![]()
No.
IN THE
Supreme Court of the United States
OPERATION RESCUE,
Petitioner,
vs.
NATIONAL ORGANIZATION FOR WOMEN, ET AL.,
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Seventh Circuit
PETITION FOR WRIT OF CERTIORARI
QUESTIONS PRESENTED
1. Whether the Seventh Circuit erred in ruling, in conflict with the
Ninth Circuit, that private civil litigants may obtain injunctive
relief under the federal Racketeer Influenced and Corrupt
Organizations (RICO) statute?
2. Whether the “obtaining of property” element of the federal
extortion statute, which is a predicate offense for civil RICO,
may be satisfied, as the Seventh Circuit held, merely by a
showing of “interference with the rights” of another?
3. Whether civil RICO liability may be imposed where the jury is
instructed on “generic” state extortion law, instead of the
pertinent elements of each state’s extortion law, as a RICO
predicate offense?
4. Whether the Seventh Circuit erred by affirming civil liability
based on guilt by association and in holding, in conflict with the
Second Circuit, that the First Amendment does not require a
finder of fact to identify the alleged acts of unlawful conduct,
and their alleged perpetrators, before imposing civil liability
upon defendants engaged in protected expressive activity?
ii
1Operation Rescue is not a corporation. See S. Ct. Rule 29.6.
PARTIES
In addition to petitioner Operation Rescue,1 the following parties
were defendants-appellants in the Seventh Circuit and are nominal
respondents here (see S. Ct. R. 12.6):
Joseph M. Scheidler
Pro-Life Action League, Inc.
Andrew D. Scholberg
Timothy Murphy
Respondent National Organization for Women, Inc. (NOW),
plaintiff-appellee below, sued on behalf of itself and its members
and was certified as representative of the plaintiff “class of women
who are not NOW members and whose rights to the services of
women’s health centers in the United States at which abortions are
performed have been or will be interfered with by defendants’
unlawful activities.” App. 269a. In addition, there are two other
named respondents, the Delaware Women’s Health Organization,
Inc. (DWHO) and the Summit Women’s Health Organization, Inc.
(Summit). Both DWHO and Summit sued on behalf of themselves
and were certified as representatives of the plaintiff “class of all
women’s health centers in the United States at which abortions are
performed.” Id. These respondents, like NOW, were plaintiffsappellees
in the Seventh Circuit.
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . i
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . viii
ABBREVIATIONS KEY . . . . . . . . . . . . . . . . . . . . . . . . . . xvi
DECISIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CONSTITUTIONAL PROVISIONS AND POLICIES . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . 1
1. Jurisdiction in District Court . . . . . . . . . . . . . . . . . . . . 1
2. Facts Material to Consideration of the Questions . . . . 2
a. Availability of injunctive relief to private plaintiffs
under RICO . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
b. Meaning of “obtaining of property” element
of Hobbs Act extortion . . . . . . . . . . . . . . . . . . . . 2
iv
c. Generic state extortion . . . . . . . . . . . . . . . . . . . . 4
d. First Amendment violations . . . . . . . . . . . . . . . . . 5
REASONS FOR GRANTING THE WRIT . . . . . . . . . . . . . . 8
I. THE SEVENTH CIRCUIT IN EFFECT
AMENDED RICO TO CREATE A
PRIVATE INJUNCTIVE REMEDY,
THEREBY CAUSING A CIRCUIT SPLIT . . . . . . . 10
A. Split in the Circuits . . . . . . . . . . . . . . . . . . . . . . 10
B. Conflict with this Court’s Precedent . . . . . . . . . . 12
C. Disregard of Text and History of RICO . . . . . . . 13
1. RICO’s Statutory Text . . . . . . . . . . . . . . . . . 13
2. RICO’s Legislative History . . . . . . . . . . . . . . 15
a. Selection of treble damages
remedy . . . . . . . . . . . . . . . . . . . . . . . . . 15
b. Rejection of private injunctive
remedy . . . . . . . . . . . . . . . . . . . . . . . . . 16
D. Importance of the Question . . . . . . . . . . . . . . . . 19
II. THE SEVENTH CIRCUIT STRETCHED THE
v
HOBBS ACT BEYOND RECOGNITION . . . . . . . 19
III. THE SEVENTH CIRCUIT UPHELD A
JUDGMENT RESTING IN PART UPON
FICTIONAL GENERIC STATE EXTORTION
LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
A. Federal criterion . . . . . . . . . . . . . . . . . . . . . . . . 24
B. State criterion . . . . . . . . . . . . . . . . . . . . . . . . . . 24
IV. THE SEVENTH CIRCUIT FAILED TO
RESPECT THE FIRST AMENDMENT . . . . . . . . . . 26
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
APPENDICES
A. Decision of the U.S. Court of Appeals for
the Seventh Circuit (Oct. 2, 2001) . . . . . . . . . . . . . . . 1a
B. Decision of the U.S. Supreme Court
(Jan. 24, 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39a
C. Order of the Seventh Circuit (May 16, 1994)
(remanding to district court) . . . . . . . . . . . . . . . . . . . 56a
D. Memorandum Opinion and Order of the
District Court (N.D. Ill. July 25, 1995)
vi
(dismissing and striking complaint in part) . . . . . . . . . 61a
E. Memorandum Opinion and Order of the
District Court (N.D. Ill. Sept. 23, 1997)
