## Facts

- The Pirenópolis Municipal Assembly enacted a municipal law that increased benefits paid to certain appellate judges.
- The State Public Ministry of Goiás filed a public civil action (ação civil pública) challenging the payments authorized by the municipal law.
- The Public Ministry alleged that the municipal law violated the Brazilian Constitution and sought, among other relief, that the beneficiaries forfeit (return) the sums received under the law.
- The lower court dismissed the action, reasoning that a public civil action could not be used to obtain a declaration that a municipal law is unconstitutional.
- The lower court reasoned that the proper procedural vehicle would be a direct action of unconstitutionality (ação direta de inconstitucionalidade), brought by the constitutionally designated actor, rather than a public civil action filed by the Public Ministry.
- The State Public Ministry filed an extraordinary appeal (RE 227.159-4/GO) to the Supreme Federal Court (STF), arguing that it had standing to protect public assets and that a court hearing a public civil action may conduct incidental (diffuse) constitutional review when needed to decide the case.

## Issues

1. Whether the State Public Ministry has standing to bring a public civil action to protect public assets when resolving the claim requires an incidental ruling that a municipal law is unconstitutional.
2. Whether courts may conduct diffuse (incidental) constitutional review within a public civil action when the unconstitutionality of a municipal law is a prejudicial question rather than the sole, abstract object of the lawsuit.

## Decision

- The STF (Second Panel) held that the Public Ministry has standing to bring a public civil action seeking protection of public assets and related relief, even when the case requires an incidental constitutional ruling about a municipal law.
- The STF held that a public civil action may include an incidental declaration of unconstitutionality (incidenter tantum) as part of resolving the concrete dispute.
- The STF granted the extraordinary appeal, set aside the dismissal, and ordered that the public civil action proceed in the lower court for consideration of the merits, including the requested forfeiture of sums paid under the challenged law.

## Legal Principles

- The Public Ministry may file a public civil action to defend the legal order and public patrimony, including claims aimed at preventing or repairing unlawful expenditures.
- In collective proceedings such as a public civil action, a court may examine constitutionality incidentally (diffuse review) when that question is necessary to decide the requested concrete relief.
- A public civil action that raises unconstitutionality incidentally is not the same as a direct action of unconstitutionality; it does not function as an abstract procedure to invalidate legislation with general, erga omnes effects through the concentrated-control route.
- Dismissal for “inadequate procedural vehicle” is improper where the plaintiff seeks concrete remedies (such as restitution) and the constitutional issue serves as a necessary antecedent to deciding liability and relief.

## Conclusion

In RE 227.159-4/GO, the Supreme Federal Court held that the State Public Ministry could pursue a public civil action to seek return of sums paid under a municipal law alleged to be unconstitutional, because courts may address unconstitutionality incidentally when deciding a concrete dispute, and the case was sent back so the action could proceed on the merits.


State Public Ministry v. Pirenópolis Municipal Assembly, et al., Extraordinary Appeal 227.159-4 (Goiás) RE-227159 (2002)