# Amicus Curiae Brief — City Gas Co. v. Consolidated Gas Co. of Florida

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1002%3A04

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1991
- **Citation:** 499 U.S. 915

## Text

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No. 90-953 PRY cer
in the
Supreme Court
of the
United States
October Term, 1990
CITY GAS COMPANY OF FLORIDA,
Petitioner,
VS.
CONSOLIDATED GAS COMPANY OF FLORIDA,
INC.,
Respondent.

THE STATE OF FLORIDA AS AMICUS CURIAE
IN SUPPORT OF PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT

Robert A. Butterworth,
Attorney General,
Jerome W. Hoffman,
Assistant Attorney General,
Chief, Antitrust Division,
Patricia A. Conners, *
Assistant Attorney General
Office of Attorney General
The State of Florida
The Capitol
Tallahassee, FL 32399-1050
Telephone: (904) 488-9105

* Counsel of Record On
Behalf of Amicus State

TABLE OF CONTENTS

Page
TARR OE FRE ov tector cccesenes ii
PS hs od vn cob 60 oes ewd ita eee 1
INTEREST OF AMICUS STATE ............. 1
STATEMENT OF THE CASE ............... 2
ARGUMENT

ISSUE (RESTATED): IN REJECTING CITY
GAS’ STATE ACTION DEFENSE, THE
COURT OF APPEALS IN EFFECT
OVERRULED A HOLDING OF THE STATE
SUPREME COURT INTERPRETING A
FLORIDA STATUTE AND, IN DOING SO,
RULED CONTRARY TO THE
ESTABLISHED PRECEDENTS OF THIS
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PPP ES OTT ETT Eee 6

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TABLE OF AUTHORITIES

Cases Page(s)

Aero Mayflower Transit Co. v. Bd. of R.R.
Comm’ers,

SUMMMM CDOS) 2... .......2..0500.

Albertson v. Millard,

LE

California Retail Liquor Dealers Ass’n v. Midcal
Aluminum, Inc.,
445 US. 87 (1980) ................06.

City Gas Co. v. Peoples Gas Sys., Inc.,
oe

Consolidated Gas Company of Florida, Inc. v. City
Gas Co. of Fla.,
Sou F.20 297 (11th Cir. 1969) ...........

Cramp v. Bd. of Public Instruction,

Serre

Enterprise Irrigation Dist. v. Farmers Mut. Canal Co.,

ream ae7IMID) .........-........-

Gamer v. Louisiana,

Meee 057 (1961) ................00%

Griffin v. Wisconsin,

483 U.S. 868 (1987) ........... eee eee.

il

Hebert v. Louisiana,
ee ek Se ED 6 48 ba OCR Mee OOS

Hortonville Jr. School Dis. No. 1 v. Hortonville Ed.,
en Se ee SA es Sao e Nae

Kingsiey Int. Pic. Corp. v. Regents of N.Y.U.,
Pe ee I ook ka 0 o-0 0 0s aw ke

Landmark Communications, Inc. v. Virginia,
ee a EE os 85 oe dee won cee

Morehead v. People of New York ex rel. Tipaldo,
Ss SOE in honk oka S So eRe ees

NAACP v. Button,
oe Be re eer ere

O’Bnen v. Skinner,
og ek eee

Schad v. Borough of Mt. Ephraim,
Ge A ee ED ob ko 4s ba wkaeet ees eae

Supreme Lodge v. Meyer,
De Sth 8 6b wee ven veh oe hee

United States v. Burnison,
er

Winters v. New York,
ee ee eb. oon 0 hae eee

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Statutes and Rules

15 U.S.C. § 2

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See hs Gass Was nek xR URES eee Rees

iv

No. 90-953
in the
Supreme Court
of the
United States

October Term, 1990
CITY GAS COMPANY OF FLORIDA,

Petitioner,

VS.
CONSOLIDATED GAS COMPANY OF FLORIDA,
INC.,
Respondent.

