMMUNICATIONS COMPANY, INC.,
Petitioner,

vs.

CITY OF BOULDER, COLORADO,
Respondent.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

AMICI CURIARE BRIEF FOR THE CITY OF
AKRON, OHIO AND THE OHIO WATER DEVELOPMENT
AUTHORITY

INTEREST OF AMICI CURIAE
The City of Akron, a home-rule
municipality in Ohio, and the Ohio Water

Development Authority (OWDA), a state agency

~

created inter alia to assist in financing

solid-waste disposal systems, join in this

brief as amici curiae in support of Respon-

dent. These amici also adopt the brief
filed herein by Respondent.

In addition to their general interest
in conducting their governmental affairs
free of fear that their actions may be
challenged as antitrust violations, these
amici are also interested in this case
because they are presently subjected to
antitrust litigation arising from their
allegedly illegal, inter-government agree-
ment. That agreement was part of a
financing relationship between Akron and
OWDA for the purpose of constructing a new
resource recovery solid-waste disposal
system built in Akron and financed through
the OWDA. Specifically, Akron agreed with
OWDA that it would adopt an ordinance

requiring that all solid waste collected

-3-
within the city limits be taken to the new
facility. OWDA insisted upon adoption of
this ordinance to insure that all of Akron's
solid waste would be disposed of in an
environmentally sound manner and to insure
adequate utilization of the facility to
serve the revenue bonds OWDA issued to
finance the project. After the ordinance
was adopted, certain landfill operators and
solid waste haulers sued Akron and OWDA

asserting, inter alia, that the ordinance

imposed an anticompetitive restraint upon
the business of collecting and disposing of
solid waste and constituted an attempt to
monopolize that business, all in violation
of Sections 1 and 2 of the Sherman Act.
After trial on the merits, the District
Court rejected plaintiffs' antitrust claims

on the ground, inter alia, that the people

of Ohio, through the home rule provisions of

the Ohio Constitution, had allocated the

-4-
power to regulate the collection and
disposal of solid waste within a city's
corporate limits to the city's council, not
the state legislature; that accordingly the
Akron council, in adopting the ordinance,
stood in the same position and exercised the
same sovereign power as the state legisla-
ture exercises in those areas to which the
people of Ohio have allocated it power to
legislate; and that therefore, the ordinance
was immune from antitrust attack under

Parker v. Brown, 317 U.S. 341 (1943);

Glenwillow Landfill, Inc. v. City of Akron,

385 F.Supp. 671 (N.D. Ohio 1979). The case
has been appealed and was argued to the
Sixth Circuit Court of Appeals in October,

1980, sub nom. Hybud Equipment Corp. v.

City of Akron, No. 80-3121 (6th Cir. Jan.

14, 1980). No decision has yet been
rendered, presumably due to the pendency of

the instant appeal before this Court.

-5-

Although the issues before the Sixth
Circuit are not identical to those presented
here, these amici find themselves in much
the same position as the City of Boulder -
having to defend an antitrust lawsuit
attacking a governmental action well within
the scope of the home-rule power granted a
municipality by the people.

The ability of local government toa
solve the problems of urban communities is
already strained because of the limited
sources of funds available to meet the
increasing demands for government services
in our society. To apply the Sherman and
Clayton Acts to exercises of home-rule power
by municipalities - and thus create another
obstacle to local government's attempts to
fulfill the needs of an urban citizenry -
would be exceedingly unwise.

It is this interest in maintaining

their ability to address present-day urban

-6§-
problems, expecially in the area of
providing solid-waste removal systems, that
prompts these amici to file this brief and

to join in respondent's brief.

SUMMARY OF ARGUMENT
Applying federal antitrust statutes to
governmental actions by local governments
under their home-rule power will unduly
interfere with the accomplishment of
important social goals, e.g., environmental
goals, as is illustrated by these amici's

own situation.

ARGUMENT

These amici support the arguments
contained in respondent's brief. For those
reasons, the federal antitrust statutes
should be read as not reaching actions taken
by local governments under sovereign,
home-rule power vested in them by the
people. In addition, these amici will offer

as an example a description of one area of

-7-
local government where the risk of antitrust
litigation would impede efforts to accom-
plish vital societal goals. That area is
the traditional one of collecting and
disposing of garbage, trash and other
refuse.

