Coldwell Banker Residential Real Estate Services, Inc. v. Missouri Real Estate Commission

712 S.W.2d 666, 62 A.L.R. 4th 1019, 1986 Mo. LEXIS 296

• Court: Supreme Court of Missouri
• Decided: June 17, 1986
• Docket: 67204
• Status: Published

Opinions

BLACKMAR, Judge.

The plaintiff-respondent, Coldwell, is a real estate broker licensed in Missouri. It is a wholly-owned subsidiary of Sears, Roebuck & Co., (Sears), the well-known national merchandising chain.

In 1982 Coldwell developed a promotional sales program known as the “Sears Home Buyer’s Savings Program” (Savings Program). Home buyers who purchase a home through Coldwell receive, after the closing of the transaction, a booklet of coupons entitling them to discounts on certain merchandise and services available at Sears. Coldwell advertises the availability of the program through radio and television shots, print advertising, mailings, telephone calls and window displays.

The coupon books are given only to home buyers who actually purchase homes through Coldwell. This circumstance raises a problem under § 339.100.2(12), RSMo 1978, reading as follows: (Emphasis supplied)

2. The commission may cause a complaint to be filed with the administrative hearing commission as provided by law when the commission believes there is a probability that a licensee has performed or attempted to perform any of the following acts:

* * * * * *

(12) Using prizes, money, gifts or other valuable consideration as inducement to secure customers to purchase, lease, sell or list property when the awarding of such prizes, money, gifts or other valuable consideration is conditioned upon the purchase, lease, sale or listing; or soliciting, selling or offering for sale real property by offering free lots, or conducting lotteries or contests, or offering prizes for the purpose of influencing a purchaser or prospective purchaser of real property.

The appellant Commission adopted a regulation, 4 C.S.R. 250-8.070(5)(b), designed to implement the statute, in the following terms: (Emphasis supplied)

(5)(b) Conditional inducements. No licensee shall use prizes, money, gifts or other valuable consideration which is not related to the real or personal property being sold or which is not an inherent part of the finances of the transaction itself as inducements to secure customers to purchase, lease, sell or list property when the awarding of such items is conditioned upon the purchase, lease, sale or listing. This prohibition shall apply to the use of any such item as an inducement even if the item is being provided or paid for by another.

Coldwell brought an action for declaratory judgment against the Commission, arguing as follows: (1) the statute and regulation do not prohibit the Savings Program; (2) the statute and regulation violate the due process clauses of the Fourteenth Amendment to the Constitution of the United States and Article I, Sec. 10 of the Missouri Constitution; (3) the statute and regulation deprive the plaintiff of the equal protection of the laws, in violation of the Fourteenth Amendment and Article I, Sec. 2 of the Missouri Constitution; and (4) the statute and the regulation infringe Cold-well’s right to free speech under the First Amendment and Article I, Sec. 8, of the Missouri Constitution. It sought injunctive relief against the enforcement of the statute and the regulation.

Both parties moved for summary judgment. The trial court found that the statute and regulation violated the due process clauses and entered an injunction against enforcement. The court rejected Coldwell’s other claims. The Commission appealed from the injunctive order. Cold-well filed a purported cross appeal¹ because of the rejection of its equal protection and freedom of expression claims, but does not now argue that the program does not violate the statute. We reverse and remand with directions.²

I.

The trial court improperly applied the due process clauses in holding the statute to be unconstitutional. The apparent purpose of the statute is to foreclose one method of competition to real estate brokers. Freedom of competition is the normal rule of our economy, but it is not a constitutional imperative. Legislation which substantially restricts competition, has been frequently upheld. The milk³ and liquor⁴ industries come readily to mind. The statute appears to have been adopted as a means of preserving the traditional methods of carrying on the real estate brokerage business. We know judicially that real estate brokers are normally retained and compensated by sellers. The essential function of the broker is to locate buyers. The legislature might feel that the broker who provided inducements contingent on purchasing could obtain undue advantage over fellow brokers in attracting purchasers, not related to efficiency of service rendered. This advantage arguably might drive the smaller and weaker brokers out of business, so as to operate as a long term detriment to the housing market. We do not have to agree as to this projection of possible effects of the legislation if they represent conclusions the legislature might possibly draw. It is not for ús to determine whether the enactment is wise or not. We are obliged to sustain legislation which is utterly foolish, absent a valid constitutional challenge.

