A City’s Day in Court: Using Class Action Principles to Protect Cities’ Due Process Rights

Authors

David Stage

Abstract

In a recent trend in public law, municipalities are increasingly bringing “affirmative litigation,” suing large corporations to protect municipal residents and increase revenue. As affirmative litigation becomes popular among municipalities, more and more municipalities have found that their respective states (e.g., the State of Illinois for the City of Chicago) have already sued the would-be defendant for the same action. Because of the state’s prior action, the defendant can raise the common law defense of res judicata against the municipality to preclude the municipality’s lawsuit. If a defendant wants to raise the defense and preclude a subsequent lawsuit, then the defendant must show that the first lawsuit is final, that the claims between the first lawsuit and the second lawsuit are the same, and that the plaintiff in the first lawsuit is the same as the plaintiff in the second lawsuit. The would-be defendant claims that the municipality and the state are one and the same in raising the defense of res judicata to preclude the municipality’s lawsuit.

Courts often agree with the defendant, blocking the municipality’s lawsuit. Some courts, however, rule in favor of the municipality, finding that the municipality is a separate entity from its state. These divergent results are not doctrinally incorrect because the status of municipalities is contested. The problem with these divergent results is that they can lead to unfair results for both the municipality and for the defendant. It can lead to unfair results for the municipality because if the state does not adequately represent its municipality, then the municipality will be precluded from bringing its lawsuit without ever having its day in court, a violation of its procedural due process rights. It can lead to unfair results for the defendant because the defendant may be subject to inconsistent judgments or double liability, also raising due process concerns.

This Article recommends that courts adopt class action principles when dealing with consecutive state and municipal lawsuits to avoid divergent and unfair results. Federal Rule of Civil Procedure 23 governs class actions brought in federal courts and requires that a class representative adequately represent other class members. If courts apply Rule 23 when analyzing whether a municipality can sue a defendant after its state has already sued for the same cause of action, then a prior state lawsuit will only preclude a subsequent municipal lawsuit if the state adequately represented its municipality’s interests.

Repository Citation

David Stage, A City’s Day in Court: Using Class Action Principles to Protect Cities’ Due Process Rights, 108 Marq. L. Rev. 1055 (2025).
Available at: https://scholarship.law.marquette.edu/mulr/vol108/iss4/6