Washington and Massachusetts co-lead brief urging SCOTUS to protect states’ use of investigative subpoenas

Washington and Massachusetts are leading a multistate coalition urging the U.S. Supreme Court to confirm states’ longstanding authority to request information from individuals and corporations as part of state investigations into potential violations of state laws, including, for example, consumer protection laws.

The states ask the Supreme Court to recognize the importance of state investigatory subpoenas and to allow state courts to handle any disputes arising from those subpoenas in most instances, without the unnecessary involvement of the federal courts. The coalition of 19 states and the District of Columbia filed an amicus brief supporting New Jersey Attorney General Matthew Platkin in First Choice Women’s Resource Centers, Inc., v. Platkin, which is scheduled for oral argument before the Supreme Court on Dec. 2.

The case concerns whether First Choice Women’s Resource Centers, a faith-based pregnancy center, could sue a state in federal court to block a state investigative subpoena looking into whether the organization had violated state consumer protection and charitable oversight laws. First Choice argued that its First Amendment rights of free speech and association were harmed solely by receiving the investigative subpoena from New Jersey’s Attorney General, and that it was entitled to sue New Jersey in federal court to block the investigation even before a state court ruled on its objections to the subpoena or enforced the subpoena. Both the federal district court and federal court of appeals sided with New Jersey, dismissing the federal lawsuit until the state court ruled on the objections to the subpoena or ordered enforcement.

Washington and other states argue the case threatens to undermine the authority of state attorneys general to investigate a range of possible violations of state laws on everything from antitrust to environmental and consumer protection issues. Attorneys general in Republican- and Democratic-leaning states alike frequently use investigative subpoenas to perform their jobs as chief law enforcement officers for their states. State courts have long been the typical venue for a recipient to challenge an investigative subpoena and are well-equipped to handle constitutional questions such as First Amendment issues.

“This case threatens to make it harder for our office to protect Washington consumers from harm,” Attorney General Nick Brown said. “That’s why we’re urging the court to reject this attempted end-run around the authority of attorneys general to enforce the law.”

Washington often uses investigative subpoenas to explore potential violations of state law, typically keeping them confidential unless and until the Attorney General discovers a legal violation and initiates a lawsuit. The Attorney General’s Office uses investigative subpoenas to investigate various consumer protection violations, including those related to children’s safety online, unfair or deceptive junk fees, and pyramid schemes, to name just a few. Without this subpoena power, state AGs would be forced to file lawsuits with limited information, which does not benefit either party and may cause unnecessary stress for a respondent.

Brown and Massachusetts Attorney General Andrea Joy Campbell are leading the amicus brief, which was also signed by the attorneys general of Arizona, California, Colorado, Connecticut, Delaware, the District of Columbia, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Mexico, New York, North Carolina, Oregon, Rhode Island, and Vermont.

A copy of the amicus brief is available here.

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