BROWN, J. I dissent.
Since 1972, litigation under the so-called unfair competition law (Bus. & Prof. Code, §§ 17200-17209; (hereafter UCL or the Law)) has been a growth industry. According to the author of a recent study by the state’s Law Revision Commission, the California Law is unique. “No statute of which we are aware in this state or nation confers the kind of unbridled standing to so many without definition, standards, notice requirements, or independent review .... [I]t is unclear who can sue for whom, what they have to do, whether it is final, and as to whom.” (Fellmeth, Unfair Competition Act Enforcement by Agencies, Prosecutors, and Private Litigants: Who’s on First? (Winter 1995) 15 Cal. Regulatory L. Rptr., pp. 1, 11 (hereafter Fellmeth).) Largely as a result of judicial interpretations, the commission’s tentative recommendation concluded, the Law fails to provide “any mechanism to distinguish between” plaintiffs with genuine business disputes, “true” private attorneys general, and those who use the Law as a means of leveraging settlements at the expense of the public interest. (Tent. Recommendation, Unfair Competition Litigation (May 1996) Cal. Law Revision Com. Rep., [585]Summary of Tent. Recommendation, p. 5.) This case is a poster child for just this sort of abusive litigation.
Stop Youth Addiction, Inc., is a for-profit corporation. Its sole shareholder is the mother of the corporation’s attorney. He filed this lawsuit against 431 retailers. According to the 28-line, page-and-a-half-long complaint, each of the defendants violated section 308 of the Penal Code by selling cigarettes to minors. Because Penal Code section 308 makes such sales a crime, the corporation alleges they are “unlawful” within the meaning of the UCL, thereby furnishing the statutory “predicate” for this suit. The complaint seeks $10 billion in restitution as an incident to an injunction against defendants, and attorney fees. The case is one of eight nearly identical suits filed in multiple venues by the same attorney.1 All told, more than $50 billion in restitution as well as injunctive relief is sought against almost 2,000 defendants, most of whom appear to be small retailers. Each suit seeks attorney fees. Defendants are informed by correspondence from Stop Youth Addiction’s attorney that it “will get the most in attorney fees from whoever stays in [the suit] longest.”
The record includes portions of the deposition transcript of Carol Levy, the' mother of Stop Youth Addiction’s attorney, taken in related litigation. (Stop Youth Addiction, Inc. v. Southland Corporation, supra, No. 94-V-072446-C). Mrs. Levy testified that she and her son decided to form Stop Youth Addiction in July 1994. Before that, the two had filed six lawsuits against “computer software packages [sic].” Stop Youth Addiction, according to Mrs. Levy’s deposition, is a for-profit corporation in which she “bought stocks” for “a thousand dollars.” The corporation has no other source of funding. It has no employees. It rents office space in the same building as its attorney. His sole compensation is “from people who lost their cases, he gets attorney fees.” Mrs. Levy has no minor children; the corporation’s only business is filing lawsuits.
The record also includes a memorandum decision of the Yolo County Superior Court denying Stop Youth Addiction’s request for interim injunctive relief in the Southland litigation. Judge Warriner “note[d] with concern the evidence of attempts by . . . [Stop Youth Addiction’s attorney] to obtain [586]. . . payments from franchisee defendants prior to filing the lawsuit (in which they would be accused of committing a crime), in exchange for dropping their names from the action.” (Italics added.)
Finally, it also appears from the record in the Southland case and from concessions during oral argument that Stop Youth Addiction employed children as decoys in privately run “sting” operations to obtain evidence of illegal cigarette sales by some or all of the defendants.
I. Statutory Construction
The transformation of the UCL began in 1972, with this court’s decision in Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94 [101 Cal.Rptr. 745, 496 P.2d 817] (Barquis), a case in which we adopted a “sweeping” construction of the Law, broadening both its standing provision and conduct falling within its ambit. We concluded that Business and Professions Code section 17204 (hereafter section 17204) authorized prosecutions by “ ‘the Attorney General [and other public attorneys] . . .or by any person acting for the interests of itself, its members or the general public.’ ” (Barquis, supra, at p. 109, italics added.) The majority reaffirms that interpretation today, holding the UCL confers universal standing, reaches “ ‘ “anything that [is] ... a business practice and that... is forbidden by law” ’ ” (People v. McKale (1979) 25 Cal.3d 626, 632 [159 Cal.Rptr. 811, 602 P.2d 731]), and makes the existence of a private right of action conferred by the underlying statute “immaterial,” because “any unlawful business practice . . . may be redressed by a private action” under the UCL (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 210-211 [197 Cal.Rptr. 783, 673 P.2d 660]). (See maj. opn., ante, at pp. 561-563.)
