Pope v. Mississippi Real Estate Com'n, Civ. A. No. EC 84-265-D-D.

• Decision Date: 05 April 1988
• Docket Number: Civ. A. No. EC 84-265-D-D.
• Parties: James William POPE, Sr. and Mary Ann Pope, d/b/a Century 21, Pope's Realty, Plaintiffs, v. MISSISSIPPI REAL ESTATE COMMISSION, et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

695 F. Supp. 253

James William POPE, Sr. and Mary Ann Pope, d/b/a Century 21, Pope's Realty, Plaintiffs, v. MISSISSIPPI REAL ESTATE COMMISSION, et al., Defendants.

Civ. A. No. EC 84-265-D-D.

United States District Court, N.D. Mississippi, E.D.

April 5, 1988.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Jim Waide, Tupelo, Miss., for plaintiffs.

John W. Crowell, Columbus, Miss., for Phil Roberts.

Reed Hillen, Tupelo, Miss., for Monroe County Bd. of Realtors, Jack Francis and Mary Lib Francis.

John L. Maxey, II, Jackson, Miss., for Miss. Real Estate Com'n.

Elizabeth Ann Odom, Aberdeen, Miss., for Joyce B. Murphy.

Robert D. Butters, Chicago, Ill., for Nat. Ass'n of Realtors.

MEMORANDUM OPINION

DAVIDSON, District Judge.

James William Pope, Sr. and Mary Ann Pope ("Popes", "plaintiffs" or "non-movants") have brought this action against both private and government defendants¹ claiming violations of both federal and state law. The plaintiffs' claims against the private defendants include federal antitrust violations and the following state law claims: state antitrust violations; interference with economic relations, business relations, and business contacts in violation of state laws; and libel, slander, and defamation. Plaintiffs' claims against the government defendants include federal antitrust claims and violations of the First Amendment, due process clause, and equal protection clause, as well as state law claims which include state antitrust violations; interference with economic relations, business relations, and business contacts violations; libel, slander and defamation; violation of the public record statute; and violation of separation of powers requirement of the Mississippi Constitution. The government and private defendants have separately moved for summary judgment. The government and private defendants have shown the absence of material issues of fact and argue that they are entitled to judgment as a matter of law. The plaintiffs responded by amending their complaint and providing a brief, an affidavit, and several depositions in opposition to both motions for summary judgment.

The court has reviewed the extensive evidentiary record, the plaintiffs' pleadings and brief, the defendants' pleadings and numerous briefs in support of their motions for summary judgment, and has carefully considered the record as a whole. The court has gone to great lengths to consider each claim of the plaintiffs and the evidence presented by the plaintiffs in support of their claims. The court is now convinced that the record in the case sub judice justifies the granting of the motions for summary judgment, even though the court recognizes that a full blown trial will often serve a useful purpose in such a complex action. The plaintiffs fail to set forth sufficient evidence to establish a genuine issue of material fact and the court accordingly finds that the defendants are entitled to judgment as a matter of law.

Factual Background

A. Plaintiffs' Allegations

The Popes are engaged in the real estate business in Amory, Mississippi which is located in Monroe County. The plaintiffs allege that they began work in the real estate business in 1978 after they obtained broker's licenses from the Mississippi Real Estate Commission ("MREC"). The plaintiffs maintain that they have set their own sales commission rates and have refused to abide by price fixing and other anti-competitive practices which have been utilized by the defendants. To be more specific, plaintiffs allege that certain of the local private defendants² have denied the plaintiffs access to the multiple listing service which lists property available for sale in Monroe County, Mississippi. Plaintiffs also allege that the other private defendants³ are jointly liable for these alleged antitrust violations because they encouraged, enticed, and joined in this activity through their constitutions and by-laws.

The plaintiffs allege that the local private defendants who are realtors have engaged in a group boycott of the plaintiffs by collectively refusing to permit the plaintiffs to show property listed by the defendants, or by placing unfair restrictions on such showing. The plaintiffs further allege that this activity impacts interstate commerce and has an anti-competitive effect on the business of buying and selling real estate in Monroe County.

