Opposition Brief — City of Huntington Beach, California, et al., Petitioners v. Gavin Newsom, Governor of California, et al.

No. 25-337

In the Supreme Court of the United States

CITY OF HUNTINGTON BEACH, et al.,

Petitioners,

v.

GAVIN NEWSOM, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION FOR THE STATE RESPONDENTS

ROB BONTA

Attorney General of California

SAMUEL T. HARBOURT

Solicitor General

DANIEL A. OLIVAS

Senior Assistant

Attorney General

December 31, 2025

AARON D. PENNEKAMP*

Deputy Solicitor General

DAVID PAI

Supervising Deputy

Attorney General

THOMAS P. KINZINGER

MATTHEW T. STRUHAR

Deputy Attorneys General

STATE OF CALIFORNIA

DEPARTMENT OF JUSTICE

1300 I Street, Suite 125

P.O. Box 944255

Sacramento, CA 94244-2550

(916) 210-6661

Aaron.Pennekamp@doj.ca.gov

*Counsel of Record

i

QUESTIONS PRESENTED

1. Whether political subdivisions have standing to

sue their parent State in federal court on federal constitutional grounds other than the Supremacy Clause.

2. Whether public officials have standing to raise

compelled speech claims under the First Amendment

against the State based on requirements imposed on

localities by California’s Housing Element Law and

the California Environmental Quality Act.

ii

TABLE OF CONTENTS

Page

Statement .................................................................... 1

Argument ..................................................................... 4

Conclusion.................................................................. 19

iii

TABLE OF AUTHORITIES

Page

CASES

Ariz. State Legislature v. Ariz. Indep.

Redistricting Comm’n

576 U.S. 787 (2015) ................................................ 8

Ayrshire Collieries Corp. v. United

States

331 U.S. 132 (1947) ................................................ 8

Bigelow v. Virginia

421 U.S. 809 (1975) .............................................. 14

Bd. of Educ. v. Allen

392 U.S. 236 (1968) ........................................ 16, 17

Bond v. Floyd

385 U.S. 116 (1966) .............................................. 17

Bonner v. City of Prichard, Ala.

661 F.2d 1206 (11th Cir. 1981) ............................ 11

Boquist v. Courtney

32 F.4th 764 (9th Cir. 2022) ................................ 17

Branson Sch. Dist. RE-82 v. Romer

161 F.3d 619 (10th Cir. 1998) .............................. 10

City of El Cenizo v. Texas

890 F.3d 164 (5th Cir. 2018) ................................ 17

City of Hugo v. Nichols

656 F.3d 1251 (10th Cir. 2011) ............................ 10

iv

TABLE OF AUTHORITIES

(continued)

Page

City of S. Lake Tahoe v. Cal. Tahoe Reg’l

Plan. Agency

625 F.2d 231 (9th Cir. 1980) .......... 4, 11, 15, 16, 17

City of S. Miami v. DeSantis

424 F. Supp. 3d 1309 (S.D. Fla. 2019) ................. 12

City of S. Miami v. Governor

65 F.4th 631 (11th Cir. 2023) .............................. 12

City of San Juan Capistrano v. Cal.

Pub. Utils. Comm’n

937 F.3d 1278 (9th Cir. 2019) .......................... 9, 14

Clark v. Sweeney

607 U.S. ___, 2025 WL 3260170

(Nov. 24, 2025)........................................................ 6

Donelon v. La. Div. of Admin. Law ex

rel. Wise

522 F.3d 564 (5th Cir. 2008) ............................ 9, 11

Drake v. Obama

664 F.3d 774 (9th Cir. 2011) ................................ 16

Garcetti v. Ceballos

547 U.S. 410 (2006) .............................................. 18

Gomillion v. Lightfoot

364 U.S. 339 (1960) ................................................ 7

Haaland v. Brackeen

599 U.S. 255 (2023) .............................................. 15

v

TABLE OF AUTHORITIES

(continued)

Page

Houston Cmty. Coll. Sys. v. Wilson

595 U.S. 468 (2022) .............................................. 17

Hunter v. City of Pittsburgh

207 U.S. 161 (1907) ............................................ 5, 6

Kennedy Comm’n v. Superior Ct.

114 Cal. App. 5th 385 (2025) ....................... 2, 9, 13

Kerr v. Polis

20 F.4th 686 (10th Cir. 2021) .............................. 10

Lujan v. Defs. of Wildlife

504 U.S. 555 (1992) ................................................ 5

McKesson v. Doe

592 U.S. 1 (2020) .................................................. 13

Middlesex Cnty. Ethics Comm. v.

Garden State Bar Assoc.

457 U.S. 423 (1982) .............................................. 13

Nat’l Pork Producers Council v. Ross

598 U.S. 356 (2023) .............................................. 14

Nevada Ethics Comm’n v. Carrigan

564 U.S. 117 (2011) .............................................. 16

Ocean Cnty. Bd. of Comm’rs v. Att’y Gen.

of N.J.