(granting summary judgment in part) . . . . . . . . . . . . 157a
F. Minute Order of the District Court
(N.D. Ill. Sept. 17, 1998) (denying
remittitur and new trial) . . . . . . . . . . . . . . . . . . . . . . 232a
G. Memorandum and Opinion of District Court
(N.D. Ill. July 16, 1999) (granting permanent
injunction) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233a
H. Minute Order of the District Court
(N.D. Ill. Aug. 5, 1999) (denying various
motions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275a
I. Judgment of the District Court (N.D. Ill.
Aug. 25, 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 277a
J. Memorandum Opinion and Order of the
District Court (N.D. Ill. Mar. 28, 2001)
(denying joint Rule 60(b) motion) . . . . . . . . . . . . . . 283a
K. Order of the U.S. Court of Appeals for the
Seventh Circuit (May 18, 2001) (consolidating
appeal from Rule 60(b) Order with pending
appeals) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295a
vii
L. Order of the U.S. Court of Appeals for the
Seventh Circuit (Oct. 29, 2001) (denying
rehearing) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297a
M. U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . 299a
N. Hobbs Act, 18 U.S.C. § 1951 . . . . . . . . . . . . . . . . 300a
O. RICO [excerpts], 18 U.S.C. §§ 1961, 1964 . . . . . 302a
P. Jury’s Special Interrogatories and Verdict Form . . . 310a
viii
TABLE OF AUTHORITIES
Page
Cases
Agency Holding Corp. v. Malley-Duff &
Assocs., 483 U.S. 143 (1987) . . . . . . . . 12, 13, 15, 16, 18
Airline Reporting Corp. v. Barry,
825 F.2d 1220 (8th Cir. 1987) . . . . . . . . . . . . . . . . . . . . 12
Amchem Products, Inc. v. Windsor,
521 U.S. 591 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Attorney General of Canada v. R.J. Reynolds
Tobacco Holdings, Inc., 103 F. Supp. 2d 134
(N.D.N.Y. 2000), aff’d, 268 F.3d 103
(2d Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Beck v. Prupis, 529 U.S. 494 (2000) . . . . . . . . . . . . . . . . . 15
Bennett v. Berg, 685 F.2d 1053 (8th Cir. 1982),
aff’d on reh’g, 710 F.2d 1361 (8th Cir.)
(en banc), cert. denied, 464 U.S. 1008 (1983) . . . . . . . . 12
Bernard v. Taub, 1990 WL 34680
(E.D.N.Y. Mar. 21, 1990) . . . . . . . . . . . . . . . . . . . . . . . . 11
Bouie v. Columbia, 378 U.S. 347 (1964) . . . . . . . . . . . . . . 22
ix
Chambers Development Co. v. Browning-Ferris
Industries, 590 F. Supp. 1528 (W.D. Pa. 1984) . . . . . . . 11
Curley v. Cumberland Farms Dairy, Inc.,
728 F. Supp. 1123 (D.N.J. 1989) . . . . . . . . . . . . . . . . . . 11
Dan River, Inc. v. Icahn, 701 F.2d 278 (4th Cir. 1983) . . . 12
DeMent v. Abbott Capital Corp., 589 F. Supp. 1378
(N.D. Ill. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Evans v. United States, 504 U.S. 255 (1992) . . . . . . . . . . 21
F.T. Int’l, Ltd. v. Mason, 2000 U.S. Dist. LEXIS
14979 (E.D. Pa. Oct. 11, 2000) . . . . . . . . . . . . . . . . . . . 11
First Nat’l Bank and Trust Co. v. Hollingsworth,
701 F. Supp. 701 (W.D. Ark. 1988). . . . . . . . . . . . . . . . 11
Galerie Furstenberg v. Coffaro, 697 F. Supp. 1282
(S.D.N.Y. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Ganey v. Raffone, 91 F.3d 143 (6th Cir. 1996) . . . . . . . . . 12
Griffin v. United States, 502 U.S. 46 (1991) . . . . . . . . . 5, 23
Holmes v. SIPC, 503 U.S. 258 (1992) . . . . . . . . . . . . . . . . 13
In re Fredeman Litigation, 843 F.2d 821
x
(5th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 16
Jett v. Dallas Indep. School Dist., 491 U.S. 701 (1989) . . . 14
Johnson v. Collins Entertainment Co., 199 F.3d 710
(4th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Kaushal v. State Bank of India, 556 F. Supp. 576
(N.D. Ill. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Klehr v. A. O. Smith Harvestore Products, Inc.,
521 U.S. 179 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Lincoln House, Inc. v. Dupre, 903 F.2d 845
(1st Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Middlesex County Sewerage Auth. v. National Sea
Clammers Ass’n, 453 U.S. 1 (1981) . . . . . . . . . . . . . . . . 15
Miller v. Affiliated Financial Corp., 600 F. Supp. 987
(N.D. Ill. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Minnesota v. Northern Securities Co., 194 U.S. 48
(1904) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
NAACP v. Claiborne Hardware Co., 458 U.S.
