By Dana Berliner
As our readers know, IJ changes the world in many ways. We do public education and advocacy; we publish high-quality studies; we work with legislatures and activists to change laws. And, of course, we litigate. Each is effective in its own way. But when we litigate, we can get a judicial decision that sets precedent. Precedents outlast changes in laws and administrations, and we can use their reasoning to win future cases. Especially as we build new areas of constitutional law, having precedents to rely on is extremely helpful.
IJ litigators appear in court all the time, but 2023 is shaping up to be a particularly busy year in this regard. We will have at least 27 arguments in the first six months of 2023. We’ll be in the 2nd, 5th, 6th, 7th, and 8th U.S. Circuit Courts of Appeals, the Michigan and Indiana Supreme Courts, and many other courts besides. We had an economic liberty trial in front of a judge and have a forfeiture trial in front of a jury coming up. In just two days, we argued four appellate cases, three in federal appeals courts (two in the same court on the same day) and one at a state supreme court.
The topics of these arguments vary widely. We will be arguing at the Seventh Circuit that there is a fundamental right not to be punished for someone else’s crime. That seems obvious, but many laws impose penalties on people for the behavior of other adults in their family. For example, Granite City, Illinois, forced private landlords to evict tenants if anyone in the home (including guests) committed any crime within the city. This same issue comes up in fine and forfeiture cases as well.
Our argument (as an amicus) at the Michigan Supreme Court asked the court to end the state’s system of funding its courts through fines issued by those courts. Challenging the financial incentives baked into government action—whether fines, fees, or forfeitures—has been one of our major goals for many years.
In our jury trial in Texas state court, we are defending a Mississippi man’s life savings against forfeiture by Harris County, which claims the cash, seized during a roadside stop, is connected to a crime. Never mind that police found no evidence of a crime and can’t even say what crime the cash is supposedly connected to.
And we will have an argument at the 5th Circuit on behalf of a woman whose home was virtually destroyed in a SWAT raid. She understands the police were trying to arrest a suspect who had sheltered in her home—in fact, she called the police and told them the man was there and appeared to have kidnapped someone. But she doesn’t understand why she, and not the city, should be the one to pay for all the repairs. This problem arises all over the country, but it has barely been litigated at all. IJ plans to change that. We are truly making the law in real time in a desperately needed area and doing so, as we always do, in a strategic and cutting-edge manner.
And that’s just four of 27. In addition, we will argue (or have already argued) on behalf of an entrepreneur in California who is being required to get a surveyor’s license just to make informal site plans of customers’ property; a small transportation business in Nebraska that can’t open due to a certificate of need law; a printing business in California whose packages were opened by the U.S. Post Office without cause or a warrant; two food truck owners in North Carolina who are forbidden from operating their food trucks on privately owned land even with the permission of the owner (whom we are also representing); a family farm in New Jersey that is being fined tens of thousands of dollars for paperwork violations; two people from Tennessee rendered homeless after a Memphis court imposed ruinous fines when their houses were damaged by storms and left them without any way to fight back; a family-owned business in New York fighting eminent domain of land it procured for a new hardware store location; two families and their landlords in Iowa who don’t want their homes searched without a warrant; and a woman in Idaho who wants to be allowed to live in her tiny home.
That’s a lot of arguments. And the preparation for each one is significant. The litigators must review dozens of cases and documents, write an outline, and prepare concise answers to questions. Then, in our Robert A. Levy Moot Court Room at our Arlington, Virginia, headquarters, which is done up like a real courtroom, we hold one or more moot courts, with multiple IJ attorneys participating. These practice sessions allow litigators to hone their explanations and hear unexpected questions. During the real arguments, IJ’s skill and preparation shine through. We are always the experts in the room.
Many courts livestream arguments, which means you can tune in to hear IJ advocates defending our clients’ rights while fielding challenging questions. Check out the below calendar for our upcoming arguments. Where available, we have included links to the livestreams.
Dana Berliner is IJ’s senior vice president and litigation director.