July 6, 2016 – Fifty years ago, the baseball world trained its attention on the Wisconsin Supreme Court and its impending decision in the case of Wisconsin v. The Milwaukee Braves,1 released on July 27, 1966. At issue was whether or not a Milwaukee trial judge, acting on behalf of the state of Wisconsin, could prevent the Milwaukee Braves Major League Baseball team from relocating to Atlanta.
After the Braves’ Chicago-based owners announced their plans to move to Atlanta, Georgia, for the 1966 season, a criminal complaint was filed in Milwaukee County Circuit Court alleging that the Braves and the other nine teams in the National League had conspired to deprive the city of Milwaukee of Major League Baseball, and, moreover, had agreed that no replacement team would be permitted for the city. As such, the complaint alleged the defendants violated the Wisconsin Antitrust Act.
The defendants initially removed the lawsuit to the U.S. District Court for the Eastern District of Wisconsin, but on Dec. 9, 1965, District Court Judge Robert Tehan remanded the case to the circuit court where trial was conducted by state circuit court judge and former Marquette Law School professor, Elmer W. Roller.
On April 14, 1966, only hours before the Braves opened the season with a game against the Pittsburgh Pirates in Atlanta, Judge Roller ruled that the owners of the Braves and the other National League teams had acted in “restraint of trade” and thus were in violation of the Wisconsin Antitrust Act.
As a consequence, Roller fined the defendants $55,000, plus costs, and enjoined the Braves from playing their 1966 home games anywhere other than Milwaukee, unless the National League agreed to place a new team in Milwaukee in 1967.
To give the National League time to make arrangements for an expansion team for 1967, Roller stayed his judgment until mid-June, an act that allowed the Braves to continue playing in Atlanta.
Bad Call, Say Braves
The Braves owners immediately appealed Roller’s decision to the Wisconsin Supreme Court, and the court agreed to hear the case on an expedited basis. On June 9, 1966, the appeal was argued on a day on which the Braves, which never had a losing season while in Milwaukee, sat in sixth place in the National League with a record of 25-30.
J. Gordon Hylton, Virginia 1977, is currently a law professor at the University of Virginia School of Law. For 20 years, he was on the faculty at Marquette University Law School (1995 to 2015). Hylton, who holds a Ph.D. in the history of American civilization from Harvard University, has a particular interest in the history of civil rights and the legal history of American sports.
With the stay extended, the Braves continued to play in Atlanta, and six weeks later, on July 27, 1966, a day that would end with the Braves having slumped all the way down to eighth place, the Wisconsin Supreme Court overturned Roller’s lower court ruling by a narrow vote of 4-3. (Interesting to note is the fact that Supreme Court Justice E. Harold Hallows, who was also a law professor at Marquette, was one of the three dissenters who would have allowed Roller to enjoin the move to Atlanta.)
The court’s majority opinion was based on two different rationales, and while not all of the four justices that made up the majority embraced both theories, each embraced at least one of the two. The first conclusion was that Organized Baseball’s exemption from the federal antitrust laws most recently upheld in Toolson v. New York Yankees (1953), extended to state antitrust rules as well.
In the alternative, the majority opinion found that even if Organized Baseball was not exempt from state antitrust regulation generally, the portion of the remedy imposed by Judge Roller that ordered the National League either to return the Braves to Milwaukee or else give the city a new team ran afoul of the U.S. Constitution’s Commerce Clause and constituted an unenforceable interference with interstate commerce. The majority did, however, confirm Roller’s finding of facts concerning the monopolization of baseball in Milwaukee.
Three Strikes and You’re Out
The three dissenters disagreed with both of the majority theories and concluded instead that Congress should be presumed to have left the regulation of Organized Baseball to the states until such time that it explicitly exercised its own regulatory authority.
They also maintained that the legitimate interests of the state of Wisconsin in this case took priority over the “restrictive effect on interstate commerce that might result from the enforcement of Wisconsin’s laws.”
Not willing to concede defeat after such a narrow loss, the state of Wisconsin appealed the majority’s decision to the U.S. Supreme Court. However, pending a decision on the state’s petition for a writ of certiorari, Judge Roller’s lower court order was dissolved, and the Braves were free to play out the season in their new southern home.
Although the Braves lost again on July 28, 1966 to fall into ninth place, 14 1/2 games behind the first place Pittsburgh Pirates, the Wisconsin Supreme Court decision seemed to clear away the cloud of bad play that had hung over the team all season.
After falling to 45-55 on the 28th, the “Atlanta” Braves played inspired baseball the rest of the season, and ended up with a record of 85-77, good for fifth place (out of ten teams), and within 10 games of the pennant-winning Los Angeles Dodgers, which overtook the Pirates.
