Eichenseer v. Madison-Dane County Tavern League, Inc.

DAVID T. PROSSER, J.

¶ 1. This is an antitrust case. The plaintiffs1 accuse 24 taverns in the immediate vicinity of the University of Wisconsin campus in Madison and the Madison-Dane County Tavern League, Inc. (collectively, the defendants) of horizontal price-fixing violations under Wis. Stat. § 133.03(1)2 because, in response to pressure from city government to ban all drink specials after 8 p.m. in the city, the 24 taverns agreed to eliminate drink specials at their establishments on Friday and Saturday nights after 8 p.m. We review here a published decision of the court of appeals, Eichenseer v. Madison-Dane County Tavern League, Inc., 2006 WI App 226, 297 Wis. 2d 495, 725 N.W.2d 274, affirming the circuit court's grant of summary judgment to the defendants.

¶ 2. In the procedural posture of this case, we do not address whether the defendants' conduct constituted violations of antitrust law. We assume antitrust violations for purposes of determining whether the defendants have immunity for their actions. The defendants contend that their conduct is immune from Wisconsin antitrust law under: (1) the so-called "implied repeal doctrine" articulated in Town of Hallie v. City of Chippewa Falls, 105 Wis. 2d 533, 314 N.W.2d 321 (1982) (Hallie I); (2) th eNoerr-Pennington government petitioning doctrine articulated by the United States Supreme Court;3 and (3) the Local Government Antitrust Act (LGAA), 15 U.S.C. §§ 34-36.

¶ 3. We conclude that the defendants' challenged actions are immune from state antitrust law under the implied repeal doctrine of Hallie I. Because of this conclusion, we determine that it is not necessary to decide the validity of the defendants' second and third defenses. Accordingly, we affirm the decision of the court of appeals.

I. FACTS AND PROCEDURAL POSTURE

¶ 4. This case was filed in Dane County Circuit Court on March 24, 2004. It was assigned to Circuit Court Judge Angela B. Bartell. The parties engaged in some discovery and filed documents with the court. The defendants moved for summary judgment in December 2004, and the plaintiffs moved for summary judgment in February 2005. The effect of counter-motions for summary judgment, together with the various filings in this case, is an assertion by the parties that the facts are undisputed, that in effect the facts are stipulated, and that only issues of law are before the court.4

¶ 5. In this opinion, we closely follow the circuit court's written account of the undisputed background facts, with supplementation from the summary judgment record.

¶ 6. In 1999 the City of Madison (City) began to address issues of high-risk drinking. The City was concerned that alcohol issues, especially over-consumption, were increasing in the area of the University of Wisconsin-Madison (University) campus, leading to more frequent conveyances of students and others to detoxification facilities in life-threatening circumstances and increased need for expensive police response services to the campus area. The City focused on how over-consumption of alcohol reduced the health, welfare, and quality of life of people in the campus area. Mayor Sue Baumann appointed a Work Group on Downtown Alcohol Issues to address these concerns. The group included representatives from the Madison-Dane County Tavern League, Inc. (Tavern League), the University, the mayor's office, the city attorney's office, and the Madison Police Department. In April 2000 the work group issued a report making suggestions related to the perceived "over-saturation" of downtown taverns, capacity violations at the taverns, and the need for greater enforcement of existing ordinances.

¶ 7. The City's concerns were shared, and to some extent inspired, by the University. On March 1, 2000, then Provost of the University John Wiley wrote a letter to local tavern keepers in which he said that "high-risk drinking is clearly the primary health risk of our students and a major threat to their academic success." Several years earlier, the University had received a grant from the Robert Wood Johnson Foundation to fund multi-year research, political action, and monitoring to try to reduce "binge" drinking in the campus area.5 Thus, by early 2000, the University had begun to involve itself actively in the City's decisions on retail liquor licenses near the campus.

¶ 8. The University took the position that drink specials — that is, advertised promotions offering either: (1) special high-potency drinks containing multiple shots of liquor; or (2) multiple drinks for the price of one regular drink — were encouraging high-risk, high-volume drinking by University students.

¶ 9. The University applied pressure to the City; and the City, in turn, began to flex its regulatory muscle. It imposed special conditions on the license of a tavern called Luther's Blues, and thereafter imposed the "Luther's Blues conditions"6 on virtually all liquor licenses issued to new or relocating liquor establishments near the campus. These conditions did not limit or set alcohol prices but were designed to discourage price reduction "specials" that the City believed encouraged high-volume and dangerous drinking.

¶ 10. The "Luther's Blues conditions" were sometimes characterized as "voluntary." They were, however, required for new licensees7 and existing licensees who relocated or attempted to make significant changes to their businesses.8 The circuit court pinpointed two taverns in the second category, namely, Regent Street Retreat and Buck's. None of the taverns with the "Luther's Blues conditions" imposed by the City is a defendant in this suit. By contrast, the Nitty Gritty was threatened with "conditions" at the time of a planned expansion, but avoided them after intense negotiations. The Nitty Gritty is now a defendant in this suit.

¶ 11. The City committee charged with making recommendations on liquor licenses is the Alcohol License Review Committee (ALRC), which was then chaired by Madison Alder Tim Bruer. The circuit court said of the ALRC:

ALRC's recommendations regarding whether licenses should or should not be granted and the various conditions that should be attached to those licenses were so powerful that they were almost inevitably followed by the City Council. ALRC and its chairman[,] [Alder] Bruer[,] functioned as the powerful face and voice of the City's formal and informal regulation of alcohol sold in the City of Madison.

¶ 12. In the summer of 2001 the ALRC created a "Sub-Committee on Comprehensive Alcohol Issues" (subcommittee) to continue its efforts to address problems associated with high-risk drinking. The subcommittee held public hearings at which University representatives, tavern owners, and the public stated their views on drink specials and other drinking issues.

¶ 13. The subcommittee's final report recommended that the ALRC seek an ordinance regulating drink specials. That report, issued on April 25, 2002, contained draft ordinance language banning all drink specials at all Madison taverns seven days per week after 8 p.m.9 Madison taverns and the downtown business community opposed this report and the concept of a drink specials ban because the bar owners believed that the ban was overbroad and that drink specials contributed little to high-risk drinking behavior around campus. Notwithstanding this opposition, the ALRC received the subcommittee report by a unanimous vote on May 21, 2002. The report was then referred to the Common Council, which also accepted it. Once the report was received by the Council, its recommendations went back to the ALRC for the development of an ordinance for a citywide drink specials ban.

¶ 14. On July 10, 2002, the ALRC held a meeting at the University Memorial Union at which John Wiley, who had become University Chancellor, expressed his strong support for a comprehensive drink specials ban. Richard Lyshek, a campus tavern owner, and Barbara Mercer, president of the Tavern League, continued to express opposition. At the end of the meeting, ALRC Chair Bruer told Lyshek and Mercer that he believed there were sufficient votes on the Common Council to pass an ordinance banning drink specials. The circuit court later found that Alder "Bruer specifically directed Lyshek and the Tavern League to come up with a solution to the City's drink special concerns and explained that if they didn't[,] the City would take care of the issue itself." Lyshek and Mercer conferred with one another about the need to respond to the City's demands, and Lyshek offered to coordinate outreach to the bar owners in the campus area and develop a response to the pressure on the tavern owners to self-regulate drink specials.

¶ 15. Lyshek became the point person in negotiations because he was not only a tavern owner but also a member of the ALRC. He held numerous meetings with Alder Bruer and Alder Mike Verveer, who represented most of the campus area on the Common Council. Alders Bruer and Verveer also met with other interested persons to express the City's concerns and its developing policy against drink specials. Again, the circuit court found as fact that:

Despite opposition of tavern owners to any type of ban on drink specials, [Alder] Bruer told Lyshek and Barbara Mercer that the bars needed [to] come up with their own solutions to the excessive drinking problems caused by drink specials or the City would do it for them. ALRC member Lyshek believed that any bar that did not take steps to address the City's concerns on drink specials would be subject to increased police scrutiny and would have difficulties with the ALRC at the time of liquor license renewal. (Emphasis added.)

¶ 16. As a result of his outreach efforts among campus bar owners, Lyshek identified a number of bar owners who were willing to announce that they would "voluntarily" discontinue drink specials on Friday and Saturday nights after 8 p.m. to head off enactment of a citywide all-week drink specials ban. Lyshek presented the idea to Alder Verveer, who agreed that it might be acceptable to the City. Lyshek also spoke directly with Alder Bruer, who reportedly liked the idea as well.