That result is compelled, the majority concludes, because the language of section 17204 “plainly suggests” the Legislature meant to confer standing on anyone and everyone without any limitations. (Maj. opn., ante, at p. 561.) But that interpretation runs afoul of significant grammatical impediments. Section 17204 provides: “Actions for any relief pursuant to this chapter shall be prosecuted exclusively in a court of competent jurisdiction by the Attorney General or any district attorney or by any county counsel authorized by agreement with the district attorney in actions involving violation of a county ordinance, or any city attorney of a city, or city and county, having a population in excess of 750,000, and, with the consent of the district attorney, by a city prosecutor in any city having a full-time city prosecutor or, with the consent of the district attorney, by a city attorney in any city and county in the name of the people of the State of California upon their own complaint or upon the complaint of any board, officer, person, corporation or [587]association or by any person acting for the interests of itself, its members or the general public.” (§ 17204.)
The majority’s construction makes the main clause superfluous and fails to account for other language in the statute—“in the name of the people of the State of California,” “upon the complaint of,” and “exclusively,” for example; these words must have some meaning. A narrower reading of the statute—one that channels UCL litigation through government prosecutors who file actions in the name of the people—is not only grammatically sound, it would explain why the drafters failed to insert any qualification on standing. Indeed, this “gatekeeper” construction of the text is the only one consistent with rudimentary notions of procedural fairness.
The same inherent limitations should temper our understanding of the term “unlawful” in the context of a UCL action. The focus of the UCL is competitive injury, not general disgruntlement. Construing the 1963 amendment adding the word “unlawful,” as we did in Barquis, to extend the statute’s reach to “anything that can properly be called a business practice and that at the same time is forbidden by law” (Note, Unlawful Agricultural Working Conditions as Nuisance or Unfair Competition (1968) 19 Hastings L.J. 398, 408-409, fn. omitted) means the statute is completely disconnected from any notion, not only of competitive harm, but any injury at all. The Barquis court concluded the language of then section 3369 of the Civil Code did not “limit its coverage to . . . ‘deceptive’ practices, but instead explicitly extends to any ‘unlawful, unfair or deceptive business practice’; the Legislature, in our view, intended by this sweeping language to permit tribunals to enjoin on-going wrongful business conduct in whatever context such activity might occur.” (Barquis, supra, 7 Cal.3d at p. 111, fn. omitted, second italics added.)
Again, there is evidence supporting a much more modest mandate. According to a contemporaneous analysis prepared by the amendment’s sponsor, the Attorney General, Assembly Bill No. 2929 (1963 Reg. Sess.) was intended to make clear that the Law applied to business conduct that, while “unfairly” competitive, was not fraudulent. (Mem. from Charles A. James, Cal. Dept. of Justice, to Assemblyman Phillip L. Soto, dated June 14, 1963.) The 1963 amendment thus extended the Law’s reach beyond fraudulent business practices to encompass those that were “unlawful.” As the Attorney General’s memorandum makes clear, however, it was not intended to confer standing on the universe at large to enjoin, as a recent Court of Appeal opinion put it, “any practices forbidden by law, be it civil or criminal, federal, state, or municipal, statutory regulatory, or court-made.” (Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 838-839 [33 Cal.Rptr.2d 438] [588][relying on People v. McKale, supra, 25 Cal.3d at p. 632].) And it was certainly not intended to encompass criminal proceedings lying within the exclusive, constitutionally assigned powers of public prosecutors.
It is one thing to assert that business conduct that is illegal and competitively harmful (in his 1963 analysis, the Attorney General cited a funeral home’s violation of a zoning ordinance) may be enjoined. It is only a slight extension to assert that someone injured by a fraudulent business practice may seek to have it enjoined under the Law. It is a radically different thing to say—as Barquis and subsequent decisions have said—that the only requirement for private litigation under the Law is that the defendant’s conduct be denounced, somewhere, somehow, by someone, as “unlawful,” and that on that basis alone anyone has standing to file a UCL action for injunctive relief and attorney fees.
It is also worth noting that the UCL’s location in the Business and Professions Code comes just after the Cartwright Act and the Unfair Practices Act, and that both of these statutes require a showing of actual injury as a condition of standing to sue. (See Bus. & Prof. Code, §§ 16750, 17071.) In short, even if the majority is correct in construing section 17204 to permit private enforcement, it does not necessarily follow that no limits are imposed on private actions. A requirement of actual injury, as under the Cartwright and Unfair Practices Acts, would at least link UCL litigation to its underlying purpose.