Plaintiffs allege that government and private defendants have utilized the complaint procedures of the MREC to punish the plaintiffs for competitively engaging in the real estate business. The plaintiffs allege that the defendants have unreasonably restrained trade by placing arbitrary limitations on the use of the term "realtor". Plaintiffs allege that unnamed defendants have prohibited plaintiffs from discussing employment of salesmen employed by other agencies and prohibited plaintiffs from bringing real estate courses to the Amory area. Plaintiffs allege that Jack Francis and Phil Roberts have sold insurance and listed property by unlawful "tying arrangements."

In Count II, the plaintiffs allege that the government defendants have violated the plaintiffs' First Amendment rights as follows: the defendants have purported to punish the plaintiffs for engaging in business advertising; the defendants have purported to punish the plaintiffs for advertising real estate schools and encouraging persons to attend; the defendants have punished the plaintiffs for advertising the giving of vacuum cleaners to past customers; the defendants have punished the plaintiffs for giving away tee shirts and the defendants have prohibited the plaintiffs from using the term "realtor".

In Count III, the plaintiffs allege that the government defendants have violated the due process clause as follows: defendants failed to provide plaintiffs with notice of charges and a fair and impartial hearing on charges brought before that governing body; defendant MREC is both prosecutor and judge and had ex parte communications concerning the hearing; defendants have found the plaintiffs guilty of ethical violations without a hearing; and the defendants allegedly communicated the resulting decision to the public in violation of the plaintiffs' "liberty interest".

In Count IV, the plaintiffs allege that the government defendants violated the equal protection clause by arbitrarily enforcing certain ethical regulations.

In Count V, plaintiffs allege that all of the defendants have violated state law by interfering with the plaintiffs' rights to engage in business.

In Count VI, the plaintiffs allege that private defendants Hardwick and Murphy libeled, defamed, and slandered the plaintiffs causing untrue articles to be placed in the Aberdeen Examiner. Similar claims were made against government defendant Vann.

In Count VII, the plaintiffs allege that the government defendants have refused to disclose various information as required by Mississippi law.

In Count VIII, the plaintiffs allege that the government defendants are in violation of the Mississippi Constitution because they combined the functions of judicial, legislative, and executive branches in one entity.

In Count IX, the plaintiffs allege that the government defendants have retaliated against the plaintiffs in violation of the First Amendment because of an earlier antitrust case brought by Century 21.

B. Defendants' Summary Judgment Motions

The private defendants moved for summary judgment on all claims brought against the private defendants. The private defendants supported their motion with a 76 page memorandum brief, a 31 page reply brief, an 11 page supplemental memorandum, attached authorities, exhibits, depositions, and affidavits. These documents attack the plaintiffs' complaint count by count in an attempt to show the court the absence of a genuine issue of material fact that would preclude a grant of summary judgment. At this point, the court will simply outline the points raised by the private defendants.

In response to Count I, the defendants concede that they have denied plaintiffs participation in the multiple listing service ("MLS") but they state that this is only because the plaintiffs have voluntarily withdrawn from participation in the Monroe County Board of Realtors ("MCBR"). The private defendants maintain that it is appropriate and legal to limit services to members of a private organization as long as there is no arbitrary or discriminatory exclusion from membership in that organization. Defendants further assert that the plaintiffs have no standing to bring this action because they voluntarily withdrew from the board. As to the complaints filed with the MREC and the response of the MREC, the private defendants maintain that the Noerr — Pennington doctrine exempts their activities from the antitrust laws. The private defendants also assert that the plaintiffs have shown no evidence of a conspiracy to boycott the plaintiffs' business.

The private defendants did not challenge the First Amendment, (Count II), due process (Count III), equal protection (Count IV), public record statute (Count VII), separation of powers (Count VIII), or the unlawful retaliation (Count IX) claims. The private defendants did challenge the claims which were directed at them. As to the pendent state claims which relate to the non-government defendants, they have attempted to show that there is no factual basis for Counts V or VI which involve interference with business relations, libel, defamation, and other such claims.

The government defendants have challenged all claims brought against them. The government defendants supported their motion for summary judgment with a 39 page brief, an 11 page reply brief, exhibits, depositions, affidavits, and James Pope's official file, and a transcript of a hearing at issue. The court will outline the points raised by the government defendants.

As to Count I, the government defendants point out that the plaintiffs lack standing for...