United States District Court, Southern District of Illinois, N.D
October 9, 1967
BRACKEN'S SHOPPING CENTER, INC., ET AL.
STUART RUWE ET AL.
The opinion of the court was delivered by: Robert D. Morgan, District Judge.
OPINION AND ORDER
The question whether the plaintiffs have stated a claim for
relief under the Sherman and Clayton anti-trust acts arises upon
defendants' several motions to dismiss. The gist of the
plaintiffs' complaint is that defendants, opposing the
construction of a shopping center which might reduce the business
of "downtown" Kewanee merchants, conspired to file in the state
court a representative suit challenging the validity of the
statute under which the city fathers had vacated certain streets
needed for the proposed shopping center.
Since the complaint alleges no other act or conspiracy, the
court grants the defendants' motions to dismiss because it does
not believe that resort to the judiciary, even in concert or in
an effort to restrict competition, can violate the anti-trust
laws of the United States.
The novelty of plaintiffs' argument that the filing of a suit
testing the validity of a municipal ordinance constitutes an
anti-trust violation may account for the dearth of judicial
decisions directly in point. The Supreme Court has, however,
recently enunciated on two occasions the general principle that
seeking lawful legislative, executive, or judicial action does
not violate the anti-trust laws, even if interstate commerce is
involved and even if the purpose and effect is to curtail
competition. See Eastern Railroad Presidents Conference v. Noerr
Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464
(1961) and United Mine Workers v. Pennington, 381 U.S. 657, 85
S.Ct. 1585, 14 L.Ed.2d 626 (1965).
The individual citizen has a right under Illinois law to seek a
declaratory judgment on the validity of a municipal ordinance.
Ill.Rev.Stat. Ch. 110, § 57.1. Exposing citizens who exercise
that right to possible fine and imprisonment under the anti-trust
laws could only be justified by plain and unmistakable language
to that effect. This court agrees with the Court of Appeals for
the Third Circuit which said in Citizens Wholesale Supply Co. v.
Snyder, et al., 3 Cir., 201 F. 907 at page 909:
"We cannot suppose that the general words of the
Anti-Trust Act were intended
to include an agreement in good faith to test a
municipal ordinance in the courts."
Apparently recognizing the difficulty inherent in the
proposition they urge, the plaintiffs argue that it is not the
filing of the law suit itself but the common motive behind the
filing thereof, arrived at by agreement, that violates the
Sherman and Clayton Acts. First, it would appear that the
Railroad Presidents and Pennington cases cited above
foreclose inquiry into motive. In the Railroad Presidents case,
the Supreme Court declared 365 U.S. at page 136, 81 S.Ct. at page
"We think it equally clear that the Sherman Act does
not prohibit two or more persons from associating
together in an attempt to persuade the legislature or
the executive to take particular action with respect
to a law that would produce a restraint or a
And in the Pennington opinion the Supreme Court observed 381
U.S. at page 670, 85 S.Ct. at page 1593:
"Joint efforts to influence public officials do not
violate the antitrust laws even though intended to
Second, it appears that the trial court has rendered judgment
in favor of the defendants in the state court suit complained of.
At least one test of good faith is the existence of probable
cause; and the judgment of the trial court in the state action,
even if reversed on appeal, has conclusively shown that
defendants had probable cause to believe that the municipal
ordinance was invalid. Their decision to act on that belief, even
if motivated by a desire to prevent the construction of the
Bracken shopping center and thereby restrain competition, does
not violate the anti-trust laws. Regardless of intent or assumed
purpose, defendants have a right to have the ordinance set aside
if it is invalid.
Defendants' motions to dismiss are therefore granted and the
case is dismissed at plaintiffs' cost.
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