Thus when a private party having someones goods in

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Thus, when a private party, having someone’s goods in his pos- session and seeking to recover the charges owned on storage of the goods, acts under a permissive state statue to sell the goods and retain his charges out of the proceeds, his actions are not govern- 1386 Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974) (under the Due Process Clause). 1387 Powe v. Miles, 407 F.2d. 73, 81 (2d Cir. 1968). See also NCAA v. Tarkanian, 488 U.S. 179 (1988) (where individual state has minimal influence over national col- lege athletic association’s activities, the application of association rules leading to a state university’s suspending its basketball coach could not be ascribed to the state.). But see Brentwood Academy v. Tennessee Secondary School Athletic Assoc., 531 U.S. 288 (2001) (where statewide public school scholastic association is “overwhelmingly” composed of public school officials for that state, this “entwinement” is sufficient to ascribe actions of association to state). 1388 Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357 (1974). In dissent, Justice Marshall protested that the quoted language marked “a sharp departure” from precedent, “that state authorization and approval of ‘private’ conduct has been held to support a finding of state action.” Id. at 369. In Cantor v. Detroit Edison Co., 428 U.S. 579 (1976), the plurality opinion used much the same analysis to deny antitrust immunity to a utility practice merely approved but not required by the regulating commission, but most of the Justices were on different sides of the same question in the two cases. 1389 Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351–58 (1974). On the due process limitations on the conduct of public utilities, see Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978). 1390 Flagg Bros. v. Brooks, 436 U.S. 149, 156 (1978) (due process). 2088 AMENDMENT 14—RIGHTS GUARANTEED
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mental action and need not follow the dictates of the Due Process Clause. 1391 Or, where a state workers’ compensation statute was amended to allow, but not require, an insurer to suspend payment for medical treatment while the necessity of the treatment was be- ing evaluated by an independent evaluator, this action was not fairly attributable to the state, and thus pre-deprivation notice of the sus- pension was not required. 1392 In the context of regulated nursing home situations, in which the homes were closely regulated and state officials reduced or withdrew Medicaid benefits paid to patients when they were discharged or transferred to institutions providing a lower level of care, the Court found that the actions of the homes in dis- charging or transferring were not thereby rendered the actions of the government. 1393 In a few cases, the Court has indicated that discriminatory ac- tion by private parties may be precluded by the Fourteenth Amend- ment if the particular party involved is exercising a “public func- tion.” 1394 For instance, in Marsh v. Alabama , 1395 a Jehovah’s Witness had been convicted of trespass after passing out literature on the streets of a company-owned town, but the Court reversed. It is not
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