2003: Randy Bailey’s Year

February 2004

2003: Randy Bailey’s Year

By Dana Berliner

2003 was a good year for Randy Bailey. On September 28, 2003, he was featured in the season-opening episode of 60 Minutes, explaining that he did not want the City of Mesa, Ariz., to take his brake shop so it could give the land to the owner of an Ace Hardware store. Three days later, on October 1, Bailey, represented by the Institute for Justice Arizona Chapter, won his case in court. The Arizona Court of Appeals ruled unanimously that the state’s constitution prohibited Mesa from taking Bailey’s Brake Service for “economic development,” meaning the City couldn’t force the transfer of Bailey’s land merely because Ace Hardware would produce more jobs and taxes.

The Court of Appeals found that the City had not satisfied the constitutional requirement that government may take property only for “public use.” (The public use requirement is part of both the state and U.S. constitutions.) As the Court explained: “The City does not propose to take the Baileys’ property for a traditional public use such as a street, park, or governmental building. Nor is this taking essential for the provision of public services or for reasons of public safety or health. Instead, the completion of this redevelopment project will result in the property becoming part of a privately owned retail center with stores, restaurants, and office space.”

Therefore, the Court held, the “proposed taking of the Baileys’ property does not satisfy the ‘public use’ requirement of the Arizona Constitution.”

Randy Bailey has been celebrating ever since. That morning, he called his wife. He talked to reporters. He gave Tim Keller, one of the IJ attorneys on the case, a crushing bear hug. Then he took his family to Disneyland for the weekend. Since then, business has been good. People stop by just to congratulate him.

The City of Mesa actually did the right thing. After its defeat, the City Council voted unanimously not to appeal the decision. So, after three years, Bailey’s Brake Service is finally out from under the cloud of eminent domain.

Then, on December 31, the East Valley Tribune, the main newspaper for the Mesa area, named Randy Bailey its person of the year. “Bailey richly deserves recognition as the East Valley’s Person of the Year for standing up for his rights, defying lopsided odds, and winning, with legal help from the Institute for Justice, an Arizona Court of Appeals precedent that strictly limits the power of cities to condemn private property in order to hand it over to private developers.”

The decision does indeed have far-reaching implications. It is the first Arizona case that directly addresses whether homes and businesses may be taken simply for economic development and private enterprise. By ruling against the condemnation, the Court put local governments on notice that they cannot continue to violate the rights of their citizens and must actually pay attention to the state constitution. Several cities, including nearby Tempe, have already altered their plans to use eminent domain for the benefit of private parties as a result. In saving his own business, Randy Bailey has made Arizona a safer place for all home and business owners.

Dana Berliner is an Institute for Justice senior attorney.