8 F.4th 176 (3d Cir. 2021) .................................... 10

vi

TABLE OF AUTHORITIES

(continued)

Page

People v. Huntington Beach

No. 30-2023-01312235-CU-WM-CJC

(Orange Cnty. Superior Ct. Mar. 8,

2023) ....................................................................... 2

Regents of the Univ. of Cal. v. Doe

519 U.S. 425 (1997) ................................................ 8

Rogers v. Brockette

588 F.2d 1057 (5th Cir. 1979) .................. 10, 11, 12

Romer v. Evans

517 U.S. 620 (1996) ................................................ 7

Smith v. Indiana

191 U.S. 138 (1903) ........................................ 15, 16

S. Macomb Disposal Auth. v. Wash.

Twp.

790 F.2d 500 (6th Cir. 1986) ................................ 11

State v. Baltimore & O.R. Co.

44 U.S. 534 (1845) .................................................. 6

Steel Co. v. Citizens for a Better Env’t

523 U.S. 83 (1998) ............................................ 8, 13

Thomas v. Mundell

572 F.3d 756 (9th Cir. 2009) ................................ 15

Tiburon Open Space Comm. v. Cnty. of

Marin

78 Cal. App. 5th 700 (2022) ................................. 15

vii

TABLE OF AUTHORITIES

(continued)

Page

Tong v. Tweed-New Haven Airport Auth.

140 S. Ct. 2508 (2020) ............................................ 5

Tweed-New Haven Airport Auth. v. Tong

930 F.3d 65 (2d Cir. 2019).................................... 10

United States v. Alabama

791 F.2d 1450 (11th Cir. 1986) ............................ 11

United States v. Texas

599 U.S. 670 (2023) ........................................ 5, 6, 7

Vill. of Arlington Heights v. Reg’l

Transp. Auth.

653 F.2d 1149 (7th Cir. 1981) .............................. 11

Va. Off. for Prot. & Advoc. v. Stewart

563 U.S. 247 (2011) ............................................ 6, 7

Washington v. Seattle Sch. Dist. No. 1

458 U.S. 457 (1982) ................................................ 7

Williams v. Mayor & City Council of

Baltimore

289 U.S. 36 (1933) ................................................ 14

Younger v. Harris

401 U.S. 37 (1971) ........................................ 3, 4, 13

Ysursa v. Pocatello Educ. Ass’n

555 U.S. 353 (2009) ............................................ 4, 6

viii

TABLE OF AUTHORITIES

(continued)

Page

STATUTES

Cal. Gov’t Code

§ 65580 et seq. ......................................................... 1

§ 65583 .................................................................... 1

§ 65588(e)(3)(A)(i) ................................................... 1

Cal. Pub. Res. Code

§ 21081(a) ............................................................. 18

§ 21081(b) ............................................................. 18

OTHER AUTHORITIES

Cal. Dep’t of Hous. & Cmty. Dev.,

Housing Element Review &

Compliance Report,

https://tinyurl.com/4fpyces2 ................................... 1

Cal. Dep’t of Hous. & Cmty. Dev.,

Prohousing Designation Program:

Prohousing Designated Jurisdictions

(Dec. 11, 2025),

https://tinyurl.com/3cp5u537 ................................. 2

Huntington Beach City Council, Study

Session (Mar. 19, 2024),

https://tinyurl.com/yvb72ncu ............................... 18

Johnson & McGhee, Pub. Policy Inst. of

Cal., Three Decades of Housing

Challenges in the Golden State (Dec.

3, 2024),

https://tinyurl.com/2p8scmax ................................ 1

ix

TABLE OF AUTHORITIES

(continued)

Page

McGhee, et al., Pub. Policy Inst. of Cal.,

New Housing Fails to Make Up for

Decades of Undersupply (Dec. 3,

2021), https://tinyurl.com/2p6k3247...................... 1

13B Wright, Miller et al., Fed. Prac. &

Proc. Juris. § 3531.11.3 (3d ed.) ........................... 17

1

STATEMENT

1. California faces a crisis of housing affordability.

In recent decades, the State’s population growth far

outpaced the growth in housing stock. See McGhee, et

al., Pub. Policy Inst. of Cal., New Housing Fails to

Make Up for Decades of Undersupply (Dec. 3, 2021),

https://tinyurl.com/2p6k3247. The State “should have

been building 70,000 to 110,000 more housing units

beyond what it actually built in each year from 1980

to 2010,” bringing the State’s shortfall over that period

to approximately 3.5 million homes. Id. As a consequence, housing costs skyrocketed, leading to greater

homelessness and a significant drop in home ownership. See Johnson & McGhee, Pub. Policy Inst. of Cal.,

Three Decades of Housing Challenges in the Golden

State (Dec. 3, 2024), https://tinyurl.com/2p8scmax.

To address these harms, the State Legislature enacted a series of reforms to state housing law. As relevant here, the Legislature amended the State’s

Housing Element Law to ensure that political subdivisions across California regularly adopt and update

plans—called “housing elements”—that are designed

to facilitate increased housing development. See generally, e.g., Cal. Gov. Code § 65580 et seq.; State Resp.

