Private Attorneys General: Incentivizing the Protection of Liberty
State and federal constitutions were designed by their authors to protect our rights against violation by the government. The enforcement of these protections often requires litigation and court orders—and thus a watchful guardian to protect the public’s rights. While many believe that the Attorney General serves this function, this is not so. In a constitutional dispute between an individual and the government, the Attorney General’s primary duty is to defend the government—even when wrong. As such, the public interest requires watchful guardians who are independent of the government to challenge it in court when it is in violation of the public’s constitutional rights. When victorious, it seems inappropriate to lay the legal costs at the feet of a few. The private attorney general doctrine resolves this inequity by allowing the court to award attorney’s fees to the prevailing party, incentivizing watchful guardians to jealously protect our God-given, constitutionally protected rights.
Utahns should be concerned when agents of government are entrusted with the responsibility for executing the laws faithfully and fail to do so — whether inadvertently or intentionally. The potential for this occurrence is enough to ensure systems are in place to discourage it. Litigation between two private entities comes with natural incentives toward resolution, as both parties feel the direct pressure of legal fees. In public litigation, when a private party is pitted against a government entity, the agents for the government do not feel this pressure in the absence of a law, or court ruling, making clear that the violation of an important right may result in a financial consequence.