Commercial Litigation and Arbitration

Does a Political Subdivision Have Standing to Sue Its Parent State? Circuit Split

City of Hugo v. Nichols, 656 F.3d 1251 (10th Cir. 2011) (Matheson, J., dissenting):

Footnote 4. There is a circuit split on the political subdivision standing doctrine. The Ninth Circuit appears to be alone in adopting a per se rule against a political subdivision having standing to sue its parent state. See City of S. Lake Tahoe v. Cal. Tahoe Reg'l Planning Agency, 625 F.2d 231, 233 (9th Cir. 1980) (establishing the Ninth Circuit's per se rule); see also Palomar Pomerado Health Sys. v. Belshe, 180 F.3d 1104, 1110 (9th Cir. 1999) (Hawkins, J., concurring) (noting that other circuits have not adopted a per se rule). We said in Branson that it was arguable whether the Second Circuit had adopted a per se rule in City of New York v. Richardson, 473 F.2d 923, 929 (2d Cir. 1973). See Branson, 161 F.3d at 630 n. 8.

The Fifth and Eleventh Circuits join the Tenth Circuit in rejecting a per se rule. See Rogers v. Brockette, 588 F.2d 1057, 1071 (5th Cir. 1979) (holding that "the Hunter and Trenton line of cases do not, properly speaking, deal with a municipality's standing to sue the state that created it" and reaching the merits of a preemption challenge by a local school district against state education authorities); United States v. Alabama, 791 F.2d 1450, 1455 (11th Cir. 1986) (holding that "no per se rule applies in this Circuit. In assessing the standing to sue of a state entity, we are bound by the Supreme Court's or our own Court's determination of whether any given constitutional provision or law protects the interests of the body in question").

Other circuits have expressed skepticism about a per se rule without definitively resolving the issue. See City of Charleston v. Pub. Serv. Comm'n of W. Va., 57 F.3d 385, 390 (4th Cir. 1995) (reaching the merits of a suit between a city and a state agency after noting that the political subdivision standing doctrine is "unclear"); Amato v. Wilentz, 952 F.2d 742, 755 (3d Cir. 1991) (finding that "[j]udicial support for this rule may be waning with time"); S. Macomb Disposal Auth. v. Twp. of Washington, 790 F.2d 500, 504 (6th Cir. 1986) (noting that "[t]here may be occasions in which a political subdivision is not prevented, by virtue of its status as a subdivision of the state, from challenging the constitutionality of state legislation").

Even the Ninth Circuit's rule has been called into question. See Palomar, 180 F.3d at 1110 (Hawkins, J., concurring) ("The existence of a contrary view in other circuits does not automatically suggest a need to reexamine our own position. However, where the other circuits' view is well and thoroughly reasoned, we should at least satisfy ourselves that our position is grounded in an equally solid rationale").

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