PAGA(Private Attorneys General Act) Blog

PAGA

One of the most infuriating aspects of Constitutional Law is the need to remain philosophically consistent, even when… especially when… outcomes on specific cases seem to produce unjust results.

 

 

A number of years ago a plaintiff sued the BATFE.  It had classified him as a prohibited person (erroneously) and he wanted it to correct its records to reflect that he could, in fact, purchase a firearm.

 

 

BATFE had set up an appellate division within its offices.  This appellate division is Step One in a plaintiff exhausting all administrative remedies prior to bringing a lawsuit.

 

 

Okay… so far, so good.

 

 

The plaintiff soon learned that Senator Schumer had specifically defunded the BATFE appellate division.  The doors were closed.  There is no one there to answer the phone.

 

 

Okay.  So when he discovered there was no methodology to exhaust his administrative remedies, he did the next logical thing:  He considered the absence of an administrative tribunal tantamount to a pocket denial and filed a motion to compel in federal court ordering the BATFE to amend its records.

 

 

Well… no one in the government likes being told what to do.

 

 

Rather than simply doing the just and right thing, they decided to fight him.  They claimed he had, in fact, NOT exhausted his administrative remedies.  The fact that he operationally couldn’t was of no concern to them.

 

 

The case went to the Supremes, and Justice Thomas… yes… THAT Justice Thomas… agreed with the BATFE.

 

 

He stated the government cannot be compelled to act.  (Basically… one branch of the government… the Judiciary… cannot mandate that the Executive Branch actually do its job.)

 

 

He opined the proper remedy was the ballot box.

 

 

The decision is philosophically spot on.  But… it leaves a disgusting taste in one’s mouth. As it should.

 

 

If the Executive Branch wants to do something (assuming it has legislative empowerment to do it), it can… or it can ignore the Legislative Branch entirely.

 

 

Yes… you heard that right.

 

 

The Executive Branch can simply ignore the laws that have been promulgated by the Legislative Branch.  This is the ultimate “check and balance”.  Our Framers specifically envisioned this as a check on tyranny.

 

 

But what happens when the Legislative Branch wants to get around this idea?

 

 

Enter the concept of PAGA (Private Attorneys General Act).

 

 

Another way of phrasing it would be “a letter of marque and reprisal” issued by the Legislature to privateers with licenses to practice law.

 

 

I must admit there is something romantic, and potentially emotionally satisfying, about a PAGA suit.

 

 

You have the evil business that has been victimizing its employees and its customers.  The Executive Branch is too lazy (or too corrupt) to do anything about it.

 

 

In comes Errol Flynn in a double-breasted suit waving his pen as a sword filing a PAGA suit on behalf of his clients and bringing the nefarious leviathan to its knees.

 

 

In reality, the vast majority of PAGA suits and profiteering enterprises are designed to enrich plaintiff’s counsel at the expense of small to medium-size businesses that have inadvertently violated some minuscule section of the Labor Code or are outside of ADA compliance.

 

 

These suits often result in the bankruptcy of the defendant.

 

 

The plaintiffs might win a few hundred bucks… but the lawyers make a ton.

 

 

Here is the problem with PAGA:  The voters are left out of the equation.

 

 

Remember how Justice Thomas admonished that the proper remedy to ineffective government is the ballot box?

 

 

With the Executive Branch essentially frozen out of the equation, it is no longer in the position to exercise its balance of powers requirement.  It gets to sit back and eat popcorn knowing the PAGA outcomes will result in tax implications for both the plaintiff and the defendant.  Either way it wins.

 

 

California has become a full industry of PAGA-related litigation.  This is one of the major reasons why businesses have begun to flee the Golden State.  Sadly, the concept of PAGA is growing and has the potential to become a national contagion.

 

 

I dream a dream of a government that has grown so small it is actually able to fit within the confines of the Constitution.

 

 

Yet, increasingly… I see myself on a lonely island yelling at the incoming tide.

 

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Comments (3)

  • Gary Ford Reply

    American spirit is still alive… for now.
    Appreciate your efforts!

    04/03/2024 at 08:42
  • Norm Ellis Reply

    Surf Up!!!

    04/05/2024 at 15:03
  • Hugh Everhart Reply

    Voting at the ballot box will likely be insufficient for the situation. However, people can and have been voting with their feet. They may not escape the feds but they can go to states that offer more freedom and are more friendly to business. When the federal government can no longer support its bloated corpse with taxes and the printing press, it will by necessity, shrink and it will no longer be able to enforce many of the laws on the books (even the ones that it wants to enforce). I see a day when the ATF and other agencies simply shrink away for lack of funding. That will be a good day for America.

    04/10/2024 at 09:25

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