Who Enforces the Statutes?

by Julie Pelegrin

Statutes often tell people, businesses, and organizations what they must or cannot do. But many statutes do not include an enforcement mechanism. Criminal statutes carry a penalty for a violation, and some civil statutes include a fine structure for violations. But in many cases, the law doesn’t explain what happens if someone does not follow the law. So the question arises, “Can an individual sue someone who violates this law?”

The answer lies in the issue of standing. If Mr. Jefferson wants to sue Mr. Adams – for anything – he must have standing to sue, which means he must have actually suffered an injury to a legally protected interest. In plain English: Mr. Jefferson must show that he suffered an injury that he is entitled to sue Mr. Adams for.

Standing Text Box 1

If Mr. Adams fails to comply with a statute and this results in an injury to Mr. Jefferson, then Mr. Jefferson may have standing to enforce the statute by suing Mr. Adams and forcing him to comply with the statute.

Proving standing is a preliminary requirement for Mr. Jefferson’s lawsuit. If he cannot prove actual injury to an interest that the statute says he can protect, the court will dismiss the case without considering whether Mr. Adams actually did or did not injure Mr. Jefferson. This is necessary to protect the separation of powers. When the court exercises its authority, it often means the court is disapproving or annulling an action taken by the legislative or executive branch. So the court must be careful to take action only when there is a specific person making a claim based on a direct harm or interest that the person is entitled to protect.

For Mr. Jefferson to enforce a statute, he must demonstrate that the statute authorizes him to sue Mr. Adams to protect an interest created in the statute. Some statutes can be enforced by private citizens and some cannot. It depends on whether the statute creates or implies a private right of action — a lawsuit filed by a person — to enforce the statute.

Standing Text Box 2

Some statutes specify that an executive branch agency will enforce the requirements of a statute, and a private person cannot enforce the statute. For example, only the Department of Labor and Employment can enforce the statute that requires a public works project funded by public money to use Colorado labor. And an individual cannot sue a hospital to enforce the statute that requires a hospital to provide information and training for a designated caregiver.

Other statutes specifically create a private right of action for enforcement. For example, a citizen can file a complaint with the Secretary of State alleging a violation of the voter registration statutes, and the Secretary of State and the Attorney General may act on the complaint. But if the Attorney General does not sue on the complaint within 120 days, the citizen may file a civil action.

But in most cases, the statute is silent as to whether an individual can enforce the statute. If the statute that Mr. Adams violated doesn’t say Mr. Jefferson can sue to enforce the statute, how will the court decide whether Mr. Jefferson really has a legally protected interest in the statute?

The court will ask three questions:

  1. Is Mr. Jefferson within the group of persons who are intended to benefit from the statute?
  2. Did the legislature intend to create, even though it’s only implicit, a private right of action?
  3. Is an implied private right of action consistent with the purposes of the legislative scheme?

Let’s suppose that Mr. Adams is a farmer who sells milk, eggs, and butter. The Warnings Against Contaminated Dairy (WACD) Act requires a farmer who sells milk, eggs, or butter to warn the buyer that the products could be contaminated. The WACD act is silent as to who enforces this requirement. Mr. Adams sells milk, eggs, and butter to Mr. Jefferson without mentioning possible contamination. After eating breakfast the next morning, Mr. Jefferson suffers a bad case of food poisoning.

As we stated earlier, Mr. Jefferson wants to sue Mr. Adams. The court will first ask, “Is there injury?” Clearly. Next, “Is there a legally protected interest?” Well…the WACD act requires Mr. Adams to issue a warning, but it doesn’t specifically say that Mr. Jefferson can sue him if he doesn’t. So, the court will consider the three questions.

Arguably, the act is intended to benefit persons who buy milk, eggs, and butter. As a buyer, Mr. Jefferson should be benefited by the act. The legislature could have intended to create a private right of action because the likelihood that a buyer would sic his lawyers on the seller every time the seller failed to give the warning is a strong incentive for the seller to comply with the act. Finally, assuming the act is intended to protect the public from accidentally buying contaminated food, allowing someone to sue to enforce the act is completely consistent with the purpose of the act.

So Mr. Jefferson probably has standing to sue Mr. Adams to enforce the WACD act. That doesn’t mean Mr. Jefferson will win the suit; he may have gotten sick from the oysters he ate at the tavern the night before. But he has standing to bring the suit.

What if a person wants to bring a suit to require the state or a local government or a public official to follow a statute? Or to comply with the constitution?

We’ll answer those questions in next week’s post.