Book Review

Can This Be Right?:
Mugged by the State
by Randall Fitzgerald
(Regnery Pub., 2003)

reviewed by Richard A. Forsten, Esquire

Imagine you’ve just retired, and that you’ve invested your life savings in a 500-acre ranch in Utah to graze cattle and live the rustic life, something about which you’ve always dreamed. Three months later you’re out in your tractor, clearing some brush, when a government official drives by your site, and then stops and tells you to halt your activities, because you’re disturbing wetlands. No, the soil isn’t wet or damp, but because during certain times of the year the soil does hold water, it can be classified as “navigable waters of the United States,” and therefore subject to federal wetlands jurisdiction. As a result, you can now no longer use 100 acres of your farm. But, that’s not all. It turns out that there is a threatened species (a type of snail) that also is on your property. A few months later, the government declares this snail an endangered species, thereby rendering another 200 acres of your ranch unusable, because the land can not be used or altered in any way. At this point, more than half your property has now been rendered worthless, and the income you hoped to generate from cattle to support your retirement has been substantially curtailed. A nature group offers to “help” you by buying your property for one-sixth what you paid.

Imagine you are a classic car hobbyist, buying and restoring vintage automobiles. You are on your way to a show in another state. Because most transactions are cash deals, you are taking your savings, approximately $18,000, in cash with you. A cop pulls you over for speeding (5 miles over the limit) and, in the course of the stop, asks to search your vehicle. You agree, and when he finds the cash, he seizes it on suspicion of involvement with drugs. Although you protest, the police officer merely gives you a receipt for the cash (and, ironically enough, not a ticket). Without resources to challenge the seizure, and facing the prospect of extensive legal bills, you resign yourself to never seeing the money again.

The preceding two stories aren’t imaginary, they’re true, and they’re just two of the dozens of stories which fill Fitzgerald’s short, amazing, highly-readable, and at times shocking book, Mugged by the State, Outrageous Assaults on Ordinary People and Their Property. During the 1990s, one of his regular assignments was to research and write a series of human interest stories titled “Mugged By The Law” for Reader’s Digest. Each story would focus on three or four individuals who, through no fault of their own, had run afoul of some federal, state or local law or regulation (or regulator) and suffered serious consequences. Indeed, what is perhaps most shocking about many of the stories in Fitzgerald’s book is the lack of happy endings. The car restorer never got his money back. The Utah rancher was never able to use more than half his farm and was never compensated for the loss.

Indeed, compensation is, in many respects, an underlying theme of Fitzgerald’s book. Environmental regulations, such as wetlands regulations or endangered species restrictions, are designed to benefit all of society. Yet when the burden from these regulations falls disproportionately on individuals, they are often left with no recourse. And it’s not just environmental regulations and forfeiture laws that can have this disproportionate effect. Fitzgerald reviews cases involving the Americans With Disabilities Act, rent control ordinances, health and safety ordinances, and even ordinary business license requirements, where government regulation, in Fitzgerald’s view, sometimes does much more harm than good.

For example, New York City has some fairly strict rent control laws. One previous exception, though, allowed an owner to evict existing tenants where the owner intended to re-combine several existing apartments into one unit. The Zimans bought a townhouse in Greenwich Village that had been subdivided into four apartments, intending to convert the building back into a single-family home for themselves and their two small children. They moved into the empty unit (of 341 square feet), and began the eviction process for the other two units. But three months after starting the process, New York Governor Mario Cuomo signed an amendment to the law providing that any tenant who had lived in an apartment for twenty years or more could not be evicted under the owner-occupier exception. The Zimans, who had invested their savings in the property, were suddenly stuck in a 341 square foot apartment, while their three tenants paid just $440 a month in rent. Eventually, after eight years of various administrative and court proceedings, and $700,000 in fees and expenses (including mortgage payments), the Zimans gained control over the entire townhouse. When they sought compensation for the loss of the use of the property, though, their takings claim was rejected.

Fitzgerald is able to demonstrate in case after case how even the best-intentioned of laws often goes astray. He is also able to demonstrate how some laws are mis-used by overzealous regulators. And, perhaps most importantly, he is able to demonstrate how this can happen to anyone, including you or me. If there is a flaw in this book, it is that it is too episodic and anecdotal, without enough legal background and analysis. Nevertheless, Mugged by the State is a powerful reminder of just how powerful the government can be, and how sometimes that power can be mis-used.

Return to April 2004 Table of Contents.