So You Want To Sue The Government? A 'How-To' Sue From City To State In North Dakota And Minnesota

• Published date: 20 September 2022
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Government Contracts, Procurement & PPP, Sovereign Immunity: Public Sector Government
• Law Firm: Eckland & Blando
• Author: Mr Robert Dube

Suing the government poses unique hurdles that plaintiffs who sue private citizens do not have to overcome.¹ If sovereign immunity does not bar their claims, then they must also avoid the procedural pitfalls designed to limit their ability to seek relief in court. When the government bad actor is a state or municipality, the procedure is often set by state law. Not only do these procedural hurdles differ from state to state'and depend on whom in the government you sue'but the procedure for litigation changes across levels of government within the same state.

To illustrate these differences, we first compare the procedure for suing a state administrative agency to the procedure for suing a municipal body in North Dakota. Then, we compare the procedures between the same in Minnesota. At each level, there is a different procedure the plaintiff must follow if they wants their day in court.

Procedure Against the State of North Dakota

Imagine a company breaks ground on a multi-million-dollar construction project, only for the North Dakota Public Services Commission to issue rules blocking that construction, increasing costs, and preventing the company from presenting its case in the decision-making process.² Luckily, the company has an avenue to court in this scenario. Under the North Dakota Administrative Agencies Practice Act (NDAAPA), any party to a proceeding (including those who are entitled to be admitted as a party) can challenge an administrative agency's decision-making by challenging the agency's decision in a district court.³ Such a party would have to show that the agency acted in an arbitrary, capricious, or unreasonable manner.⁴

To meet such a standard in the hypothetical, the company would have to show that the Public Services Commission's decision was not the "product of a rational mental process by which the fact and the law relied upon are considered together for the purpose of achieving a reasoned and reasonable interpretation."⁵ This is a highly deferential standard of review, giving broad leeway to administrative agencies across the state with the potential to affect millions of citizens and companies.

NDAAPA also puts numerous checks on the decision-making power of administrative agencies. It provides important guardrails on an agency's authority, by imposing limits on subpoenas,⁶ setting guidelines on emergency rulemaking,⁷ and enabling courts to stay an agency's proceedings if the decision is appealed.⁸

Procedure Against a City in North ...