II. Separation of Powers
The Barquis court’s endorsement of an unqualified, universal public standing to sue under the UCL, without any requirement that a plaintiff show anything more than a “public interest,” also has untoward constitutional implications. It undermines the separation of powers in multiple ways: by granting private actors the right to vindicate the public interest, by extinguishing the historical limits on the right of private litigants to invoke the remedial powers of the courts, and by depriving the executive of its constitutionally assigned discretion to enforce the Law.
A. Standing
Conferring on every resident of the state the power to vindicate the public interest raises substantial separation of powers issues. The United States Supreme Court recently- invalidated, on separation of powers grounds, a similar federal “citizen suit” standing provision. “Vindicating the public interest ...” the court said, “is the function of Congress and the Chief [589]Executive. The question presented here is whether the public interest . . . can be converted into an individual right by a statute that denominates it as such, and that permits all citizens ... to sue. If the concrete injury requirement has the separation-of-powers significance we have always said, the answer must be obvious: To permit Congress to convert the undifferentiated public interest into an ‘individual right’ vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive’s most important constitutional duty, to ‘take Care that the Laws be faithfully executed,’ Art. II, § 3. It would enable the courts, with the permission of Congress, ‘to assume a position of authority over the governmental acts of another and co-equal department,’ [citation] and to become ‘ “virtually continuing monitors of the wisdom and soundness of Executive action.” ’ ” (Lujan v. Defenders of Wildlife (1992) 504 U.S. 555, 576-577 [112 S.Ct. 2130, 2145, 119 L.Ed.2d 351], second italics added; see also Morrison v. Olson (1987) 487 U.S. 654 [108 S.Ct. 2597, 101 L.Ed.2d 569]; Allen v. Wright (1984) 468 U.S. 737, 752 [104 S.Ct. 3315, 3325, 82 L.Ed.2d 556] [“. . . the law of . . . standing is built on a single basic idea—the idea of separation of powers .... Of course, both federal and state courts have long experience in applying and elaborating in numerous contexts the pervasive and fundamental notion of separation of powers.”]; Valley Forge College v. Americans United (1982) 454 U.S. 464, 486-487 [102 S.Ct. 752, 766, 70 L.Ed.2d 700] [“The federal courts were simply not constituted as ombudsmen of the general welfare.”]; United States v. SCRAP (1973) 412 U.S. 669, 687, 688 [93 S.Ct. 2405, 2416, 37 L.Ed.2d 254] [standing to sue “prevents the judicial process from becoming no more than a vehicle for the vindication of the value interests of concerned bystanders”; “pleadings must be something more than an ingenious academic exercise in the conceivable.”].)
The passage from Lujan quoted above fairly describes the effect of judicial constructions of the scope of section 17204 of the UCL over the past 25 years. Lujan and similar decisions are based in part on article III, section 2 of the federal Constitution, the case or controversy provision that is the source of much of the federal law of standing. That article does not bind our courts nor does the California Constitution have a textually similar provision. Our Constitution is, however, structurally similar in important ways to the United States Constitution; both include provisions imposing a tripartite form of government. (U.S. Const., arts. I, II, III; Cal. Const., art. Ill, § 3.) Moreover, both the United States Supreme Court and California courts have acknowledged that the source of the separation of powers doctrine is the constitutional requirement of a divided, tripartite form of government. (See, e.g., Allen v. Wright, supra, 468 U.S. at p. 752 [104 S.Ct. at p. 3325]; State of California v. Superior Court (1986) 184 Cal.App.3d 394, 397 [229 [590]Cal.Rptr. 74].) In analyzing the separation of powers provision of the California Constitution, we have relied on United States Supreme Court case law construing the federal separation of powers provisions. (See, e.g., Hustedt v. Workers’ Comp. Appeals Bd. (1981) 30 Cal.3d 329, 338 [178 Cal.Rptr. 801, 636 P.2d 1139] [relying on Buckley v. Valeo (1976) 424 U.S. 1 [96 S.Ct. 612, 46 L.Ed.2d 659]]; Davis v. Municipal Court (1988) 46 Cal.3d 64, 78 [249 Cal.Rptr. 300, 757 P.2d 11] [relying on Nixon v. Administrator of General Services (1977) 433 U.S. 425, 443 [97 S.Ct. 2777, 2790, 53 L.Ed.2d 867]]; see also Butt v. State of California (1992) 4 Cal.4th 668, 707 [15 Cal.Rptr.2d 480, 842 P.2d 1240] (conc, and dis. opn. of Kennard, J.) [federal Supreme Court separation of powers decisions “supply a persuasive body of case authority” in interpreting the California provision].)
