Goldwater Litigators off to Sizzling Start

By Clint Bolick
Published on Tuesday, April 01, 2008
ARTICLES

Backed with salient facts and piercing analysis, policy organizations tell politicians all the time that they've abused their power.

Now, imagine backing up that assertion with an equally credible threat of a lawsuit. It's a Clint Eastwood "Go ahead, make my day" kind of moment.

We've had lots of those moments at the Goldwater Institute since last June, when we launched the first litigation center within a state-focused, market-oriented public policy organization. With two full-time lawyers, legal research help from law students and volunteer lawyers, and growing financial backing, the Institute's Scharf-Norton Center for Constitutional Litigation has filed four lawsuits and already changed the terms of Arizona's public policy debate.

Of course, resources are far more limited than the number of bureaucrats who deserve to be sued. So in choosing cases, we apply two principal bang-for-the-buck criteria: (1) cases that impact the rights of a great number of people, and (2) cases that can vindicate protections of freedom in the state constitution.

In our first case, we came to the aid of our friends. Superintendent of Public Instruction Tom Horne was attempting to impose a one-size-fits-all curriculum on charter schools, which would have stifled the schools' independence and creativity. We challenged his authority and resolved the case with a settlement that allows the plaintiff schools to continue teaching the curriculum that has helped them excel.

Our signature case is a taxpayer challenge to the City of Phoenix's $97.4 million subsidy to a luxury shopping center - we call it the Taj Ma-Mall. Arizona is awash in retail subsidies, and we aim to put an end to it, invoking the Gift Clause, Local or Special Law Clause, and Equal Privileges and Immunities Clause of the Arizona Constitution. The case has attracted widespread publicity and editorial support from the Arizona Republic and other publications. We argued the case in February and expect an opening-round ruling soon.

We also represent two tattoo artists who operate a successful studio in Mesa, attempted to open one in Tempe, complied with all applicable rules, received approval from all of the relevant zoning officials, and invested $30,000 to improve a storefront in a half-empty strip mall. Yet they were denied permission to open by the City Council based on the "perception" that the business would attract crime and diminish property values. One local columnist quipped that government should not discriminate against people based on the colors of their skin.

Much of our impact has come without filing lawsuits. Seeking to enforce Proposition 207 - the Arizona Private Property Rights Protection Act - against local officials who were forcing citizens to waive their rights, we made it known we were looking for test cases. One by one, the cities curbed the nefarious practice. We warned another city not to enact an ordinance compelling developers to provide or contribute to public art - and for now, at least, it has backed down.

We supported a blogger who was told he must register as a political action committee because he endorsed two insurgent candidates for the Oro Valley City Council. The City capitulated when the blogger stood up for his rights. We joined others in excoriating the Maricopa County Attorney when he issued a breathtakingly broad subpoena against a liberal newspaper seeking identification of thousands of people who had visited its website; he dissolved the subpoena.

Right now, we've made it known that if the Governor and Legislature make up for years of reckless spending by borrowing in excess of the state constitutional debt limit, we are prepared to challenge it.

Two freedom initiatives will be before the Arizona electorate this November - one that would forbid government from restricting choices among health insurance providers or from compelling health insurance; another that would ban racial preferences in public education, contracting, and employment. If they pass, we will be there to help defend and enforce them.

Over our first nine months, we've inspired existing supporters and attracted new ones who are excited that the Goldwater Institute is backing its ideas with action.

Every state presents a unique set of issues. But every state also has a constitution that is chock full of possibilities. Adding litigation to an already potent public policy arsenal can help turn an effective watchdog into a watchdog with bite.

My colleagues and I are gratified not only by the widespread support we are receiving but by the interest across the nation in developing litigation capacity in market-oriented policy organizations. A core part of our mission is helping you do that. Let's go get ‘em!

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Clint Bolick, J.D. is director of the Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute in Phoenix, and serves of-counsel to the Rose Law Group in Scottsdale, Arizona. This article follows up on Bolick's July/August 2007 SPN News article, "A Perfect Match: Litigation and Public Policy." He can be reached at cbolick@goldwaterinstitute.org.

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