IJ’S First State Chapter off to Blazing Start

January 2002

IJ’S First State Chapter off to Blazing Start

By Clint Bolick

Talk about a warm welcome: on the first mid-August workday in our new Phoenix digs, the temperature was a roasting 111 degrees. We kept things hot and by the time of its official launch on November 15, IJ’s first state chapter already had three lawsuits going and more in the works. It seems that despite Arizona’s deep individualist tradition, there are plenty of oppressive bureaucrats who need to be sued.

IJ client Randy Bailey is fighting the city of Mesa, Arizona, in a lawsuit challenging its abuse of eminent domain to take his family-owned brake shop in order to give it to another private party.

The case of Randy Bailey epitomizes the prevalence of grassroots tyranny in the Grand Canyon State.

Bailey’s family-owned brake shop has served the citizens of Mesa—a fast-growing suburb whose population already eclipses Pittsburgh and Minneapolis—for the past 31 years. Randy Bailey hopes someday to pass the business on to his own children. But the City decided that his shop didn’t fit its grand plan, so it used its eminent domain power to seize Bailey’s property—not for a road or a public building or even a sports complex, but to hand it over to a hardware store!

The City took this action despite a provision in the Arizona Constitution that states flatly that “private property shall not be taken for private use.” Unfortunately, the courts have eroded that protection, but it has been 19 years since anyone has seriously litigated the issue. During that time, rapacious local governments have stepped up eminent domain abuse, making the issue ripe for challenge.

In Bailey’s case, the facts are especially heinous. The owner of the hardware store has coveted Bailey’s land for years, but Bailey doesn’t want to sell. So the hardware store owner approached the City and asked that it declare Bailey’s shop and adjacent property a “redevelopment zone,” enabling the City to seize it and give it to the hardware store. That’s exactly what the City of Mesa did. Four of seven city council members announced a conflict of interest but voted to condemn the property anyway.

The resulting public outrage reflected in the local media has caused at least one government official to re-consider. “I do not support the condemnation of one private business for another,” says Mayor Keno Hawker, who voted initially to support the project. “I do not think this fits the definition of the public good.” But it will take a court order to halt the confiscation.

Meanwhile, IJ won a split decision in the opening round of its challenge to the Clean Elections Act, a lavish campaign subsidy scheme that derives most of its funding from an involuntary ten percent surcharge on civil and criminal fines and a $100 fee for lobbyists who represent for-profit clients. In December, Judge Colleen McNally struck down the lobbyist fee as an unconstitutional “prior restraint” of speech, but upheld the surcharges. IJ promptly filed a petition for special action in the Arizona Supreme Court in a case that could set the constitutional boundaries for publicly financed campaign subsidies. The Arizona Supreme Court has already agreed to hear the case and it is on a fast track for a decision.

IJ is working closely with the Goldwater Institute, a free-market policy think tank now headed by Darcy Olsen, formerly education policy analyst with the Cato Institute. On the eve of oral argument in the trial court on the clean elections case, Goldwater released a study demonstrating that legislators who received “clean” (i.e. coerced) public financing voted no differently on issues affecting special-interest groups than legislators who relied on voluntary contributions.

IJ’s presence in Arizona has been greeted enthusiastically by conservatives and libertarians. Arizona Republic columnist Bob Robb praised IJ’s “remarkable record” in defending “people without a lot of economic or political clout from being pushed around or thwarted by government,” and stated that with IJ’s new state chapter, “Arizona’s public policy landscape, at least so far as it is shaped in the courts, has been transformed.” The East Valley Tribune declared that IJ “has supplanted the American Civil Liberties Union—which has become a hopeless hostage of the far left—as the nation’s premier courtroom champion of individual rights.”

More than 100 well-wishers crowded a Phoenix reception to announce the state chapter. Secretary of State Betsy Bayless presented a proclamation welcoming IJ, saying that it works “to advance individual rights, while never compromising its core principles.” Those kind words came despite the fact that Bayless is the lead defendant in our Clean Elections Act challenge—but to her credit, she has declined to defend the law, leaving that task to the Clean Elections Commission and a left-wing public interest group.

This early success creates an optimistic forecast for IJ’s ambitious effort to grow from a national public interest law firm into a truly nationwide one. Drawing upon the experience of the ACLU, whose influence (for better or worse) pervades every nook and cranny of America, IJ is developing state chapters that will supplement its path-breaking national litigation program by vindicating the unique freedom-oriented provisions of state constitutions and drawing heavily upon pro bono legal talent.

The Arizona chapter will be a model for other state chapters. We plan to open three new chapters over the next two years in medium-sized states that have a reputation for producing cutting-edge ideas. If that experiment is as successful as we hope, IJ will go on to open chapters in large states and elsewhere around the nation. The process of identifying target states and key supporters is well underway.

We’re working hard in Arizona to make IJ’s first state chapter a model to emulate—the start of a bold new initiative to fight grassroots tyranny at its source.

IJ’s co-founder Clint Bolick is vice president and director of state chapter development.

“It seems that despite Arizona’s deep individualist tradition, there are plenty of oppressive bureaucrats who need to be sued.”