A reply brief has been filed in the California Business and Industrial Alliance (CABIA) lawsuit against the state, challenging the constitutionality of the Private Attorneys General Act (PAGA).
The key argument in CABIA’s brief is that the appropriate test for a statute that allows executive branch enforcement authority to be delegated to private citizens is that the executive branch must retain sufficient control over the litigation, CABIA founder and president Tom Manzo told the Northern California Record.
“Without sufficient control, private citizens and their lawyers wield state power without any check, which often leads to abuse,” Manzo said.
The brief was filed last month in the California Fourth Appellate District.
“Unlike true qui tam statutes, PAGA’s atypical features inevitably result in a permanent and full assignment of the executive branch’s law enforcement powers to private individuals,” the brief states. “PAGA’s unprecedented delegation of executive powers to non-executive branch actors violates the separation of powers doctrine.”
“This is a serious challenge to the PAGA statute,” Manzo said. “I do think there is a realization finally that something has to change when it comes to PAGA; it’s becoming more apparent and more obvious, and I think it’s just because the level of awareness has been raised.”
The case could be set for oral arguments in the spring, Manzo said.
The state reviews less than 1 percent of the of the PAGA notices that go out, according to the brief.
“Consequently, in the ‘generality’ or ‘vast majority’ of PAGA actions, unchecked private individuals are deputized to wield the State’s law enforcement powers and prosecute labor law violations that neither the LWDA nor any other executive branch actor has any opportunity to review, intervene in, or act upon in any meaningful way,” it says.
Amicus briefs from other California business groups also are expected to be filed in the case, Manzo said.