Both the federal high court and our Courts of Appeal have also held that limitations on a litigant’s entitlement to seek judicial relief—his standing— are derived from and enforce the constitutional doctrine of separation of powers. Standing limitations on who can invoke the power of the courts are traceable, in other words, to constitutional requirements derived from the tripartite structure of both governments. (See, e.g., Allen v. Wright, supra, 468 U.S. at p. 751 [104 S.Ct. at pp. 3324-3325]; People v. Municipal Court (1972) 27 Cal.App.3d 193, 207 [103 Cal.Rptr. 645, 66 A.L.R.3d 717].) For one arm of government to exercise an “essential power” of another threatens the constitutional integrity of the coordinate branch. The doctrine of standing serves as a judicial means of preventing one branch from exercising a constitutional power that properly belongs to another.
B. Delegation
The doctrine of improper delegation also serves to resist efforts by one branch of government to usurp functions constitutionally assigned to another branch. (See, e.g., Bayside Timber Co. v. Board of Supervisors (1971) 20 Cal.App.3d 1, 11-12 [97 Cal.Rptr. 431]; Hamilton et al., The Federalist Papers, No. 70 (Rossiter ed. 1961) pp. 423-431; cf. Boll Weevil Eradication Found, v. Lewellen (Tex. 1997) 952 S.W.2d 454, 465-467; Kuttner v. Cuomo (1989) 147 A.D.2d 215 [543 N.Y.S.2d 172, 174].) Thus, the Legislature may not invest a private body with the power to draft rules having the effect of law; to do so would unconstitutionally transfer powers confided to one arm of government to private parties. (Bayside Timber Co., supra, 20 Cal.App.3d at pp. 11-12.) By requiring that the transfer of essential powers—whether from one arm to another or to a private group or person—be accompanied by the retention of controls sufficient for the delegating arm to retain ultimate power over their exercise, the delegation doctrine preserves the integrity of [591]divided government. In the absence of such controls, the powers of one arm of government are weakened while those of another are expanded.
Over the last quarter century the effect of judicial constructions of the UCL has been to weaken the power of the executive branch while strengthening the power of the judiciary. To paraphrase the high court’s opinion in Lujan, it has converted the undifferentiated public interest into an individual right vindicable in the courts, transferring from the executive its most important constitutional duty, to see that that the law is faithfully executed. (Lujan v. Defenders of Wildlife, supra, 504 U.S. at p. 577 [112 S.Ct. at p. 2145]; Cal. Const., art. V, §§ \\, 13.) The courts are thereby enabled “ ‘to assume a position of authority over the governmental acts of another and co-equal department,’ [citation] and to become ‘ “virtually continuing monitors of the wisdom and soundness of Executive action.” ’ ” (Lujan v. Defenders of Wildlife, supra, at p. 577 [112 S.Ct. at p. 2145].)
C. Injury in Fact
One aspect of this judicial gloss has been the absolute extinction in private litigation under the UCL of the historical requirement that before would-be litigants may invoke the remedial powers of the courts, they must demonstrate the existence of some concrete harm, some injury in fact that qualifies as the type of grievance the courts were established to hear and for which they are authorized to grant relief. “The province of the courts,” as Chief Justice Marshall explained, “is, solely, to decide on the rights of individuals.” (Marbury v. Madison (1803) 5 U.S. (1 Cranch) 137, 170 [2 L.Ed. 60, 71].) So long as litigation under the UCL is limited to the Attorney General and the other public prosecutors enumerated in section 17204, so long, that is, as the gatekeeper interpretation of standing under the UCL prevails, there is no threat to the separation of powers. As members of the executive branch, these officials are charged by the Constitution with vindicating the public interest. And so long as a private litigant suing under the UCL is able to allege and prove a species of judicially cognizable harm, private suits under the UCL do not raise significant separation of powers concerns, either. De Tocqueville, writing over 160 years ago, understood the role of actual injury as a condition to a lawsuit: “It will be seen . . . that by leaving it to private interest to censure the law, and by intimately uniting the trial of the law with the trial of an individual, legislation is protected from wanton assaults and from the daily aggressions of party spirit. The errors of the legislator are exposed only to meet a real want; and it is always a positive and appreciable fact that must serve as the basis of a prosecution.” (De Tocqueville, Democracy in America (Ryan ed. 1994) p. 102.)
