Fighting The Interior Design Cartel The IJ Way
By Chip Mellor
Practicing cutting-edge litigation means taking on tough cases. It also means tackling issues that may not yet have gained great visibility in the legal community or the general public. As a result, we must wage strategic campaigns to make clear to all the importance of our issues and the legal rulings we seek. We did this, for instance, with eminent domain abuse.
Above, IJ attorneys, New Mexico interior designer clients and our director of strategic research. Download Designing Cartels: How Industry Insiders Cut Out Competition.
IJ Senior Attorney Clark Neily addressed more than 40 interior designers from all over the country at our national conference in September in Virginia.
Our recent work to secure economic liberty offers another great case study in just what it means to practice strategic litigation the IJ Way.
The occupation this time is interior design. Of course, interior design would seem to most people to be an innocuous practice that results in people having nice places to live. Not so, thanks to the American Society of Interior Design (ASID), which is conducting a nationwide lobbying campaign to erect statutory barriers to entry in the interior design profession.
ASID’s efforts would create in each state an interior design cartel that would determine who could practice interior design. To date, they have been successful in passing laws in 26 states, most of which are so-called “title acts,” which only limit who may use the terms “interior designer,” “certified interior designer,” and the like, but three of which are full-blown “practice acts,” which dictate who may actually practice interior design—the ultimate goal of all such legislative efforts. When we learned of this, we recognized three things.
First, these laws—utterly lacking in any conceivable health and safety rationale—offered a great vehicle to challenge the legal standard that allows such cartelization (the “rational basis test”). Victory here could set precedent that would help open up other arbitrarily licensed occupations.
Second, the scope of ASID’s effort presented a chance to educate the public about how cartelizing activity actually works.
Third, since there was so much legislative activity in so many states, we would need to train activists to stop the ASID juggernaut.
IJ Senior Attorney Clark Neily led our team and quickly engaged Director of Strategic Research Dick Carpenter who produced a hard-hitting study, Designing Cartels, that documented and explained the self-serving nature of ASID’s campaign.
Neily and Jennifer Perkins, a staff attorney from our Arizona Chapter, launched litigation in New Mexico and Texas. In New Mexico, the legislature amended the statute to cure the constitutional defect in response to our case. In Texas, we are in the thick of litigation.
Meanwhile, syndicated columnist George F. Will cited our New Mexico litigation in a nationally syndicated column. The column was then cited by Indiana Governor Mitch Daniels when he vetoed legislation that would have created an interior design cartel in his state.
In anticipation of the upcoming legislative sessions, we organized a conference attended by designers from across the nation to, in part, train and equip them with the tools to defeat ASID-backed legislation. Shortly thereafter, conference speaker and Granite State activist Patti Morrow successfully led the charge in killing the latest New Hampshire interior design legislation. Patti’s campaign included three successful radio appearances and crucial coverage in the local newspapers, all of which paid off when the bill was withdrawn in October. In November, conference attendee and Washington state activist Leslie Jensen arranged town hall meetings in Seattle and Tacoma to train local designers in opposing anticipated legislation based on the lessons she learned from IJ. Leslie invited Washington Chapter Staff Attorney Michael Bindas to provide the IJ perspective on economic liberty and interior design legislation. Finally, Arizona activist Robert Lashua took the lessons learned at IJ’s conference—along with the confidence gained by coming together with like-minded designers—and on October 25, 2007, gave a 90-minute presentation on economic liberty and interior design regulations to the International Furnishings and Design Association’s board of directors and its council of presidents.
We have more work to do to secure economic liberty for designers and others seeking their share of the American Dream. But as you read about our cases in the future, take heart in the fact that they are being pursued in this strategic way. No single case stands in isolation; litigation alone is never enough.
With this approach, we can take on long odds and make history.
Chip Mellor is IJ’s president and general counsel.