The power of our General Assembly is plenary.⁵ It is not necessary to point to a specific constitutional provision in order to sustain a statute. There was a time when the Supreme Court of the United States struck down economic regulations with some regularity as violative of due process,⁶ but that day is past.⁷ The broadest recent claim as to the extent of substantive due process is found in the concurring opinion of Justice Harlan in Griswold v. Connecticut, 381 U.S. 479, 499, 85 S.Ct. 1678, 1689, 14 L.Ed.2d 510 (1965) in which he says that the test is whether the statute “violates basic values ‘implicit in the concept of ordered liberty.’ ”⁸ The statute before us shows no such vice.

Coldwell cites some of our decisions in an attempt to demonstrate that economic regulation is subject to rather close scrutiny and that the proponents of legislation must convince the courts that the regulation is reasonable and arguably effective. The cases do not support the conclusion sought to be drawn. The statute does not prevent Coldwell from conducting a business. It simply regulates the method. The real estate business may be regulated substantially.⁹

Coldwell strongly emphasizes State ex rel. Kansas City v. Public Service Commission, 524 S.W.2d 855 (Mo. banc 1975), which reversed a holding that Kansas City must share the cost of the repair of railroad viaducts. That case did not involve the issues present here. Coldwell does not cite any recent case in which economic regulation has been struck down on due process grounds.¹⁰ Substantive due process under our Constitution is no more restrictive on the legislature than the theory of substantive due process currently espoused by the United States Supreme Court, when economic regulation is in issue.¹¹ Any broader holding would invite the courts to substitute their views of the wisdom of legislation for those of the General Assembly.

The proper extent of judicial review of legislation under the due process clause was described by then Justice Stone in United States v. Carotene Products Co., 304 U.S. 144, 152, 58 S.Ct. 778, 783, 82 L.Ed. 1234 (1938), as follows:

[T]he existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators. ...

In a later phase of the same case, Carotene Products Co. v. United States, 323 U.S. 18, 31, 65 S.Ct. 1, 8, 89 L.Ed. 15 (1944), the Court spoke through Justice Reed in this way:

When Congress exercises a delegated power such as that over interstate commerce, the methods which it employs to carry out its purposes are beyond attack without a clear and convincing showing that there is no rational basis for the legislation; that it is an arbitrary fiat.

The statute is not shown to be invalid on due process grounds.

II.

We agree with the trial judge on the points raised in Coldwell’s cross appeal.

The equal protection contention is not substantial. The legislature may regulate the real estate industry without imposing similar regulations on other industries, or other kinds of brokers.¹² No substantial authority supports a contrary view.

Coldwell argues, essentially, that any “inducement” to do business is protected commercial speech, so that regulation must conform to the four-part test of Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). This argument fails to distinguish between the inducement itself and the communication of the inducement. The statute says that things of value shall not be given to attract purchasers. It does not deal with the means of communication, and would apply even if there were no advertising and Cold-well relied purely on customers who had received the benefit to spread the word. The statute regulates conduct, not speech.

The dissent argues that our construction of the statute as just advanced is not warranted by the language, and that the savings program is contrary to law only if advertised. We disagree. We are obliged to resolve doubts in favor of the constitutionality of legislation and to construe a statute so as to uphold its validity, unless such a construction is foreclosed by plain language. We reject the construction advanced in the dissent. Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975), strongly relied on by the dissent, and holding that the legislature may not forbid the advertising of a lawful business, is not in point. The statute before us proscribes the use of coupons as inducement, however accomplished. In this challenge to the facial constitutionality, it is not appropriate to discuss problems of proof in the factual variations which may be presented.

Commercial speech is protected only if it deals with lawful activity. Bates v. State Bar of Arizona, 433 U.S. 350, 384, 97 S.Ct. 2691, 2709, 53 L.Ed.2d 810 (1977); Central Hudson Gas v. Public Service Commission, supra at 564. If the discount program is contrary to law the plaintiff has no greater right to advertise it than to advertise a chicken fight or a house of prostitution.