C.A. Answering Br. 17-20. Local governments are required to update their housing elements every eight

years to reflect current housing needs. See Cal. Gov.

Code § 65588(e)(3)(A)(i). A housing element must,

among other things, “make adequate provision for existing and projected [housing] needs for all economic

segments of the community.” Id. § 65583.

Many political subdivisions in California have embraced their obligations under the Housing Element

Law, helping to put the State on a path toward improved housing affordability. See, e.g., Cal. Dep’t of

2

Hous. & Cmty. Dev., Housing Element Review & Compliance Report, https://tinyurl.com/4fpyces2. 1 But a

small minority has resisted necessary reforms.

One of those political subdivisions is the City of

Huntington Beach. Although the City initially worked

with the California Department of Housing and Community Development to produce a draft housing element in September 2022, see State Resp. C.A. S.E.R.

158-159, the City ultimately refused to adopt a final

housing element. The City Council considered the

draft housing element at a meeting in March 2023, but

the Council deadlocked on adopting the housing element. See C.A. E.R. 541. And at the Council’s next

meeting a month later, it rejected the housing element

outright. See id.

2. a. The State sued the City in state court to obtain an order directing the City to come into compliance with the Housing Element Law. See People v.

Huntington Beach, No. 30-2023-01312235-CU-WMCJC (Orange Cnty. Superior Ct. Mar. 8, 2023); see also

State Resp. C.A. S.E.R. 72-90. That state court litigation remains ongoing. See Kennedy Comm’n v. Superior Ct., 114 Cal. App. 5th 385, 404-410, 425 (2025)

(describing procedural history of the State’s litigation

with the City). 2

1 See also Cal. Dep’t of Hous. & Cmty. Dev., Prohousing Designa-

tion Program: Prohousing Designated Jurisdictions (Dec. 11,

2025), https://tinyurl.com/3cp5u537.

2 The State obtained a writ of mandate that required the City to

adopt a housing element, but the trial court has not yet entered

final judgment in that state court litigation. See Kennedy

Comm’n, 114 Cal. App. 5th at 408-410, 425.

3

b. The day after the State filed its enforcement action in state court, petitioners—the City of Huntington Beach and several local officials—initiated this

case in federal court. See C.A. E.R. 685, 742. Petitioners sought an injunction blocking enforcement of the

Housing Element Law under the First Amendment,

the Fourteenth Amendment’s Due Process Clause, the

dormant Commerce Clause, and several state laws.

See id. at 685-743. The complaint did not include any

claims for relief under the Supremacy Clause, and petitioners nowhere claimed that the Housing Element

Law was preempted by any federal law. See id.

The State moved to dismiss petitioners’ complaint

on several grounds. See C.A. E.R. 548-580. It argued

that “cities, as political subdivisions, have no standing

to sue the State in federal court for alleged constitutional violations,” and that—even if petitioners could

establish standing—the court should abstain from deciding petitioners’ claims under Younger v. Harris, 401

U.S. 37 (1971). Id. at 560. As the State explained,

petitioners’ complaint was “a transparent attempt to

interfere with an ongoing state-court lawsuit brought

by the State against Huntington Beach over the city’s

refusal to comply with state housing laws.” Id. And

on the merits, the State argued that each of petitioners’ claims plainly failed as a matter of law. See id. at

560-561.

The district court dismissed petitioners’ federal

claims for lack of standing. See Pet. App. 14a-22a.

The court also declined to exercise supplemental jurisdiction over petitioners’ state law claims and denied

petitioners leave to amend their complaint, concluding

that any amendment would be “futile.” Id. at 22a-26a.

The Ninth Circuit affirmed in a short, unpublished

opinion. See Pet. App. 1a-4a. It held that the City’s

4

constitutional claims were foreclosed by longstanding

circuit precedent, “which forbids political subdivisions

. . . from challenging the constitutionality of state statutes in federal court.” Id. at 2a. It likewise held that

the various city officials who had joined the City’s lawsuit lacked standing: while those officials “retain personal free speech rights,” “they cannot invoke those

rights to avoid executing ‘laws within their charge.’”

Id. at 4a (quoting City of S. Lake Tahoe v. Cal. Tahoe

Reg’l Plan. Agency, 625 F.2d 231, 238 (9th Cir. 1980)).

And “[b]ecause each Plaintiff lack[ed] standing,” the

court explained that it “need not consider whether abstention is proper under Younger.” Id. The Ninth Circuit later denied petitioners’ request for rehearing en

banc with no noted dissent. See Pet. App. 27a-28a.

