deprivation of their right to engage in their profession, and on the ground that they are unauthorized and illegal as a matter of state law. In addition, plaintiffs allege that they cannot obtain a fair and impartial hearing before the Board, as is required by the Due Process Clause of the Fourteenth Amendment. Finally, plaintiffs contend that the seven non-general public Board members have conspired and combined, through the promulgation and enforcement of sections 19.21(r) and (s), to substantially restrain, restrict and limit competition in the acquisition, purchase and sale of new cars by non-franchised dealers, in violation of § 1 of the Sherman Act, 15 U.S.C. § 1.
Count I of the complaint alleges that sections 19.21(r) and (s) deny plaintiffs the right to engage in their profession, presumably in violation of the Due Process Clause of the Fourteenth Amendment and the Civil Rights Act of 1871, 42 U.S.C. § 1983. Jurisdiction is predicated upon 28 U.S.C. § 1331(a) and 28 U.S.C. §§ 1343(3) and 1343(4).
In effect, plaintiffs are contending that those regulations deprive them of liberty and property without due process of law -- substantive due process of law.
It is clear that such a claim is, on its face, encompassed within the parameters of the Due Process Clause and § 1983, as well as the jurisdictional statutes, 28 U.S.C. §§ 1331(a) and 1343(3). However, those jurisdictional sections can only confer subject matter jurisdiction upon this Court if the constitutional claim is of sufficient substance to support that jurisdiction. Hagans v. Lavine, 415 U.S. 528, 536, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974). Conversely, we are without power to entertain plaintiffs' claim if it is "'so attenuated and unsubstantial as to be absolutely devoid of merit,' Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579, 48 L. Ed. 795, 24 S. Ct. 553 (1904); 'wholly insubstantial,' Bailey v. Patterson, 369 U.S. 31, 33, 7 L. Ed. 2d 512, 82 S. Ct. 549 (1962); 'obviously frivolous,' Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 54 L. Ed. 482, 30 S. Ct. 326 (1910); 'plainly unsubstantial,' Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105, 77 L. Ed. 1062, 53 S. Ct. 549 (1933); or 'no longer open to discussion,' McGilvra v. Ross, 215 U.S. 70, 80, 54 L. Ed. 95, 30 S. Ct. 27 (1909)." Hagans v. Lavine, supra, 415 U.S. at 536-537. See Bell v. Hood, 327 U.S. 678, 682-683, 90 L. Ed. 939, 66 S. Ct. 773 (1946). A claim may be plainly insubstantial "either because it is 'obviously without merit' or because 'its unsoundness so clearly results from the previous decisions of [the Supreme Court] as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.'" Ex Parte Poresky, 290 U.S. 30, 32, 78 L. Ed. 152, 54 S. Ct. 3 (1933) (citations omitted).
Measured by these standards, plaintiffs' count I due process claim does not present a substantial federal question. Although the Supreme Court has not specifically dealt with regulations like the ones in the instant case, it has, on numerous occasions, dealt with licensing regulations which have had the identical effect which plaintiffs complain of here -- a denial of the right to engage in a particular occupation or profession. For example, in Williamson v. Lee Optical Co., 348 U.S. 483, 99 L. Ed. 563, 75 S. Ct. 461 (1955), a provision of an Oklahoma statute made it unlawful for opticians to fit lenses to a face or to duplicate or replace into frames lenses or other optical appliances, except upon written prescriptive authority of an Oklahoma licensed optometrist or ophthalmologist. A three-judge district court found that the provision "violated the Due Process Clause by arbitrarily interfering with the optician's right to do business." Id. at 486. The Supreme Court reversed, noting that:
The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of though. Id. at 488 (citations omitted).