Milwaukeeans had to wait until Dec. 12 to learn that the U.S. Supreme Court had denied the state’s petition for certiorari. However, in an uncharacteristic move, the Court revealed that it was badly divided on whether or not to hear the case. Justices William O. Douglas, Hugo Black, and William Brennan, it turns out, were in favor of hearing the case, but the cert. petition was opposed by Chief Justice Earl Warren and Associate Justices Potter Stewart, John Marshall Harlan II, Byron White, and Tom Clark.
Although he had taken the oath of office as a Supreme Court justice on October 4, recently appointed Justice Abe Fortas, according to the Court’s announcement, “took no part in the review of the petition.” Consequently, the attempt to involve the nation’s highest court died as a result of the failure of a fourth justice to support the petition.
In another unusual development, Wisconsin filed a petition requesting that the Court rehear the petition for certiorari, perhaps in hopes that Fortas might be now willing to support the petition, but this request was also denied. On Jan. 23, 1967, the litigation over the Braves departure finally came to an end when the Court simply announced that the rehearing petition had been denied and that Justice Fortas had not participated in the review.
By late January 1967 it was clear that Milwaukee would be without major league baseball that year. When the National League announced in November 1967, that it would add two additional teams for the 1969 season, Milwaukee applied for one of the franchises, as did groups from Dallas-Ft. Worth, Denver, Buffalo, San Diego, Toronto, and Montreal.
However, when the two new franchises were awarded in May of 1968, the National League ignored Milwaukee and awarded teams to San Diego and Montreal. In the minds of many Milwaukeeans, the 1968 rejection was a form of retribution for the city’s filing suit against the league back in 1965.
As a result, except for 20 Chicago White Sox games played in County Stadium in 1968 and 1969, Milwaukee remained without Major League Baseball until 1970, when Bud Selig and his associates bought the bankrupt Seattle Pilots shortly before opening day and moved the one-year-old team to Milwaukee, where they were renamed the Brewers.
The most interesting question arising out of the Milwaukee Braves litigation is why the Braves were so anxious to leave Milwaukee in the mid-1960s. After relocating to Milwaukee in 1953 (from Boston, where the team had played since 1871), the Braves were for the rest of the decade one of the showpiece franchises of all of baseball. In a decade in which attendance at major league baseball games steadily eroded, the Braves set one National League attendance record after another.
Part of the answer to the question lies in the fact that in the mid-1960s, Atlanta simply held much greater potential than Milwaukee as a source of revenue for a Major League baseball team. Not only was it based in a larger and still rapidly growing metropolitan area, but it was also located in an area (the Southeast) without Major League Baseball.
In contrast, Milwaukee was bounded by the Chicago Cubs and White Sox to the south, the Minnesota Twins to the west, Lake Michigan to the east, and the under-populated wasteland of Northern Wisconsin to the north.
In other words, Atlanta’s superior location provided greater opportunities both for live attendance and for the sale of increasingly important broadcasting rights.
However, after the wave of team relocations between 1953 and 1961, Major League owners had become clearly reluctant to permit additional teams to change cities in search of greater revenues, particularly if it would leave the vacated city without a team. The proposals of Kansas City Athletics owner Charlie Finley to move his struggling team to various cities, including Dallas-Ft. Worth, Atlanta, Louisville, and Oakland had been regularly rebuffed in the years between 1962 and 1966. It was highly unlikely that the other owners would have approved the Braves relocation to Atlanta in 1966, had the only reason to move been a desire to make greater profits.
The sad reality was that between the mid-1950s and the mid-1960s, Milwaukee appeared to have gone from being a hotbed of baseball attendance to a city in which the citizenry seemed no longer willing to go to the ballpark to support their team, even if the team was still a pennant contender.
Although this was something of a misperception, it is easy to understand why many observers in the 1960s adopted that view.
The following are the attendance totals for Milwaukee between 1953 and 1965, with the team’s rank among major league teams in parentheses. The totals for 1953, 1954, and 1957 represented new National League attendance records.
Milwaukee Braves Attendance, 1953-1965
* Beat New York Yankees in the World Series
** Lost to New York Yankees in the World Series
The reasons for the fall off in attendance after 1957 are complicated, especially given the fact that the team had a winning record during each of the 13 seasons that it played in Milwaukee.
Fan exhaustion may have been a factor. This was certainly a much mentioned explanation in the press in the early 1960s. The Braves were located in one of the smallest markets in major league baseball, and Milwaukee’s attendance totals represented a much higher percentage of the metropolitan population than that of any other major league team in the 1950s.