Coldwell cites Terry v. California State Board of Pharmacy, 395 F.Supp. 94 (N.D.Cal.1975), affirmed without opinion, 426 U.S. 913, 96 S.Ct. 2617, 49 L.Ed.2d 368 (1976), in which a three-judge court held that a prohibition on advertising the prices of health care services, including prescription drugs, and of the fact that certain drugs were sold at a “discount”, violated First Amendment rights. The court pointed to a state decision holding that the statute did not prohibit the giving of discounts, but only the representation that the price was a discount price. The case is unlike this one because the statute there involved regulated speech, not conduct.¹³

The case of Coldwell Banker Res. Real Estate v. Clayton, 105 Ill.2d 389 86 Ill.Dec. 322, 475 N.E.2d 536 (1985), is substantially identical on the facts, but that court fails to distinguish between regulation of conduct and regulation of expression. The court undertook an analysis of the statute under the Central Hudson test, which is inappropriate and unnecessary in a case involving economic regulation.¹⁴

Of interest is Eaton v. Supreme Court of Arkansas, 270 Ark. 573, 607 S.W.2d 55 (1980), cert. den., 450 U.S. 966, 101 S.Ct. 1483, 67 L.Ed.2d 615 (1981), in which a lawyer placed an advertisement in a book of discount coupons, offering a “discount” on legal services. The case arose following Bates v. State Bar of Arizona, supra, and at a time when the Supreme Court of the United States was vigilant in the protection of lawyers’ commercial speech. In re R.M.J., 455 U.S. 191, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982). The Supreme Court of Arkansas held, however, that the lawyer was subject to discipline, and certiorari was denied. We may infer that the Court was willing to allow the regulation of a particular method of marketing legal services, and that the advertising of this method of marketing was not protected commercial speech.

City of Los Angeles v. Preferred Communications, Inc., — U.S.-, 106 S.Ct. 2034, 90 L.Ed.2d 480 (1986), cited in the dissent, is not remotely in point. The question in that case was whether lawful, protected, non-commercial speech (cable television) could be restricted in the interest of minimizing demands for the use of public property such as utility poles and rights of way. The Court held, in line with its past decisions, that the city had a burden in justifying the restrictions. Here the advertising of the savings program does not constitute protected speech unless the program itself is lawful.

Economic regulations, otherwise valid, are not rendered invalid simply because availability of the prohibited activity must be communicated to serve its purpose.

The record before us shows that the plaintiff, as a matter of law, is not entitled to the relief sought. Coldwell states in its brief that there are no remaining factual issues. The injunctive decree is reversed and the case is remanded with directions to enter judgment for the defendant.

HIGGINS, C.J., BILLINGS and REND-LEN, JJ., and CLARK, Special Judge, concur. DONNELLY, J., concurs in separate opinion filed. WELLIVER, J., dissents in separate opinion filed. ROBERTSON, J., not sitting.

DONNELLY, Judge, concurring.

In Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the Supreme Court of the United States outlawed racial segregation in the public schools of the states.

In Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958), against a backdrop of overwhelming acceptance of Brown, the United States Supreme Court asserted for the first time in its history and in the history of the nation that its interpretations of the written Constitution constitute the “supreme law of the land” under Article VI of the Constitution and are of binding effect on the states.

In Cooper, the Court enabled itself to “work out principles of legality, equality, and the rest, revise these principles from time to time in the light of what seems to the Court fresh moral insight, and judge the acts of Congress, the states, and the President accordingly.” R. Dworkin, Taking Rights Seriously 137 (1977). This is unfortunate.¹

In my view, the opinion in Brown drew its “inspiration from consecrated principles.” B. Cardozo, The Nature of the Judicial Process (1921). It has already secured its place in history by virtue of its declaration for decency and justice. But it is a tragedy of our time that Brown was not treated as a necessary and enlightened, but unique, deviation from constitutional judicial process. The books are full of the fruits of the immoderate Cooper assertion. Pertinent here is the treatment given commercial speech.

Prior to 1975, commercial speech was not protected by the First Amendment. Valentine v. Chrestensen, 316 U.S. 52, 62 , 86 L.Ed. 1262 (1942). In Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975), the Court rejected Chrestensen and held that the right to advertise a New York abortion clinic in Virginia is protected by the First Amendment. Bigelow may have been “an attempt to buttress” the decision in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), where the Court created a constitutional right to obtain an abortion. See R. Schiro, Commercial Speech: The Demise of a Chimera, 1976 Sup.Ct.Rev. 45, 78. In any event, in Bige-low the Court opened the door to transformation of First Amendment free speech from Holmes’ “marketplace of ideas” concept to protection of business advertising.