¶ 17. A press conference was organized for September 12, 2002, at which various downtown bar owners would announce that they were acceding to the City's demands. Several days prior to the press conference, Alder Bruer contacted Lyshek and asked whether any of the bars would extend the voluntary discontinuance of drink specials after 8 p.m. to Thursday nights.10 Lyshek resisted, telling Alder Bruer that he did not think that any bars would be willing to extend their policy to Thursdays.

¶ 18. At the September 12, 2002, news conference, various tavern owners, surrounded by Alder Verveer and University representatives, publicly announced that they were "giving in" to the City's demands and would not offer drink specials on Friday and Saturday nights after 8 p.m. The tavern keepers' principal spokesman, Marsh Shapiro, a former local television personality, delivered the following prepared statement:

News Release

For release after 2:00 p.m. Thursday September 12, 2002

Good afternoon. . ..

My name is Marsh Shapiro, owner of the Nitty Gritty Restaurant and Bar,. .. With me are Dick Lyshek, owner of Bullfeathers and the [Dane] County Tavern League representative on the Alcohol License Review Committee of which he is a non-voting member, and Kelly Meuer owner of State Street Brats.. ..

We thank you all for coming....

This afternoon ... I am acting as a spokesperson representing over 35 bar owners in the campus area.

UW Chancellor Wiley and City officials have repeatedly expressed the opinion that drink specials are promoting binge drinking and are the main cause of problems that occur at bartime specifically on week-ends in the campus area.

First and foremost, we strongly disagree with that opinion, and hold to our belief that drink specials are not the cause of the late night problems. We see drink specials as a legitimate marketing strategy designed to get customers to come to our establishments. They are the same marketing and promotion techniques that are employed in every other type of business to get customers in the door.

We are a little puzzled about the mixed messages being sent by the A.L.R.C. and the City Council. We all believe in the free enterprise system, but the ALRC continues to saturate our downtown area by approving more new licensed establishments, yet now they want us to eliminate the drink specials which is a way of competing with each other and with all the new establishments in order for us to stay in business.

Furthermore, we want to go on récord today stating that [we] do not encourage binge drinking nor do we condone it in our bars. We would like all of our patrons to drink responsibly and to know when to say when.

It is our purpose and intent to provide clean and safe environments for our patrons for the purpose of socializing and for the responsible consumption of alcoholic beverages.

With these facts in mind, and without acknowledging that drink specials are indeed causing this problem, we as a group, have agreed that we will voluntarily and immediately end all drink specials on Fridays and Saturday nights after 8 p.m. in our establishments.

Furthermore, a majority of us agree that we will do no new advertising or promoting of week-end drink specials on local radio, TY or in the newspapers after current and existing contracts expire.

As concerned owners and businessmen, we want to be part of the solution, not part of the problem.

In trying to build bridges and mend fences with Chancellor Wiley and City officials, we feel today we are taking this first solid step toward trying to end a problem that we all agree exists.

If it is found that late night trouble in the campus area on week-ends decreases significantly or disappears, then we will be the first to admit that drink specials were a part of the problem and we will be pleased and happy that we took this action today.

However, if after a period of time it is determined that nothing has changed, and the number of police calls has stayed the same or gone up, then we can probably conclude that drink specials were not the cause of the problems, and we will all have to continue to work together to look elsewhere to satisfactorily resolve this issue.

We do not feel that pending legislation before the A.L.R.C. to ban all drink specials at all bars and restaurants in the City of Madison is necessary.

On a related topic, we do not feel that new legislation is needed regarding the banning of smoking in our bars and restaurants in the city.[11]

These two issues have occupied a great deal of our time in recent months, and although these are hot button items right now, we as bar and restaurant owners feel it's time for all people to start taking the responsibility for their own actions and make solid choices relating to their drinking and smoking habits.

We do not need more legislation or controls that will adversely affect our businesses.

In summary, we are responsible alcohol license holders, honorable businessmen, community leaders, taxpayers, and good citizens of Madison, and we would like both University and City officials to treat us as such.

Thank you.... We will be happy to answer any questions you may have.. ..

¶ 19. When the tavern owners were asked whether drink specials could be discontinued on Thursday nights, Lyshek answered that there should be one busy night of the week, Thursday, as a "control," to test whether the absence of drink specials really had any effect on problems associated with high-risk drinking.

¶ 20. The September 12, 2002, press conference was designed to signal the tavern owners' compliance with the City's regulatory demands and policies. The circuit court later found that the news conference was also "political puffery" in an effort to get maximum press exposure to make the reported group of cooperating bar owners look as large as possible — all designed to have the maximum political impact on the ALRC and the City, so that no further steps to enact a citywide drink specials ban would appear to be necessary. The Tavern League simultaneously issued a supportive press release,12 but it specifically reserved the right of individual tavern owners to determine their own participation based on their independent business needs.13

¶ 21. The circuit court found that the press conference and press releases had the desired effect. At the next ALRC meeting, the committee placed its previously stated intent to draft and pursue a citywide drink specials ban ordinance on hold. Thereafter, the Common Council never debated, voted on, or passed any ordinance banning drink specials in the downtown area.

¶ 22. Throughout 2003, at approximately six-month intervals, the ALRC received detailed reports from University officials active in monitoring campus drinking issues. These reports tracked detoxification runs and the utilization of police services in the campus area. A May 2003 University press release stated that "a voluntary effort by 25 downtown Madison bars to limit weekend drink specials coincides with declines in liquor-law violations and disorderly-conduct incidents during the first six months of the program, according to new data from the University of Wisconsin-Madison's PACE [Policy, Alternatives, Community, and Education] Project."

¶ 23. On March 10, 2004, however, the University issued a press release stating that the voluntary drink specials ban "has been inconclusive and serious alcohol-related crime continues to rise." The press release cited a University PACE Project study of downtown police calls that found that downtown disorderly conduct violations increased 38 percent on Friday nights and 38.4 percent on Saturday nights from August 2002 to August 2003, at a time when the voluntary drink specials ban was in place. Despite these findings, PACE continued to advocate voluntary limits on drink specials.

¶ 24. Throughout 2004, and continuing through the time frame giving rise to the present litigation, the Madison Common Council did not enact any ordinance or other regulation banning drink specials.

¶ 25. On March 24, 2004, the plaintiffs filed this antitrust class action lawsuit against the Tavern League and the 24 downtown taverns. The suit sought damages and injunctive relief pursuant to Wis. Stat. §§ 133.03 and 803.08. The complaint alleged that the defendants entered into an agreement on September 12, 2002, to "voluntarily and immediately end all drink specials on Friday and Saturday nights after 8 p.m.... for the express purpose of increasing prices in order to reduce output (i.e., consumption)." The plaintiffs described the defendants' conduct as a "naked, per se price-fixing conspiracy." The complaint stated that damages were "anticipated to be in the tens of millions of dollars."

¶ 26. In December 2004 the defendants filed a motion for summary judgment, which was countered in February 2005 by the plaintiffs' own motion. The defendants argued that their challenged conduct was immune from Wisconsin antitrust law under any of three legal rationales: (1) the so-called "implied repeal doctrine" of Hallie I; (2) the Noerr-Pennington government petitioning doctrine; or (3) the LGAA, 15 U.S.C. §§ 34-36.

¶ 27. On April 7, 2005, the circuit court issued an order granting the defendants' motion for summary judgment, concluding that the defendants were immune from antitrust liability under both the implied repeal and Noerr-Pennington doctrines. The circuit court did not decide whether the LGAA provided additional grounds for immunity. The circuit court stated:

Call it what you will (implied repeal, home rule, state action), when a Wisconsin municipality acts out of public health and safety concerns in its regulation of alcohol sales, antitrust and anti-competitive policies are swept away by the fundamental and near-plenary nature of the governmental authority exercised....

The evidence is overwhelming that the regulatory pressure on campus bar owners generated by City and [University] officials was enormous. "Luther's Blues" style conditions prohibiting drink specials had been placed on new licenses issued in the campus area. Current license holders who relocated or remodeled their premises were subjected to similar conditions, unless they could convince the ALRC that their business practices were not a part of the problem.... Direct demands were made to campus bar owners and to the [] Tavern League by the longtime Chair of the ALRC for a solution to the drink special concerns of the City.... The Chair of ALRC was directly threatening existing bar licensees that the City would enact... an ordinance [banning drink specials] if the bar owners did not "police themselves," "clean up their acts," and address the drink special concerns of the City. In this context, the City, by its duly authorized ALRC representative, unilaterally decided that the bar owners should voluntarily ban drink specials at least on weekends. . .. After the announcement of the voluntary limits on drink specials, the ALRC took no further action to advance a drink special ban by ordinance, unequivocally showing its approval and ratification of the negotiated voluntary ban.. . . The conclusion from this scenario, is that but for the intense demands of the City through its ALRC, there would have been no voluntary ban on weekend drink specials by campus bar owners.

