Sen. Whitehouse’s nonsensical attack on public interest law firms

In 1761, James Otis argued that British troops had no right to smash down doors of private homes to look for violations of customs duties. Otis argued that case for free: “For in such a cause as this,” he said, “I despise a fee.” The trial energized the colonists. A young John Adams was in the courtroom that day and later said, “Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child of independence was born.”

This was America’s first public interest law case. Since then, public interest cases have secured many of our bedrock constitutional freedoms. Perhaps one of the best known examples of this is the 1954 Supreme Court case Brown v. Board of Education.

{mosads}Years before he became a justice at the Supreme Court, Thurgood Marshall brought the case, which ended the pernicious “separate but equal” doctrine from Plessy v. Ferguson. Indeed, Plessey was brought by opponents to racial segregation as a public interest lawsuit. They lost, but their righteous arguments were eventually vindicated in Brown.

Apparently though, Sen. Sheldon Whitehouse (D-R.I.) doesn’t think that Americans who can’t afford to pay expensive legal counsel should go to the Supreme Court. Last week during Judge Brett Kavanaugh’s hearings, Sen. Whitehouse attacked public interest litigation.  

Here’s how the senator described Pacific Legal Foundation’s public interest litigation practice:

“They … look for cases around the country that they believe they can use to bring arguments before the court. I argued against them in the Supreme Court at one point; they came all the way across the country to the shores of Winnapaug Pond, Rhode Island, to hire a client whose case they could take to the Supreme Court with a purpose to make a point … and it causes me to think that sometimes the true party in interest is actually not the named party before the court, but rather the legal group that has hired the client and brought them to the court more or less as a prop in order to make arguments trying to direct the court in a particular direction… .”

Whitehouse is referring to Anthony Palazzolo, who fought the state of Rhode Island all the way to the Supreme Court. Of course, Anthony’s attorneys didn’t “hire” him, as the senator absurdly charges. He hired Pacific Legal Foundation (at no cost to him) to protect his property rights, because he needed help and couldn’t afford his own legal team.

Anthony, who owned a small tow truck business, bought a few acres of land in 1959. He had tried to get permits to use the property for decades, but was denied at every turn. The Rhode Island Supreme Court even claimed he had no right to be in court because he had converted the holding from a business structure to his personal ownership.

When I represented Anthony before the Supreme Court, I made a simple point: Landowners should have the right to sue government when their property is taken without just compensation — no matter when they acquired their property. In response, then-Attorney General Whitehouse took the opposite tack, arguing landowners never should have the right to sue government if regulations are in place when a property’s ownership is altered.

Anthony won, and Palazzolo v. Rhode Island has turned out to be an immensely important case. It has been cited nearly 700 times in the courts since it was decided in 2001.

Sadly, it’s almost as if Whitehouse doesn’t understand how public interest law works. Palazzolo is simply one of a long string of public interest cases that date to the founding of the republic.

The reality is much simpler than Whitehouse’s conspiratorial claims: Public interest litigation is about representing the Anthony Palazzolos of the world against government that has forgotten its mission is to protect the rights of the people, not to control and limit those rights.

We’re proud of all our victories against government overreach, and grateful to all those clients who have asked for or our help to ensure that liberty and justice remain the essential core of the American experiment.

James S. Burling is vice president for litigation with the Pacific Legal Foundation, which litigates to enforce the Constitution’s guarantee of individual liberty.