“General Peterson proposes a proactive strategy for Attorneys General to monitor public health risks, engage with political subdivisions, and intervene to preempt unauthorized local claims.”
—South Carolina Attorney General Alan Wilson, from the Foreword
Click HERE to download the Working Paper.
(Washington, DC)—Washington Legal Foundation today released a Working Paper entitled Public Health and Parens Patriae: How Attorneys General Can Preserve States’ Exclusive Litigation Authority. Authored by former Nebraska Attorney General Doug Peterson, this publication examines States’ authority to sue on behalf of their citizens and the tensions that arise when States’ political subdivisions (i.e., municipalities, counties, parishes) assert such authority in civil litigation. The Working Paper features a foreword by South Carolina Attorney General Alan Wilson.
Increasingly, political subdivisions, often represented by private contingent-fee counsel, have participated in high-profile public health or safety litigation against the same business defendants as States are suing. Some municipalities are pressing their claims, purportedly on behalf of State citizens, against the wishes of the State. Such litigation can compromise Attorneys’ General litigation strategies, complicate settlement efforts, and force businesses to needlessly expend resources on legal defense instead of creating jobs and wealth in those States.
As General Peterson explains in the Working Paper, only States, by virtue of their sovereign authority, can bring parens patriae claims seeking redress for their citizens’ harms. States, both individually and on a multi-State basis, have relied on this authority when seeking monetary and equitable relief against producers of, among other products, pain medication, tobacco, lead paint, and fossil fuels. For purpose of civil litigation, political subdivisions are not sovereigns and thus cannot pursue parens patriae claims absent a State’s delegated authority. One legal maneuver that States can utilize against political subdivisions’ separate litigation efforts, General Peterson details, is preemption or preclusion. He offers several examples of States’ claims of preclusion in opioid and natural resource damage litigation.
To prevent abuse of parens patriae, General Peterson also proposes a three-part process that will help Attorneys’ General respond to the next public-health risk in a manner that minimizes potential litigation tensions between States and their political subdivisions.