¶ 28. The plaintiffs appealed this summary judgment and the court of appeals affirmed, holding that the implied repeal doctrine of Hallie I immunized the defendants' actions from antitrust liability. Eichenseer,; 297 Wis. 2d 495, ¶¶ 16, 22-24. In doing so, the court of appeals also analyzed federal case law interpreting the federal "state action" doctrine as an instructive analogue when applying the state law implied repeal doctrine. Id., ¶¶ 19-21. The court of appeals did not address whether the Noerr-Pennington doctrine or LGAA immunized the defendants' actions from state antitrust law. Id., ¶ 25.

¶ 29. The plaintiffs petitioned this court for review, which we granted on March 15, 2007.

II. STANDARD OF REVIEW

¶ 30. This case requires us to review a grant of summary judgment to the defendants. Whether summary judgment has been properly granted is a question of law, which we review de novo, applying the same methodology as the circuit court but benefiting from the analyses of both the circuit court and the court of appeals. Butler v. Advanced Drainage Sys., Inc., 2006 WI 102, ¶ 17, 294 Wis. 2d 397, 717 N.W.2d 760. The summary judgment statute provides that the judgment sought shall be rendered when there is no genuine issue as to any material fact and "the moving party is entitled to judgment as a matter of law." Wis. Stat. § 802.08(2). Whether a party's actions are immune from antitrust liability is a question of law that we review de novo.

III. ANALYSIS

¶ 31. Some of the most contentious policy battles in the history of the United States have involved government regulation of alcohol beverages. The Nation approved the Eighteenth Amendment in 1919 prohibiting the manufacture, sale, and transportation of intoxicating liquors, but it repealed that amendment in 1933 by Section of 1 of the Twenty-first Amendment.14 Section 2 of that Amendment gave the States "virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system."15 324 Liquor Corp. v. Duffy, 479 U.S. 335, 346 (1987) (quoting Cal. Retail Liquor Dealers Ass'n v. Midcal Aluminum, 445 U.S. 97, 110 (1980)). Because Section 2 has been interpreted not to override other provisions of the United States Constitution, however, there is continuing tension between anticompetitive action by state authorities in the regulation of intoxicating liquor and federal antitrust law.

¶ 32. This case presents a variation on that tension: an alleged dispute between local authorities and tavern.keepers, on the one hand, and Wisconsin antitrust law, on the other.

¶ 33. The applicable statute is Wis. Stat. § 133.03(1), which is based on the federal Sherman Act. 15 U.S.C. §§ 1-7. Olstad v. Microsoft Corp., 2005 WI 121, ¶ 42, 284 Wis. 2d 224, 700 N.W.2d 139. In considering this statute, we acknowledge the importance of competition in our free enterprise system. The Wisconsin Legislature, in a statement of intent for our antitrust statutes, indicates that "It is the intent of the legislature to make competition the fundamental economic policy of this state[.]" Wis. Stat. § 133.01. Regulatory agencies are admonished that the public interest requires the "preservation and promotion of the maximum level of competition in any regulated industry consistent with the other public interest goals established by the legislature." Id. (emphasis added).

¶ 34. This statement of intent acknowledges that the "public interest" can pull regulators in opposite directions. The present case requires us to examine when a conflicting public interest will prevail over the "maximum level of competition."

¶ 35. We begin with a recitation of the plaintiffs' allegations of conspiracy in restraint of trade. The plaintiffs allege that the defendants entered into a "naked, per se price-fixing conspiracy" in violation of Wis. Stat. § 133.03,16 and that their public agreement to "voluntarily and immediately end all drink specials on Friday and Saturday nights after 8 p.m. . . . for the express purpose of increasing prices in order to" reduce output (i.e., consumption)" establishes the factual basis for the complaint. Defendants respond, in part, that their actions are immune from antitrust liability on grounds of the "implied repeal doctrine" articulated in Hallie I and the other grounds stated in ¶¶ 2 and 26 above.

¶ 36. To resolve the issue of immunity, we presume a violation of Wis. Stat. § 133.03. Hallie I, 105 Wis. 2d at 536 (assuming for purposes of appeal that the plaintiff would be able to prove facts in support of its antitrust allegations); see also 1A Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 224a, at 94 (3d ed. 2006) (noting that antitrust immunity is usually decided before the substantive antitrust issue, even though many challenged government activities very likely do not violate antitrust laws) (hereinafter Antitrust Law). Although we do not address the legal merits of the plaintiffs' antitrust claim, we note that the validity of the claim is not conceded by the defendants.

¶ 37. Assuming arguendo that the defendants' actions violate Wis. Stat. § 133.03, we are asked to decide whether these actions are immune from liability and the defendants are entitled to summary judgment. The defendants assert three grounds for immunity with respect to their actions, and we address their first two defenses in this opinion.

A. Implied Repeal Doctrine17

¶ 38. There are explicit statutory exceptions to some of the antitrust provisions in Wis. Stat. ch. 133. For instance, Wis. Stat. § 133.03(4) provides that "This section [§ 133.03] does not apply to ambulance service contracted for under ss. 59.54(1), 60.565, 61.64 and 62.133." By exceptions of this nature and exceptions contained within statutory definitions, the legislature has effectively excepted or "repealed" antitrust law with respect to certain actors and actions.

¶ 39. The "implied repeal doctrine" addresses situations in which there is no explicit statutory exception to antitrust law but it is reasonably clear that the legislature intended to allow municipalities to undertake an action that is anticompetitive. If the legislature intends to allow municipalities to undertake an action that is anticompetitive, then that action is immune from antitrust enforcement under state law.

¶ 40. The leading case in Wisconsin for the implied repeal doctrine is Hallie /, in which we held that the City of Chippewa Falls was not liable under state antitrust law for conditioning its provision of waste treatment services to an adjacent town on the acceptance of other municipal services. Hallie I, 105 Wis. 2d at 542.

¶ 41. In Hallie I, the plaintiff Town of Hallie had no sewage treatment or collection facilities. Id. at 534. The defendant City of Chippewa Falls owned and maintained a sewage treatment plant with excess capacity. Id. The town proposed to construct its own treatment plant and to connect it to the city's system. Id. The city rejected this proposal and countered with an offer to tie the use of its treatment plant with the town's agreement to allow the city to provide certain municipal services such as fire and police protection. Id. When the town did not agree to the city's offer, the city passed an ordinance annexing a portion of the town. Id. The town objected to the annexation in court and also complained that the city's tie-in scheme violated Wis. Stat. § 133.03 because it prevented the town from competing for sewer collection services. Id. at 535-36.

¶ 42. On review, we held that the town's complaint failed to state a cause of action because the city's actions, pursuant to its home rule authority and statutory annexation powers, were exempt from state antitrust law. Id. at 540.

¶ 43. The Hallie I test to determine antitrust immunity for municipal actions is "whether the legislature intended to allow municipalities to undertake such actions." Id. at 539. In other words, a court must look to see if the legislature intended a conflicting statutory scheme to override state antitrust law under a given set of facts. We noted three factors to consider in making this determination: (1) an analysis of the home rule powers of cities; (2) the type of conduct undertaken by a city in a particular instance; and (3) the general statutory framework set up by the legislature in a particular field. Id.

¶ 44. Applying these factors, we first noted the broad home rule powers that some municipalities are granted pursuant to Wis. Stat. § 62.11(5) (1979-1980)18 and Article XI, Section 3 of the Wisconsin Constitution.19 Next, we characterized the city's conduct in annexing the town's land "as a reasonable quid pro quo that a city could require before extending sewer services to the area." Hallie I, 105 Wis. 2d at 540-41. Finally, we concluded that the specific statutory scheme dealing with annexation power and joint sewer systems, under Wis. Stat. §§ 66.069(2)(c) and 144.07(lm), indicated that the legislature viewed "annexation as an appropriate prerequisite to the provision of sewage service outside the limits of a city." Hallie I, 105 Wis. 2d at 542. Therefore, we held that "the legislature did not intend that a city should be liable under the state antitrust law for the kinds of acts" done by the City of Chippewa Falls. Id. at 542.

