Leveraging Liberty by Letterhead

June 2003

By Chip Mellor

Sure, IJ loves setting legal precedents. But sometimes a swift little victory on behalf of a would-be entrepreneur or property owner, secured by nothing more than a letter from the Institute for Justice to a menacing bureaucrat, is also sweet.

Many times over the past dozen years, IJ has successfully defended the rights of individuals against the State by firing off a letter that promised litigation if the official who overstepped his bounds did not back off. You might call it leveraging liberty by letterhead. At IJ, we call it another fun day doing whatever it takes to defend individual rights. A few examples:

Thelma and Louise

In 1997, while researching a study on barriers to entrepreneurship in Charlotte, N.C., IJ Vice President Clint Bolick discovered the case of two elderly women, Mrs. Connell and Mrs. Koller, who were cited by zoning officials for the heinous infraction of knitting pillows and canning jams in their homes for sale at a local flea market. The activities supposedly violated a local law forbidding home-based businesses.

Thinking that the City could not possibly intend to foreclose Mrs. Connell’s knitting, Clint wrote to the zoning administrator requesting a clarification. No answer. He wrote a second letter, this time threatening a lawsuit. No answer.

On the third try, Clint also sent a letter to the City attorney, stating that if we received no response, we would file a lawsuit on a date certain, seeking an injunction and attorney fees. Bingo! Before the deadline, the City attorney responded, saying that the law did not apply to innocuous home-based occupations and that we would receive a prompt response to that effect from the zoning administrator, which we subsequently did.

Mission accomplished without litigation. It was only later, when we received a sweet thank-you letter from Mrs. Connell and Mrs. Koller, that we learned their first names: Thelma and Louise! A Barber’s Close Shave

In 1996, Tennessee barber Garland Allen was arrested in the shop where he had worked since he was a little boy. His crime? According to the Tennessee Board of Barber Examiners, Allen was guilty of “impersonating a professional,” a Class E felony under Tennessee law, punishable by up to six years in prison.

When he was young, Allen could not attend barber school since there were no barber schools for blacks in his area, even in Nashville (Lebanon is about 25 miles east of Nashville). Thus, Allen never obtained the technical education required to receive a license from the Board of Barber Examiners. Instead, he learned how to cut hair at his father’s side. After his father’s passing, Allen took over the shop—a place where old-timers gather as much to swap stories as to get a shoeshine and a trim.

But this wasn’t good enough for the barber bureaucracy, which demanded that Allen take off nine months from his shop and pay close to $5,000 to obtain a license. Not surprisingly, he could not afford to do so, and the end result of the Board’s demand meant the end of Allen’s livelihood. Neither the Board nor the rival barber who turned him in questioned Allen’s competence or skill. Rather, the Board protects its profession through a cartel, in which only the “approved” may practice the profession.

IJ Senior Attorney Scott Bullock swiftly came to Allen’s defense by threatening legal action and a publicity nightmare for the Board. Once Tennessee’s governor got word of the Board’s actions and our involvement, the Board completely backed off its original demands, allowing Allen to remain in business. Allen did not need to go to school to study what he already knew.Blocking the Bar’s Ban

The Institute for Justice Arizona Chapter (IJ-AZ) recently scored a similar victory in the Grand Canyon State on behalf of paralegals. The Bar petitioned the Arizona Supreme Court to adopt a rule prohibiting consumers from hiring non-lawyers to “prepare any document in any medium intended to affect or secure legal rights for a specific person or entity.”

The proposed rule would have shut down more than 200 independent paralegals and document preparers who currently offer Arizonans a low-cost alternative to high-priced attorneys and would have made the legal cartel the sole provider of paralegal services. Through correspondence with the state’s High Court, coupled with research that undercut the concerns about complaints filed against paralegals (of which, very few existed), we convinced the Supreme Court’s ad hoc committee not to grant lawyers a legal monopoly in the state.

Taxi!

Finally, one of the most dramatic among several instances where the Institute for Justice Clinic on Entrepreneurship leveraged liberty by letterhead involved the Chicago taxicab associations of Jimmy Morgan, Metro Jet and ABO. In December 2001 after each had won their first round of administrative hearings, the taxicab associations received a Christmas present from the Department of Consumer Services: an onerous license renewal request for the upcoming year 2002. The IJ Clinic responded quickly with a letter that happened to be several inches thick. Each taxicab association’s license was renewed and they are still in business.

Just as on the playground, when bullies are confronted by an adversary of equal if not superior stature who steps in on behalf of the not-so-strong, enemies of individual liberty occasionally back down without a fight.

As IJ board member Mark Babunovic recently said, “Maybe someday, all IJ will need in its armory is stationery and toner!” So long as bureaucrats can fill their deep pockets with tax dollars, and special interests can capture legislative favor, we won’t bet on it. But on those occasions when we’ve scored a victory for individuals without having to go to court, we take additional satisfaction in knowing that we’ve preserved resources that we can use in the next fight.

Chip Mellor is IJ’s president and general counsel.