ARGUMENT

Petitioners seek review of the court of appeals’ unpublished disposition holding that they lack standing

to challenge certain state laws designed to increase

housing supply and affordability. The court of appeals

applied longstanding circuit precedent restricting the

ability of political subdivisions to sue their parent

States in federal court on federal constitutional

grounds. Petitioners view that precedent as flawed

because they think that political subdivisions suffer

an injury when required to effectuate state laws that

they would prefer not to implement. But because political subdivisions are “‘subordinate governmental instrumentalities created by the State to assist in the

carrying out of state governmental functions,’” Ysursa

v. Pocatello Educ. Ass’n, 555 U.S. 353, 362 (2009), they

suffer no legally cognizable injury merely because they

are required to do the very job they were created to do.

5

In alleging “an entrenched circuit split” on this issue, Pet. 6, petitioners point to several lower-court decisions that have allowed political subdivisions to

challenge state laws in federal court on preemption

grounds. But petitioners have not brought preemption claims in this case. Cf. Tong v. Tweed-New Haven

Airport Auth., 140 S. Ct. 2508 (2020) (No. 19-735)

(denying certiorari in preemption case brought by political subdivision against its parent State). No other

court of appeals would have allowed petitioners’ particular claims here—under the First Amendment, Due

Process Clause, and dormant Commerce Clause—to

proceed in federal court. For that reason, as well as

several others detailed below, this case would provide

an exceptionally poor vehicle to address questions

about the scope of political subdivisions’ standing.

And petitioners provide no good reason for the Court

to review their “narrow,” “subsidiary question” concerning First Amendment claims brought by local officials. Pet. 22. Certiorari should be denied.

1. a. A core requirement of Article III is that

plaintiffs demonstrate not just an “injury in fact,” but

an injury in fact that is “legally cognizable.” Lujan v.

Defs. of Wildlife, 504 U.S. 555, 578 (1992); see, e.g.,

United States v. Texas, 599 U.S. 670, 676 (2023). Petitioners’ principal theory of standing fails to satisfy

that requirement. The City argues that it suffers injury when it is forced as a matter of state law “to adopt

a housing element incorporating a large quota of

higher-density units.” Pet. 3; see supra pp. 1-2 (discussing the role of California’s Housing Element Law

in addressing the housing crisis). It has long been settled, however, that local governments “are political

subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of

the state as may be intrusted to them.” Hunter v. City

6

of Pittsburgh, 207 U.S. 161, 178 (1907). In light of that

principle, petitioners cannot show that the City suffers legally cognizable injury merely because it must

do what it was created to do: assist the State in implementing state law—including state housing policy. 3

To be sure, Congress occasionally “elevates de facto

injuries to the status of legally cognizable injuries redressable by a federal court.” Texas, 599 U.S. at 681682. For example, in Virginia Office for Protection &

Advocacy v. Stewart, 563 U.S. 247, 257 (2011), this

Court exercised jurisdiction in a case where Congress

had authorized “adjudicat[ion] [of] a dispute between

[two] components” of a single State’s government. See

id. at 250-251. The Court noted that “the relative novelty of [the] lawsuit” “give[s] us pause.” Id. at 260. But

it allowed the suit to proceed on the assumption that

similar suits would “rarely” arise. Id. at 261. “Such

litigation cannot occur,” the Court emphasized, “unless [a] state agency has been given a federal right” by

Congress, as was the case “under the highly unusual

statute at issue”—a statute that explicitly authorized

suit by a particular type of state agency. Id. at 261

3 Amici suggest that the Court should overrule the principle discussed in Hunter, 207 U.S. at 178. See Br. of Indep. Cities Ass’n

i, 6, 9. But that principle has been settled law for at least 180

years: it was recognized as early as 1845, see State v. Baltimore

& O.R. Co., 44 U.S. 534, 550 (1845), and has continued to play an

important role in modern decisions, see, e.g., Ysursa, 555 U.S. at

362. Amici provide no sensible basis for overruling that

longstanding precedent—especially in a case where petitioners

themselves fail to make that request. See generally Clark v.

Sweeney, 607 U.S. ___, ___, 2025 WL 3260170 (Nov. 24, 2025)

(“[W]e follow the principle of party presentation,” whereby “[t]he

parties frame the issues for decision, while the court serves as

neutral arbiter.” (internal quotation marks omitted)).

7

n.8; cf. id. at 266 (Roberts, C.J., dissenting) (calling it

“unsettling” to allow “a state agency [to] sue officials

acting on behalf of the State in federal court”). 4

As relevant here, petitioners have not raised

claims under any federal statutes, let alone the type of

“highly unusual” statute that might authorize them to

sue their parent State. Va. Off. for Prot. & Advoc., 563

U.S. at 260 n.8. Petitioners instead seek relief under

state law, as well as the First Amendment, Due Process Clause, and dormant Commerce Clause. Pet.

App. 13a. Petitioners identify no precedents of this

Court—or any historical precedent—that would support allowing such constitutional claims to move forward in federal court. Cf. Va. Off. for Prot. & Advoc.,

563 U.S. at 266 (Roberts, C.J., dissenting) (raising concerns about federal suits between agencies or instrumentalities within a single State because “[t]his has

never happened before”).