¶ 45. The court revisited the issue of municipal immunity in American Medical Transport of Wisconsin, Inc. v. Curtis-Universal, Inc., 154 Wis. 2d 135, 452 N.W.2d 575 (1990) (AMT). In AMT, three private ambulance service providers alleged that the City of Milwaukee adopted a citywide emergency ambulance system that violated antitrust law. Id. at 138-39. Their complaint alleged that the city divided the Milwaukee area into four sections designated as service areas and assigned primary responsibility for each area to a single ambulance company. Id. at 139. The system benefited four different ambulance companies, but it relegated three other qualified companies to providing back-up service when a primary provider was not available. Id. The city also assumed control over the dispatch of emergency service to either the Milwaukee Fire Department or a private ambulance service, and it set all fees and rates for such service. Id. at 139-40. The plaintiffs described this system as a conspiracy to restrain trade in ambulance service — a conspiracy in which the four defendant ambulance companies fully participated with the city. Id. at 140-41.

¶ 46. This court paid homage to Hallie I but appeared to tighten the requirements for municipal immunity when it concluded that neither the city's actions nor the private providers' actions were immune from state antitrust law. Id. at 153-54. The court said the question was whether the legislature had "impliedly authorized an exception from the antitrust laws in respect to certain types of conduct." Id. at 148. It said that a city's home rule powers to determine local affairs are broad but do not supersede legislative enactments of statewide concern, such as Wisconsin antitrust law. Id. at 152. To override state antitrust law, the court said, a city must look to other statutory enactments— beyond home rule — that create a legislative scheme that at least impliedly authorizes anticompetitive conduct by the city. Id. at 148.

¶ 47. The gist of these cases is that a municipality may pursue the familiar objectives of home rule power, but if the tactics it chooses are anticompetitive and tend to restrain trade, the municipality will usually need to rely on supplementary authority if it expects immunity for its actions. Antitrust immunity will depend upon the legislative framework in a particular field of government activity as well as the type and purpose of the actions the municipality initiates. In the absence of explicit exceptions from antitrust statutes, such as Wis. Stat. § 133.03(4), immunity for government-related an-ticompetitive action will require examination of all relevant circumstances.

¶ 48. Although the City is not a defendant in this case, the City's regulation of Madison taverns is at the heart of this dispute. It is undisputed that the City imposed "Luther's Blues conditions" on the following taverns by explicit action of the Common Council: Luther's Blues, Regent Street Retreat, Buck's, Hawk's, Crave, Dotty Dumpling's, Kimia Lounge, and Nam's Noodles. It is our understanding that the city-imposed conditions on these eight establishments were more stringent in curtailing drink specials than the agreement announced by other establishments on September 12, 2002. Consequently, we begin our Hallie I analysis by focusing on what the City did officially and directly.

¶ 49. The first factor to consider in the implied repeal analysis is "the home rule powers of cities."20 Hallie I, 105 Wis. 2d at 539. The City of Madison possesses the broad home rule powers outlined by Wis. Stat. § 62.11(5) and Article XI, Section 3 of the Wisconsin Constitution. This power allows the City to act for the "health, safety, and welfare of the public," and to carry out its policy goals by "license, regulation, suppression . . . and other necessary or convenient means." Wis. Stat. § 62.11(5). These powers are subject to "enactments of the legislature of state-wide concern," such as antitrust laws. See Wis. Const, art. XI, § 3; Hallie I, 105 Wis. 2d at 540. However, if we were to construe the exercise of "general charter" home rule powers as constitutionally defective whenever they deal with a matter of statewide concern, we would render Wis. Stat. § 62.11(5) a nullity. Hallie I, 105 Wis. 2d at 540 (citing Wisconsin's Envtl. Decade, Inc. v. DNR, 85 Wis. 2d 518, 533, 271 N.W.2d 69 (1978)). Therefore, the City of Madison's home rule powers under Wis. Stat. § 62.11(5) allow it to provide for the public health, safety, and welfare by regulating alcohol using "necessary or convenient means," including the means employed here.

¶ 50. A municipality may not disregard the state's antitrust laws simply because it possesses broad home rule authority. At the same time, not every exercise of home rule authority that tends to restrain trade must pass antitrust scrutiny. The type of action may have been excepted from antitrust law explicitly, or the action — because it is unilateral — may not constitute a "contract, combination. . ., or conspiracy" in restraint of trade. Wis. Stat. § 133.03(1). The non-party brief of the University of Wisconsin-Madison directs our attention to Fisher v. City of Berkeley, 475 U.S. 260 (1986), in which the Supreme Court said:

A restraint imposed unilaterally by government does not become concerted action within the meaning of the [antitrust] statute simply because it has a coercive effect upon parties who must obey the law. The ordinary relationship between the government and those who must obey its regulatory commands whether they wish to or not is not enough to establish a conspiracy. Similarly, the mere fact that all competing [business] owners must comply with the same provisions of the Ordinance is not enough to establish a conspiracy among [the business owners].

Id. at 267.

¶ 51. There is no dispute that the City imposed "Luther's Blues conditions" unilaterally on eight Madison taverns.

¶ 52. Next, we turn to an evaluation of the regulation of alcohol beverages in Wisconsin to ascertain the "general statutory framework set up by the legislature" in this field for purposes of the implied repeal analysis. See Hallie I, 105 Wis. 2d at 539.

¶ 53. We have observed that "the states, under the broad sweep of the Twenty-first Amendment, are endowed with 'something more than the normal' police power in regulating the sale of liquor in the interests of the public health, safety, morals, and general welfare." State ex rel. Grand Bazaar Liquors, Inc. v. City of Milwaukee, 105 Wis. 2d 203, 217, 313 N.W.2d 805 (1982) (citing California v. LaRue, 409 U.S. 109, 114 (1972)).

¶ 54. In Odelberg v. City of Kenosha, 20 Wis. 2d 346, 122 N.W.2d 435 (1963), this court reiterated the justifications for the near-plenary police power that a unit of government has to regulate alcohol sales:

The justification for the exercise of the police power in restraining or prohibiting the sale of intoxicating liquors has been stated and restated by the courts time and again. It may be summed up as resting upon the fundamental principle that society has an inherent right to protect itself; that the preservation of law and order is paramount to the rights of individuals or property in manufacturing or selling intoxicating liquors; that the sobriety, health, peace, comfort, and happiness of society demand reasonable regulation, if not entire prohibition, of the liquor traffic. Unrestricted, it leads to drunkenness, poverty, lawlessness, vice, and crime of almost every description. Against this result society has the inherent right to protect itself — a right which antedates all constitutions and written laws — a right which springs out of the very foundations upon which the social organism rests; a right which needs no other justification for its existence or exercise than that it is reasonably necessary in order to promote the general welfare of the state.

Id. at 350 (quoting Zodrow v. State, 154 Wis. 551, 555, 143 N.W. 693 (1913)).21 To serve these policy goals, the statutory scheme governing alcohol in Wisconsin is pervasive, sweeping, and restrictive.

¶ 55. Chapter 125 of the Wisconsin Statutes regulates "Alcohol Beverages." The chapter's statement of legislative intent "provides this state regulatory authority over the production, storage, distribution, transportation, sale, and consumption of alcohol beverages by and to its citizens, for the benefit of the public health and welfare and this state's economic stability." Wis. Stat. § 125.01. Chapter 125 covers approximately 34 pages of the Wisconsin Statutes. This shows that the manufacture and sale of alcohol beverages is one of the most heavily regulated trades in our state. Here are some familiar examples.

¶ 56. Persons under age 21 cannot purchase alcohol. Wis. Stat. §§ 125.02(8m), (20m), and 125.07. Consequently, an underage person "not accompanied by his or her parent, guardian or spouse who has attained the legal drinking age may not enter, knowingly attempt to enter or be on any premises for which a license or permit for the retail sale of alcohol beverages has been issued," subject to certain exceptions. Wis. Stat. §§ 125.07(3)(a); 125.07(3)(a)l. — 14. An underage person who procures or attempts to procure alcohol, possesses or consumes alcohol, knowingly enters or attempts to enter a licensed premises, or falsely represents his age to receive alcohol from a licensee or permittee, may be fined, required to complete community service, or temporarily lose his driver's license. Wis. Stat. §§ 125.07(4)(a); 125.07(4)(bs). Those who sell liquor to an underage person or a person of age who is intoxicated also are subject to substantial fines, or even imprisonment. Wis. Stat. §§ 125.07(l)(b)2.a. — d.; 125.07(2).