886 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 26, 27, 29
National Organization for Women v. Scheidler,
765 F. Supp. 937 (N.D. Ill. 1991) . . . . . . . . . . . . . . . . . . . 1
xi
National Organization for Women v. Scheidler,
968 F.2d 612 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . 1
National Organization for Women v. Scheidler,
508 U.S. 971 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
National Organization for Women v. Scheidler,
510 U.S. 249 (1994) . . . . . . . . . . . . . . . . . . . . . . . 1, 10, 26
National Organization for Women v. Scheidler,
897 F. Supp. 1047 (N.D. Ill. 1995) . . . . . . . . . . . . . . 1, 2, 3
National Organization for Women v. Scheidler,
172 F.R.D. 351 (N.D. Ill. 1997) . . . . . . . . . . . . . . . . . . . . 1
National Organization for Women v. Scheidler,
267 F.3d 687 (7th Cir. 2001) . . . . . . . . . . . . . . . 1, passim
National R.R. Passenger Corp. v. National Ass’n
of R.R. Passengers, 414 U.S. 453 (1974) . . . . . . . . . . . . 14
Oregon Laborers-Employers Health & Welfare
Trust Fund v. Philip Morris, Inc.,
185 F.3d 957 (9th Cir. 1999), cert. denied,
528 U.S. 1075 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
P.R.F., Inc. v. Philips Credit Corp.,
1992 WL 385170 (D.P.R. Dec. 21, 1992) . . . . . . . . . . . 11
Paine Lumber Co. v. Neal, 244 U.S. 459 (1917) . . . . . . . . 12
xii
People of New York ex rel. Spitzer v. Operation
Rescue National, 273 F.3d 184 (2d Cir. 2001) . . . . . . . . 30
Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) . . . 26
R.E. Davis Chemical Corp. v. Nalco Chemical Co.,
757 F. Supp. 1499 (N.D. Ill. 1990) . . . . . . . . . . . . . . . . . 11
Raymark Industries, Inc. v. Stemple,
714 F. Supp. 460 (D. Kan. 1988) . . . . . . . . . . . . . . . . . . 12
Religious Technology Center v. Wollersheim,
796 F.2d 1076 (9th Cir. 1986), cert. denied,
479 U.S. 1103 (1987) . . . . . . . . . . . . . . . . . . . . . 10, 11, 17
Reves v. Ernst & Young, 507 U.S. 170 (1993) . . . . . . . . . . 14
Rotella v. Wood, 528 U.S. 549 (2000) . . . . . . . . . . . . . . . . 15
Russello v. United States, 464 U.S. 16 (1983) . . . . . . . . . . 19
Salinas v. United States, 522 U.S. 52 (1997) . . . . . . . . . . . 24
Sedima, S.P.R.L. v. Imrex, 741 F.2d 482
(2d Cir. 1984), rev’d on other grounds,
473 U.S. 479 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . 12, 18
Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479
(1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15-18
xiii
Steel Co. v. Citizens for a Better Environment,
523 U.S. 83 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Sterling Suffolk Racecourse Limited Partnership v.
Burrillville Racing Ass’n, 802 F. Supp. 662 (D.R.I.
1992), aff’d, 989 F.2d 1266 (1st Cir.), cert. denied,
510 U.S. 1024 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Town of West Hartford v. Operation Rescue,
726 F. Supp. 371 (D. Conn. 1989), vac’d,
991 F.2d 1039 (2d Cir.), cert. denied,
510 U.S. 865 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Trane Co. v. O’Connor Securities, 718 F.2d 26
(2d Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Transamerica Mortgage Advisors, Inc. v. Lewis,
444 U.S. 11 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
United States v. Enmons, 410 U.S. 396 (1973) . . . . . . . . . 21
United States v. Nardello, 393 U.S. 286 (1969) . . . . . 23, 24
United States v. Nedley, 255 F.2d 350 (3d Cir. 1958) . . . . 22
United States v. Panaro, 266 F.3d 939 (9th Cir. 2001) . . . 22
Vietnam Veterans of America, Inc. v. Guerdon
Industries, Inc., 644 F. Supp. 951 (D. Del. 1986) . . . . . . 11
xiv
Constitutional provisions, statutes, and rules
U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . i, passim
U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . 9, 22, 26
18 U.S.C. § 1951 . . . . . . . . . . . . . . . . . . . . . . . . . . 1, passim
18 U.S.C. § 1952 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 26
18 U.S.C. § 1961 . . . . . . . . . . . . . . . . . . . . . 1, 20, 23, 25, 26
18 U.S.C. § 1964 . . . . . . . . . . . . . . . . . . . . . . . . . . 1, passim
28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Del. Code. Ann. tit. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Wis. Stat. Ann. § 943.30(1) . . . . . . . . . . . . . . . . . . . . . . . . . 25
S. Ct. R. 12.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
S. Ct. Rule 29.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Fed. R. Civ. P. 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
xv
Fed. R. Civ. P. 60(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Other Authorities
31A Am. Jr. 2d Extortion, Blackmail, and Threats,
§§ 40, 49-50 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
115 Cong. Rec. 6,992-96 . . . . . . . . . . . . . . . . . . . . . . . . . . 17
116 Cong. Rec. 27,738 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
116 Cong. Rec. 35,227-28 . . . . . . . . . . . . . . . . . . . . . . . . . 17
116 Cong. Rec. 35,346-47 . . . . . . . . . . . . . . . . . . . . . . 17, 18
117 Cong. Rec. 46,386 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
117 Cong. Rec. 46,393 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
118 Cong. Rec. 29,368, 29,370 . . . . . . . . . . . . . . . . . . . . . 18
119 Cong. Rec. 10,317-19 . . . . . . . . . . . . . . . . . . . . . . . . . 18
H.R. 19215, 91st Cong., 2d Sess. (1970) . . . . . . . . . . . . . . 17
H.R. Rep. No. 1549, 91st Cong., 2d Sess. (1970),
reprinted in 1970 U.S. Code Cong. & Admin.