The saga of the Braves in the 1960s raises a number of questions that are beyond the scope of this essay. Why, for example, were Major League Baseball teams in the 1950s and 1960s so slow to exploit the economic advantages of local television broadcasting in their own immediate markets? This is particularly interesting in light of the importance of such rights in the modern era. (New York Yankee dominance is currently built on the team’s local cable contract.)
Although the Braves were extreme in their refusal before 1962 to allow any of their games to be broadcast into Milwaukee, several teams, including the highly successful Los Angeles Dodgers, refused to allow the broadcast of their home games in that same era.
Finally, what would have happened if the U.S. Supreme Court had granted certiorari in Wisconsin v. Milwaukee Braves? One can only guess, but it seems likely that two of the three justices who voted to hear the case – Douglas and Brennan – wanted an opportunity to overrule the Supreme Court’s decision in the 1953 case, Toolson v. New York Yankees (1953), in which the exemption of Organized Baseball from the antitrust laws was upheld. Six years later, in their dissents in Flood v. Kuhn (1972), the two said as much. What Justice Black was thinking in 1966 is less clear, particularly given that he, with a last-minute contribution from Warren, had written the court’s per curiam opinion in Toolson.
Of course, a decision overturning Toolson would have been of no immediate benefit to Milwaukee, since if the federal antitrust laws were to be applied to Organized Baseball, that would almost surely mean that they would preempt any application of the Wisconsin Antitrust Act.
The more interesting question is whether there were five justices on the court in 1967 that would have accepted the broad leeway given to state power by the opinion of the dissenting justices on the Wisconsin Supreme Court. One can never answer such questions with absolute confidence, but if such justices existed, why wouldn’t they have voted to hear the case? Moreover, as constitutional historian Michael Belknap demonstrated in his The Supreme Court Under Earl Warren, the Warren Court was generally hostile to state efforts to regulate the instrumentalities of interstate commerce.
On the other hand, the voting patterns of U.S. Supreme Court justices in cases involving the sports industry have been notoriously difficult to predict. In any event, the Braves left town, but life, and baseball, managed to go on in Milwaukee without them.
Author’s Note: A Childhood with the Milwaukee Braves
Growing up in Pearisburg, Virginia, I became a fan of the Milwaukee Braves in 1961 for three reasons: 1) My youth league team, from which I was cut in 1961 but rejoined the following year, was called the Braves. Although our uniforms were green, I associated the Pearisburg Braves with the Milwaukee Braves from the very beginning; 2) my Great-Uncle Kester, “Ket,” Hoke was from Nitro, West Virginia, the home town of Braves star pitcher Lew Burdette, and he was a member of a group of men who went squirrel hunting with Burdette in the off-season; and (3) my oldest baseball card, which dated all the way back to 1959, was of Braves first baseman Joe Adcock, who I thought looked a little bit like my Dad.
I followed the Braves intently every year in the 1960s, and having read about the glory days of 1957 and 1958, I fully expecting them to return to the top of the National League standings. I was not particularly disappointed with the move to Atlanta in 1966 for a couple of reasons. First of all, Atlanta seemed much closer to my home town than Milwaukee, and the arrival of the Braves in Milwaukee allowed for the transfer of the Braves top minor league to Richmond, Virginia, where my cousins lived and where the top Brave farmhands would play for the next 40 years.
I have only the vaguest recollection of the lawsuit Milwaukee filed against the Braves, but I do remember much better how widely the fan boycott of 1965 was covered by the press, even in the local Virginia newspapers. Consistent with “following” the Braves to Atlanta, I felt no affinity for the Brewers when they arrived in Milwaukee in 1970. Hence, my years as a Brewer fan only began when I joined the Marquette faculty in 1995. However, when I attended the special ceremony at County Stadium in 1997 honoring the 1957 World Champion Braves, I felt like I was paying tribute to a part of my childhood.
Want to Read More About the Braves Relocation?
Prof. Hylton, a former Marquette University Law Professor who is now at the Virginia University School of Law, published an original version of this article on the Marquette Law School Faculty Blog in 2012 (republished with permission).
In the original version, Prof. Hylton, showcasing a deep understanding of baseball and baseball culture during the 1950s and 60s, dives deeper into the Braves’ relocation and the factors that prompted the move from Milwaukee.
For instance, he notes that the Minnesota Twins “may have cost the team fans from the western and central part of the state,” and attendance “was also related to the team’s perceived declining performance beginning in 1960.”
“Accustomed to having a team at the top of the standings, Milwaukeeans seemed much less interested in a team in the middle of the pack, even if the team had a winning record and continued to feature star players like Hank Aaron, Eddie Mathews, Warren Spahn (through 1964), and Joe Torre,” Prof. Hylton wrote.
1 Wisconsin v. The Milwaukee Braves, 144 N.W.2d 1 (1966).