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a private Attorney General?
Topic Started: Mar 29 2010, 08:59 AM (883 Views)
Quasimodo

Quote:
 
Wikipedia:

http://en.wikipedia.org/wiki/Private_attorney_general

A private attorney general is an informal term usually used today in the United States to refer to a private party who brings a lawsuit that is considered to be in the public interest, i.e. benefiting the general public and not just the plaintiff. The person considered "private attorney general" is entitled to recover attorney's fees if he or she prevails. The rationale behind this principle is to provide extra incentive to private citizens to pursue suits that may be of benefit to society at large.



I submit that the lax suits are precisely the sort of suits which raise issues which would benefit the general public and not just the plaintiffs.
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Quasimodo

Quote:
 
Wikipedia:

Most civil rights statutes rely on private attorneys general for their enforcement. In Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968) - one of the earliest cases construing the Civil Rights Act of 1964, the United States Supreme Court ruled that "A public accommodations suit is thus private in form only. When a plaintiff brings an action . . . he cannot recover damages. If he obtains an injunction, he does so not for himself alone but also as a 'private attorney general,' vindicating a policy that Congress considered of the highest priority."


IOW, someone suing for a "right", such as to public accommodation, does not win a monetary award; instead, the plaintiff wins recognition of his right to equal accommodation.

(Someone suing the DPD in order to get a monitor to oversee the DPD's conduct is not seeking a monetary award in that part of his suit.)

However, someone suing in these circumstances is acting like a "private attorney general" in seeking benefit for the general good of society.

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The United States Congress has also passed laws with "private attorney general" provisions that provide for the enforcement of laws prohibiting employment discrimination, police brutality, and water pollution. Under the Clean Water Act, for example, "any citizen" may bring suit against an individual or a company that is a source of water pollution.

Another excellent example of the "private attorney general" provisions is the Racketeer Influenced and Corrupt Organizations (RICO) Act. RICO allows average citizens (private attorneys general) to sue those organizations that commit mail and wire fraud as part of their criminal enterprise. To date, there are over 60 federal statutes that encourage private enforcement by allowing prevailing plaintiffs to collect attorney's fees.


Persons acting as private attorneys general and suing on behalf of the public good (as well as for their own causes) are entitled
to fees:



Quote:
 
Civil Rights Attorney's Fees Award Act

The U.S. Congress codified the private attorney general principle into law with the enactment of Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988. The Senate Report on this statute stated that The Senate Committee on the Judiciary wanted to level the playing field so that private citizens, who might have little or no money, could still serve as "private attorneys general" and afford to bring actions, even against state or local bodies, to enforce the civil rights laws.
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Quasimodo

Quote:
 
Persons acting as private attorneys general and suing on behalf of the public good (as well as for their own causes) are entitled
to fees:


Quote:
 


Wikipedia:

The [Senate Committee on the Judiciary] acknowledged that...if private citizens are to be able to assert their civil rights, and if those who violate the Nation's fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court."

Where a plaintiff wins his or her lawsuit and is considered the "prevailing party," § 1988 acts to shift fees, including expert witness fees [at least in certain types of civil rights actions, under the Civil Rights Act of 1991, even if not in § 1983 actions], and to make those who acted as private attorneys general whole again, thus encouraging the enforcement of the civil rights laws. The Senate reported that it intended fee awards to be "adequate to attract competent counsel" to represent client with civil rights grievances. S. Rep. No. 94-1011, p. 6 (1976). The U.S. Supreme Court has interpreted the act to provide for the payment of a "reasonable attorney's fee" based on the fair market value of the legal services
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Quasimodo

POSTER COMMENT from another forum :
Quote:
 

Virtually all modern civil rights statutes rely heavily on private attorneys general. As the Court explained in Newman v. Piggie Park Enterprises— one of the earliest cases construing the Civil Rights Act of 1964, which forbids various kinds of discrimination in public accommodations, federally funded programs, and employment—Congress recognized that it could not achieve compliance solely through lawsuits initiated by the Attorney General:

“A [public acommodations] suit is thus private in form only. When a plaintiff brings an action . . . he cannot recover damages. If he obtains an injunction, he does so not for himself alone but also as a ‘private attorney general,’ vindicating a policy that Congress considered of the highest priority.”

Thus, Piggie Park recognized the piggybacking function of the Act: Congress harnessed private plaintiffs to pursue a broader purpose of obtaining equal treatment for the public at large. Later, the Court explained that this public function exists even when a civil rights plaintiff asks for compensatory damages rather than injunctive relief.

“Unlike most private tort litigants,” the civil rights plaintiff “seeks to indicate
important civil and constitutional rights that cannot be valued solely
in monetary terms . . . . Regardless of the form of relief he actually obtains, a successful civil rights plaintiff often secures important social benefits.”


Thus, when “his day in court is denied him,” the congressional policy which a civil rights plaintiff “seeks to assert and vindicate goes unvindicated; and the entire Nation, not just the individual citizen, suffers.


Thus, the lax cases' attempt to obtain oversight for the DPD, for example, serves a public benefit, and is not one from which plaintiffs would derive monetary gain.

To deny them their day in court for this would be to cause the entire community to suffer.
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Quasimodo

Related peripherally :

From Wikipedia:

Quote:
 
In common law, a writ of qui tam is a writ whereby a private individual who assists a prosecution can receive all or part of any penalty imposed. Its name is an abbreviation of the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, meaning "[he] who sues in this matter for the king as [well as] for himself."