News 4007, 4034 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
xvi
Model Penal Code (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Note, Protestors, Extortion, and Coercion:
Preventing RICO from Chilling First
Amendment Freedoms, 75 Notre Dame L. Rev.
691 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 22
Victims of Crime: Hearings on S. 16, S. 33, S. 750,
S. 1946, S. 2087, S. 2426, S. 2748, S. 2856, S. 2994,
and S. 2995 Before the Subcomm. on Criminal Laws
and Procedures of the Senate Comm. on the
Judiciary, 92d Cong., 1st Sess. (1970-1971) . . . . . . . . . 18
xvii
ABBREVIATIONS KEY
App. Appendix to the Petition for Certiorari
OR Reh’g Pet. Petition for Rehearing and Rehearing En
Banc of Defendant-Appellant Operation
Rescue in Seventh Circuit
PA Plaintiffs’ Appendix in Seventh Circuit
Tr. Trial transcript in district court
DECISIONS BELOW
All pertinent decisions in this case to date are entitled National
Organization for Women v. Scheidler. The district court’s
original dismissal of the case appears at 765 F. Supp. 937 (N.D.
Ill. 1991), and the Seventh Circuit’s affirmance at 968 F.2d 612
(7th Cir. 1992). This Court’s partial grant of certiorari appears at
508 U.S. 971 (1993), and subsequent reversal at 510 U.S. 249
(1994). On remand, the district court’s partial dismissal of the case
appears at 897 F. Supp. 1047 (N.D. Ill. 1995), and the district
court’s certification of plaintiff classes appears at 172 F.R.D. 351
(N.D. Ill. 1997). The Seventh Circuit’s decision below, affirming
judgment for respondents, appears at 267 F.3d 687 (7th Cir.
2001).
JURISDICTION
The U.S. Court of Appeals rendered its panel decision on
October 2, 2001, and denied timely petitions for rehearing and
rehearing en banc on October 29, 2001. This Court has
jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISIONS AND POLICIES
The Appendix contains the text of the First Amendment to the
U.S. Constitution (App. M), the Hobbs Act, 18 U.S.C. § 1951
(App. N), and excerpts of the federal RICO statute, 18 U.S.C. §
1961, 1964 (App. O).
STATEMENT OF THE CASE
1. Jurisdiction in District Court
This is a civil RICO case in which the district court’s jurisdiction
was invoked, inter alia, under 28 U.S.C. § 1331 and 18 U.S.C.
§ 1964.
2
Respondents -- plaintiffs below -- are the National Organization
for Women, Inc. (NOW), the Delaware Women’s Health
Organization (DWHO), the Summit Women’s Health Organization
(Summit), and the classes they were certified to represent. (The
plaintiffs changed over the course of the litigation. For convenience,
this brief refers collectively to “NOW.”) The defendants, including
petitioner Operation Rescue (OR), are pro-life activist individuals
and organizations.
2. Facts Material to Consideration of the Questions
a. Availability of injunctive relief to private plaintiffs
under RICO
The question whether RICO authorizes private parties to sue for
injunctive relief is a pure question of law. Material to that question
are the undisputed facts that respondents (plaintiffs) are private
parties and that all of respondents’ claims other than RICO were
eliminated prior to trial and final judgment. The district court
rejected petitioner’s contention that RICO does not authorize
private parties to sue for injunctive relief, App. 131a-134a, 261a,
and granted a permanent injunction, App. G, I. The Seventh
Circuit affirmed, holding -- despite a contrary holding in the Ninth
Circuit -- that RICO authorizes private injunctive relief. App. 7a-
17a.
b. Meaning of “obtaining of property” element of Hobbs
Act extortion
The question whether the “obtaining of property” element of the
federal extortion statute, 18 U.S.C. § 1951(b)(2), can be satisfied
by merely causing “a loss to, or interference with the rights of,” the
alleged victim, see App. 36a, is a pure question of law. Material to
that question are the following undisputed facts: defendants were
3
2E.g., Tr. 5003 (closing argument of plaintiffs) (“if the defendants
prevented women from getting any of those services [provided by abortion
businesses], then those interferences are RICO violations”); id. at 5005
(“Each and every one of those blockades that shut the clinics down for any
period of time was an illegal act of extortion under RICO”).