Here, of course, that requirement is not met. Stop Youth Addiction has not alleged any harm from anything these defendants have done. It sues on the [592]basis of the most general of grievances, one shared by all of us who believe that underage access to tobacco is a threat to the health of the children of California. The absence of any requirement that a private UCL plaintiff demonstrate some cognizable harm as a condition of maintaining suit also has other concrete and damaging effects on the separation of powers.
D. Prosecutorial Discretion
Prosecutorial discretion, the “decision to charge,” is a fundamental aspect of executive power, one our courts have held on separation of powers grounds is not subject to judicial control, either directly or indirectly. (People v. Cimarusti (1978) 81 Cal.App.3d 314, 323 [146 Cal.Rptr. 421]; People v. Smith (1975) 53 Cal.App.3d 655, 658 [126 Cal.Rptr. 195].) That principle extends to the decision to institute civil proceedings—a decision “analogous to a criminal proceeding with respect to the division of power between the executive and judicial branches of the government.” (People v. Cimarusti, supra, at p. 323.) In both cases, “the charging function [lies] within the exclusive control of the executive.” (Ibid.) If the executive, in the form of the public prosecutor, determines that a case has no merit and refuses to bring suit, the separation of powers doctrine bars a court from compelling it. (Dix v. Superior Court (1991) 53 Cal.3d 442, 451 [279 Cal.Rptr. 834, 807 P.2d 1063] [“The prosecution of criminal offenses on behalf of the People is the sole responsibility of the public prosecutor.”]; State of California v. Superior Court, supra, 184 Cal.App.3d at p. 397 [judicial trespass on the Attorney General’s internal policy is close to violation of constitutional mandate].) That principle is basic to our form of government.
It is impossible, of course, for every violation of every public law to be redressed by executive action. That does not mean, however, that the answer lies in permitting anyone who wishes to file a lawsuit to do so. Instead, the answer resides in public confidence that executive officials charged with enforcing the law will exercise an informed discretion that will maximize the effectiveness of their powers, while observing the canons of fundamental fairness that govern our public life. The United States Supreme Court has said that prosecutorial discretion “rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake.” (Wayte v. United States (1985) 470 U.S. 598, 607 [105 S.Ct. 1524, 1530, 84 L.Ed.2d 547].)
Yet because so much enforcement under the UCL has been delegated to private prosecution, discretion has effectively been placed beyond the range [593]of political accountability. As this case suggests, without ties to an elected executive, enforcement under the UCL becomes random and out of control. Unelected, unaccountable private enforcers, unrestrained by established notions of concrete harm or public duty, seek to advance their own agendas or to deploy the Law as leverage to increase attorney fees. Of course, the decision to enforce or to forego enforcement in a particular case is the essence of prosecutorial discretion. Just as underenforcement may lead to a statute’s nullification, overtnforcement may lead to a blindly self-interested and unmodulated arbitrariness, and to vexatious and frivolous litigation. Unlike prosecutors, whose authority is curbed by established notions of ethical responsibility, private enforcement of the UCL is unchecked and unfettered. The potential for abuse in such a system is manifest.
That observation brings us full circle back to the UCL standing provision and how it should be construed. Because a judicial construction of section 17204 that confers universal citizen standing to enforce the UCL threatens the constitutional separation of powers, we are duty bound to adopt a construction that avoids that threat, especially when the statutory text accommodates such an alternative interpretation. (Ashwander v. Valley Authority (1936) 297 U.S. 288, 347-348 [56 S.Ct. 466, 483, 80 L.Ed. 688] (conc, opn. of Brandeis, J.); cf. Loder v. City of Glendale (1997) 14 Cal.4th 846, 859 [59 Cal.Rptr.2d 696, 927 P.2d 1200].)
in. Private Enforcement of Penal Statutes
Until today, California has followed the unanimous American rule that the enforcement of penal statutes is the exclusive province of public prosecutors. The reason is obvious: Their activities are governed by rules designed to ensure the public virtue of a disinterested fairness and an impersonal neutrality. Penal Code section 308 is a criminal statute; its private enforcement is not only inappropriate, but explicitly proscribed. Despite disclaimers to the contrary, this suit is functionally a proceeding under the Penal Code; and its enforcement lies exclusively within the powers allocated to the executive branch. Penal Code section 308 divides enforcement of its prohibition on furnishing tobacco to minors into two kinds of proceedings—a misdemeanor prosecution and a civil action. If the charge in either proceeding is sustained, the penalty is a fine, imposed according to a graduated schedule.
