By Daniel Aaron
On October 21, two Ohio counties are slated to present their opioid claims in a federal trial. However, last week, 13 states and the District of Columbia signed onto a brief requesting that the 6th Circuit Court of Appeals stay the upcoming trials. Their reasoning? States should control lawsuits for harms within the state; cities and counties do not have authority to sue on their own. While it makes sense that Ohio’s attorney general, spearheading this effort, would want more power and control over opioid claims, the move has the potential to harm public health by disempowering local governments from addressing public health crises. Ohio’s three main arguments will be discussed in turn.
Argument 1: Violation of State Sovereignty
First, Ohio argues that the county lawsuits violate state sovereignty and disrupt the “federal dual-sovereign structure” of the United States:
These are, after all, the United States, not the United Counties and Cities of America. See Cmty. Commc’ns Co. v. City of Boulder, 455 U.S. 40, 54 (1982) (“‘We are a nation not of “city-states” but of States'”) [sic] . . . . Our Republic’s structure is dual, not triple, and that dual structure “has no place for sovereign cities” (or counties). Id. at 53.
This view seems to suggest that localities have little sovereign authority to pursue their own objectives, litigation or otherwise. However, this view does not comport with American history. Cities are a vibrant and important part of our country’s government and have strong powers to pursue local policies. Particularly in states subject to so-called “Home Rule,” municipalities have a substantial amount of independence. Ohio is one such Home-Rule state. (The alternative to Home Rule is Dillon’s Rule; a Dillon’s Rule state decides precisely what authorities to grant a city.) According to the Ohio State Constitution, a city or county “may frame and adopt or amend a charter for its government and may . . . exercise thereunder all powers of local self-government.” Moreover, cities generally have power to pursue litigation. Even if they do not have strict parens patriae authority (the common-law authority of states to pursue lawsuits on behalf of their inhabitants), they can pursue a lawsuit for the direct harms they suffered from the opioid crisis.
A 1982 Supreme Court Case About Boulder, Colorado
Beyond clear legal history, the Ohio attorney general offers a questionable interpretation of the 1982 Supreme Court Case Community Communications Co. v. City of Boulder. That case concerned an emergency city ordinance prohibiting expansion of a cable company for three months in order to allow competitors to enter the market. The cable company sued, arguing this was antitrust activity in violation of the federal Sherman Act. Boulder counterargued that it was exempt from the Sherman Act by the Parker doctrine, which allows states to pursue anticompetitive behavior, and Boulder, acting in its governmental capacity, was akin to a state. The Supreme Court held that Boulder was not acting as a sovereign state and therefore was not immune from antitrust liability under the Sherman Act. However, the opinion speaks mainly to the supremacy of federal law over cities and counties, rather than cabining legitimate use of local authority.
In the case of the Ohio county lawsuits, we are not asking whether a city is acting as a state with regard to federal law, but whether cities can pursue their own litigation for direct harms from opioid companies. Historically and legally, they can. And it is beneficial that they do so. Rather than centralizing all litigation in the offices of state attorneys general, local lawsuits allow for legal innovation and tailoring of arguments and remedies to local needs. Further, overlapping claims guard against the prospect of losing a single larger suit. Third, local suits democratize the opioid litigation by allowing varied parties to pursue their own interests, much as private attorneys general do. Fourth, they guard against the capture of attorneys general through campaign contributions, which I discussed in my previous blog post. Fifth, proceeds of an attorney general’s lawsuit are allocated by the state government, which, judging by the 1990s tobacco settlements, may simply enter the state general fund rather than aiding struggling municipalities.
Argument 2: Legal advantages
Ohio argues that it has more legal options and can better surpass legal defenses. It can use broad statistical methods to prove the “causation” of injuries by opioid companies. It is not barred by the statute of limitations. While all of this may be true, local lawsuits also bring distinct advantages, as mentioned above.
Argument 3: Efficiency
Ohio contends that pausing state and local opioid claims would make the litigation smoother. However, snuffing out the vast majority of opioid claims in favor of a small number of high-level state suits is anti-democratic, and it stifles legal innovation and the mutual reinforcement of parallel suits.
Ohio’s attorney general is urging Ohio federal court to halt two important county lawsuits. It also is pushing a state bill to obtain exclusive authority over state opioid claims. Ultimately, Ohio wants to centralize its opioid litigation, to the exclusion of “the little guy.” (Ohio also supports a tentative settlement with Purdue Pharmaceuticals, which, as I described in a previous blog post, is insufficient for supporting public health.) If Ohio is successful in federal court, all cities and counties may lose the authority to pursue their opioid claims. This centralization of power is unwise, and the voices of smaller parties should be preserved.
Update: Since the writing of this post, the 6th Circuit has denied Attorney General Yost’s request to stay the trials. The Court grounded its ruling on untimeliness, rather than on the merits.