3While the jury found 25 acts or threats of “extortion,” infra note 4, the
jury found only four acts or threats of violence. App. 312a (#4(e)). Hence,
the jury necessarily found that at least 21 -- and possibly all, see infra note
5 -- of the acts of “extortion” (sit-ins) were nonviolent.
One question on the jury verdict form asked whether the jury’s findings
of predicate extortion under the Hobbs Act or state law were “based solely
on blockades of clinic doors or sit-ins within clinics, without more.” App.
312a. In closing arguments to the jury, NOW argued that the phrase
“without more” meant that the sit-ins “didn’t keep anybody out,” Tr. 4987.
In other words, unless the sit-in participants always moved aside to let
people “freely walk in,” NOW argued, the jury must answer the question
“no.” Tr. 4987-88. Consequently, this question became the meaningless
one, “If you found extortion, was it based solely on a blockade or sit-in
where participants stepped aside for anyone coming or going?” The jury’s
negative answer to this question thus did not indicate a finding that sit-ins
were violent.
not alleged to have obtained any tangible property, Tr. 4327 -- or
any intangible property like trademarks or stocks -- but only to
have interfered with the business of abortion. NOW’s theory of the
case was that any physical obstruction of abortion -- e.g., by a sitin
-- was extortion and thus a predicate act of racketeering under
RICO. See, e.g., id.; id. at 5003-09.2 The district court adopted
this view of extortion. E.g., App. 109a-111a, 195a-196a.
Under the district court’s instruction, the jury was not required
to find anything more than nonviolent sit-ins to find defendants liable
for “extortion.”3 Tr. 4944-47. In closing arguments, NOW argued
for a jury finding of “no less than 30 blockades [i.e., sit-ins],” Tr.
5005, arguing that each sit-in was an act of predicate extortion, id.
4
4The jury was instructed to treat each intentional sit-in at an abortion
business as both actual and attempted extortion. See Tr. 4945-48.
Accordingly, the jury found the same number of “acts or threats” as it did
“attempts” in each category (25 each for “extortion,” 23 each for Travel Act
violations). App. 311a-312a. Furthermore, the instructions for state and
federal extortion were virtually identical, Tr. 4944-47, with the difference that
the federal version had an interstate commerce element, Tr. 4945.
Accordingly, the jury found a virtually identical number of violations in the
state and federal categories, with only slightly fewer in the federal categories
(presumably for lack of the interstate element). App. 311a-312a. Thus, a
single sit-in would count simultaneously in Verdict Form boxes 4(a), (b), (d),
(f), and (g), except that 4(a), (f), and (g) also had interstate travel or
commerce elements. Id.
5NOW also argued for at least five threats of physical violence, Tr. 5013-
16, and seven acts of physical violence, Tr. 5022-23, but the jury found only
four acts or threats total. App. 312a (#4(e)).
6The only predicate offenses under RICO at issue were extortion under the
federal Hobbs Act, 18 U.S.C. § 1951, extortion under state law, and extortion
under the federal Travel Act, 18 U.S.C. § 1952.
The jury apparently found 25 sit-ins total.4 App. 311a.5
On appeal, defendants contested the failure to require NOW to
prove the “obtaining of property.”6 The Seventh Circuit affirmed,
holding that, to satisfy the element of “obtaining property” under the
Hobbs Act, a “loss to, or interference with the rights of, the victim
is all that is required.” App. 36a.
c. Generic state extortion
The validity of substituting “generic state extortion” for the
particular elements of each state law in a jury instruction is a pure
question of law. Material to that question are the following
undisputed facts: NOW alleged, as RICO predicates, violation of
the extortion laws of various states. After initially drafting jury
instructions aimed at the elements of extortion in the pertinent states,
5
7The jury also found 25 attempts. App. 312a (#4(d)). As noted supra note
4, the jury instructions required the jury to treat each sit-in as both actual
and attempted extortion, Tr. 4945-48. The jury was also directed to state and
federal extortion for its Travel Act verdict (regarding which the jury found
23 acts and attempts, see App. 312a (#4(f), (g))).
8If the federal extortion predicates are overturned by this Court, of course,
the premise of the Seventh Circuit’s finding of harmlessness would fall.
Tr. 4356, NOW offered a single “generic” instruction to replace
individualized state instructions, id. Defendants objected, Tr.
4355-57, 4577, but the district court gave the generic instruction,
Tr. 4947. The jury found 25 acts or threats of state law extortion.