In the past decade, Congress has
enacted numerous laws designed to improve
the nation's environment.1/ Most of these
statutes apply with equal, if not greater,
force to municipalities as to industry. For
instance, Congress has decided to utilize
existing municipal sewage treatment plants
as a primary tool in clensing the waters of
the United States of industrial as well as

residential waste.2/ These more strict

1/ Clean Air Act, 42 U.S.C. § 7401 et seq.; Clean
Water Act, 33 U.S.C § 1251 et seq.; Resource
Conservation and Recovery Act, 42 U.S.C.
§ 6901 et seq.; Toxic Substances Control Act,
15 U.S.C. § 2601 et seq.; Safe Drinking Water
Act, 42 U.S.C. § 300F et seq.

2/ See 33 U.S.C. $§1251(2)(4), 1281(c) and (e)
and 1317 (b) and (c).

-8-

environmental requirements have greatly
increased the traditional burden on the
nation's local governments to provide waste
removal systems. Merely hauling trash to
any open landfill to be burned or buried is
no longer enough.3/ A more environmentally
acceptable method of disposal is necessary.

Akron, like cities throughout Ohio and
the nation, faces the challenge of disposing
of waste in accordance with these new
environmental regulations. In meeting the
challenge, Akron, as a charter municipality,
can use its home-rule power under the Ohio
Constitution. Home-rule is granted to
municipalities in Ohio by the following
constitutional provision:

"Municipalities shall have authority to

exercise all powers of self-government

and to adopt and enforce within their
limits, such local police, sanitary and

3/ See Resource Conservation and Recovery Act, 42
U.S.C. § 6945(c): ". . . open dumping of

solid wastes or hazardous waste is prohibited
"

-9-

other other similar regulations as are

not in conflict with the general

laws."4/ |

Akron may also call upon the OWDA for
assistance in financing capital improvements
to dispose of waste without degrading the
environment. The OWDA's very existence is a
response tc the financial needs in meeting
these new environmental requirements through
the construction of new disposal or treat-
ment systems.5/

A discussion of Akron's solid-waste
program will illustrate the need for what in
the private sector might be circumscribed by
the antitrust laws. The intergovernmental
cooperation between OWDA and Akron, which is
allegedly a combination in restraint of
trade, is only one example of the relation-

ships and restrictions that are needed,

4/ Ohio Const. Art. IVIII, Sec. 3 (Page's 1979).

5/ Ohio Rev. Code Ann. §§ 6121.03 and 6123.03
(Page's 1977).

-10-
especially in the environmental area, to
deal economically, safely and effectively
with the many present day problems that
beset local government.

In the early 1970's Akron's officials
foresaw an impending solid waste disposal
crisis principally triggered by (a) Ohio's
new stringent solid waste disposal regula-
tions which placed substantial constraints
on the future location and operation of
waste disposal sites, and (b) the fast
diminishing capacity of existing landfill
sites in the Akron area.

In response, Akron undertook extensive
studies of alternative, long-range solutions
including sanitary landfill, incineration,
composting, rail haul to abandoned strip
mines, size and volume reduction mehtods
(shredding, crushing, etc.), and resource
recovery techniques. Akron concluded that a

recycle energy system (RES), designed with

-11—-
the latest technology to incinerate solid
waste to produce marketable steam or elec-
tricity, was the best long-rang® solution to
the solid waste disposal problem for a
number of reasons, including the facts
that:

1. An RES could be centrally located
within the corporate limits, thereby
obviating costly hauling and assuring
that Akron retained control over the
facility;

2. The ash residue produced by the RES
could be used for fill or safely land-
filled requiring the utilization of far
less land than ordinary landfilling.

3. Incineration would markedly reduce
the pollution and nuisances associated
with landfills and, to the extent it
replaced coal fire burners, would
actually reduce air pollution.

4. The costs of operation could be
offset by the sale of steam or
electricity and recyclable materials as
well as the collection of a disposal
charge.
A significant factor in Akron's decision was
the fact that its only landfill generated
continuing problems, controversy and

litigation. Indeed, in order to settle

@12@
pending litigation, Akron had been forced to
agree to cease operating its landfill no
later than December 1977,

During the first half of 1975, Akron
attempted to finance the proposed RES on its
own through the sale of revenue bonds, but
by mid-1975, it became apparent that Akron's
RES revenue bonds would not be marketable
due to the novelty of RES technology and the
ill effects of the New York City financial
crisis on the capital markets. Consequently,
Akron asked the OWDA to finance the
project.