Petitioners principally rely on decisions that do not

address the standing of political subdivisions. For example, in Gomillion v. Lightfoot, 364 U.S. 339, 340

(1960), and Romer v. Evans, 517 U.S. 620, 625-626

(1996), see Pet. 14-15, this Court addressed the merits

of equal protection claims raised by private litigants.

And in Washington v. Seattle School District No. 1, 458

U.S. 457, 467 (1982), the Court discussed the merits of

4 Virginia Office for Protection & Advocacy addressed the cau-

tious approach that courts should take in determining whether

Congress has authorized relief under the Ex Parte Young doctrine; the Court did not address Article III. See 563 U.S. at 250.

But there is no reason to think that courts should be any less

cautious in evaluating whether Congress has “elevate[d]” a political subdivision’s injury to “the status of [a] legally cognizable injur[y]” for Article III purposes. Texas, 599 U.S. at 681-682.

8

a local government’s constitutional claim without addressing standing. But “[t]he mere fact that [a] case

was entertained by this Court is no basis for considering it as authoritative on . . . jurisdiction[],” “it being

the firm policy of this Court not to recognize the exercise of jurisdiction as precedent where the issue was

ignored.” Ayrshire Collieries Corp. v. United States,

331 U.S. 132, 138 n.2 (1947); cf. Steel Co. v. Citizens

for a Better Env’t, 523 U.S. 83, 91 (1998) (“drive-by jurisdictional rulings . . . have no precedential effect”). 5

Petitioners also invoke this Court’s sovereign immunity precedents. Pet. 11-13; see, e.g., Regents of the

Univ. of Cal. v. Doe, 519 U.S. 425 (1997). But they

provide no basis for consulting sovereign immunity

cases when addressing the question of Article III

standing presented here. Just because courts sometimes conduct a “state-law-grounded analysis” when

evaluating sovereign immunity, Pet. 13, does not

mean that there is any good reason to do so in the way

that petitioners request in this case. There is certainly

nothing in the Court’s sovereign immunity decisions

purporting to adopt the expansive “state-law-first

method” described by petitioners. Pet. 11 n.3.

Even if the Court consulted state law, it would

make no difference here. Petitioners suggest that

Huntington Beach’s charter-city status gives it sufficient independence to serve as an appropriate litigant

5 In Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. 787 (2015), see Pet. 11 n.3, the Court

held that the Arizona Legislature had standing to sue an independent state agency—but only in light of the Legislature’s claim

that it was exercising rights uniquely conferred on state legislatures by the federal Constitution’s Elections Clause. See 576 U.S.

at 800. Here, the City does not invoke any federal rights uniquely

conferred on political subdivisions.

9

against the State in federal court. See, e.g., Pet. 16-18.

But petitioners overstate the degree of independence

that charter cities enjoy under state law. As relevant

here, charter cities are required to assist the State in

implementing housing laws. State law “prevails over

local enactments of a chartered city, even in regard to

matters which would otherwise be deemed to be

strictly municipal affairs, where the subject matter of

the general law is of statewide concern.” Kennedy

Comm’n, 114 Cal. App. 5th at 419 (internal quotation

marks omitted). And the relevant state housing

laws—which were designed to “promot[e] the supply

and affordability of housing statewide,” id. at 420—

implicate matters of statewide concern, see id. at 398

(“The Legislature has declared housing availability to

be of ‘vital statewide importance’” and “‘a priority of

the highest order.’”). Indeed, the California Court of

Appeal recently directed a trial court to enter mandamus relief against the City for its unlawful “refus[al]

to adopt a revised housing element” “nearly four years

after [its] deadline” for doing so. Id. at 398-399.

b. Petitioners also fail to show that their suit

would move forward if brought in any other part of the

country. Outside of the Ninth Circuit, several courts

of appeals have allowed political subdivisions to raise

preemption claims against their parent States—

though they have not offered any “convincing[]” rationale for doing so. Donelon v. La. Div. of Admin. Law

ex rel. Wise, 522 F.3d 564, 567 & n.6 (5th Cir. 2008);

see also City of San Juan Capistrano v. Cal. Pub. Utils.

Comm’n, 937 F.3d 1278, 1283-1284 (9th Cir. 2019)

(Nelson, J., concurring). Any narrow division of authority between those circuits’ cases and the Ninth

Circuit’s precedent is not implicated here because petitioners have not raised a preemption claim. Supra

10

p. 3. And no other circuit has precedent that would

allow petitioners’ suit here to proceed.

For example, the Tenth Circuit would reject petitioners’ claims under its categorical bar on suits by political subdivisions against their parent States under

any “constitutional provisions that ‘provide substantive restraints on state action.’” Kerr v. Polis, 20 F.4th

686, 701 (10th Cir. 2021) (en banc); see, e.g., City of

Hugo v. Nichols, 656 F.3d 1251, 1257-1258 (10th Cir.