The writ fell into disuse in England and Wales following the Common Informers Act 1951 but, as of 2010, remains current in the United States under the False Claims Act, 31 U.S.C. § 3729 et seq., which allows for a private individual, or "whistleblower," with knowledge of past or present fraud committed against the federal government to bring suit on its behalf. This provision allows a private person, known as a "relator," to bring a lawsuit on behalf of the United States, where the private person has information that the named defendant has knowingly submitted or caused the submission of false or fraudulent claims to the United States. The relator need not have been personally harmed by the defendant's conduct; instead, the relator is legally recognized as receiving a "partial assignment" of the injury to the government caused by the alleged fraud


One wonders if the DPD, or Duke, or Crystal received any federal monies as a result of her false claim of rape...?
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Quasimodo

Quote:
 
Wikipedia:

Once a relator [whistleblower] brings suit on behalf of the government, the Department of Justice, in conjunction with a U.S. Attorney for the district in which the suit was filed, have the option to intervene [join] in the suit. If the government does intervene, it will notify the company or person being sued that a claim has been filed.

Qui tam actions are filed under seal, which has to be partially lifted by the court to allow this type of disclosure. The seal prohibits the defendant from disclosing even the mere existence of the case to anyone... The government may subsequently, without disclosing the identity of the plaintiff or any of the facts, begin taking discovery from the defendant.

If the government does not decide to participate in a qui tam action, the relator may proceed alone without the Department of Justice, though such cases historically have a much lower success rate. Relators who do prevail in such cases will get a higher relator's share, about 25% to 30%. It is conventionally thought that the government chooses legal matters it would prosecute because the government would only want to get involved in what it believes are winning cases
Edited by Quasimodo, Mar 29 2010, 09:49 AM.
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teddy bear

Cannot this same theory be used by a private atty gen in NC to go after the Duke BOT and Adm for wasting trust assets and paying exhorbitant atty fees to cover up Brodhead et al? The Atty Gen of NC, has a duty to protect public trusts from plundering and abuse, but to date has refused to do so. Therefor it should follow that a private action may be appropriate. What say NC lawyers to this?
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Quasimodo

Evans v. Durham
Quote:
 

PRAYER FOR RELIEF


559. WHEREFORE, to redress the injuries proximately and directly caused by Defendants’ conduct as stated in Paragraphs 1-558 above, and to prevent the substantial risk of irreparable injury to other persons in the City of Durham as a result of the policies, customs, practices, and supervisory misconduct alleged herein, Plaintiffs hereby request the following relief:

a. the issuance of an Order and Permanent Injunction (“Permanent Injunction”) that:

i. appoints an independent monitor (the “Monitor”), to be determined by the Court, who shall oversee certain activities of the Durham Police Department for a period of ten (10) years, and who shall report to the Court on an annual basis regarding Defendants’ compliance or non-compliance with the terms of the Permanent Injunction;

ii. authorizes the Monitor to establish, review, and enforce all policies applicable to the management of the Durham Police Department;

iii. provides the Monitor with the authority to hire, fire, and promote all Durham Police officials, including the Chief of Police;

iv. establishes an independent citizen Police Review Committee, composed of three members selected by the Court, which shall review and hear publicly complaints of misconduct by Durham residents against Durham Police personnel and make recommendations to the Monitor as to discipline or innocence;

v. orders that all eyewitness identification arrays, lineups, and similar procedures conducted by the Durham Police Department, whether formal or informal, and/or of suspects or “witnesses,” conform to the provisions of General Order No. 4077 and be recorded by videotape;

vi. orders that any reports of DNA or other scientific testing requested by the Durham Police Department or District Attorney’s Office include the results of all testing, and all notes, charts, or raw data generated during such testing, and that a copy of each such report be provided to the Monitor to ensure compliance;

vii. orders that the Durham Police Department provide proper training, based on materials and plans approved by the Monitor, to all current and new personnel (the “Remedial Training”) on the following matters:

1. the appropriate chain of command in criminal investigations;

2. the issuance of public statements relating to an open investigation;

3. the conduct of eyewitness identification procedures;

4. the service of outstanding warrants on witnesses in a criminal investigation or proceeding;

5. prohibiting threats, inducements, or intimidation of witnesses;

6. the standards for police reports, investigator’s notes, and other reports of investigations, including the timely and truthful preparation of such documents;

7. the supervision of private companies engaged to provide scientific testing or other services in connection with a police investigation; and

8. the standards for probable cause;

viii. enjoins the Durham Police Department from issuing any press releases, written statements, posters, flyers, or other materials intended for publication relating to a Durham Police investigation, whether directly or indirectly through an entity in which Durham Police personnel participate (such as Crimestoppers), without first obtaining the approval of the Monitor;

ix. enjoins the Durham Police Department from making any oral public statements relating to a Durham Police investigation, whether directly or indirectly through an entity in which Durham Police personnel participate (such as Crimestoppers), without first obtaining the approval of the Monitor as to the substance of the statement;

x. enjoins the Durham Police Department from serving any arrest warrants on a person known to be a witness in a criminal investigation or criminal proceeding without first obtaining the approval of the Monitor;

xi. enjoins the Durham Police Department from delegating any supervision over a Durham Police investigation to the District Attorney’s Office;

xii. orders the Durham Police Department to implement a policy requiring Durham Police personnel to present exculpatory evidence when testifying before a grand jury.

xiii. enjoins the Durham Police Department from targeting students of Duke University for selective enforcement of the criminal laws, and from refusing to protect the legal and constitutional rights of students of Duke University;

xiv. requires the City of Durham to pay all costs relating to the Monitor, Police Review Committee, and Remedial Training for the duration of the Permanent Injunction; and

xv. enjoins DSI and Meehan from providing any reports of DNA or other scientific testing, or providing any expert testimony, in any court proceeding, whether civil or criminal, for a period of ten (10) years;



There is no monetary gain to the plaintiffs at all from any of this; but it is in the public interest.
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