Goldwater Institute takes case to court

Posted on November 18, 2007 | Type: In the News
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The Goldwater Institute has always fought for conservative causes through a standard think-tank venue, the court of public opinion.

But the organization is getting bolder, moving some of those battles into courtrooms.

The Phoenix-based group is expanding its influence to limit government power and spending by creating a new litigation center that sues to block what it sees as abuse.

The center has embarked upon four lawsuits since its founding in June. It already settled one that blocks some regulation of charter schools.

An interview with the top Goldwater staff members reveals their passion for litigation.

Goldwater president Darcy Olsen tried to explain lawsuits are a last resort, not a source of enjoyment. But she was corrected immediately by Goldwater attorney Clint Bolick.

Oh, I do! Bolick said, clearly relishing the battles hes taking on.

Bolick waged legal war for years at another conservative group, then backed away from court cases for three years to take a job promoting charter schools. He joined Goldwater a year ago as chief litigator.

I began to miss the courtroom and suing bureaucrats, he said.

Bolick isn't a household name in the East Valley, but one of his past causes is the Bailey Brake Shop case. Bolick sued Mesa in 2002 after the city tried to condemn the mechanics shop to make room for a hardware store. The issue quickly captured the publics attention and outrage.

A court ruled the following year the city didn't have the right to force a private landowner to turn over his property to another private use, despite the city's claim it was trying to redevelop a blighted area. The win was one of several nationwide at the time over the governments use of eminent domain.

Bolick hopes to gain the same victories at Goldwater as he did during the Bailey case, when he was with the Washington, D.C.-based Institute for Justice. Goldwater plans to take about six cases a year, each carefully chosen to win the most public support and to gain the most legal ground.

Bolick, a 49-year-old Phoenix resident, even assembled a booklet that instructs like-minded organizations on how to start their own litigation centers that will help champion conservative causes. About a half-dozen groups are exploring the idea, he said.

The Goldwater suits are made possible through founding of the Scharf-Norton Center for Constitutional Litigation. Its named after two men who will donate a combined $1 million to match other private donations over the next five years. Half that already has been raised.

The money comes from Evan Scharf, an investor and former Goldwater board member who lives in Scottsdale and Flagstaff, and from John Norton III, a Phoenix resident and Goldwater board member who owns an agricultural business and was a former deputy secretary of the U.S. Department of Agriculture under President Ronald Reagan.

One signature case involves nearly $100 million of incentives Phoenix is offering the developer of CityNorth for a ritzy shopping center. Phoenix argues the subsidy is needed to finance a parking garage that will help generate sales-tax revenue and provide transit parking.

Bolick sees the latest city subsidy for a developer as a way to make a healthy profit margin ever higher.

The Goldwater suit was filed on behalf of several smaller businesses, saying it violates a clause in the state constitution that bans gifts to individual businesses.

The suit resulted in strange bedfellows. One plaintiff is Ken Cheuvront, a Phoenix restaurant owner who is also a Democratic state legislator.

And Goldwater challenged the economic benefits of CityNorth with a study it commissioned by Dave Wells, a professor at Arizona State University who said hes often described as liberal.

Wells acknowledged he had to think about supporting a Goldwater cause. He decided to do so because hes spent years arguing that subsidies for projects like CityNorth are bad for taxpayers.

Wells had to tell Goldwater officials he'd likely oppose other causes of theirs, even while working with them to fight CityNorth subsidies.

This is not like Pat Robertson endorsing Rudy Giuliani as president, Wells said. Its important that people be open to working together.

Olsen said the CityNorth case was chosen in hope of gaining a legal victory so other cities will curb subsidies. And its a case that wouldn't have been fought otherwise because Goldwater will front the legal expenses of business owners who couldn't afford to sue a huge developer or a city the size of Phoenix, which has at least three dozen staff attorneys.

Most people don't have the resources to fight City Hall, Olsen said. Without a group like ours, a lot of people are defenseless.

Goldwater wants to be a counter-balance to public-interest firms like the American Civil Liberties Union, which favors liberal causes. Goldwater even will agree with the ACLU on some causes, Bolick said, but wont compete for cases.

The litigation center has more than 100 requests to take on cases, he said. Bolick said many tips are worthwhile, but Goldwater can only afford to take a select few in hope of winning victories that establish legal precedent, put pressure on lawmakers to change laws or discourage actions the think tank wants to block.

For that reason, Bolick said Goldwater isn't likely to take on Waveyard, a Mesa resort and water park which will receive a $30 million sales-tax subsidy from the city. Bolick hopes a CityNorth victory will block future deals like that.

In an odd twist, Goldwater has taken on Tempe and Mesa, cities with mayors who often champion libertarian causes and support Goldwater.

In Mesa, Goldwater sued over the city's decision to charge impact fees to benefit cultural facilities. Goldwater argues art centers and museums are not essential public services.

Mesa Mayor Keno Hawker is a Goldwater member who is clearly not happy hes being sued. But he said hes open to getting a clear legal opinion on the fees.

We need to be prepared to defend it, Hawker said. They need to be prepared to make their case. Its just a good dialogue.

Hawker agrees with Goldwater's effort to restrict subsidies and said he'd welcome laws to limit them. He said he despises subsidies personally, but has had to go along with them as a mayor to avoid losing projects to other cities.

In Tempe, Goldwater sued Tempe for blocking a tattoo parlor. The city is trying to stop the business because of neighborhood opposition, but the Goldwater suit claims Tempe is arbitrarily discriminating against a business that has a legal right to operate.

Tempe Mayor Hugh Hallman has donated to Goldwater and has spent much of his political career blasting the types of subsidies Goldwater also opposes.

Goldwater's Olsen said the organizations legal battle against Tempe is about principle.

None of this is personal, Olsen said. We have to do what is just.

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