Property Rights Foundation of America®

from the Sixth Annual New York State Conference on Private Property Rights
November 16, 2002, Albany, New York
Closing Address

Cutting Edge Litigation for the Future
Madeline Sheila Galvin, Attorney
Galvin and Morgan, Delmar, New York

We all know the phrase, "Do unto others." Well, it is about time that property owners started to "do unto" the regulating bureaucrats! The best "cutting edge for future" litigation that we can have is you people sitting in this room. No matter how many times we go to court or hear a particular case, it's not going to make a difference unless the bureaucrats know that there is a large group of dedicated people who are willing to do the leg work, to get the information, and to fight. Without that, one victory is only going to be one victory. They have to understand that while they can beat down the average small property owner, beat them into submission, not necessarily using the law, but choosing sheer bureaucratic governmental intimidation, then they will continue to do that. What has been missing, and it is missing even when you walk into the courtroom, is the sense that the private property owner means business. They are not put on this earth to be the doormat for the politicians and the bureaucratic enforcers. The property owners have to stand up.

Jim referred to the Long Island Pine Barren's litigation in his talk earlier. When we took over the case, our clients, 200-and-some of them, believed that they could not go to court, that physically they were not supposed to be in the courtroom. Hogwash! That isn't quite the word I used. However, we encourage our clients just as we always do, you come to court. You come to the deposition. You sit there. If they are going to rule against you, you make them look you in the eye when they do it. You make them know that you are the individual who is being harmed. It is harder to take their pen and sign a court order taking away the property of a group of people if they're all sitting out there staring at you, than it is if you are just handed a pile of papers and asked to push them through. They still will do the same thing and rule against you in many instances, but it gets harder and harder every time. And the politicians know that numbers talk.

The other thing that's critical to the future of litigation is knowledge. Know the enemy. The enemy knows the property owner. They have the advantage of government resources. They know everything there is to know about your property in public records. They know what there is to know about your status in the community from public records. They forget that when they use these things against the individual property owners that that cuts two ways.

A good cutting edge is to find out about the other side. They love to use things against the individual. Their favorite that we have discovered is that the Attorney General's Office in the State of New York thinks that it is nothing sunnier and more fun than to heap sanctions against any attorney who has the gall to stand up and oppose them in court. They can take those sanctions motions and eat them, because that is just one more method of intimidation. They feel that if the private property owner can't afford legal representation and even if they can afford legal representation, can't get an attorney who is going to stick with them even when it is get rough and when the attacks are personally on their attorney to try to force them out the door, then they can win. They can win. It has nothing to do with what's right and wrong. It has nothing to do with the facts, but it has to do with how they play the game.

Government attorneys never want to get into litigation where facts are a subject to be considered. Oh! Facts! Horrors! We don't want to talk about that. Let's just get this form out with a motion to dismiss before anybody hears about it. Nine times out of ten the courts go along with them, and they go along with them because it's easy and because, don't forget, every judge that is sitting on the bench is there because he or she was a politician. Gee, I wonder how they got there, and I wonder who their friends are.

Tying back to Carol's statement earlier about friendly judges, you certainly can tell where they're coming from once you walk into the courtroom and discover, in one particular instance, that the judge's campaign manager was sitting on the other side as one of the attorneys. Now, if the campaign manager is the opponent, gee, I wonder who is going to get better consideration. And there is not a thing you can do about it. You can seek to recuse, where we have had some success. There are a few judges who won't even allow us in the courtroom anymore.

However, all kidding aside, you have to know as much about the opponents as they know about you. Big brother may be watching but that Internet works both ways. FOIL requests work both ways. If you are being put in the position where you are being attacked by a regulatory agency, even in the earliest stages you start your FOIL request, then when you come to be faced with litigation, you have your ammunition. They haven't had a chance to destroy the documents, hide the memos, or have occasional mental lapses as one former APA official said, having their "senior moments." Boy, they can forget things when it helps the property owner, but, gee, they never forget a bureaucratic regulation. You start protecting yourself from day one. You get the information. You find out everything you can about who you are dealing with. Then, when things go to the point where it's in litigation, you can arm your attorneys. Every scrap of paper counts.

The future and the cutting edge of litigation is sitting in this room. It's every one of you. Every time you stand up for your rights, every time you prepare when you think something is potentially going foul with a regulatory agency. You are the future cutting edge of litigation in this field. Thank you.

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