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By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
By New Times
Bolick and Mellor borrowed unabashedly from the left. Early in the last century, liberals were unhappy with laws regarding civil rights, particularly those involving segregation. So they used the courts to change public policy. The American Civil Liberties Union and National Association for the Advancement of Colored People are two of IJ's models.
Like the ACLU, which can't be pinned as siding with Democrats or Republicans, IJ tries to form non-traditional alliances. Clint Bolick was called a racist when he deep-sixed Lani Guinier's nomination. Then he turned around and represented African-American hair braiders. He also worked closely with affirmative action supporters to try to make race-matching unconstitutional in adoption cases.
IJ looked to liberals, not conservatives or libertarians, when figuring out a public relations strategy.
"Conservatives have really over time allowed themselves to be cast as a movement without a heart," Bolick says, and "libertarians love to argue fine points of philosophy into the wee hours of the morning and to prove their purity even at the expense of achievement. We have really bucked that trend."
The IJ folks call themselves populist libertarians -- they are constantly trying to humanize their cases.
One way to do that is by employing another method borrowed from the left: the David v. Goliath approach. The idea is to find a case that makes the particular philosophical point you want to make -- and will change the law you want to change -- using the most outrageous facts you can find.
That is how Randy Bailey came to be IJ's first Arizona state chapter client.
Bailey's Brake Service has sat on the northwest corner of Main Street and Country Club Drive in Mesa since 1952. Since 1970, the business has been controlled by a Bailey.
Randy Bailey's father ran the place for 21 years, then sold it to his son and retired. Randy figured he'd run it until he retired, too, maybe even sell it to his son, now 11, if he wanted it.
Three years ago, Bailey began to hear rumors that the City of Mesa wanted to condemn his building as part of a downtown redevelopment project. It turned out the rumors were true, and plans are to gut the brake shop to make way for, among other things, a huge hardware store owned by a powerful Mesa family, the Lenharts. The Bailey family isn't powerful at all; the best thing they have going for them is the location of their business, on the corner of a busy downtown intersection.
"I never thought I could fight City Hall," Randy Bailey says. He figured he'd have to sell the city his building and property. Then he got a call from Tim Keller, an IJ staff attorney who had read about Bailey's case in the newspaper.
"It was like a godsend for me," Bailey says.
And hell for the City of Mesa. The city's attorneys aren't used to a client who refuses to settle. The only way an eminent domain (fancy language for what the city wants to do to Bailey) lawyer makes any real money is to negotiate a high sales price for his client. In this case, IJ just wants Mesa to leave Bailey alone. And in so doing, Bolick and Keller hope to change Arizona law with regard to private property rights as they dovetail with cities' redevelopment rights.
Joe Padilla, the Mesa deputy city attorney handling the case, seems befuddled -- although his initial answer indicates that without realizing it, he understands completely what IJ is doing.
"I think in the end the Institute has its own agenda, which is to garner publicity for themselves," he says.
Then Padilla suggests that IJ's case is really a ploy to jack up the price of Bailey's land, that the lawyers don't really care about setting precedent.
"If [Padilla] knew the lengths that we go to try to keep people from settling. The whole point of this exercise is to establish that there are some instances where the government cannot take property at all. And it's very difficult where government keeps upping the ante for the property. And that's exactly what's happening."
This past Monday (March 4), the entire legal staff from the IJ Arizona chapter files into Maricopa County Superior Court Judge Robert Myers' courtroom for oral arguments in Mesa v. Bailey. Clint Bolick and Tim Keller sit at counsels' table, with Tom Liddy holding up the rear. The courtroom is filled with onlookers -- Randy Bailey and his supporters, a few reporters.
Bolick has primed the press. IJ's Washington, D.C., office sent out a media alert today touting a new national coalition designed to fight eminent domain cases like this one. Bolick has a "My Turn" column in this morning's Arizona Republic.
The IJ lawyers make quite a powerhouse, although as usual, Bolick looks just a little disheveled. His shoes are shiny, but there's a stain on his suit jacket, and he obviously cut his chin this morning, shaving.
Myers indicates he'd like Bolick to start, but Mesa attorney Joe Padilla looks around anxiously. His co-counsel hasn't arrived. Bolick places his notes on the podium and returns to his seat, telling Myers, "I'll be ready to go!"