In Bravo Vending v. City of Rancho Mirage (1993) 16 Cal.App.4th 383 [20 Cal.Rptr.2d 164], the Court of Appeal understood this arrangement. After reviewing the statute, it concluded that “the regulatory field preempted by section 308 is that of the penal—i.e., both criminally and civilly proscribed— [594]aspects of the sale of cigarettes to minors: To whom is it illegal to sell cigarettes, and what are the penal consequences of doing so?” (Id. at p. 403, italics added.) “[EJvery provision [of the statute],” the court said, “deals directly with the proscription, prosecution, or punishment of the sale or other distribution of cigarettes to, and the . . . receipt of cigarettes by, minors.” (Ibid.) Penal Code section 308, in other words, comprehends the universe of penal sanctions—both criminal and civil—for the sale of tobacco to minors.
Like a civil proceeding brought by a prosecutor under Penal Code section 308, this UCL suit also seeks monetary sanctions based on criminal conduct. Its effect—certainly on defendants—is virtually the same as if it had been brought directly under the Penal Code. But because of its “double-sided” structure, Penal Code section 308 leaves no room for private enforcement. Conferring unrestricted discretion on a private bounty hunter to seek restitution, injunctive relief, and attorney fees from literally thousands of small retailers on the basis of alleged violations of a penal statute is not materially different from the bifurcated scheme of Penal Code section 308 itself. There is one important difference, however: This privately prosecuted UCL litigation has none of the fundamental attributes of a “true” criminal proceeding— the assurance of detachment, neutrality, and evenhandedness—that inhere in the idea of the public prosecutor and that sustain, among the public at large and individual defendants, respect for law.
Because Penal Code section 308 is a penal statute with both criminal and civil “sides,” a citizen suit under the UCL based upon it for comparable relief is not a private, civil analogue to a criminal prosecution. Instead, it is a kind of private usurpation of a criminal enforcement power conferred exclusively on a class of executive officers. The United States Supreme Court and this court have articulated the core meaning of this quintessential executive function. The prosecutor has been described as “the representative not of an ordinary party . . . but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest. . . in a criminal prosecution is not that it shall win a case, but that justice shall be done.” (Berger v. United States (1935) 295 U.S. 78, 88 [55 S.Ct. 629, 633, 79 L.Ed. 1314].) We have taken a like view, stating that “[s]ociety also has an interest in both the reality and the appearance of impartiality by its prosecuting officials.” (People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 268 [137 Cal.Rptr. 476, 561 P.2d 1164].)
The central concern of the case law prohibiting private interests in criminal prosecutions is the likelihood that bias may deflect the prosecutor’s focus from the public interest. The Supreme Court has said that a “scheme injecting a personal interest, financial or otherwise, into the enforcement [595]process may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions.” (Marshall v. Jerrico, Inc. (1980) 446 U.S. 238, 249 [100 S.Ct. 1610, 1617, 64 L.Ed.2d 182].) We recently relied on these same concerns, ordering the recusal of a prosecutor in light of a conflict produced by payment of part of the cost of the criminal investigation by the victim. (People v. Eubanks (1996) 14 Cal.4th 580 [59 Cal.Rptr.2d 200, 927 P.2d 310].) “[A] prosecutor may have a conflict,” we said, “if institutional arrangements link [the office] too closely to a private party . . . who in turn has a personal interest in the defendant’s prosecution and conviction.” (Id. at p. 596.) If private financial interests are “of [such] a nature and magnitude” that they are “likely to put the prosecutor’s discretionary decisionmaking within the influence or control of an interested party,” the prosecutor has a “disabling conflict” requiring recusal. (Id. at p. 599.) A direct financial benefit as a result of the outcome of a proceeding is even more offensive. (People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740, 747-748, 750 [218 Cal.Rptr. 24, 705 P.2d 347] [prosecutor’s contingent fee arrangement required disqualification; his direct, personal interest was “antithetical to the [prosecutor’s] standard of neutrality”].)
