In lawsuits, facts ought to matter

Anthony Sanders is an attorney at the Institute for Justice Minnesota Chapter, which litigates campaign finance cases nationwide. The institute describes itself as the nation's only libertarian public interest law firm.

Anybody with a television probably has a basic understanding of how our court system goes about deciding what the facts of a lawsuit are. Both sides call witnesses and present evidence, and then the judge or the jury decides what's true and what's false. And that's what basically happens — unless your lawsuit is against the government.

When citizens sue the government — challenging economic regulations, for instance — the government argues that different rules apply. No matter what the actual facts are, goes the argument, the government should be allowed to assume whatever "facts" it wants to in order to win the lawsuit. The court is supposed to just accept the government's facts at face value. Amazingly, courts have all too often gone along with this "heads I win, tails you lose" reasoning.

That's exactly what happened to Jim Dolphy. He's a tree trimmer whose small business used to service Minneapolis residents' trees. But he had to stop that when the city passed a new and burdensome licensing law mandating that all companies performing tree trimming work have a certified arborist on staff.

Becoming certified requires an individual to pass a comprehensive exam that tests on all manner of different subjects related to trees, only a small minority of which are relevant to tree trimming, which merely involves cutting down branches and trees and removing stumps. The law does not require a company's certified arborist to actually perform tree trimming. Instead, the arborist must merely be on the payroll. Hiring this extra employee might be an easy requirement to satisfy for a company with dozens of workers, but it is extremely difficult for a one- or two-man shop.

After this new regulation threatened his livelihood, Dolphy did what Americans have been doing for centuries: He fought back. Claiming the law violates the Minnesota Constitution because it imposes a burdensome and useless requirement, he filed a lawsuit against Minneapolis and tried to prove his claims in court with something that would be uncontroversial in any other lawsuit: evidence. This included things like testimony from expert witnesses with practical experience of what tree trimmers do, and city officials testifying on how the city enforces the law.

Minneapolis, on the other hand, said essentially, "Evidence, schmevidence." Whatever the facts actually are, said the city, the Minneapolis City Council could have thought there was a need for a law like this, and so it should win. One of those supposed facts was that the certification requirement improves the well-being of the city's urban forest. Initially the city was successful, convincing the judge to throw out the case before Dolphy could gather evidence to disprove that and other "facts."

But the Minnesota Court of Appeals recently reversed this ruling. In a refreshingly commonsensical opinion, the appeals court ruled that "when determining whether a challenged ordinance is constitutionally justified, courts consider the factual evidence refuting the need for the regulation." That is, even when you sue the government, facts matter.

You wouldn't think a court decision that says courts should look at real facts instead of pretend facts would be a big deal. But it is. Courts ranging from those in Minnesota to other states and all the way up to the U.S. Supreme Court have suggested the exact opposite, buying arguments that facts do not matter when the government is the defendant. According to these courts, all that matters is whether the government believes facts that might be true, even if they are not. Dolphy's win helps reverse this legal trend and is great news for anyone who believes government should not have unlimited power.

With this victory Dolphy and his attorneys can go back to court and go about gathering evidence to prove his claims. The ultimate ruling in this case will be important, but perhaps just as important for the rest of us is that Dolphy gets to have his day in court and present evidence. In Minnesota, facts matter — even if you're the government.

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