Morrisey leads amicus brief on states' ability to protect citizens

By Chris Dickerson | Jun 6, 2014

CHARLESTON — Attorney General Patrick Morrisey says West Virginia and a bipartisan group of 22 other states have filed an amicus, or friend of the court, brief in the U.S. Supreme Court in support of a case that will determine how states choose to protect citizens’ health and safety.

The brief was filed in support of the North Carolina State Board of Dental Examiners in its appeal of a ruling by the U.S. Court of Appeals for the Fourth Circuit upholding the Federal Trade Commission’s claim that the makeup of the Dental Board violated antitrust laws. The FTC alleged that because North Carolina chose to staff the board with practicing dentists and rely on their expertise, the state should have imposed additional layers of bureaucracy to oversee the board.

The Fourth Circuit’s jurisdiction includes West Virginia.

“This case is incredibly important to licensing boards in West Virginia because the Fourth Circuit’s ruling would force the state to review practically every decision a board makes,” Morrisey said in a statement. “This issue is just another example of federal overreach — this time by the Federal Trade Commission — which I have pledged to fight.

"If West Virginia chooses in state code to establish boards made up of professionals in specific areas to regulate and license their peers, the state should be able to do so without fearing the federal government will come in and tell us we are doing it wrong or violating antitrust laws.”

The states, in their brief, explain that the staffing of regulatory boards with active professionals is a long-standing and widespread practice that allows states to rely on the specialized knowledge of individuals with experience in that particular field. The brief further argues that the FTC’s position and the Fourth Circuit’s ruling are out of step with U.S. Supreme Court case law and infringe on states’ self-governance.

Dr. Richard Gerber, a dentist and incoming president of the West Virginia Board of Dentistry, said the board supports the actions of the West Virginia Attorney General’s Office in this matter.

“This is an extremely important issue and not just for the dental profession. What is at stake is the ability for our Legislature to regulate a vast array of professions and trades,” Gerber said. “West Virginia, like every other state, uses practicing professionals who serve on regulatory boards without compensation for the most part to keep our citizens safe and make sure our laws are current in these very complicated areas. Attorney General Morrisey is right to step up to the plate for states' rights against the overreaching federal agency, the Federal Trade Commission.”

Morrisey was joined in the amicus brief by attorneys general representing Alabama, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Indiana, Kansas, Kentucky, Maryland, Michigan, Nebraska, North Carolina, Ohio, Oregon, South Carolina, Tennessee, Utah, and Virginia.

West Virginia previously played a critical role in persuading the U.S. Supreme Court to hear the case. Last November, West Virginia authored an amicus brief joined by nine other states — Alabama, Colorado, Delaware, Florida, Kansas, Maryland, North Carolina, Ohio, and South Carolina —asking the Supreme Court to weigh in.

Oral argument has not yet been scheduled, but is expected to take place this fall, followed by a decision before next summer.

U.S. Supreme Court case number 13-534

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