IV. A Jurisprudence of Abstention
The result the majority reaches is not compelled by law or logic. It can prevail only at the expense of fairness and constitutional balance. Judges, however, possess an inherent power to restrain their own precedents in light of perceptions that past constructions of legislation have produced anomalous and harmful results, or that continuing expansive interpretations will impinge upon constitutional prerogatives. All of these concerns are implicated here. Not only does this private suit under the UCL threaten important interests of constitutional dimension, it is also inconsistent with the Legislature’s strategy to ban children’s access to tobacco and the health threat posed by its use. That strategy, embodied in Penal Code section 308 and the Stop Tobacco Access to Kids Enforcement Act (Bus. & Prof. Code, §§ 22950-22959), is placed at risk by suits like this one. Private UCL litigation based on Penal Code section 308 may impair coordinated, statewide prosecution efforts, including the exercise of discretion under the divided penalty scheme of the statute. This case is proof of the comment, made by the author of the Law Revision Commission’s report, that UCL litigation is like a Bosnian war zone: “Anyone may attack for any reason and it appears that nobody can negotiate—not only are there factions, but it is unclear who has authority to bind anyone to peace or a final resolution.” (Fellmeth, supra, 15 Cal. Regulatory L. Rptr. at p. 2, original italics.)
It is equally evident that no means exists in these cases—short of an actual trial—to assure the public that any of the small retailers that may already [596]have settled rather than pay the cost of lawyers are factually guilty of having committed the underlying crime on which these suits rest. Allegations in the record that plaintiff’s counsel offered to forego even filing suit against individual defendants in exchange for fees, testimony that counsel is compensated exclusively from such fees, and evidence that he systematically offers to settle on terms that include attorney fees but no legally binding relief are equally disturbing. They suggest the use of the UCL as a means of generating attorney fees without any corresponding public benefit.
Any empathy for the result the majority reaches vanishes when the logistics of this suit are considered: In order to obtain evidence of alleged unlawful activity, Stop Youth Addiction’s agents must induce minors to commit crimes—repeated violations of section 308—by purchasing cigarettes. It thus appears from the record that Stop Youth Addiction and its attorney have filed this and related UCL actions against thousands of retailers alleging violations of the same penal law that Stop Youth Addiction has violated in obtaining evidence to support these suits. And while retailers may have done so inadvertently, Stop Youth Addiction has acted deliberately. The result is so exquisitely ridiculous, it would confound Kafka. In a case that abounds with moral ironies, the worse is this: The avenger may be guilty of the greater crime.
The utility of private UCL suits based on Penal Code section 308 is also problematic. Granting injunctive relief against a few retailers—even a thousand—in a series of private unfair competition suits is not likely to have a measurable impact on the availability of cigarettes to minors. Even if a statewide flood of such private litigation were to succeed, it would raise the prospect of inconsistent rulings where the need for uniform, statewide enforcement standards under executive control is evident. Given the wide availability of cigarettes to children and the long-term health consequences of their use, the kind and level of regulatory effort needed to combat the threat is an issue for legislative and executive decisionmakers. The right answer implicates a calculus of costs versus results, the optimal allocation of public resources, consistency of regulatory effort, suitability of judicial enforcement, and a host of related issues. The fact the Legislature has adopted an institutional framework for dealing with the problem undermines the utility of privately prosecuted unfair competition suits as a statewide solution to a statewide medical and social problem. (See, e.g., Crusader Ins. Co. v. Scottsdale Ins. Co. (1997) 54 Cal.App.4th 121, 137-138 [62 Cal.Rptr.2d 620].)
Although California courts have not yet developed the doctrine fully, the fundamentals of an equitable jurisprudence of abstention in litigation [597]brought under the UCL exists under both the California Constitution (art. Ill, § 3) and case law. As the cases summarized below show, the Courts of Appeal have done an admirable job of reining in the UCL’s potential for adverse regulatory effects by declining to grant relief in appropriate cases.2 Other California decisions have recognized that so-called “prudential” standing considerations—those judicially crafted limitations on a court’s willingness to grant equitable relief—have a remedial component that prevents the judiciary from intruding too deeply into matters allocated to coordinate branches. (See, e.g., Smith v. Fair Employment & Housing Com. (1996) 12 Cal.4th 1143, 1188-1189 [51 Cal.Rptr.2d 700, 913 P.2d 909] (conc. opn. of Mosk, J.); Cornelius v. Los Angeles County etc. Authority (1996) 49 Cal.App.4th 1761, 1779, fn. 8 [57 Cal.Rptr.2d 618].) In cases such as.this, where judicial constructions of the UCL have permitted self-appointed champions of the public interest to roam unhindered over the breadth of our public law, California courts should exercise their equitable powers of abstention in appropriate cases and decline to grant relief. Instead, the majority chooses to speed us along the path to perdition, genially opting for the “worst of all possible legal worlds: abuse of process . . . extortionate nuisance lawsuits, . . . confusion and duplication of litigation resources and uncertain finality.” (Fellmeth, supra, 15 Cal. Regulatory L. Rptr. at p. 11.)
