Attorneys general for nine states are backing the efforts of two California cities fighting for the right to enforce bans on automated teller machine surcharges.
Led by California Attorney General Bill Lockyer, the states filed a legal brief Tuesday arguing that ordinances prohibiting ATM surcharging in San Francisco and Santa Monica, Calif., are not preempted by federal law, as has been argued by the Office of the Comptroller of the Currency and banks across the country.
The brief's list of co-signers includes attorneys general in Connecticut, Iowa, and New York, where the controversial noncustomer charges have already triggered litigation and legislative battles at the state and local level. Others joining are from West Virginia, Nevada, Oregon, Washington, and Minnesota. The head counsels for the Virgin Islands and the Northern Mariana Islands, a commonwealth in the Pacific,also support the cities' position.
Bank of America Corp., Wells Fargo & Co., and the California Bankers Association sued the two cities after they became the first municipalities in the country to adopt such bans last fall. Showing early support for the banks, U.S. District Court Judge Vaughn Walker ruled that the ordinances were probably "preempted by federal law," and he issued a preliminary injunction barring either city from enforcing its ordinance until the case is decided. San Francisco and Santa Monica have appealed this injunction to the Ninth U.S. Circuit Court of Appeals in San Francisco.
Iowa is also in the midst of a legal battle over surcharging, and on Wednesday Attorney General Tom Miller said he plans to appeal the state's fight with Bank One Corp. to the U.S. Supreme Court. (See related story.) Iowa has the only statewide ban on the fees, a status it won when Connecticut's Supreme Court overturned a surcharging ban imposed by the state banking commissioner.
There is no indication yet that the attorneys general are collaborating to fight ATM fees beyond joining the brief. Even so, surcharge opponents say the move is a significant vote of support for the argument that the Electronic Funds Transfer Act, through an anti-preemption provision, authorizes state and local governments to prohibit surcharging.
"We think that the amicus [brief] is evidence that there is broad-based nationwide support for that position," said Marc Slavin, deputy city attorney in San Francisco. The attorneys general are "standing up for the right of state and local governments to participate in the marketplace on behalf of consumers."
The OCC's position, which has thus far prevailed repeatedly in court, is based on another federal law, the National Banking Act, which the agency says gives national banks the right to charge noninterest fees, including ATM surcharges. Leland Chan, associate counsel for the California Bankers Association, said the new brief raises no new arguments.
"Obviously the court's responsibilities are to interpret the law and, therefore, because we live in a society of rule of law, it doesn't matter who is making the arguments," Mr. Chan said.
Nathan Barankin, communications director for Attorney general Lockyer, said all attorneys general have an interest in preserving an individual state's ability to enforce laws that go beyond what the federal government provides. The process for co-signing legal briefs is "relatively informal," he said, and other co-signers "may very well be states that are simply interested in the state's-rights issue, as opposed to ATMs."
Norman Googel, an assistant attorney general in West Virginia, said his office has "always been interested in the states'-rights aspect of consumer protection law." ATM fees, however, have not been a "burning issue" in the state, Mr. Googel said. One county lacked even a single ATM until recently, he said.
The joint weight of the attorneys general sends "a much stronger message to the court," said Edmund Mierzwinski, consumer program director of the U.S. Public Research Interest Group. "Like consumer groups, they believe that when the Congress and the federal regulators don't do their job that the states must retain their right to do it."