By Dana Berliner
IJ knows all about litigating economic liberty, property rights, free speech, and educational choice cases. But readers of Liberty & Law may not know that IJ has also developed significant expertise in arcane issues of legal procedure. Because our cases go to the heart of government power, we find that our opponents are desperate to get our lawsuits thrown out before a court can reach a decision on any important constitutional issues. In many of our cases, the first round of litigation is all about whether we are allowed to bring the suit at all. Only after that can we get down to the business of overturning unconstitutional laws.
Our federal class action challenge against New York City’s “no fault” eviction scheme is a perfect example of this pattern. As you may recall, this ordinance allowed the city to evict residents and business owners simply because a crime occurred on their property—even if they had absolutely nothing to do with it. This practice is a clear abuse of individual due process rights, and IJ sued to end it in late 2016.
New York City attorneys immediately asked the court to dismiss our case, throwing up a long list of supposed procedural barriers to block IJ’s path. We carefully rebutted each procedural issue in our legal papers. When we arrived at oral argument, however, the court itself suggested yet another possible procedural problem: an obscure doctrine called “Rooker–Feldman” that would have prevented us from bringing the case in federal court. In spite of our additional legal briefing explaining why our lawsuit should proceed, the court decided the doctrine did apply and dismissed the case in early 2018.
But that kind of setback is hardly the end of the road for IJ. We appealed the lower court’s decision to the 2nd U.S. Circuit Court of Appeals and, in late 2018, the appellate court reversed the lower court’s decision, reinstated our case, and sent us back down to the trial court to resume our advocacy.
Back in the trial court, New York is trying once again to get its litany of procedural objections to stick. And, once again, IJ is painstakingly rebuffing each one. All in all, it will take close to three years—and possibly longer—just to clear away the brush so that we can at last litigate the merits of the case.
When we face hurdles like this, it is important to remember that the reasons we are suing are worth the fight. No-fault evictions are like civil forfeiture for renters, and the situation of IJ client Sung Cho, owner of a laundromat in Manhattan, is truly outrageous. In 2013, undercover police officers sold stolen iPods to people doing their laundry in his facility. There was no suggestion that Sung Cho had anything to do with the incident. Yet, thanks to the city’s laws, he was still subject to eviction and deprived of his constitutional rights.
IJ intends to eliminate the appalling due process violations committed by the largest city in the country. And we will wade through years of procedural litigation if necessary in order to get there.
Dana Berliner is IJ’s senior vice president and litigation director.