THE STATE OF FLORIDA AS AMICUS CURIAE
IN SUPPORT OF PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT

INTRODUCTION

The State of Florida files this amicus brief in
support of Petitioner City Gas Company of Florida’s ("City
Gas") Petition for Writ of Certiorari.

INTEREST OF AMICUS STATE
By essentially overruling the Supreme Court of
Florida’s interpretation of a state statute, the Eleventh
Circuit’s decision below raises an issue of grave concern to

1

the State of Florida. That issue, upon which resolution of
many of the other issues in this case rests, is whether a
federal appellate court may ignore a state supreme court’s
interpretation of a state statute and conduct its own
independent review of that statute’s applicability. This
Court on countless occasions has ruled that the meaning
given a state statute by a state’s highest court must be
accepted by federal courts, whether or not those courts
agree with the state court’s interpretation. Yet, by its
decision below the Eleventh Circuit has seen fit to
undermine established United States Supreme Court
precedents and disregard the principles of federalism upon
which those precedents were founded. To allow such a
contrary holding is to deny the State of Florida its
sovereignty.

Accordingly, the State of Florida submits this
amicus brief in support of the Petition for Writ of
Certiorari filed with this Court by the Petitioner City Gas
and urges this Court to accept certiorari review in this case
so that the State of Florida as well as all states may be
assured that the established principles of federalism
remain intact.

STATEMENT OF THE CASE
For purposes of this amicus brief, the State of
Florida adopts the statement of the case set forth by
Petitioner City Gas at pages 2 through 6 of its Petition for
Writ of Certiorari.

ISSUE (RESTATED): IN REJECTING
CITY GAS’ STATE ACTION DEFENSE,
THE COURT OF APPEALS IN EFFECT
OVERRULED A HOLDING OF THE
STATE SUPREME COURT
INTERPRETING A FLORIDA STATUTE
AND, IN DOING SO, RULED
CONTRARY TO THE ESTABLISHED
PRECEDENTS OF THIS COURT.

In concluding that City Gas had violated Section 2
of the Sherman Act, 15 U.S.C. § 2, the Eleventh Circuit
found, inter alia, that the 1960 territorial agreement
between City Gas and Peoples Gas System was not
entitled to state action immunity because of the absence
of a clearly articulated state policy, thus failing to meet the
first prong of the state action test set forth in California
Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445
U.S. 87 (1980).

In reaching that conclusion, the Eleventh Circuit
acknowledged that the Supreme Court of Florida had
validated the precise territorial agreement at issue here in
a 1965 opinion wherein the Court found that the
predecessor to the Public Service Commission had the
implied authority under the state’s public utilities
regulatory act, Ch. 366, Fla. Stat., to approve territorial
agreements between natural gas utilities, City Gas Co. v.
Peoples Gas Sys., Inc., 182 So.2d 429 (Fla. 1965). Despite
the state supreme court’s holding, the Court of Appeals
below concluded that the decision was not controlling for
purposes of the Eleventh Circuit’s analysis under the
federal antitrust laws. Consolidated Gas Company of
Florida, Inc. v. City Gas Co. of Fla., 880 F.2d 297, 303
(11th Cir. 1989). The Court then went on to conduct an
independent review of Ch. 366, Fla. Stat., to determine for

3

itself whether the Florida Public Service Commission had
the authority to approve territorial agreements between
natural gas companies and, thus, whether such agreements
were part of a clearly articulated state policy to displace
competition.

Through its independent review, the Court of
Appeals found that because Ch. 366, Fla. Stat., did not
expressly convey upon thé Public Service Commission the
authority to approve territorial agreements between
natural gas companies, the Florida legislature had not
intended natural gas utilities to enjoy such exclusive
territorial agreements, despite the Supreme Court of
Florida’s conclusion to the contrary. 880 F.2d at 302.