¶ 57. No person may sell alcohol without a license, Wis. Stat. § 125.04(1), and the statutes list numerous requirements to obtain such a license. See Wis. Stat. § 125.04(5). Consumption of alcohol on premises open to the public is also prohibited unless the lessee, owner, or person in charge of the operation possesses a license. Wis. Stat. § 125.09(1). Most license holders must be at least 21 years old, Wis. Stat. § 125.04(5)(a)3., and successfully complete a "responsible beverage server training course" before being granted a license. Wis. Stat. § 125.04(5)(a)5.

¶ 58. Significantly, some of the state's vast power to regulate alcohol has been delegated to municipalities. Municipal authority to regulate alcohol sales and consumption, including licensing, is outlined in several sections of Wis. Stat. ch. 125. General municipal authority to regulate alcohol is outlined in Wis. Stat. § 125.10(1):

(1) Authorization. Any municipality may enact regulations incorporating any part of this chapter and may prescribe additional regulations for the sale of alcohol beverages, not in conflict with this chapter. The municipality may prescribe forfeitures or license suspension or revocation for violations of any such regulations. Regulations providing forfeitures or license suspension or revocation must be adopted by ordinance. (Emphasis added.)

¶ 59. Licensing the sale of alcohol beverages is the exclusive province of municipalities, so long as it does not conflict with state standards.

¶ 60. Licensing is the primary tool available to municipalities to regulate alcohol sales and consumption. Most notably, any municipality may put to a vote "whether the municipality shall issue retail licenses for the sale of fermented malt beverages or intoxicating liquor[.]" Wis. Stat. § 125.05(1). In other words, municipalities have the right to ban alcohol sales within their borders. See Johnson v. Town Bd. of Wyocena, 239 Wis. 461, 465, 1 N.W.2d 796 (1942).22 If a municipality chooses to issue licenses, it may grant and issue 'Class A' and 'Class B' licenses for retail sales of intoxicating liquor, and 'Class C licenses for retail sales of wine, from premises within the municipality to persons entitled to a license under this chapter as the issuing municipal governing body deems proper[.]" Wis. Stat. § 125.51(l)(a) (emphasis added).

¶ 61. Alcohol sales licenses are issued on an annual basis by the municipality; they Eire considered privileges rather than vested property rights. See State ex rel. Ruffalo v. Common Council of City of Kenosha, 38 Wis. 2d 518, 523, 157 N.W.2d 568 (1968). Both "Class A" and "Class B" licenses may be revoked by the municipality if the terms of the license are not honored. Wis. Stat. §§ 125.25(3), 125.26(3).

¶ 62. Some "Class B" retail licenses are limited in number — a quota has been placed on their issuance by the legislature. Wis. Stat. § 125.51(4). This is anticom-petitive.

¶ 63. "Class B" sellers are not permitted to remain open between the hours of 2 a.m. to 6 a.m. during weeknights and 2:30 a.m. to 6 a.m. on Saturday and Sunday nights, subject to certain exceptions. Wis. Stat. §§ 125.32(3); 125.68(4)(c). This is anticompetitive.

¶ 64. Alcohol may not be sold by "Class A" retailers after 9 p.m. and before 8 a.m. Wis. Stat. § 126.68(4)(b). This is anticompetitive.

¶ 65. The preceding analysis describes only a few of the many regulations in Wis. Stat. ch. 125. The legislature's regulatory scheme in this field does not intend or permit unbridled competition. In fact, the regulatory scheme in place is overtly anticompetitive and intentionally gives municipalities leeway to place significant barriers in the way of alcohol sales and consumption.

¶ 66. We agree with the court of appeals' conclusion that Wis. Stat. ch. 125 "contemplates — and expressly directs — that regulation is to supersede competition in the retail sale of alcohol beverages in Wisconsin." Eichenseer, 297 Wis. 2d 495, ¶ 15. Unlike the statutes in AMT, the regulatory scheme in question here indicates a legislative intent to make state antitrust law "not applicable ... by authorizing contrary or inconsistent conduct" by the City. See AMT, 154 Wis. 2d at 148. Within reason, municipalities have broad statutory authority to prescribe or orchestrate anticompetitive regulation in the sale and consumption of alcohol if that regulation serves an important public interest. The statutory licensing scheme gives municipalities the power to do what the City did in this case — impose anticompetitive "Luther's Blues conditions" on new licenses and license renewals as a means of discouraging over-consumption. See Wis. Stat. § 125.51(l)(a) ("Every municipal governing body may grant and issue 'Class A' and 'Class B' licenses for retail sales of intoxicating liquor... from premises within the municipality to persons entitled to a license under this chapter as the issuing municipal governing body deems proper").

¶ 67. This brings us to the third and final Hallie I factor, "the type of conduct undertaken by a city in a particular instance." Hallie I, 105 Wis. 2d at 539. The City was concerned about binge drinking by students and others at establishments near the University of Wisconsin campus. It was concerned in general because binge drinking arid over-consumption were creating life-threatening conditions for some drinkers, as well as vandalism, disorder, and sexual assault affecting innocent third parties. The City was also concerned about the expensive police services it was required to provide.

¶ 68. The City believed that "Luther's Blues conditions" limiting drink specials would respond to potential binge drinking at specific licensed establishments, and it imposed those conditions on at least eight Madison taverns. The City's actions also served as warning to other taverns.

¶ 69. The City's imposition of conditions on taverns it licensed was commonplace; its imposition of "Luther's Blues conditions" on eight taverns was an official exercise of legislative judgment by the Common Council. Invalidating the City's action on antitrust grounds would severely undermine a municipality's authority to regulate the sale of alcohol beverages within its borders and represent a sea change in Wisconsin law.

¶ 70. To sum up, insofar as the City is concerned, we believe the City's action in imposing "Luther's Blues conditions" on eight tavern licensees is immune from antitrust liability under the implied repeal doctrine of Hallie I.

¶ 71. We acknowledge that the issue in this case is not whether the City is immune for its actions but whether the defendants are immune for their "voluntary" agreement to eliminate alcohol drink specials in their establishments after 8 p.m. on Friday and Saturday nights. In reality, we must determine whether private parties are eligible for antitrust immunity when they act in concert, in an anticompetitive manner, in direct response to pressure bordering on compulsion from a municipality with the power to condition or non-renew their licenses.

¶ 72. As noted above, the material facts are not in dispute. In her comprehensive, well-reasoned decision, Circuit Judge Angela Bartell found that the evidence was overwhelming that the pressure on campus bar owners from the City and University officials was "enormous." The longtime chair of the ALRC threatened that the City would enact a citywide ban on drink specials if the bar owners did not "police themselves," "clean up their acts," and devise a solution to the City's concerns. "In this context, the City, by its duly authorized ALRC representative, unilaterally decided that the bar owners should voluntarily ban drink specials at least on weekends." After the bar owners acceded to the City's demands, the ALRC took no further action to ban drink specials by ordinance, "unequivocally showing its approval and ratification of the negotiated voluntary ban." "But for" the intense demands of the City through its ALRC, there would have been no voluntary ban on weekend drink specials by campus bar owners. See ¶ 27, above.

¶ 73. The circuit court's factual findings are not clearly erroneous. On the contrary, they appear to be inescapable. The question remaining is whether private tavern keepers acquire the immunity from antitrust enforcement that a municipality would enjoy because of the City's intense involvement in these circumstances.

¶ 74. The court of appeals turned to federal precedents discussing the "state action" doctrine to help answer this question.23 Eichenseer, 297 Wis. 2d 495, ¶ 19. Federal precedents are often instructive and persuasive in analyzing Wisconsin antitrust law. Conley Publ'g Group Ltd. v. Journal Commc'ns, Inc., 2003 WI 119, ¶ 17, 265 Wis. 2d 128, 665 N.W.2d 879; AMT, 154 Wis. 2d at 152-53.

¶ 75. The federal "state action" antitrust immunity doctrine originated in Parker v. Brown, 317 U.S. 341 (1943). Parker established an exemption from federal antitrust law for "state action or official action directed by a state." Id. at 351. In this early decision, the Court added a caveat that "a state does not give immunity to those who violate the Sherman Act by authorizing them to violate it, or by declaring that their action is lawful." Id. (citing Northern Sec. Co. v. United States, 193 U.S. 197, 332, 344-347 (1904)).

¶ 76. In time, however, the Court revised its position. In Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U.S. 48 (1985), the Court stated:

Although Parker involved an action against a state official, the Court's reasoning extends to suits against private parties. The Parker decision was premised on the assumption that Congress . .. did not intend to compromise the States' ability to regulate their domestic commerce. If Parker immunity were limited to the actions of public officials, this assumed congressional purpose would be frustrated, for a State would be unable to implement programs that restrain competition among private parties. A plaintiff could frustrate any such program merely by filing suit against the regulated private parties, rather than the state officials who implement the plan. We decline to reduce Parker's holding to a formalism . . .