OWDA is mandated by law to implement
"the public policy of the State ... to
provide... efficient and proper methods
of disposal, salvage and reuse of or
recovery of resources from solid waste

» « «"6/ To effect its mandate, the Ohio

6/ Ohio Rev. Code Ann. § 6123.03 (Page's 1977).

-13-
General Assembly has vested OWDA with power
to finance solid waste projects by issuing
revenue bonds, and in conjunction with such
projects and their financing, to enter into
cooperative agreements with other govern-
mental agencies containing such terms as are
necessary to safeguard ". . . the respective
interests of the parties thereto
pe

After concluding that Akron's proposed
RES would further the state policy OWDA has
been mandated to implement, OWDA agreed to
finance the project and in July 1976, the
investment banking firm of Dillon, Reed &
Co. agreed to head an underwriting team to
purchase and resell the OWDA's RES bonds.
OWDA and its underwriters concluded that in
order to market the revenue bonds, it would

be necessary to assure the bondholders that

7/ Ohio Rev. Code Ann. § 6123.13 (Page's 1977).

-14-

the RES project would receive an adequate
supply of waste in order to provide adequate
revenues to repay the bonds; and that to do
so, it would be necessary for Akron to
exercise its home-rule power to require that
all solid waste generated within its limits
be taken to the RES facility for disposal.
The OWDA also wanted all of Akron's solid
waste to be processed through the RES plant,
rather than deposited in some landfill, to
further its interest in cleaning up the
environment.

In October 1976, Akron's City Council
authorized a cooperative agreement with
OWDA. Section 5.5 I of this agreement
provides, among other things, that Akron
covenants with OWDA as follows:

wt For the term of this

Agreement, [Akron] shall require that

all collectors and haulers of Solid

Waste within [Akron] be licensed by

[Akron] and all such licenses shall

provide that all collectors or haulers

of Solid Waste shall dispose of all
Solid Waste generated within the

-15-

corporate limits of [Akron] which is
acceptable for disposal by the Project
to be deliverd to the Project for
disposal through the Project...
[Akron] will take all available action,
administrative, judicial and legisla-
tive, to cause all Solid Waste genera-
ted within the corporate limits of
[Akron] .. . to be delivered to the
Project for disposal through the
Project."

To fulfill its obligations under this
covenant, Akron enacted Ordinance
No. 846-1976 which provides, in pertinent
part:

"From and after the date on which [the

RES] plant begins accepting rubbish for

disposal, all rubbish collected within

the corporate limits of the City by the

holder of a rubbish haulers license
shall be deposited at such plant;
nm

The ordinance does not apply to
source-segregated recyclable materials -
i.e@., waste paper, cardboard, metals, etc. -
segregated for recyclizg or other use by the
preson generating the waste. It only
applies to mixed solid waste put out by the

generator thereof for disposal.

-16-
This ordinance has been challenged on

antitrust grounds, among others. Glenwillow

Landfill, Inc. v. City of Akron, 485 F.

Supp. 671 (N.D. Ohio 1979), appeal docketed

sub nom. . Hybud Equipment Corp. v. City of

Akron, No. 80-3121 (6th Cir. Jan. 14, 1980).

This antitrust attack on the actions of
Akron and OWDA was made in spite of federal
and Ohio precedents establishing that ordi-
nances monopolizing or otherwise controlling
the collection and/or disposal of solid
waste within municipalities are proper
police power measures that do not violate

the Fourteenth Amendment. E.g., California

Reduction Co. v. Sanitary Reduction Works,

199 U.S. 306, 319-22 (1905); Gardner v.

Michigan, 199 U.S. 325, 332-33 (1905);

State, ex rel. Moock v. Cincinnati, 120 Ohio

St. 500, 508-09, 166 N.E. 583, 585-86,
cert. denied, 280 U.S. 578 (1929); Canton

v. Van Voorhis, 61 Ohio App. 419, 421-22, 22

@17@

N.E.2d 651, 652, appeal dismissed for want

of debatable question, 135 Ohio St. 319, 20

N.E.2d 720 (1939). Moreover, Ohio courts
have unequivocally declared that ordinances
directing the flow of solid waste to a
single hauler or disposal site are proper
exercises of the sovereignty granted to
municipalities by the home-rule provision of

the Ohio Constitution. Moock v. Cincinnati,

supra; Canton v. Van Voorhis, Supra.

Although the sovereign, home-rule acts
of Akron should not have been the subject of

antitrust claims, Parker v. Brown, 317 U.S.

