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W.Va., nine other AGs ask U.S. SC to review case over FTC 'overreach'

By Jessica M. Karmasek | Dec 2, 2013

CHARLESTON, W.Va. (Legal Newsline) -- West Virginia Attorney General Patrick Morrisey and nine other attorneys general want the U.S. Supreme Court to take up a case they say will determine how states choose to protect citizens' health and safety.

Morrisey and the attorneys general of Alabama, Colorado, Delaware, Florida, Kansas, Maryland, North Carolina, Ohio and South Carolina filed an amicus brief with the nation's high court Wednesday.

The brief asking for a writ of certiorari was filed in support of the North Carolina State Board of Dental Examiners in its lawsuit against the Federal Trade Commission.

The board is seeking to reverse a decision by the U.S. Court of Appeals for the Fourth Circuit that said its regulatory activities violated antitrust laws by dictating who may provide certain dental services in the state.

The Fourth Circuit also ruled the state of North Carolina should have actively regulated and reviewed board decisions once made.

The court's decision was based in part on the fact that the board was predominantly made up of practicing dentists despite the fact North Carolina's laws dictated how the board should be composed.

"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 last week. "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 attorneys general, in their brief, support the North Carolina board's writ on two grounds.

First, they argue that the Fourth Circuit's ruling conflicts with decisions issued by other appellate courts and creates an uneven playing field between states.

Second, the states contend the ruling will force them to create more levels of bureaucracy, which will add costs and unnecessary delays.

Dr. Richard "Duff" Smith, executive secretary of the West Virginia Board of Dentistry, said he supports the brief.

"It's great that our attorney general is standing up for the board," Smith said in a statement Wednesday. "Our board members are unified that their primary duty is to protect the public. It is important that professionals who understand the practice serve on boards in order that the duties can be handled in an expedient manner.

"The North Carolina case has far-reaching implications that could disrupt all boards in West Virginia and throughout the country for that matter."

Morrisey noted that several regulatory boards within West Virginia, including the Dental Board, Board of Psychologists, the Massage Therapy Licensure Board, the Board of Osteopathic Medicine and the Board of Optometry, support his office's efforts to challenge the Fourth Circuit's decision.

"It is a common practice for states to rely on regulatory boards to provide important state regulatory functions, including protecting the public from unqualified or unsavory individuals," the attorney general said. "It is natural that these boards, in fulfilling their duty to protect public health and safety, may have to take actions that prevent certain individuals from engaging in regulated practices.

"Since these boards are acting on behalf of a state, they should be afforded antitrust protections commensurate with their status as agents of the state."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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