Id. at 56-57 (footnote omitted).

¶ 77. Town of Hattie v. City of Eau Claire, 471 U.S. 34 (1985) (.Hattie II) was decided the same day as Southern Motor Carriers. In the course of defining when local municipalities are exempt from federal antitrust law, the Hattie II Court observed that "[w]here a private party is engaging in ... anticompetitive activity, there is a real danger that he is acting to further his own interests, rather than the governmental interests of the State." Hattie II, 471 U.S. at 47. To address this concern, the Court has established a two-prong test to determine whether "state action" antitrust immunity extends to the actions of private parties: "First, the challenged restraint must be 'one clearly articulated and affirmatively expressed as state policy.' Second, the State must supervise actively any private anticompetitive conduct." Southern Motor Carriers, 471 U.S. at 57 (citing Midcal, 445 U.S. at 105 and quoting City of Lafayette, La. v. Louisiana Power & Light Co., 435 U.S. 389, 410 (1978)). This two-prong test is used to determine whether private action, closely linked to government action, should be protected from antitrust law, inasmuch as the success of an antitrust action should "depend upon the nature of the activity challenged, rather than on the identity of the defendant." See Southern Motor Carriers, 471 U.S. at 58-59 (citations omitted).

¶ 78. The instant case does not involve "state action," and technically it does not involve municipal action. But we think it makes sense to apply the Southern Motor Carriers analysis — first adopted in Midcal and City of Lafayette — to our third Hattie I factor ("the type of conduct undertaken by a city in a particular instance," Hattie I, 105 Wis. 2d at 539) to determine whether the City's immunity extends to the defendants.

¶ 79. With regard to the "clear articulation" test, state law empowers municipalities to "prescribe additional regulations for the sale of alcohol beverages, not in conflict with [Chapter 125]." Wis. Stat. § 125.10(1). The imposition of "Luther's Blues conditions" on eight licensees is an exercise of this power. As one authority notes, "[a] state policy to displace competition can be inferred if the challenged restraint is a foreseeable consequence of the municipality's engaging in state-authorized activities, or if the statutory provision empowering the municipality's action plainly shows that the legislature contemplated the kind of action complained of." Melissa K. Stull, Annotation, What constitutes "state action" rendering public official's participation in private antitrust activity immune from application of federal antitrust laws, 109 A.L.R. Fed. 758 (1992). See also City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 372-73 (1991) (observing that the purpose of the zoning regulation in question was to displace unfettered business freedom in a manner that regularly had the effect of preventing normal acts of competition); Hallie II, 471 U.S. at 42 (noting that anticompetitive effects would logically follow from statutes authorizing a city to refuse to provide sewage services to unannexed areas).

¶ 80. "Luther's Blues conditions" represented the University's goal for campus taverns. "Luther's Blues conditions" were formally received by the ALRC on May 21, 2002. The ALRC's report recommending "Luther's Blues conditions" was subsequently "accepted" by the Madison Common Council. The ALRC drafted an ordinance imposing on all taverns the conditions that the council had imposed on eight taverns, and it repeatedly threatened to push for the enactment of that ordinance. The record before us is bereft of evidence that Alder Bruer and Alder Verveer were rogue regulators acting without the approval of the Council and the Mayor. We think the "clearly articulated policy" prong has been satisfied because the defendants' agreement was a scaled-down version of the "Luther's Blues conditions," first demanded, then ratified, by the ALRC Chair.

¶ 81. With regard to the second prong of the Midcall Southern Motor Carriers test, the Court has stated that "the active state supervision requirement should not be imposed in cases in which the actor is a municipality." Hallie II, 471 U.S. at 46. Thus, the "basic question in antitrust cases that involve municipal and private actors is whether the municipality or the regulated party made the effective decision that resulted in the challenged anticompetitive conduct." Mich. Paytel Joint Venture v. City of Detroit, 287 F.3d 527, 537-38 (6th Cir. 2002). See also Vartan v. Harristown Dev. Corp., 661 F.Supp. 596, 604 (M.D. Pa. 1987) ("The crucial question [is] which entity [is] the effective decisionmaker."), aff'd, 838 F.2d 1208 (3d Cir. 1988); City Commc'ns, Inc. v. City of Detroit, 660 F.Supp. 932, 935 (E.D. Mich. 1987), aff'd, 888 F.2d 1081 (1988). "Active encouragement" is also viewed as a hallmark of whether a private party was "supervised" by the municipality for purposes of antitrust immunity. See Cine 42nd St. Theater Corp. v. Nederlander Org., 790 F.2d 1032, 1048 (2d Cir. 1986).

¶ 82. In this case, the City was the effective decision maker with regard to the defendants' agreement to eliminate drink specials on Friday and Saturday nights after 8 p.m. It is undisputed that the defendants entered into their agreement as a direct response to the City's increasing regulatory pressure. Without this pressure, the defendants would have had no motivation to voluntarily ban weekend drink specials after 8 p.m. As the circuit court correctly noted, the City's actions, through Alder Bruer, were the "but for" cause of the voluntary ban.

¶ 83. The plaintiffs allege that the defendants entered into an agreement to voluntarily end all drink specials on Friday and Saturday nights after 8 p.m. "for the express purpose of increasing prices in order to reduce output (i.e., consumption)." At this point, we must accept that allegation as true. However, it should be obvious that the purpose stated in the complaint is a purpose that would be sought primarily by the City and the University, not the defendants. The defendants would have understood that if drink specials were an effective way to market their taverns, they would be placing themselves at a competitive disadvantage with those Madison taverns that were not limiting weekend drink specials.24

¶ 84. "Active supervision" can be interpreted in a more conventional way: the degree of monitoring by the City. The 24 defendant taverns are reviewed annually for license renewal. The ordinance establishing the ALRC provides that the ALRC has the responsibility and duty to view the triennial "Alcohol License Problem Report" submitted by the Chief of Police and may conduct additional review of problems reported with the licenses affected. Eichenseer, 297 Wis. 2d 495, ¶ 3 n.4. The University submits periodic reports to the ALRC with the results of its own monitoring of the campus bar scene.

¶ 85. In short, we think the active supervision prong has been satisfied.

¶ 86. The undisputed facts suggest that the City compelled the defendants' actions through threat and coercion. The facts suggest that the City thereafter approved the defendants' actions. The facts suggest that the City is closely monitoring the defendants' actions and would not tolerate an end to those actions.

¶ 87. "[A] private party should not be induced to . . . comply with regulatory regimes at the risk that later invalidity of those . . . regimes will leave the part[y's] active compliance naked to antitrust scrutiny as if there had been no official action." Antitrust Law, supra, ¶ 228d, at 222. Furthermore, "where the private defendant had no discretion but to obey the [regulation] or challenge it in court, one can rightfully say that the cause of the plaintiffs' injuries is not the defendant's act but the government's compulsion." Id. at 223. The City was the effective decision maker with regard to the alleged anticompetitive actions at issue and has actively supervised them; therefore, its immunity should extend to the defendants. See Mich. Paytel, 287 F.3d at 537-38; City Commc'ns, Inc., 660 F.Supp. at 935.

¶ 88. As we look at the "conduct undertaken ... in a particular instance," we note that neither the City nor the defendants is directly setting the price of alcohol beverages in the campus area. The defendants may compete with each other and must compete with other taverns in the City — on overall price. There is no effort by anyone to allocate markets or market share. There are many, many options available to consumers who respond solely to price. We are influenced in this decision by the inextricable link between the City's objectives and the defendants' actions, as well as the transparency of this link. The cause and effect relationship between the City's threats and the defendants' response to those threats sets this case apart from most cases we are likely to see.

¶ 89. Accordingly, we conclude that Hallie I should be extended to recognize that the actions of the defendants, under the intense pressure of the City, were intended by the legislature to be immune from antitrust liability when the legislature granted municipalities broad authority to regulate the sale and consumption of alcohol beverages. To conclude otherwise would enshrine theory over practical reality.

B. Noerr-Pennington Doctrine Immunity and the Local Government Antitrust Act

¶ 90. The defendants also argue that their challenged actions in persuading the City not to enact an ordinance banning drink specials seven days per week were efforts to influence public officials and therefore immune from plaintiffs' antitrust claims under the Noerr-Pennington government petitioning doctrine.