2011) (barring dormant Commerce Clause claim);

Branson Sch. Dist. RE-82 v. Romer, 161 F.3d 619, 628

(10th Cir. 1998) (“It is well-settled that a political subdivision may not bring a federal suit against its parent

state [under] . . . the Fourteenth Amendment.”). The

only exception recognized by the Tenth Circuit is for

preemption claims—and even then, there is only a

“narrow pathway . . . to sue.” Kerr, 20 F.4th at 694. 6

The rule in the Second, Third, and Fifth Circuits is

similar. See Pet. 6-7. In Tweed-New Haven Airport

Authority v. Tong, 930 F.3d 65, 73 & n.7 (2d Cir. 2019),

the Second Circuit acknowledged its longstanding

precedent denying “a political subdivision . . . standing to sue its state under the Fourteenth Amendment.” But it allowed claims to proceed under the

Supremacy Clause. See id. The Third Circuit has likewise allowed Supremacy Clause suits, but it has refused to confer standing on local governments when

pressing other types of constitutional claims against

their parent States. Ocean Cnty. Bd. of Comm’rs v.

Att’y Gen. of N.J., 8 F.4th 176, 180-181 & n.3 (3d Cir.

6 In the Tenth Circuit’s view, “political subdivision standing is an

inquiry going to the merits of the case, not the court’s jurisdiction.” Kerr, 20 F.4th at 696. As the court has acknowledged,

however, that distinction has little effect on “the actual substance

of the inquiry.” Id. at 696 n.4.

11

2021). Similarly, in Rogers v. Brockette, 588 F.2d

1057, 1067-1071 (5th Cir. 1979), the Fifth Circuit described a general rule prohibiting political subdivisions from bringing claims against their parent States

under the Fourteenth Amendment, while concluding

that a school district had standing to sue on Supremacy Clause grounds. More recently, however, the Fifth

Circuit called Rogers “anomalous” and “not very convincing[]” when compared to the rule long applied by

the Ninth Circuit: “that a political subdivision [does]

not have standing to sue [its] parent state” under any

circumstances. Donelon, 522 F.3d at 567 & n.6. 7

The decisions petitioners cite from the Sixth and

Eleventh Circuits do not support their assertion of a

circuit conflict. See Pet. 7. In South Macomb Disposal

Authority v. Washington Township, 790 F.2d 500, 505

(6th Cir. 1986), the Sixth Circuit pointed to the principal Ninth Circuit precedent invoked by the decision

below—South Lake Tahoe, 625 F.2d at 233—as persuasive authority in support of its determination that

one political subdivision could not sue another political subdivision on Fourteenth Amendment grounds.

And United States v. Alabama, 791 F.2d 1450 (11th

Cir. 1986), adds nothing new to the mix. There, the

court merely recognized that Fifth Circuit decisions

that pre-date the 1981 creation of the Eleventh Circuit—including Rogers, 588 F.2d at 1068—establish

binding circuit precedent until abrogated by the Eleventh Circuit sitting en banc. Alabama, 791 F.2d at

1455; see generally Bonner v. City of Prichard, Ala.,

7 See also Vill. of Arlington Heights v. Reg’l Transp. Auth., 653

F.2d 1149, 1152 (7th Cir. 1981) (calling it “well established in the

federal courts” that political subdivisions “cannot invoke the protection of the Fourteenth Amendment against the State” (internal quotation marks omitted)).

12

661 F.2d 1206, 1210 (11th Cir. 1981) (en banc). The

Eleventh Circuit has never endorsed Rogers as a matter of first principles.

City of South Miami v. Governor, 65 F.4th 631

(11th Cir. 2023), has nothing relevant to say about the

questions presented here. Contra Pet. 19. There, the

Eleventh Circuit determined that various nonprofit

organizations lacked standing “to challenge a state

law that require[d] local law enforcement to cooperate

with federal immigration officials.” S. Miami, 65

F.4th at 634. The court nowhere suggested that municipalities would have had standing. In fact, the district court in that case had previously dismissed the

City of South Miami’s constitutional claims because

“political subdivisions have no standing to invoke the

provisions of the Fourteenth Amendment” against

their parent State. City of S. Miami v. DeSantis, 424

F. Supp. 3d 1309, 1322 (S.D. Fla. 2019). Nothing in

the Eleventh Circuit’s reasoning suggests that it disagreed with the district court on that score.

c. This case would also be an exceptionally poor vehicle to address the standing of local governments to

sue their parent States—not only because there is no

preemption claim in this case, see supra pp. 9-12, but

for several other reasons as well. Throughout this

case, for example, petitioners have focused on questions of California state law concerning the status of

charter cities. See, e.g., Pet. 9-13, 16-18; see also Pet.

App. 3a; C.A. Opening Br. 48-60. They contend that

this Court should adopt a “state-law-first” rule,

whereby a political subdivision’s standing to sue its

parent State would turn on considerations like “the

entity’s status under the State’s constitution; its corporate autonomy and powers; [and] the degree of State

control” over the entity. Pet. 5. But no circuit has

13

adopted a rule that relies on a political subdivision’s

status and authority under state law. See supra pp. 512. And petitioners provide no good reason why this

Court should spend its scarce time and resources focusing on questions of charter-city authority and status under state law. Cf. McKesson v. Doe, 592 U.S. 1,

5 (2020) (per curiam) (refusing to reach “novel issues

of state law peculiarly calling for the exercise of judgment by the state courts”).