App. 311a (#4(b)).7 The Seventh Circuit, “[w]ithout expressing an
opinion on whether this approach was permissible,” App. 36a,
affirmed on the grounds that any error was harmless, id. The
Seventh Circuit reasoned that the separate jury findings of federal
extortion sufficed to support the RICO judgment, regardless of the
validity of the findings of state extortion. App. 36a-37a. OR
pointed out that the damages verdict might rest in whole or in part
upon acts that the jury found exclusively to qualify as state
extortion. E.g., OR Reh’g Pet. at 12-13. Furthermore, OR noted,
the legally faulty generic instruction would require reversal of all jury
findings that potentially rested on that illegal theory, including
findings essential to the judgment, such as the findings of a RICO
pattern, proximate cause, and the amount of damages. Id. at 12
(citing Griffin v. United States, 502 U.S. 46, 53-56, 59 (1991)).
Thus, the faulty generic state extortion instructions could not be
harmless error. OR Reh’g Pet. at 12-13.8 The Seventh Circuit
denied rehearing. App. L.
d. First Amendment violations
The question whether civil liability may be imposed for unlawful
6
9NOW sought to paint pro-life activists as extreme and violent by relying
on isolated quotations taken out of context. For example, NOW cited the
“Green Beret” image, suggesting militarism, yet the pertinent document gave
as examples of “Green Berets” not just a “rescuer” willing to go to jail, but
also someone who works “full-time with little or no pay for four months in
the election of a pro-life candidate,” PA100. NOW quoted Scheidler as
urging pro-lifers to “take their fight against abortion to the doors of abortion
clinics,” but the letter to the editor in question refers to one-on-one sidewalk
counseling outside abortion businesses, PA130. NOW quoted Scheidler
using the phrase “pro-life mafia,” but in context the term referred wryly to
activism, not violence, PA182. See also PA122 (using term “aggressive
tactics” to mean sit-ins and demonstrations).
NOW accused defendants of giving “special, private meanings” to the
word “violence.” Yet it was NOW’s witnesses who defined “violence” to
include virtually all pro-life activism. See, e.g., Tr. 730 (Susan Hill) (“every
rescue event that has been conducted in this country in the last 15 years by
(continued...)
conduct on the basis of associational liability in the context of
pervasive expressive activity, without the finder of fact identifying
the alleged unlawful acts, the alleged perpetrators of the acts, or the
damages flowing from those particular acts, is a pure question of
law. Material to that question are the following undisputed facts:
NOW conceded that “[o]bviously all the thousands of people who
participate in blockades [i.e., sit-ins], Your Honor, are not coconspirators.”
Tr. 453. Furthermore, the defendants’ anti-abortion
efforts included extensive free speech activity, such as leafleting,
writing, singing, praying, and other pure speech, pickets, sidewalk
counseling, etc. See App. 17a (“All parties acknowledge that the
defendants engaged in a substantial amount of protected speech
during the protest missions and other anti-abortion activities”).
Defendants explicitly embraced nonviolence for their efforts. See,
e.g., Tr. 1332, 1357-59; PA120, PA168, PA219 (nonviolence
pledge for “rescue” participants). See also Tr. 982, 1263, 1265,
1271, 1815, 1971, 2262-63, 2378-79 (embrace of nonviolence).9
7
9(...continued)
Operation Rescue” has “felt violent to us”); Tr. 1268 (Maureen Burke)
(“every act of civil disobedience that would block access to an abortion
clinic” is violent, even if “entirely passive, peaceful, nonresistant, silent”),
1278 (Burke) (sidewalk counseling, yelling, raising voice all violent).
10Defendants demonstrated in detail in their joint Rule 60(b) motion that at
least some of the alleged incidents of misconduct were fabricated or wholly
unconnected to defendants.
11The district court repeatedly admonished that an objection by any
defendant would be deemed made on behalf of all. Tr. 475, 689, 5181.
12Thus, as the district court conceded, App. 254a, there is no way to know
exactly what the jury found to qualify as extortionate predicates.
The activities at issue spanned some fourteen years, App. 285a, yet
the jury found only four acts or threats of violence by any person
associated with the alleged enterprise. Supra note 5.
NOW sought to impose liability upon defendants for any act, no
matter how isolated, that anyone participating in a pro-life
demonstration supposedly committed.10 E.g., Tr. 2228, 2231.
Over defendants’ objection, Tr. 4495-98,11 the district court did
not require the jury to identify any particular alleged incidents of
wrongdoing.12 Instead, the district court approved a verdict form
that allowed the jury to impose liability for unspecified acts by “any
other person associated with PLAN [Pro-Life Action Network, the
alleged RICO enterprise],” App. 311a (#4) (predicate acts). See
also App. 313a (#7) (RICO pattern may be based on acts of
“persons associated with PLAN”); id. (#9) (proximate cause may
rest on acts of “any person associated with PLAN”). The jury then
found some two dozen unidentified predicate acts to have been
committed by unspecified persons “associated with PLAN,” that at
least two of those acts proximately caused injury to the plaintiffs,
and that the plaintiffs Summit and DWHO had suffered monetary
8
damages from their RICO injuries. App. 311a-314a (#4, 9, 10).
The district court entered judgment on this verdict, App. I, and the
Seventh Circuit affirmed, finding no First Amendment defects.
App. 17a-26a.