¶ 91. The Noerr-Pennington doctrine establishes a means of protecting the First Amendment rights of private parties to petition government in the face of antitrust law. In Eastern Railroad Presidents Conference v. Noerr Motor Freight, 365 U.S. 127 (1961), the United States Supreme Court held that railroad operators were immune from liability for a federal antitrust claim brought by truckers because antitrust laws were never intended to interfere with the ordinary political process. Id. at 135-37. The railroads had allegedly petitioned state government officials through "a publicity campaign against the truckers designed to foster the adoption and retention of laws and law enforcement practices destructive of the trucking business, to create an atmosphere of distaste for the truckers among the general public, and to impair the relationships existing between the truckers and their customers." Id. at 129. The Court held that the railroads were immune from federal antitrust law because such law "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 monopoly." Id. at 136.

¶ 92. Four years later, in United Mine Workers v. Pennington, 381 U.S. 657 (1965), the Court reiterated its Noerr decision and held that "[j]oint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition. Such conduct is not illegal, either standing alone or as part of a broader scheme itself violative of [antitrust law]." Id. at 670.

¶ 93. Although we have never recognized the Noerr-Pennington doctrine as providing immunity to state antitrust law, we have signaled that the doctrine might apply. See AMT, 154 Wis. 2d at 156 ("There may, of course, come a time that, under the facts, the state equivalent of the Noerr-Pennington doctrine may be re-asserted. . .."). In AMT, we noted that "the basic premise oí Noerr-Pennington [is] to protect the citizens' right to free speech and to petition government." Id. at 155.

¶ 94. This right to petition extends to public appeals to all departments of government, including cities and their legislative bodies. See Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972) ("Certainly the right to petition extends to all departments of the Government."). The Seventh Circuit applied the Noerr-Pennington doctrine to immunize a petition to the Chicago City Council by private taxicab companies. Campbell v. City of Chicago, 823 F.2d 1182 (7th Cir. 1987).

¶ 95. In Campbell, the plaintiffs sued the City of Chicago, Yellow Cab Company, and Checker Taxi Company, asserting violations of sections 1 and 2 of the Sherman Act. Id. at 1183. Their claims were premised upon the enactment of an ordinance regulating the manner of acquiring and holding taxicab licenses and creating a quota of 4,600 available licenses. Id. The ordinance arose out of the lobbying efforts of Yellow Cab and Checker Taxi. Id. The ordinance allegedly "erected a barrier to entry into the taxicab market." Id.

¶ 96. The defendants' petitioning activities were related to a litigation settlement with the City. In 1963 Yellow Cab and Checker Taxi sought damages arising from the City's alleged violation of a 1937 taxicab ordinance. Id. at 1186 (citing Campbell v. City of Chicago, 639 F.Supp. 1501, 1510 (N.D. Ill. 1986)). As part of an agreement to drop the suit, Yellow Cab submitted a proposed draft ordinance. The City's Committee on Local Transportation held public hearings on the ordinance, and the full Chicago City Council eventually enacted it. Id. The ordinance became the subject of the antitrust claim at issue.

¶ 97. The Seventh Circuit held that this activity, seeking a favorable ordinance, was immunized petitioning activity under Noerr-Pennington. Id. at 1186-87. In doing so, the court also addressed the "sham" exception to the Noerr-Pennington doctrine, which bars immunity when "a publicity campaign, ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor." Noerr, 365 U.S. at 144. In rejecting the plaintiffs' argument that the "sham" exception applied, the Seventh Circuit cited favorably Premier Electrical Construction Co. v. National Electrical Contractors Ass'n, 814 F.2d 358, 376 (7th Cir. 1987):

If the injury is caused by persuading the government, then the antitrust laws do not apply to the squelching [of competition] (Parker v. Brown) or the persuasion (Noerr-Pennington). If the injury flows directly from the "petitioning" — if the injury occurs no matter how the government responds to the request for aid — then we have an antitrust case.

¶ 98. Like the taxicab operator defendants in Campbell, the defendants in the instant case were seeking a favorable regulatory outcome — here, to avoid an ordinance banning all drink specials citywide after 8 p.m. Their petitioning was not a "sham" because the alleged anticompetitive "injury" caused by their actions (in voluntarily banning only weekend drink specials) would not have occurred had the government enacted its threatened ban on all drink specials. The City's all-week ban would have caused the anticompetitive "injury." In other words, the City would have been enacting the all-week ban ordinance of its own volition, not as a response to the defendants' requests for an ordinance aimed at harming competitors.

¶ 99. The difference between this case and the traditional Noerr-Pennington fact pattern is that the anticompetitive result here derives from self-regulation to head off government regulation, not government regulation in a direct form. Plaintiffs contend that antitrust immunity does not extend to self-regulation, irrespective of what prompted it, even when the self-regulation is less restrictive and less inclusive than proposed government regulation. They insist that the Noerr-Pennington doctrine protects advocacy, including advocacy of blatantly anticompetitive regulation, even when that advocacy actually produces anticompetitive regulation, but it does not protect action, even when that action is wholly defensive and preserves a greater measure of competition than proposed government regulation. If the plaintiffs have correctly summarized the Noerr-Pennington doctrine, they seem to have lost the spirit of it.

¶ 100. In any event, because we have concluded that the defendants' actions are immunized by the implied repeal doctrine, we need not decide this issue. We also do not reach the issue of whether the LGAA provides immunity for the defendants' actions.

IV CONCLUSION

¶ 101. We conclude that the defendants' actions are immune from state antitrust law under the implied repeal doctrine of Hallie I. Accordingly, we affirm the decision of the court of appeals granting summary judgment to the defendants.

By the Court. — The decision of the court of appeals is affirmed.

¶ 102. ANN WALSH BRADLEY, J., and N. PATRICK CROOKS, J., did not participate.

¶ 103. SHIRLEY S. ABRAHAMSON, C.J., withdrew from participation.

1 Nic J. Eichenseer, Brian Dougherty, and Eric B. Stener filed their complaint in Dane County Circuit Court as parties and representatives of a class of persons who patronize the 24 Madison taverns after 8 p.m. on Friday and/or Saturday nights. Nic J. Eichenseer elected not to appeal the circuit court's decision. Only Dougherty and Stener are participating in this appeal. Accordingly, reference to "the plaintiffs" indicates only Dougherty and Stener.

2 All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated.

3 See E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), and United Mine Workers v. Pennington, 381 U.S. 657 (1965).

4 See Powalka v. State Mut. Life Assurance Co., 53 Wis. 2d 513, 518, 192 N.W.2d 852 (1972) (citing Wiegand v. Gissal, 28 Wis. 2d 488, 137 N.W.2d 412 (1965), rehearing denied, 28 Wis. 2d 488, 495a-b, 138 N.W.2d 740 (1966)); Lucas v. Godfrey, 161 Wis. 2d 51, 57, 467 N.W.2d 180 (Ct. App. 1991).

5 Problem drinking, related crimes, and related injuries plague college campuses across the United States. A March 2007 report by The National Center on Addiction and Substance Abuse (CASA) at Columbia University found:

From 1993 to 2005, there has been no significant reduction in the levels of drinking and binge drinking among college students. In 2005, 67.9 percent of students (approximately 5.3 million students) reported drinking in the past month and 40.1 percent (approximately 3.1 million students) reported binge drinking.*

However, from 1993 to 2001 rates of riskier drinking — frequent binge drinking, being intoxicated, drinking to get drunk — have increased.

Between 1993 and 2001, there has been a 37.6 percent increase in the proportion of college students hurt or injured as a result of their alcohol use (9.3 percent vs. 12.8 percent). In 2001, 1,717 college students died from unintentional alcohol-related injuries — up six percent from 1998.

The average number of alcohol-related arrests per campus increased 21 percent between 2001 and 2005. In 2005, alcohol-related arrests constituted 83 percent of campus arrests.

[FN*: Binge drinking is defined as five or more drinks on any one drinking occasion in the past two weeks.]

The National Center on Addiction and Substance Abuse at Columbia University, Wasting the Best and the Brightest: Substance Abuse at America's Colleges and Universities 3, 4-5 (March 2007), http://www.casacolumbia.org/absolutenm/ articlefiles/380-CollegeIIFinal-Revised.pdf (last visited Apr. 29, 2008).

6 The "Luther's Blues conditions," requested by the University and imposed by the City, include the following:

• Not to increase the volume contained in a serving without increasing proportionately the price charged for such serving.

• Not to give away any drink or sell at a price that is different from the usual price for the drink for any period of time less than one full week.

• Not to give away any drink or reduce the price of any drink conditioned upon the purchase of any drink or number of drinks.

• Not to sell or give away an unlimited number of drinks during a set period of time for a fixed price.