In my view, the justices have acted unwisely. They have trivialized the free speech guarantee of the First Amendment. More important, without saying so, they have returned to subjective ad hoc substantive due process behind the facade of free speech. “One might have thought, as the Court has so often proclaimed, that demanding judicial review of economic legislation was a concern of the past. Even if that tradition were to be revived, we would expect to find the constitutional safeguards of economic liberty to be housed within the flexible contours of due process of law. Instead, economic due process is resurrected, clothed in the ill-fitting garb of the first amendment, and sent forth to battle the kind of special interest legislation that the Court has tolerated for more than forty years. In short, the Supreme Court has reconstituted the values of Lochner v. New York [198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937] as components of freedom of speech.” Jackson & Jeffries, Commercial Speech: Economic Due Process and the First Amendment, 65 Va.L.Rev. 1, 30-31 (1979).

In such circumstance, I am delighted to join my brothers in rejecting a holding which “would invite the courts [of Missouri] to substitute their views of the wisdom of legislation for those of the General Assembly.” It will be a great day for the nation when the Supreme Court of the United States returns “to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.” Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93 (1963).

I concur.

1 . The cross appeal is not technically necessary. Coldwell, as the prevailing party, is entitled to advance any argument here in support of the judgment.

2 . The case comes to the writer on recent reassignment.

3 . Unfair Milk Sales Practices Act, §§ 416.410-416.555, RSMo 1978 and Supp.1984. Borden Company v. Thomason, 353 S.W.2d 735 (Mo. banc 1962). Section 416.440, RSMo 1978 severely limits the ability of milk producers and distributors to give rebates or discounts. See also Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934).

4 . Sections 311.332-311.338, RSMo 1978 (restricting discounts and rebates that can be offered by liquor wholesalers). See Wine and Spirits Speciality Inc. v. Daniel, 666 S.W.2d 416 (Mo. banc 1984). Cf. Milgram Food Stores v. Ketchum, 384 S.W.2d 510 (Mo.1964).

5 . Penner v. King, 695 S.W.2d 887 (Mo. banc 1985); State v. Holekamp Lumber Co., 340 S.W.2d 678 (Mo. banc 1960).

6 . Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905), is often cited as the horrible example of the old era. See also New State Ice Co. v. Lichmann, 285 U.S. 262, 52 S.Ct. 371, 76 L.Ed. 747 (1932).

7 . Friedman v. Rogers, 440 U.S. 1, 99 S.Ct. 887, 59 L.Ed.2d 100 (1979); Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955).

8 . The quoted matter is from Justice Cardozo’s opinion in Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937).

9 . Miller Nationwide Real Estate Corporation v. Sikeston Motel Corporation, 418 S.W.2d 173 (Mo.1967); see also Boyle v. Missouri Real Estate Commission, 537 S.W.2d 603 (Mo.App.1976).

10 . Coldwell cites ABC Liquidators, Inc. v. Kansas City, 322 S.W.2d 876 (Mo.1959) (regarding a Kansas City ordinance which prohibited auctions on Sunday) and Poole & Creber Market Co. v. Breshears, 125 S.W.2d 23 (Mo.1938) (regarding a statute disallowing the sale of milk or milk derivatives if oil or fat had been added). In both cases, the statutes were upheld. Similarly, our more recent decision in Missouri Dental Board v. Alexander, 628 S.W.2d 646 (Mo. banc 1982) upheld an economic regulation against a due process challenge.

11 . Missouri v. Day-Brite Lighting, Inc., 362 Mo. 299, 240 S.W.2d 886 (Mo.1951), aff'd, 342 U.S. 421, 72 S.Ct. 674, 96 L.Ed. 1334 (1952).

12 . City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976); Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955); Collins v. Director of Revenue, 691 S.W.2d 246 (Mo. banc 1985).

13 . The statute in question was substantially the same as the statute held unconstitutional in Virginia Pharmacy Board v. Virginia Citizens Consumer Counsel, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), one of the first "commercial speech” cases.

14 . Coldwell calls our attention to the approval of the Illinois decision in Graben v. Alabama Real Estate Commission, Civil Action 86-T-69-N, (M.D.Ala. March 31, 1986). This case involved a consent decree in which the Attorney General expressed his agreement with the Illinois decision. See also Coldwell Banker Residential Real Estate Services of Ohio, Inc., v. Bishop, No. C-840601 (Ohio Ct.App. Sept. 4, 1985) (finding that the conduct did not violate the statute in question).

1 . With the possibility of Reagan appointments to the Court now looming on the horizon, the elites are beginning to take another look at the Cooper assertion. If a significant change in personnel should occur, we could see a return to Original Intent. Or, a new Court could embrace the Cooper arrogation and proceed to implant predilections of its own.