State High Court Denies Review of Case
Arguing Toxic Warning Law Unconstitutional

Copyright 1998 Bureau National Affairs, Inc.
Reprinted with permission of the
Daily Environment Report (January 28, 1998)

The California Supreme Court denied review Jan. 14 of a constitutional challenge to the citizen suit provisions of California's Proposition 65, which requires sellers of toxic substances known to cause cancer or reproductive toxicity to warn of risks associated with their use (National Paint & Coatings Association v. California, Calif SupCt, No. 066177, review denied 1/14/98).

Two paint manufacturing associations asked the state high court to overturn a decision by the California Court of Appeals, Second Appellate Division, arguing that the state's Safe Drinking Water and Toxic Substances Enforcement Act violates the separation of powers and due process principles of the state constitution.

The appeals court ruled that the act's grant of standing to ''any person in the public interest,'' regardless of whether the individual has any particular interest in the case, does not violate the state constitution. The plaintiff trade associations failed to present evidence that citizen enforcement impaired or delegated executive branch enforcement in violation of the California Constitution, the appeals court found
Oct. 22, 1997.

Seeking review, the trade associations maintained ''the standardless delegation of power'' to private citizens undermined the executive branch's constitutional mandate to enforce laws. The manufacturing organizations also contended the appeals court's due process ruling conflicted with California and U.S. Supreme Court precedent.

Lower Courts Upheld Provisions

Proposition 65 was designed to protect the public from exposure to toxic substances known to cause cancer or reproductive toxicity. Sellers of materials that may contain such substances must give clear and reasonable warnings of the risks associated with them. Violations may be punished by a civil penalty of up to $2,500 a day.

Any person may sue ''in the public interest'' after giving the state attorney general and local prosecutor 60 days' notice. Proposition 65 does not require an individual bringing suit in the public interest to plead a private injury.

National Paint & Coatings Association Inc. and the California Paint Council claimed that the citizen enforcement provisions violated principles of separation of powers and due process by interfering with executive branch enforcement. The groups filed their suit in May 1996 in state superior court in Los Angeles (99 DEN A-4, 5/22/96).

The attorney general demurred, contending that Proposition 65 presented no constitutional problems. The trial court dismissed the action.

The court of appeals decided Proposition 65's lack of a standing requirement is constitutional. Unlike the U.S. Constitution, the California Constitution does not require concrete injury and redressibility for justiciability, the court explained.

On the separation of powers issues, the appeals court found no evidence that citizen enforcement actually interfered with executive enforcement. The attorney general, the appeals court noted, did not believe that private enforcement impaired his ability to supervise enforcement of the act.

Constitutional Violations Alleged

The trade associations argued that Proposition 65's grant of standing to ''unaggrieved private parties impermissibly undermines the Executive's function'' of law enforcement and delegates the enforcement--without concomitant regulatory standards--to private parties with a pecuniary interest in the outcome of the enforcement action, the plaintiffs argued. Such standardless delegation violates the separation of powers and will result in the nonuniform enforcement of Proposition 65, the trade associations said.

The associations said the threat to uniform enforcement of the law of is especially great here, because (1) private enforcement actions occur where the Attorney General declines to take over the enforcement action (which is to say, in instances where the complaint is not likely to be meritorious); and (2) the private enforcer is given an enormous financial incentive to bring an enforcement action regardless of its merits (and to seek outcomes that maximize the private enforcer's pecuniary gain at the cost of the public interest). Structurally, the law appears to invite nonuniform enforcement--a danger that is exacerbated by the absence of standards to govern private enforcement actions.

Due Process Violations

The court of appeals relied solely on the decision by the U.S. Court of Appeals for the Ninth Circuit in Kelly v. Boeing Co., 9 F.3d 743, (1993) in summarily dismissing the plaintiffs' due process challenges, the plaintiffs stated. That ruling conflicts with U.S. and California Supreme Court precedent saying delegation of law enforcement to private individuals implicates constitutional concerns, the plaintiffs said.

In Marshall v. Jerrico, 446 U.S. 238 (U.S. SupCt 1980), for example, the Supreme Court warned that a ''scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring impermissible factors into the prosecutorial discretion and in some context raise serious constitutional questions.''

Jeffrey B. Margulies and Jules Zeman of Haight, Brown & Bonesteel in Santa Monica, Calif., and Thomas J. Graves of Washington, D.C., represented the trade associations.

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