341 (1943), such litigation was commenced

under the decision in City of Lafayette v.

Louisiana Power & Light Co., 435 U.S. 389

(1978).

These amici do not occupy a unique
position. Local governments across the
country for many decades have, under local

police power, limited the collection or

-18-

disposal of rubbish. See, e.g., Silver

v. Los Angeles, 217 Cal.App.2d 134, 31

68 Conn. 101, 35 A.770, 771 (1896); United

Sanitation Services, Inc. v. Tampa, 302

So.2d 435, 436 (Fla.Ct.App. 1974); Strub
v. Deerfield, 19 I11.2d 401, 167 N.E.2d 178,

180 (1960); Indianapolis v. Ryan, 212 Ind.

447, 7 N.E.2d 974, 976 (1937); O'Neal v.

Harrison, 96 Kan. 339, 150 P.551 (1915);

State v. Robb, 100 Me. 180, 60 A.874, 877

(1905); In re Vandine, 23 Mass. (6 Pick)

187, 17 Am. Dec. 351 (1827); Wheeler v. City

of Boston, 233 Mass. 275, 123 N.E. 684, 686

(1919); Grand Rapids v. DeVries, 123 Mich.

570, 82 N.W. 269, 273-74 (1900); Valley

Spring Hog Ranch Co. v. Plagman, 282 Mo. 1,

220 S.W.1, 4-5 (1920); Dover Township v.

Witt, 7 N.J. Super. 259, 72 A.2d 884, 885

(1950); Marangi Brothers v. Board of

Commissioners, 33 N.J. Super. 294, 110 A.2d

-19-
131, 138-39 (1954); People v. A & C Trucking

Co., 88 Misc. 2d 988, 390 N.Y.S.2d 987,
992-94 (1977); Burns v. City of Enid, 92

Okla. 67, 217 P.1038, 1039 (1923); Spokane
v. Carlson, 73 Wash. 2d 76, 436 P.2d 454,

456 (1968).
Similarly, municipalities have tradi-
tionally enacted mandatory sewer connection

ordinances. See, e.g., Hutchison v.

Valdosta, 227 U.S. 303 (1912); District of
wesSVsts

Columbia v. Brooke, 214 U.S. 138, 148

(1909); Hodge v. Stout, 377 F.Supp. 131, 135

(E.D. Tenn. 1974); People v. Butcher, 28

Misc.2d 24, 209 N.Y.S.2d 723, 728 (1960);

Brandel v. Lawrenceburg, 249 Ind. 47, 230

N.E.2d 778, 781 (1967); Sikeston v. Sisson,

363 Mo. 104, 249 S.W.2d 345, 346-47 (1952).
As the discussion above demonstrates,

Municipalities often take governmental

action, sometimes in cooperation with other

levels of government, which might give rise

-20-
to antitrust litigation. A clear pronounce-
ment that local governmental action under
home-rule provisions may not give rise to
antitrust liability is needed. Without such
a clear rule, local governments will be
deterred from many actions, rationally
designed to promote the public health,
safety and welfare, for fear of the enormous
costs of antitrust litigation. Requiring
cities to run the risk of antitrust suits
arising from their governmental actions is
an unnecessary additional cost for local
governments already at the breaking point.
Moreover, the delay which potential anti-
trust considerations would impose could
seriously jeopardize the health and safety
of local citizenry in the community facing a
need to solve a sewage or solid waste
disposal problem. The overall detrimental
affect on the health and safety of millions
of people throughout the nation cannot be

overstated.

=21=

CONCLUSION

These amici urge an affirmance for the
foregoing reasons. Local governmental
actions pursuant to home-rule power alloca-
ted to municipalities by the people of a
State should be no more subject to antitrust
challenge than actions pursuant to other
allocations of power to a state's legisla-

ture or judiciary.

Respectfully submitted,

SQUIRE, SANDERS ROBERT D. PRITT
& DEMPSEY Director of Law
JOHN D. CUMMINS City of Akron
GLENN M. YOUNG 304 Municipal
Counsel of Record Building

21 Dupont Circle, N.W. Akron, Ohio 44308
Washington, DC 20036 (216) 375-2030
(202) 862-7000

Attorney for the
EBEN G. CRAWFORD City of Akron
WILLIAM H. BAUGHMAN
1800 Union Commerce
Building
Cleveland, OH 44115
(216) 696-9200

Attorneys for the Ohio Water
Development Authority

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1955%3A08. Public record. Not legal advice.