7 The record indicates that the following new licensees were subject to the "Luther's Blues conditions": Hawk's, Crave, Dotty Dumpling's, Kimia Lounge, and Nam's Noodles.

8 The City of Madison, Wisconsin Code of Ordinances provides that an application for a Class B liquor license (which authorizes retail sales of intoxicating liquor for consumption on the premises licensed) must be filed with the City Clerk before it is referred to the Common Council for ultimate approval. Madison, Wis., Code §§ 38.03(2)(b), 38.05(3)(a), 38.05(11) (2007). However, before Council approval, the City Clerk must refer the application to the Alcohol License Review Committee (ALRC), which conducts an "investigation as to the advisability of granting such license" and then makes "a recommendation to the Common Council as to whether or not such application should be granted." Id., § 38.05(3)(a)ll.

The City Clerk must also give notice of the application to the Director of the Neighborhood Preservation and Inspection Division, the Chief of the Police Department, the Chief of the Fire Department, and the Director of Public Health, all of whom inspect the premises sought to he licensed and report to the Common Council in writing. Id. The City Clerk must schedule public hearings before the ALRC and Common Council before a Class B license is granted. Id., § 38.05(3)(e).

The ALRC, through its recommendations, clearly influences the Common Council's decision to grant or deny a license. In this case, ALRC Chair Bruer and Alder Verveer, who represented the campus area, influenced the "Luther's Blues conditions" placed upon new and existing licensees in the downtown campus area.

9 The draft ordinance stated:

38.07(14) Drink Specials Regulated.

Between 8:00 p.m. and closing on any day with regard to the advertising, sale or service of alcohol beverages, licensee shall:

(a) Not increase the volume contained in a serving without increasing proportionately the price charged for such serving.

(b) Not give away any drink or sell at a price that is different from the usual price for the drink for any period of time less than one full week.

(c) Not give away any drink or reduce the price of any drink conditioned upon the purchase of any drink or number of drinks.

(d) Not sell or give away an unlimited number of drinks during a set period of time for a fixed price.

(e) Not advertise in any manner the availability, pricing or dispensing of drinks or alcohol in a manner to lead a reasonably prudent person to conclude that alcohol is available contrary to paragraphs a.-d. above.

10 These reported statements of ALRC Chair Bruer were cited by the circuit court as "verbal acts" and not regarded for their truth. As such, the statements were considered by the circuit court on the parties' motions for summary judgment.

11 An ordinance banning smoking in Madison taverns went into effect on May 11, 2004.

12 The following is an excerpt from this press release:

The Down Town Tavern Working Group (DTWG) is sponsored by the Dane County Tavern League and consists of the majority of taverns and restaurants with alcohol service in the University Avenue/State Street Corridor as well as the local [b]eer wholesalers. The DTWG was formed to provide a proactive and substantive response to the hysteria surrounding student drinking habits, and the regulatory proposals that have been directed at campus area taverns. Following are our proposals for dealing with some of the issues being raised time and time again by the University and City.

Drink Specials:

It is the position of the DTWG that there is no statistically significant correlation between the existence of [d]rink [slpecials and disorderly behavior. The truly significant drink specials exist on weeknights when disorderly behavior is minimal....

. . . [M]ost of the downtown taverns... have voluntarily agreed to eliminate late night drink specials on Friday and Saturday nights beginning September 20,2002 and continuing for at least the next year. We have our reservations about engaging in what could be considered illegal "collusion in restraint of trade", but we feel this proactive position can cut through the fog and confusion surrounding the role of drink specials and disorderly behavior.

13 The following taverns were listed in the Tavern League's press release as "Fully confirmed participation as of 9/12/2002": "Amy's Cafe, Angelic, Blue Velvet, Buffalo Wild Wings, Bull Feathers, Brothers, City, Club Amazon, Irish Pub, Kollege Klub, Mad Dogs, Madhatters, Nitty Gritty, Plaza, State Bar, State Street Brats, Stillwaters, Vintage Spirits, Wandos."

Other taverns were listed in the same press release as 'Willingness indicated but confirmation not received as of 9/12/2002": "Spices, Paul's Club, Lava Lounge, Red Shed, [The] Pub, Mondays." These six taverns are named as defendants in this suit.

14 "The eighteenth article of amendment to the Constitution of the United States is hereby repealed." U.S. Const, amend. XXI, §1.

15 "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." U.S. Const, amend. XXI, § 2.

16 Wisconsin Stat. § 133.03 reads in part:

Unlawful contracts; conspiracies. (1) Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce is illegal. Every person who makes any contract or engages in any combination or conspiracy in restraint of trade or commerce is guilty of a Class H felony, except that, notwithstanding the maximum fine specified in s. 939.50(3)(h), the person may be fined not more than $100,000 if a corporation, or, if any other person, may be fined not more than $50,000.

17 The court of appeals adopted the label "implied repeal doctrine," which was used by the parties throughout their briefs, to describe the antitrust immunity doctrine of Town of Hallie v. City of Chippewa Falls, 105 Wis. 2d 533, 314 N.W.2d 321 (1982) (Hallie I) See Eichenseer v. Madison-Dane County Tavern League, Inc., 2006 WI App 226, ¶ 8, 297 Wis. 2d 495, 725 N.W.2d 274. We also adopt this label.

18 Wisconsin Stat. §62.11(5), both the 1979-80 and 2005-06 versions, provides:

Powers. Except as elsewhere in the statutes specifically provided, the council shall have the management and control of the city property, finances, highways, navigable waters, and the public service, and shall have power to act for the government and good order of the city, for its commercial benefit, and for the health, safety, and welfare of the public, and may carry out its powers by license, regulation, suppression, borrowing of money, tax levy, appropriation, fine, imprisonment, confiscation, and other necessary or convenient means. The powers hereby conferred shall be in addition to all other grants, and shall be limited only by express language.

19 Article XI, Section 3 of the Wisconsin Constitution provides in part:

(1) Cities and villages organized pursuant to state law may determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village. The method of such determination shall be prescribed by the legislature.

20 Our analysis of the Hallie I factors will proceed in a different order (i.e., first factor, third factor, second factor) from the order established by the Hallie I court. This reordering is intentional, to emphasize the impact that the second Hallie I factor, "the type of conduct undertaken by a city in a particular instance," has on our ultimate conclusion.

21 The lengthy quote from Odelberg v. City of Kenosha, 20 Wis. 2d 346, 122 N.W.2d 435 (1963), appears at ¶ 15 of the court of appeals decision in this case. Eichenseer, 297 Wis. 2d 495, ¶ 15.

22 A case in point is the Village of Ephraim in Door County. Ephraim is the only municipality in Wisconsin that has chosen to go "dry" — alcohol is not allowed to be sold in the Village. A statement from the Village's website proudly proclaims:

We're the only community in all of Wisconsin that is dry. There have been two referendums to ask the citizens if they wanted liquor allowed to be sold within the Village — in 1934 and in 1992 — 59% voted no in 1934, 74% voted no in 1992. Ephraim remains dry.

A Brief History of Ephraim, http://www.ephraim-wisconsin.com/ ephraim/ephraim+history/default.asp (last visited Apr. 29,2008).

23 See Parker v. Brown, 317 U.S. 341 (1943). As the court of appeals noted, the conceptual underpinnings of the federal "state action" doctrine differ from those of the implied repeal doctrine. Eichenseer, 297 Wis. 2d 495, ¶ 19 n.9.

We have previously stated that Wis. Stat. § 133.01 was intended as a reenactment of the first two sections of the federal Sherman Antitrust Act of 1890, 15 U.S.C. §§ 1 and 2. See Conley Publ’g Group Ltd. v. Journal Commc'ns, Inc., 2003 WI 119, ¶ 18, 265 Wis. 2d 128, 665 N.W.2d 879 (citation omitted). The question of what acts constitute a combination or conspiracy in restraint of trade under the Sherman Act is controlled by federal court decisions. Federal decisions construing federal exemptions under the Sherman Act are thus persuasive authority in construing state exemptions under Wisconsin antitrust law.

24 After the circuit court dismissed the plaintiffs' suit, Alder Mike Verveer commented that if the result had been different, campus taverns would have faced "seven-day-a-week drink-special bans." He added: "This [lawsuit] already affected their livelihoods, and if it had been successful, a lot of 'Ma and Pa' operations would have gone out of business." Megan Costello, Judge dismisses drink special suit, The Badger Herald, Apr. 8, 2005, available at http://badgerherald.com/news/2005/04/08/ judge_dismisses_drin.php (last visited Apr. 29, 2008).