by Clint Bolick,
While the Goldwater Institute's legal challenge to the CityNorth subsidy moves to the Court of Appeals, one issue remains before the trial court that upheld the subsidy.
Not content merely to demand $97.4 million of taxpayer money, the developers now are seeking hundreds of thousands more for their attorneys' fees-from the Goldwater Institute.
The City is, too. Rather than using the same huge in-house legal department that negotiated the deal, the City hired a high-priced private firm to defend it. The total demand for fees and costs: $688,000-more than an entire year's budget for Goldwater's litigation center.
Courts almost never have awarded attorney fees against firms seeking to vindicate public rights. The reasons were articulated by Arizona Supreme Court Justice Stanley Feldman in the very same case, Wistuber v. Paradise Valley Unified School District, that all the parties agree sets the legal parameters for the Gift Clause under which the CityNorth case is litigated.
Such fees "would be contrary to public policy," the Court held, "because it would have a chilling effect on other parties who may wish to question the legitimacy of the actions of public officials. Where aggrieved citizens, in good-faith, seek a determination of the legitimacy of governmental actions, attorney's fees should not usually be awarded. Courts exist to hear such cases; we should encourage resolution of constitutional actions in court rather than on the streets."
The trial court decision is merely the first step in the legal process; many initial decisions, such as in the Bailey's Brake Service eminent domain case, are overturned on appeal. We hope the Court of Appeals will see it for what it is: a subsidy of a private business on terms unavailable to other businesses, and paid for by ordinary taxpayers.
Goldwater's litigation center is a vexation that government officials who stray beyond constitutional boundaries and special interests who seek their favors surely would like to remove. Try as they might, our response is simple: not a chance.
Clint Bolick is the director of the Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute