A law firm is seeking $170,854 in legal fees from Mesa for defending Randy Bailey against the city's effort to condemn his brake shop for a city redevelopment project.
The Washington, D.C.-based Institute for Justice, which has an office in Phoenix, filed the claim this month in Maricopa County Superior Court. Judge Bethany Hicks is handling the case. Mesa is fighting the claim.
On Oct. 1, the Arizona Court of Appeals ruled against the city on its plan to invoke eminent domain law to condemn Bailey’s property and sell it to Mesa businessman Ken Lenhart, who would then build a hardware store on the site. The court said the reason did not meet the standard of an important public need, as required in the Arizona Constitution.
The three-judge panel’s unanimous decision reversed a lower court’s decision that gave Mesa possession of Bailey Brake Service, 18 N. Country Club Drive.
The institute began representing Bailey in October 2001. The firm's standard practice is to cover all litigation costs because most of its clients can't afford the fees, said Clint Bolick, the institute's vice president and national director of state chapters.
An eminent domain law passed last year by the state Legislature made recovering legal fees mandatory in cases in which property owners successfully resist condemnation, Bolick said.
The state's private attorney general doctrine also allows the recovery of legal fees if private lawyers successfully defend constitutional rights, Bolick said.
"At the end of the day, we will have saved Mesa taxpayers a great deal of money in the cost of subsidies and land acquisition," Bolick said. Mesa planned to buy Bailey's land and package it with other parcels to sell to Lenhart.
Joe Padilla, Mesa's assistant city attorney, said the eminent domain statute
doesn't apply because it was enacted after the city filed paperwork with the courts to condemn Bailey's property. The private attorney general doctrine is applied in a narrow set of circumstances, and the institute's defense of Bailey doesn't qualify, Padilla said.