REASONS FOR GRANTING THE WRIT
The trial court aptly described this case as “paradigmatic of
RICO’s seemingly limitless applicability.” App. 158a. While this
case arises out of the context of protest against abortion, what is at
stake legally is a massive expansion of civil RICO.
The Seventh Circuit affirmed a judgment of treble damages and
a nationwide injunction in a civil RICO case brought by the
National Organization for Women (NOW), two abortion
businesses, and two plaintiff classes (which the named plaintiffs
represented) against pro-life activists.
The Seventh Circuit’s decision expands civil RICO litigation in
at least four major ways:
1. Private injunctive relief -- The Seventh Circuit, creating a
split in the circuits, held that private parties can obtain injunctive
relief under RICO. This abrogates what had previously been the
federal government’s exclusive prerogative to wield RICO’s
awesome injunctive remedies (including “dissolution or
reorganization of any enterprise”).
2. Expansive rewriting of federal extortion law -- Federal
extortion law (the Hobbs Act, 18 U.S.C. § 1951) is a predicate act
under RICO, i.e., it is one of the limited number of crimes which
can give rise to RICO liability. The Hobbs Act specifies that
extortion requires “the obtaining of property” from another, but the
Seventh Circuit read this element to require only “a loss to, or
9
13Basically, the court equated a “sit-in” protest with extortion.
14The Hobbs Act also proscribes “obtaining of property,” with consent,
“under color of official right.” 18 U.S.C. § 1951(b)(2). Hence, the Seventh
Circuit’s misreading of the Hobbs Act also expands the applicability of that
statute (and thus RICO) to government actors.
15The Seventh Circuit brushed this aside as at worst harmless error
because the jury also found the defendants to have committed federal
extortion. The finding of federal extortion was also erroneous, however, as
noted above. Moreover, even if the federal extortion counts were beyond
reproach, the faulty generic state extortion instruction clearly was not
harmless error. See supra text accompanying note 8.
interference with the rights of,” the alleged victim.13 Thus, RICO is
now a remedy for all “damage” or “interference with rights”
(including, presumably, police interference with protesters,14
corporate interference with the rights of employees, consumers, or
competitors, and so forth).
3. Obliterating state law defenses -- Extortion under state law
is also a RICO predicate offense. Here, NOW alleged violations
of the extortion laws of various states. Rather than instruct the jury
on the elements of the pertinent state laws, the district court gave a
generic state extortion instruction -- a watered down, white bread
substitute for particular state laws.15 The use of “generic state law”
has grave implications for all multistate litigation. First, it shows
utter disrespect for each state’s prerogative of determining the
elements of its criminal code. Second, it denies defendants due
process of law. Third, it excuses plaintiffs from the time, effort, and
expense of presenting and proving the elements of each state’s law,
thereby artificially facilitating -- at defendants’ expense -- multistate
claims under RICO or other theories. Fourth, it eliminates a major
objection to the certification of multistate class actions, namely, the
diversity of state laws applicable to class member claims. If the
10
distinct particularities of state law can be disregarded, certification
of multistate class actions (e.g., tort or RICO suits against
businesses operating in different states) that would otherwise be
improper would nevertheless be allowed.
4. Elimination of First Amendment safeguards -- When this
case previously came before the Court, Justices Souter and
Kennedy voiced the concern that “RICO actions could deter
protected advocacy.” NOW v. Scheidler, 510 U.S. 249, 265
(1994) (concurring opinion). The course of this case has born out
that concern. The jury was allowed to impose guilt by association,
and was not required to identify what specific acts were done,
much less by whom. Consequently, it was impossible
independently to review the findings supporting liability or the
particular damage awards. The Seventh Circuit nonetheless
perceived no error. This cavalier disregard of the First Amendment
protections set forth in cases like NAACP v. Claiborne Hardware
Co., 458 U.S. 886 (1982), gives the stamp of approval to in
terrorem RICO litigation against ideological adversaries. The
Seventh Circuit’s disregard of the need for particularized findings as
to who did what, prior to imposing civil liability in a First
Amendment context, also conflicts with a recent decision of the
Second Circuit.
NOW v. Scheidler represents a politicized misuse of civil RICO.
The bad precedent it sets, however, bodes ill for all RICO litigation.
I. THE SEVENTH CIRCUIT IN EFFECT AMENDED
RICO TO CREATE A PRIVATE INJUNCTIVE
REMEDY, THEREBY CAUSING A CIRCUIT SPLIT.
The Seventh Circuit in the decision below created a split in the
circuits by holding that the federal RICO statute authorizes private
injunctive relief.
11
16Chambers Development Co. v. Browning-Ferris Industries, 590 F. Supp.
1528, 1540-41 (W.D. Pa. 1984).
17E.g., In re Fredeman Litigation, 843 F.2d 821, 828-30 (5th Cir. 1988);
Sterling Suffolk Racecourse Limited Partnership v. Burrillville Racing
Ass’n, 802 F. Supp. 662, 671 (D.R.I. 1992), aff’d on other grounds, 989 F.2d
1266, 1273 n.8 (1st Cir.), cert. denied, 510 U.S. 1024 (1993); P.R.F., Inc. v.