This holding by the Court of Appeals is plainly at
odds with years of established precedent from this Court.
While the Eleveith Circuit was correct in stating that the
issue of "clear articulation" under Midcal was "ultimately
a question of federal antitrust law," 880 F.2d at 303, it
does not follow that, in applying the Midcal test to the
facts before it, a Court of Appeals may blatantly ignore a
state supreme court’s interpretation of a state statute and
then interpret the state statute to the contrary.

The deference to be given by the federal courts to
a state supreme court’s interpretation of a state statute is
likewise a legal principle well established in federal law.
This Court has ruled countless times that federal courts
must not construe state statutes contrary to the

construction given them by the highest court of a state.’
Yet, that is precisely what the Eleventh Circuit did below
when it in essence overruled the holding in City Gas Co.

v. Peoples Gas Sys., Inc.

The Supreme Court of Florida’s exact ruling in that
case as it pertained to the specific territorial agreement at
issue here was that Florida Public Service Commission,
then known as the Florida Public Utilities Commission,
"has adequate implied authority under Ch. 366, Fla. Stat.
to validate such agreements as the one before it." 182
So.2d at 436. Such a forthright statement can be
reasonably construed only one way. As Petitioner City
Gas states in its Petition for Writ of Certiorari, in holding
as it did, the Supreme Court of Florida "put[] these words
in the statute as definitely as if it had been so amended by
the legislature." [City Gas Petition at 17, citing Winters v.
New York, 333 U.S. 507, 514 (1948)]. Because the
Eleventh Circuit’s opinion is clearly at odds with at least
a century of U.S. Supreme Court decisions as well as the
numerous circuit courts of appeals opinions which, as

'See, e.g., Griffin v. Wisconsin, 483 U.S. 868, 875 (1987); Schad
v. Borough of Mt. Ephraim, 452 U.S. 61, 65 (1981); Landmark
Communications, Inc. v. Virginia, 435 U.S. 829, 837 n.9 (1978);
Hortonville Jr. School Dis. No. 1 v. Hortonville Ed., 426 U.S. 482,
488 (19/6); O'Brien v. Skinner, 414 U.S. 524, 531 (1974); NAACP v.
Button, 371 U.S. 415, 432 (1963); Cramp v. Bd. of Public Instruction,
368 U.S. 278, 285 (1961); Garner v. Louisiana, 368 U.S. 157, 166
(1961); Kingsley Int. Pic. Corp. v. Regents of N.Y.U., 360 U.S. 684,
688 (1959); Albertson v. Millard, 345 U.S. 242, 244 (1953); United
States v. Burnison, 339 U.S. 87, 90 (1950); Aero Mayflower Transit
Co. v. Bd. of R.R. Comm’ers, 332 US. 495, 499-500 (1947);
Morehead v. People of New York ex rel. Tipaldo, 298 U.S. 587, 609
(1936); Hebert v. Louisiana, 272 U.S. 312, 316-17 (1926); Supreme
Lodge v. Meyer, 265 U.S. 30, 32 (1924); Enterprise Irrigation Dist. v.
Farmers Mut. Canal Co., 243 U.S. 157, 166 (1916).

5

petitioner notes, have addressed this issue in the context
of the state action doctrine (see note 17 of City Gas
Petition at 17), the State of Florida urges this Court to
grant certiorari in this case so that the State of Florida, as
well as all states, may be assured that the principles of
federalism and state sovereignty remain whole.

CONCLUSION |
Based on the foregoing, the State of Florida
submits that this Court should grant Petitioner City Gas’
Petition for Writ of Certiorari.

Dated: January 15, 1991
Respectfully submitted,

Robert A. Butterworth
Attorney General

Jerome W. Hoffman
Assistant Attorney General
Chief, Antitrust Division
Patricia A. Conners*
Assistant Attorney General
Office of Attorney General
The State of Florida

The Capitol

Tallahassee, FL 32399-1050
Telephone: (904) 488-9105

* Counsel of Record On
Behalf of Amicus State

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1002%3A04. Public record. Not legal advice.