Professor Howard Wasserman, Floridian International University, had posted this Monday post at Prawfsblawg as a continuation of the SB8 debates. He kindly allowed me to post it.
People insisting on SB8’s uniqueness and warning about every new law “modeled after SB8” ignore the fact that we have lived in an identical world for quite some time. Two Ninth Circuit cases show the prevalence of such laws and the broader implications of the surrounding procedural arguments.
California law obliges businesses to display signs in cases where their products contain carcinogens. Any person who is in the public’s interest may sue a company that does not post signs. The penalties are $ 2500 for each violation per day and 25% attorney’s fees. Private enforcement can be initiated by the AG or other public officials, just like California’s previous false advertising laws.
In B&G Foods, the target of a state enforcement action brought a § 1983 action against the “any person” state plaintiff (a serial enforcer). After assuming that the “anyone” was acting as a state actor and denying the suit, the court ruled the case barred. Noerr-Pennington, under which a person cannot be liable under federal law (including a § 1983 constitutional action) for the petition activity of seeking relief in state court. In California Chamber of Commerce, the court declared the state law constitutionally invalid as violating business’ First Amendment rights against compelled expression; it enjoined the AG and an intervenor environmental organization from future enforcement.
Federal plaintiff B&GDid Rocky do what? [Prof. Rocky Rhodes (South Texas) -EV]And I suggested [in this article, I think -EV]—sued the “any person” state plaintiff as a state actor to enjoin that enforcement action and to establish precedent about the constitutional validity of state law. The court denied the claim. However, it was wrong.
The state plaintiffs were not able to act under color, as their enforcement power isn’t exclusive. They also don’t keep all the public-serving penalties. These plaintiffs would be the same as every other private A/G or qui tam plaintiff if they act under color. It shouldn’t be this broad.
This expansion is also consistent with Ninth Circuit precedent. Noerr-Pennington by giving state and local governments petition rights. The law protects petitioners who are acting on behalf or the government. This is in contrast to the original purpose of this protection. NP. It is possible that we will need to look into this more.
Chamber did not address whether the advocacy group acts under color, which should have been necessary to enjoining them from future enforcement. However, the court showed self-restraint by not stopping non-party private individuals from filing new enforcement actions.