The Court’s resolution of petitioners’ standing arguments would also have no effect on the outcome of

this case, which would be dismissed even assuming

that cities like Huntington Beach have standing to sue

their parent States in federal court. The Younger abstention doctrine requires dismissal of petitioners’

lawsuit on jurisdictional grounds. See Steel Co., 523

U.S. at 100 n.3. Abstention under Younger is generally appropriate where a parallel state action is pending and would provide an adequate opportunity to

raise federal claims. See, e.g., Middlesex Cnty. Ethics

Comm. v. Garden State Bar Assoc., 457 U.S. 423, 432

(1982). That is the case here. The State’s lawsuit

against Huntington Beach in state court is ongoing,

see supra p. 2 & n.2, and has afforded ample opportunity for the City to raise its federal claims, see Kennedy Comm’n, 114 Cal. App. 5th at 407-408. Indeed,

“the City asserted dozens of affirmative defenses” in

that ongoing state court litigation—including defenses

alleging that the Housing Element Law is invalid on

federal constitutional grounds. Id.

Moreover, each of petitioners’ federal claims is

meritless. Petitioners present three claims: a Fourteenth Amendment due process claim, a First Amendment claim, and a dormant Commerce Clause claim.

14

This Court and every court of appeals agree that political subdivisions cannot bring Fourteenth Amendment claims against their parent States. See, e.g.,

Williams v. Mayor & City Council of Baltimore, 289

U.S. 36, 40 (1933); San Juan Capistrano, 937 F.3d at

1283-1284 (Nelson, J., concurring). That unanimous

view necessarily forecloses the City’s First Amendment claim as well, because the First Amendment applies to the States only by virtue of its incorporation

through the Fourteenth Amendment. See Bigelow v.

Virginia, 421 U.S. 809, 811 (1975). And petitioners’

dormant Commerce Clause theory cannot survive

even cursory review. Petitioners allege that California

violated the dormant Commerce Clause by “attempting to offer[] cheaper, more abundant housing than

other states.” C.A. E.R. 663. But petitioners fail to

allege any form of economic protectionism, or any

other facts that would plausibly support relief under

the dormant Commerce Clause. See generally Nat’l

Pork Producers Council v. Ross, 598 U.S. 356, 390

(2023) (“Preventing state officials from enforcing a

democratically adopted state law in the name of the

dormant Commerce Clause is a matter of ‘extreme delicacy,’ something courts should do only ‘where the infraction is clear.’”).

2. Nor should the Court grant plenary review of

petitioners’ “subsidiary” question concerning the

standing of local government officials to assert First

Amendment claims. Pet. 22. Petitioners ask this

Court to recognize a theory of standing that would allow them to bring compelled speech claims against the

State whenever “state law compels them, in their official roles, to make a public statement they do not believe.” Pet. i (emphasis added). But petitioners fail to

cite any case—from this Court or any other—adopting

that expansive rule of public official standing.

15

Indeed, the rule under this Court’s precedent has

long been the opposite. In Smith v. Indiana, 191 U.S.

138, 148-149 (1903), this Court recognized that public

officials do not suffer legally cognizable injuries

merely because they are required to perform their official duties. That longstanding rule is consistent with

this Court’s more recent pronouncement that mere

“complicit[y] in enforcing” a law does not provide

standing to challenge it. Haaland v. Brackeen, 599

U.S. 255, 295 (2023). And the Ninth Circuit has applied that same understanding of the limits of public

official standing for over forty years. See S. Lake Tahoe, 625 F.2d at 238 (holding that councilmembers do

not have standing merely “because they wish not to

enforce a statute due to private constitutional predilections”); Thomas v. Mundell, 572 F.3d 756, 761 (9th

Cir. 2009) (“[A] public official’s ‘personal dilemma’ in

performing official duties that [the official] perceives

to be unconstitutional does not generate standing.”).

The Ninth Circuit’s case-specific application of

these well-established principles does not conflict with

the decisions of any other court. Petitioners have not

shown “how they suffered a constitutional injury absent their roles as local officials.” Pet. App. 4a. Their

claimed injury throughout this litigation has been that

state law requires them to adopt—“in their official

roles,” Pet. i—a housing development plan and “statement of overriding considerations” with which they

personally disagree. See, e.g., C.A. E.R. 653-654. 8 But

8 The California Environmental Quality Act sometimes requires

government agencies to issue a “statement of overriding considerations” when they decide to approve a policy or project—such

as a housing element—that will have significant environmental

effects. See, e.g., Tiburon Open Space Comm. v. Cnty. of Marin,

78 Cal. App. 5th 700, 732-733 (2022).

16

petitioners fail to explain how adopting a housing element and statement of overriding considerations—

which, as relevant here, impose only modest burdens

on local governments, see infra p. 18—would be different in kind from the many plans, reports, and certifications that public officials routinely issue in their

official capacities. See generally Smith, 191 U.S. at

149 (where “a public officer” has “certain duties . . . to

perform,” “[t]he performance of those duties [is] of no

personal benefit to him” for standing purposes, and

“[t]heir nonperformance [is] equally so”).

