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N.C. State Bd. of Dental Exam'rs v. FTC

Supreme Court of the United States

October 14, 2014, Argued; February 25, 2015, Decided

No. 13-534

Opinion

 [*499]   [***45]  Justice Kennedy delivered the opinion of the Court.

This case arises from an antitrust challenge to the actions of a state regulatory board. A majority of the board’s members are engaged in the active practice of the profession it regulates. The question is whether the board’s actions are protected from Sherman Act regulation under the doctrine of state-action antitrust immunity, as defined and applied in [****10]  this Court’s decisions beginning with Parker v. Brown, 317 U. S. 341, 63 S. Ct. 307, 87 L. Ed. 315 (1943).

In its Dental Practice Act (Act), North Carolina has declared the practice of dentistry to be a matter of public concern requiring regulation. N. C. Gen. Stat. Ann. §90-22(a) (2013). Under the Act, the North Carolina State Board of Dental Examiners (Board) is “the agency of the State for the regulation of the practice of dentistry.” §90-22(b).

The Board’s principal duty is to create, administer, and enforce a licensing system for dentists. See §§90-29 to 90-41. To perform that function it has broad authority over licensees. See §90-41. The Board’s authority with respect to unlicensed persons, however, is more restricted: Like “any resident citizen,” the Board may file suit to “perpetually enjoin any person from . . . unlawfully practicing dentistry.” §90-40.1.

 [**1108]  The Act provides that six of the Board’s eight members must be licensed dentists engaged in the active practice of dentistry. §90-22. They are elected by other licensed dentists in North Carolina, who cast their ballots in elections conducted by the Board. Ibid. The seventh member must  [*500]  be a licensed and practicing dental hygienist, and he or she is elected by other licensed hygienists. Ibid. The final member is referred to by the Act as a “consumer” and is appointed [****11]  by the Governor. Ibid. All members serve 3-year terms, and no person may serve more than two consecutive terms. Ibid. The Act does not create any mechanism for the removal of an elected member of the Board by a public official. See ibid.

Board members swear an oath of office, §138A-22(a), and the Board must comply with the State’s Administrative Procedure Act, §150B-1 et seq., Public Records Act, §132-1 et seq., and open-meetings law, §143-318.9 et seq. The Board may promulgate rules and regulations governing the practice of dentistry within the State, provided those mandates are not inconsistent with the Act and are approved by the North Carolina Rules Review Commission, whose members are appointed by the state legislature. See §§90-48, 143B-30.1, 150B-21.9(a).

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574 U.S. 494 *; 135 S. Ct. 1101 **; 191 L. Ed. 2d 35 ***; 2015 U.S. LEXIS 1502 ****; 83 U.S.L.W. 4110; 2015-1 Trade Cas. (CCH) P79,072; 25 Fla. L. Weekly Fed. S 85

NORTH CAROLINA STATE BOARD OF DENTAL EXAMINERS, Petitioner v. FEDERAL TRADE COMMISSION

Notice: The Lexis pagination of this document is subject to change pending release of the final published version.

Prior History:  [****1] ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

N.C. State Bd. of Dental Examiners v. FTC, 717 F.3d 359, 2013 U.S. App. LEXIS 11006 (4th Cir., 2013)

Disposition: 717 F. 3d 359, affirmed.

CORE TERMS

immunity, supervision, regulation, Sherman Act, active market, state agency, licensing, whitening, dentists, teeth, municipality, sovereign, entity, anti trust law, anticompetitive, state-action, nondentists, Dental, practice of dentistry, antitrust, anticompetitive conduct, nonsovereign, dentistry, agencies, state policy, state law, articulated, capture, Ethics, boards

Antitrust & Trade Law, Exemptions & Immunities, Parker State Action Doctrine, Scope, Constitutional Law, State Sovereign Immunity, General Overview, Supremacy Clause, Local Governments & Private Parties, Sherman Act, Scope