Litigator’s Notebook: When The Government Gives Up

The quintessential IJ victory involves a spectacular courtroom win that protects our clients and sets broad precedent. But that triumph always needs a bad guy willing to fight. What do we do when the government backs down, either right away or after a shellacking in the trial court? How do we use that leverage to make sure the beaten bully leaves our clients alone—and to protect everyone else on the playground, too?

A key strategy is twisting the government’s arm to secure relief that is even broader than our legal claims in court. And, because such agreements often include amending laws or agreeing to read broad laws more narrowly, these outcomes can provide excellent protections for liberty.

Take the case of Erica Brewer and Zach Mallory from the small town of Eagle, Wisconsin. After they spoke out on behalf of a neighbor they believed was unfairly targeted by code enforcement, the town retaliated by hitting Erica and Zach with more than $20,000 in fines for their minor code violations. Eagle’s message to political critics was clear: Shut up or cough up. So the couple joined IJ in a free speech challenge. In January, right before the federal jury trial started, the town caved. We forced it not only to erase our clients’ fines but also to reform its property code to make it fairer for everyone.

Or consider IJ client Altimont Mark Wilks. After a stint in prison for drug-related crimes, Altimont turned his life around, helping other people with criminal records reintegrate into society. He also opened a corner store in a low-income Maryland neighborhood. One in five people in the neighborhood rely on the USDA’s Supplemental Nutrition Assistance Program (SNAP), commonly known as food stamps. But Altimont was permanently banned from accepting SNAP because of his past offenses, hurting both his business and his customers. Four months after IJ sued on Altimont’s behalf, the USDA agreed not only to let Altimont reapply, but to no longer ban other retailers with old and unrelated drug convictions from processing SNAP benefits.

Our case challenging licensing for home funeral guides in California completes the trifecta. State regulators wanted Akhila Murphy and Donna Peizer’s tiny nonprofit (mostly volunteer senior citizens) to get funeral director licenses and build a funeral home—all just to talk to people about planning for their final days. After an IJ victory last year, the regulators threw in the towel rather than go to trial in defense of the only claim we hadn’t won on yet. We made them agree, in an enforceable court order, that our clients can do their important work and that California’s funeral licensing laws simply do not apply to home funeral guides, thus protecting everyone in that occupation throughout the state.

Beyond these broad agreements, IJ has also adjusted the way we design cases by filing some as class actions to make it even harder for the government to escape scrutiny in court. This is particularly useful in forfeiture cases, where a class action wards off government attempts to moot our challenge by simply returning our client’s money. When we represent a full class of individuals harmed by a forfeiture scheme, the government often has no choice but to answer for forfeiture’s systemic abuses in court. This strategy can potentially benefit thousands of class members, as in our 2018 victory in Philadelphia.  

We’re fighters. IJ litigators—and IJ supporters—want to be in the ring. We want that appellate or Supreme Court precedent. But sometimes the government knows it’s beaten and won’t get up off the mat. When that happens, we use our momentum to secure a strategic victory via agreement. These wins are never disappointments, and they never occur because we at IJ (or our clients) want to give up. They are, instead, an important tool we use when the time is right to best protect our cherished liberties and free up IJers for their next big match.

Jeff Rowes is an IJ senior attorney.