Nevada Ethics Commission v. Carrigan, 564 U.S.

117 (2011), provides no support for petitioners’ standing theory. Contra Pet. 22-26. Carrigan merely held

that “restrictions upon legislators’ voting are not restrictions upon legislators’ protected speech.” 564 U.S.

at 125. Nothing in Carrigan addresses the question at

issue here: the extent to which legislators or other

government officials have standing to raise First

Amendment claims. See Pet. App. 4a.

This Court’s decision in Board of Education v. Allen, 392 U.S. 236 (1968), likewise fails to support petitioners’ broad theory. See Pet. 15. A short footnote in

Allen suggests that public officials have a sufficient

“personal stake in the outcome” of a case to support

standing when they “are in the position of having to

choose between violating their oath [to the Constitution] and taking a step . . . that would be likely to bring

their expulsion from office.” 392 U.S. at 241 n.5 (internal quotation marks omitted). It is not at all clear,

however, that Allen’s footnote remains good law, given

that the Court has “significantly tightened standing

requirements” in the years since Allen. S. Lake Tahoe,

625 F.2d at 236; see Drake v. Obama, 664 F.3d 774,

17

780 (9th Cir. 2011) (similar). 9 And even if Allen remained good law, it would not support standing here.

In Allen, the officials’ refusal to enforce the challenged

law was “likely to bring their expulsion from office.”

392 U.S. at 241 n.5; see S. Lake Tahoe, 625 F.2d at 240

(Sneed, J., concurring). Petitioners have not argued

they face any such threat. Their only claimed injury

is that they would prefer “to avoid executing laws

within their charge” that they dislike. Pet. App. 4a

(internal quotation marks omitted).

The Fifth Circuit’s decision in City of El Cenizo v.

Texas, 890 F.3d 164 (5th Cir. 2018), is similarly unhelpful to petitioners. See Pet. 22-23, 25. Construing

Allen, the court recognized “that it is not enough for

public officials to assert as an ‘injury’ the violation of

their oaths of office where no adverse consequences

would occur.” 890 F.3d at 186. But the court nonetheless found standing and reached the merits of the

plaintiff officials’ constitutional claims because the

“officials face[d] criminal penalties in addition to civil

fines and expulsion from office if they disobey[ed]” the

challenged statute. Id. Again, petitioners do not point

to any comparable consequences in this case. 10

9 See also 13B

Wright, Miller et al., Fed. Prac. & Proc. Juris.

§ 3531.11.3 n.16 (3d ed.) (collecting cases that cast doubt on the

precedential significance of Allen’s footnote).

10 None of the remaining cases cited by petitioners, see Pet. 25,

address the standing of local officials. See Houston Cmty. Coll.

Sys. v. Wilson, 595 U.S. 468, 474-483 (2022) (rejecting school

board member’s First Amendment claim without discussing

standing); Bond v. Floyd, 385 U.S. 116, 131-137 & n.14 (1966)

(addressing state legislator’s First Amendment claim without

discussing standing); Boquist v. Courtney, 32 F.4th 764, 774-785

(9th Cir. 2022) (similar).

18

In any event, petitioners’ First Amendment claim

is meritless. They argue that they “could not truthfully adopt” a statement suggesting that “the benefits

of high-density housing” “outweighed” other considerations, such as environmental impacts. Pet. 3. But

where “public employees make statements pursuant

to their official duties, the employees are not speaking

as citizens for First Amendment purposes.” Garcetti

v. Ceballos, 547 U.S. 410, 421 (2006). And the relevant

provisions of California law merely require petitioners

to issue a brief statement noting that they are approving a housing element despite their concerns about environmental impacts because state law requires them

to do so. See, e.g., Cal. Pub. Res. Code § 21081(a), (b).

Nothing requires petitioners to express agreement

with state housing laws. Petitioners remain free to

criticize state housing policies in both their personal

and official capacities—a freedom they have not hesitated to exercise. See, e.g., C.A. E.R. 316, 354-355;

Huntington Beach City Council, Study Session 2:372:50 (Mar. 19, 2024), https://tinyurl.com/yvb72ncu

(statement of Councilmember Strickland) (“We’ve

been . . . forced to follow nonsensical housing laws.”).

19

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

ROB BONTA

Attorney General of California

SAMUEL T. HARBOURT

Solicitor General

DANIEL A. OLIVAS

Senior Assistant Attorney General

AARON D. PENNEKAMP

Deputy Solicitor General

DAVID PAI

Supervising Deputy Attorney General

THOMAS P. KINZINGER

MATTHEW T. STRUHAR

Deputy Attorneys General

December 31, 2025