Suing the government poses unique hurdles that plaintiffs who sue private citizens do not have to overcome. 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. 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. Such a party would have to show that the agency acted in an arbitrary, capricious, or unreasonable manner.
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.” 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, setting guidelines on emergency rulemaking, and enabling courts to stay an agency’s proceedings if the decision is appealed.
Procedure Against a City in North Dakota
Now, imagine that same company breaks ground on that same project, and this time the Public Services Commission does not interfere. Instead, the city rezones the location of the project and denies the company an exception. It is not unreasonable to expect that suing a municipal body would be similar to suing an administrative agency. After all, many may view both as smaller extensions of the government. However, the process is more complicated and the standard more deferential to challenge a city action.
The difference between the two lies in the scope of NDAAPA. NDAAPA (and thus, all of its checks on an agency’s power) does not extend to municipal governments or municipal administrative agencies. Instead, only a single provision in the North Dakota Century Code § 28-34-01 provides plaintiffs with one way of challenging a city’s action in court by directly appealing to the district court. As the law currently stands, the city’s action must be challengeable by an “enabling statute”, i.e., a separate statute that expressly allows the plaintiff(s) to challenge the action in court. Without it, courts cannot review the action of a city council, a board of county commissioners, or any of their respective administrative agencies or departments.
Returning to the hypothetical, for the company to challenge the city’s rezoning, it must follow a two-step process. First, it would need to rely on a statute that expressly states that an aggrieved person or entity may appeal the city’s decision. Then, the company would have thirty days to appeal the city council’s rezoning decision in district court.
The second step in this two-step process requires the company to meet a slightly different standard than it would if it were challenging a state agency. Now, the company would have to prove that the city’s decision was arbitrary, capricious, or unreasonable, or not substantially supported by the evidence. All that is needed for a city’s action to be “substantially supported” is to find that a “reasonable mind” must be able to “accept the evidence as adequate.” This has been interpreted by North Dakota courts to be a more deferential standard than the arbitrary and capricious standard for administrative agencies. However, it must be stressed that if there is not a statute expressly allowing an appeal of a city’s action, then any argument that the city’s action meets that standard would go unheard by the courts. At that point, the only option for the company would be to bring a writ of mandamus or writ of prohibition, a remedy outside the scope of this article.
Procedure Against the State of Minnesota
Minnesota’s structure for administrative review differs procedurally more than it does substantively. Minnesota’s Administrative Procedure Act (MNAPA) mirrors the same standard used federally and by NDAAPA. It contains many of the same safeguards codified in NDAAPA. Procedurally, however, a Minnesota plaintiff has more options than a North Dakota plaintiff to challenge an agency action. If a Minnesota plaintiff seeks to challenge a Minnesota agency action, it can do so before the rule takes effect with a pre-enforcement action or after it takes effect with a petition for certiorari. After filing a petition for certiorari, plaintiffs can successfully challenge state administrative agency actions in district court provided they can meet the arbitrary or capricious standard. Courts in Minnesota interpret that standard to require a review the agency’s record and determine “whether there is substantial evidence” to support the agency finding.
Procedure Against a City in Minnesota
Similar to North Dakota, the scope of MNAPA extends only to administrative agencies, excluding municipal agencies and cities altogether. Even though MNAPA excludes cities and their agencies, Minnesota does not require the two-step process to challenge municipal action that North Dakota does. While some statutes provide appellate processes, there is no requirement in Minnesota to have an enabling statute, making it far more accessible for plaintiffs to challenge municipal actions. Absent a statute providing the standard of review for a city’s decision-making, plaintiffs may simply challenge city actions in district court. The courts employ the same arbitrary and capricious standard as they do in cases involving MNAPA. This eliminates the disparity between state and municipal action that exists between governments in North Dakota. Further, the interpretation of the arbitrary or capricious standard is not harder to prove in challenges to municipal action, as is the case in North Dakota.
Getting your day in court provides more procedural obstacles than you would think, especially when the defendant is the state or city government. If you or your company want to challenge an action taken by the government, in any state and across any level of government, please contact the experienced government litigation attorneys at Eckland & Blando.
 Research and drafting assistance provided by Kenneth Cooper and Adrian Kipp, law clerks at Eckland & Blando.
 This was the reality for the plaintiff in Minn-Kota Ag Prod., Inc. v. N.D. Pub. Serv. Comm’n, 938 N.W.2d 118 (N.D. 2020).
 N.D. Cent. Code § 28-32-01 (2019) et seq.
 E.g., People to Save the Sheyenne River, Inc. v. N.D. Dept. Health, 697 N.W.2d 319, 328 (N.D. 2005).
 Id. at 329.
 N.D. Cent. Code § 28-32-33 (2007).
 N.D. Cent. Code § 28-32-03 (2019).
 N.D. Cent. Code § 28-32-48 (2019).
 Plaintiffs had to overcome a similar obstacle in Johnson v. City of Burlington, 942 N.W.2d 816 (N.D. 2020).
 C & K Consulting, LLC v. Ward Cty. Bd. of Comm’rs, 942 N.W.2d 816, 819 (N.D. 2020).
 N.D. Cent. Code § 28-34-01 (1995).
 Luckily, there is an enabling statute for this kind of municipal action. N.D. Cent. Code § 40-47-09 (1943).
 Johnson, 942 N.W.2d at 819 (citing Tibert v. City of Minto, 720 N.W.2d 921, 924 (N.D. 2006).
 Dockter v. Burleigh Cty. Bd. of Cty. Comm’rs., 856 N.W.2d 836, 841 (N.D. 2015).
 See Johnson, 942 N.W.2d at 819.
 Minn. Stat. § 14.44 (1984).
 Minn. Stat. § 14.63 (2013), Minn. Stat. § 14.64 (1983).
 In re American Iron and Supply Co.’s Proposed Metal Shredding Facility in Minneapolis, Minn., 604 N.W.2d 140 (Minn. Ct. App. 2000).
 Id. at 144.
 Minn. Stat. § 14.02(2) (1990); Rochester City Lines, Co. v. City of Rochester, 868 N.W.2d 655, 659 (Minn. 2015).
 Rochester City Lines, Co., 868 N.W.2d at 659.