The Helicopter State: Misuse of Parens Patriae Unconstitutionally Precludes Individual and Class Claims
December 20, 2017 | 92 Wash. L. Rev. 1955
Gabrielle J. Hanna
Abstract: The doctrine of parens patriae allows state attorneys general to represent state citizens in aggregate litigation suits that are, in many ways, similar to class actions and mass-tort actions. Its origins, however, reflect a more modest scope. Parens patriae began as a doctrine allowing the British king to protect those without the ability to protect themselves, including wards and mentally disabled individuals. The rapid expansion of parens patriae standing in the United States may be partly to blame for the relative absence of limiting requirements or even well-developed case law governing parens patriae suits. On the one hand, class actions are subject to myriad stringent procedural rules that help protect class members, members who “opt out,” and even defendants who find themselves liable for often sky-high damages. On the other hand, parens patriae suits are largely unregulated and free from requirements that plaintiffs seeking class certification must meet. Part of this distinction seems to stem from an assumption that attorneys general are adequate representatives of their citizens’ interests. The relative ease of bringing a parens patriae suit, compared to the increasingly onerous requirements of private class actions, has led state attorneys general to bring claims under parens patriae standing more frequently in the twenty-first century. But the lack of procedural protections in parens patriae suits means that state citizens affected by a parens patriae suit may potentially be precluded via res judicata from bringing valid, individual or class claims that have already been brought by the state on their behalf. Furthermore, it is not clear that parens patriae suits are an adequate, let alone superior, method of litigating citizens’ claims. Settlements reached between states and defendants pose additional adequacy problems due to being unregulated and determined by a political representative, who may have interests distinct and separate from the interests of individual citizens.
First, this Comment traces the history of parens patriae as a doctrinal theory and as it has developed in American statutory and common law. Next, it considers the preclusive effect of parens patriae suits on private individual claims and damages class actions. In particular, final judgments issued in parens patriae suits have the potential to bar individuals and entire classes from bringing valid claims under res judicata. Because parens patriae actions are not subject to the same procedural requirements as private class actions, the due process rights of certain individuals are, at times, put in jeopardy. In order to protect individual due process rights, this Comment suggests four possible solutions: courts should (1) heighten the procedural requirements for state aggregate suits, (2) hold that parens patriae suits cannot bind private claimants, (3) join related public and private suits, at least for liability litigation to ensure private claims are not dismissed unfairly, or (4) allow private citizens with claims, either individually or through class representation, to stay a parens patriae action to avoid preclusion.
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