United States: State AGs And The High Court: 2014 Term Preview

In recent years, State Attorneys General (AGs) have frequently played the role of both active litigant and friend-of-the-courtin cases before the U.S. Supreme Court, and the upcoming 2014 term is proving to be no different. The following is a preview of the major cases with significant AG amicus participation for which certiorari has been granted thus far. In addition to the cases highlighted below, AGs are active this term in representing their states before the court on a diverse array of issues relating to state taxation,1 habeas petitioner appeal rights,2 and gerrymandering.3 AGs are also likely to submit amicus briefs in two major First Amendment cases before the Court this term, Elonis v. United States (whether proof of the defendant's subjective intent to threaten is necessary for a conviction under 18 U.S.C. § 875(c)),4 and Reed. v. Town of Gilbert, Arizona (whether the town's mere assertion of a lack of discriminatory motive renders its facially content-based sign code content-neutral and justifies the code's differential treatment of petitioners' religious signs).5

North Carolina Board of Dental Examiners v. Federal Trade Commission6

In this antitrust case involving the application of the state action doctrine as an exemption to federal antitrust liability, the North Carolina Board of Dental Examiners (Board) had issued cease-and-desist letters to non-dentist providers of teeth whitening services, claiming that the provision of teeth whitening services by non-dentists was unlawful. The Federal Trade Commission (FTC) filed an administrative complaint charging the Board with violating Section 5 of the FTC Act by anticompetitively excluding non-dentist providers from the market. The FTC rejected the Board's contention that the state action doctrine applied, reasoning that the Board's actions were not actively supervised by state officials and were made by a Board comprised mostly of private, actively-practicing dentists (who were selected by other private actors), who the FTC did not deem to be disinterested.

Twenty-three states filed an amicus brief in support of the Board, arguing that the state action antitrust exemption was adopted by the court because the federal antitrust laws were never intended to interfere with states' actions as sovereign regulators. The states' brief cautioned that the potential for antitrust liability on professional-staffed state agencies would undermine the states' sovereign authority to staff their own agencies as they see fit. The states also argued that the imposition of an active supervision requirement on professional-staffed state agencies would intrude on state supervision of such agencies.

In response, the FTC argued in its brief that the state action doctrine does not shield unsupervised anticompetitive conduct from antitrust scrutiny. The FTC stated that the active supervision requirement of the state action doctrine only protects conduct approved by disinterested public officials, and state boards controlled by market participants are subject to the active supervision requirement because they have strong incentives to restrict competition for the benefit of their members. If the FTC ultimately prevails, look for state legislative proposals designed to modify how members of state boards are selected and supervised to ensure protection under a narrower future state action doctrine.

Jesinoski v. Countrywide Home Loans7

This case presents the issue as to whether consumers' right to rescind a transaction under the Truth In Lending Act (TILA) – a right that expires three years after consummation of the transaction – requires the consumer to both notify creditors of the intention to rescind and file an action. Twenty-six states and the District of Columbia said no, arguing in their amicus brief in support of petitioners that TILA does not require consumers to file an action to timely exercise rescission rights. Based on their stated interest in ensuring effective enforcement of TILA, the states expressed concern that imposing a lawsuit requirement would dilute the deterrent function of rescission and may bar many consumers from exercising their rescission rights, as many consumers often do not discover TILA violations until several years after a transaction. A ruling in favor of the respondent could dramatically limit the number of actions brought under TILA.

Heien v. North Carolina8

This case presents the question of whether a police officer's mistake of law can nevertheless provide the individualized suspicion necessary under the Fourth Amendment to justify a traffic stop. The petitioner was pulled over by a police officer because one of the rear brake lights on the vehicle was not working. After asking some questions and searching the vehicle, the police officer discovered cocaine. North Carolina law requires all vehicles to have "a stop lamp," and no court had specified that this meant two working brake lights. Petitioner argued that "reasonable suspicion" must be measured against the correct interpretation of the law, and to allow otherwise would violate various canons of statutory construction, including the maxim that ignorance of the law is no excuse and the rule of lenity.

Nineteen states and the District of Columbia filed an amicus brief in support of North Carolina, arguing that a reasonable mistake of law should not invalidate an otherwise lawful traffic stop. Expressing their concerns about the legal uncertainties that may exist in jurisdictions where an officer's mistake of law can render a stop illegal, the states asked the court to clarify that only reasonable suspicion is required to justify a traffic stop.

Holt v. Hobbs9

This case involves the question of whether the Arkansas Department of Corrections grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000 to the extent that it prohibits the petitioner from growing a one-half-inch beard in accordance with his religious beliefs. Eighteen states filed an amicus brief in support of the Arkansas Department of Corrections, arguing that the Court should defer to Arkansas prison officials as to how to meet their institutional objectives. The states also argued that prison grooming policies serve compelling state interests in security, order, hygiene, and discipline. States will be closely following this case to determine whether their correctional facility grooming policies are at risk.


As the term progresses, the Court is likely to grant certiorari in more cases presenting state issues, and states are likely to continue to submit amicus briefs to advocate for their state's interests.


[1] See Comptroller of the Treasury of Maryland v. Wynne, No. 13-485 (Argument Date: Nov. 12, 2014); Alabama Dep't of Revenue v. CSX Transportation, Inc., No. 13-553 (Argument Date: Dec. 9, 2014); Direct Marketing Ass'n v. Brohl, No. 13-1032 (Argument Date: Dec. 8, 2014).

[2] See Jennings v. Stephens, No. 13-7211. Argument Date: Oct. 15, 2014.

[3] Alabama Legislative Black Caucus v. Alabama, No. 13-895. Argument Date: Nov. 12, 2014.

[4] Elonis v. U.S., No. 13-983. Argument Date: Dec. 1, 2014.

[5] Reed v. Town of Gilbert, Arizona, No. 13-502. Argument Date: TBD.

[6] North Carolina Board of Dental Examiners v. FTC, No. 13-534. Argument Date: Oct. 14, 2014.

[7] Jesinoski v. Countrywide Home Loans, No. 13-684. Argument Date: TBD.

[8] Heien v. North Carolina, No. 13-604. Argument Date: Oct. 6, 2014.

[9] Holt v. Hobbs, No. 13-6827. Argument Date: Oct. 7, 2014.

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