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Thursday, October 17, 2024

Limits of private enforcement in a mixed scheme

In our taxonomy of private enforcement, Rocky and I focused on when the scheme leaves open private-enforcement options. But we neglected to consider a distinct feature--when the public piece limits the private piece. That is, a statutory scheme limits the situations in which public enforcement gives way to private.

And thus ends the saga of Masterpiece Cakeshop and Autumn Scardina, the trans activist who ordered and was refused a cake to celebrate the anniversary of her transition. I wrote previously about the case, but in brief: The Civil Rights Commission found probable cause of a violation of state antidiscrimination law and instituted proceedings; Phillips filed a federal action to enjoin the Commission from proceeding; the federal court refused to abstain under Younger (citing the bad-faith and harassment exceptions); the Commission voluntarily dismissed. Scardina brought a civil action and won in the trial court and court of appeals, both courts rejecting Masterpiece's

A divided Colorado Supreme Court reversed on procedural grounds. The private right of action does not stand alone. A complainant must pursue and exhaust the administrative process. Subject to several limited off-ramps to the process involving the commission's failure to act, the complainant must follow that process to the end, including by appeal into the state judiciary. The commission's resolution of Scardina's complaint--unilateral dismissal following a finding of probable cause--does not satisfy any of those off-ramps. Scardina instead was required to appeal the commission dismissal to the Colorado Court of Appeals.

So consider this a fifth category of private-enforcement scheme--mixed, with a preference for (at least initial) public administrative adjudication. That somewhat limits the scope of private enforcement.

We avoid that problem in our new paper by eliminating public enforcement, including in administrative agencies.

Posted by Howard Wasserman on October 17, 2024 at 02:57 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink

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