States must empower city attorneys

From health care to civil rights to criminal justice reform and more, there is no shortage of important policy issues that newly elected state leaders face. But to that list of issues, state officials should add another, which is empowering cities and municipalities to sue on behalf of their residents. For all the attention given to state and federal political leaders, municipal government is typically most responsive to our immediate needs. Is your house ablaze? The city fire department will put it out. Health emergency? The city will send an ambulance. Sidewalk cracked? A city crew will fix it.

That is logical. Cities are the government entities that are closest to the people. It makes sense that they would be able to address urgent local concerns. But there is an exception. If a municipality needs to sue to address an important local issue, it often finds itself barred from the courthouse. If a local lake is being polluted, the city may not be able to go to court to stop it. If a scammer is ripping off residents, the city may not be able to bring a consumer protection suit. If a business is underpaying its workers, the city may not be able to enforce state or federal wage laws.

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The reason? Like all litigants, cities must show that they have standing to invoke court jurisdiction. To have standing, litigants must generally demonstrate that they, themselves, have been injured. When someone else has been the victim of an illegal action, I cannot go to court and complain, no matter how much that action bothers me. This standing doctrine puts cities in a bind. Courts have ruled that when a city resident is harmed, the city has not legally been injured. City leaders may want what is best for residents, but legally, a city is an entity that is separate from its residents, so it lacks standing to sue on behalf of residents.

The situation is different for states. Unlike other litigants, states enjoy the unique power to sue as “parens patriae” on behalf of residents. States have made ample use of that special authority. In recent years, states have sued polluters, scammers, predatory lenders, and big corporations. Yet, state resources are hardly unlimited, and some local cases of wrongdoing inevitably fall through the cracks. Worse, the state is sometimes the only entity that can realistically file a suit. Companies often force consumers to sign waivers which limit their individual right to sue. Thus, in many cases of corporate wrongdoing, a state is the sole entity that can sue. If a state does not, the unlawful activity may continue unabated, causing harm.

All of this points to a need to empower cities to enforce the law. Cities, after all, are the unit of government that are closest to residents, and most likely to be responsive to local misconduct. What is more, cities typically have a local police force that can uncover wrongdoing. It makes perfect sense that cities should also be granted the litigation authority to hold wrongdoers accountable. Fortunately, states have the power to do just that. The Supreme Court has held that, as a matter of federal law, cities can exercise any suite of authority that the state chooses to delegate.

States can thus delegate to cities their litigation authority, including the power to sue on behalf of residents. Some states have already moved in this direction. The California legislature has given city attorneys the authority to enforce state consumer protection and environmental laws. City attorneys have used that authority to protect their own residents against local wrongdoers. They have also won several blockbuster cases, including a $400 million judgment against manufacturers of lead paint. Other states should build on the California model to delegate to cities.

What if a rural state legislature is hesitant to empower its cities? At least in many states, the attorney general can do so directly. State attorneys general are typically permitted to name any outside attorney as a special assistant attorney general, who can exercise any or all of the powers of that office. By designating city attorneys as special assistant attorneys general, a state attorney general could empower cities to exercise state litigation authority. Whatever the mechanism, empowering city attorneys is a win. States can augment their enforcement capacity at no real cost. Cities gain a tool to help solve issues of local concern. Most importantly, residents can breathe easier, knowing that the unit of government that is the most responsive to their interests can go to court to protect them.

Eli Savit is an adjunct professor at the University of Michigan Law School who serves as a senior adviser and legal counsel to the mayor of Detroit.