[598]Conclusion
One need only read the daily newspapers to see how much easier it is to stall legislation than to enact it; how much simpler to expand what exists than to contract it. Courts can take advantage of this political infirmity by calling it “acquiescence.” The legislative problem is especially acute in cases like this one, where change threatens the balance of advantage between two politically potent and contentious groups—those who sue under the Law, and those who defend. Selling cigarettes to minors is against the law and those guilty of it should be punished. The creation of a standardless, limitless, attorney fees machine is not, however, the best way to accomplish that goal. The judicial gloss given the UCL has changed, probably forever, the perception of the role of private attorneys general. We simply cannot put this genie back into the old bottle. The Legislature at least has the wherewithal to make a new bottle. Perhaps it will also have the political will.
Stop Youth Addiction, Inc. v. Southland Corporation (Super. Ct. Yolo County, 1994, No. 94-V-072446-C); Stop Youth Addiction, Inc. v. Customer Co. (Super. Ct. Solano County, 1994, No. L003830); Stop Youth Addiction, Inc. v. Marina Supermarkets, Inc. (Super. Ct. S. F., 1994, No. 964907); Stop Youth Addiction, Inc. v. Albertson’s, Inc. (Super. Ct. Sacramento County, 1994, No. 543941); Stop Youth Addiction, Inc. v. Chevron U.S.A. (Super. Ct. San Mateo County, 1994, No. 390046); Stop Youth Addiction, Inc. v. Exxon (Super. Ct. San Joaquin County, 1994, No. 282126); Stop Youth Addiction, Inc. v. Nob Hill Foods (Super. Ct. Santa Clara County, 1994, No. 745152).
See, e.g., Crusader Ins. Co. v. Scottsdale Ins. Co., supra, 54 Cal.App.4th at page 138 (“Institutional systems are ... in place to deal with the problem [raised in this UCL suit] .... There is no need or justification for the courts to interfere with the Legislature’s efforts to mold and implement public policy ... by extrapolating . . . enactments into areas beyond those specified . . . .”); Wolfe v. State Farm Fire & Casualty Ins. Co. (1996) 46 Cal.App.4th 554, 564-565 [53 Cal.Rptr.2d 878] (Assuming plaintiff could state a claim that defendants’ refusal to issue homeowners policies covering earthquake damage was an unfair business practice, “that by itself does not permit unwarranted judicial intervention in an area of complex economic policy. [Fn. omitted.]”); California Grocers Assn. v. Bank of America (1994) 22 Cal.App.4th 205, 218 [27 Cal.Rptr.2d 396] (“ ‘ad hoc decisions of the courts’ ” in UCL suits are “an entirely inappropriate method of overseeing bank service fees”); Samura v. Kaiser Foundation Health Plan, Inc. (1993) 17 Cal.App.4th 1284, 1301-1302 [22 Cal.Rptr.2d 20] (“[T]he courts cannot assume general regulatory powers over health maintenance organizations through the guise of enforcing” the UCL); Diaz v. Kay-Dix Ranch (1970) 9 Cal.App.3d 588, 599 [88 Cal.Rptr. 443] (Refusing to grant relief under the UCL on the ground that “[i]t is more orderly, more effectual, less burdensome to the affected interests, that the national government redeem its commitment.” “Thus the court of equity withholds its aid.”); Cobos v. Mello-Dy Ranch (1971) 20 Cal.App.3d 947 [98 Cal.Rptr. 131] (same ground, denying damages); Larez v. Oberti (1972) 23 Cal.App.3d 217, 221 [100 Cal.Rptr. 57] (declining to intervene under the UCL “by reason of certain considerations of expediency and policy which control ... the exercise of equity jurisdiction”); People ex rel. Dept. of Transportation v. Naegele Outdoor Advertising Co. (1985) 38 Cal.3d 509, 523 [213 Cal.Rptr. 247, 698 P.2d 150] (“[S]tate court injunctive relief under the theory of unfair competition is inappropriate.” “The sound counsel of the Diaz decision . . . mandates state abstention in reliance upon federal enforcement in this case.”)