Philips Credit Corp., 1992 WL 385170 at *2-*3 (D.P.R. Dec. 21, 1992);
Galerie Furstenberg v. Coffaro, 697 F. Supp. 1282, 1294 (S.D.N.Y. 1988);
Town of West Hartford v. Operation Rescue, 726 F. Supp. 371, 376-78 (D.
Conn. 1989), vac’d on other grounds, 991 F.2d 1039 (2d Cir.), cert. denied,
(continued...)
A. Split in the Circuits
In Religious Technology Center v. Wollersheim, 796 F.2d
1076 (9th Cir. 1986), cert. denied, 479 U.S. 1103 (1987), the
Ninth Circuit exhaustively analyzed the text and history of the
remedies section of RICO, the pertinent precedents, and the
competing legal arguments, see Wollersheim, 796 F.2d at 1080-
88. The Wollersheim court concluded that “the legislative history
and statutory language suggest overwhelmingly that no private
equitable action should be implied under civil RICO.” Id. at 1088
(footnote omitted). Wollersheim remains good law in the Ninth
Circuit. E.g., Oregon Laborers-Employers Health & Welfare
Trust Fund v. Philip Morris, Inc., 185 F.3d 957, 967-68 (9th
Cir. 1999), cert. denied, 528 U.S. 1075 (2000).
Many other federal courts have also addressed this question.
Not a single court since Wollersheim -- other than in this case --
has held, contrary to Wollersheim, that private parties can obtain
injunctive relief under RICO. Even prior to Wollersheim, only one
district court so held.16
Every other case to address the issue (except in this case) has
either rejected private equitable relief under RICO,17 expressed
12
17(...continued)
510 U.S. 865 (1993); Bernard v. Taub, 1990 WL 34680 at *3-*4 (E.D.N.Y. Mar.
21, 1990); Attorney General of Canada v. R.J. Reynolds Tobacco Holdings,
Inc., 103 F. Supp. 2d 134, 155 (N.D.N.Y. 2000), aff’d on other grounds, 268
F.3d 103 (2d Cir. 2001); Vietnam Veterans of America, Inc. v. Guerdon
Industries, Inc., 644 F. Supp. 951, 960-61 (D. Del. 1986); Curley v.
Cumberland Farms Dairy, Inc., 728 F. Supp. 1123, 1137-38 (D.N.J. 1989); F.T.
Int’l, Ltd. v. Mason, 2000 U.S. Dist. LEXIS 14979 at *3 n.2 (E.D. Pa. Oct. 11,
2000); Kaushal v. State Bank of India, 556 F. Supp. 576, 581-84 (N.D. Ill.
1983); DeMent v. Abbott Capital Corp., 589 F. Supp. 1378, 1381-83 (N.D. Ill.
1984); Miller v. Affiliated Financial Corp., 600 F. Supp. 987, 994 (N.D. Ill.
1984); R.E. Davis Chemical Corp. v. Nalco Chemical Co., 757 F. Supp. 1499,
1526 n.24 (N.D. Ill. 1990); First Nat’l Bank and Trust Co. v. Hollingsworth,
701 F. Supp. 701 (W.D. Ark. 1988).
18E.g., Lincoln House, Inc. v. Dupre, 903 F.2d 845, 848 (1st Cir. 1990);
Trane Co. v. O’Connor Securities, 718 F.2d 26, 28 (2d Cir. 1983); Sedima,
S.P.R.L. v. Imrex, 741 F.2d 482, 489 n.20 (2d Cir. 1984), rev’d on other
grounds, 473 U.S. 479 (1985); Dan River, Inc. v. Icahn, 701 F.2d 278, 290 (4th
Cir. 1983); Johnson v. Collins Entertainment Co., 199 F.3d 710 (4th Cir.
1999); Ganey v. Raffone, 91 F.3d 143 (6th Cir. 1996) (1996 WL 382278 at **4
n.6); Raymark Industries, Inc. v. Stemple, 714 F. Supp. 460, 475-76 (D. Kan.
1988).
19E.g., Bennett v. Berg, 685 F.2d 1053, 1064 (8th Cir. 1982), aff’d on reh’g,
710 F.2d 1361 (8th Cir.) (en banc), cert. denied, 464 U.S. 1008 (1983); Airline
Reporting Corp. v. Barry, 825 F.2d 1220, 1223 (8th Cir. 1987).
serious doubts about such relief,18 or declined to decide the
question.19 The decision below stands quite alone.
B. Conflict with this Court’s Precedent
This Court has already construed the statutory language in
question, in another statute, not to authorize private injunctive relief.
See Minnesota v. Northern Securities Co., 194 U.S. 48, 70-71
(1904) (section 7 of antitrust statute does not authorize private suits
for equitable relief). Accord Paine Lumber Co. v. Neal, 244 U.S.
13
459, 471 (1917). The parallels to RICO are striking. Compare
194 U.S. at 68 (section 7 provided: “Any person who shall be
injured in his business or property . . . by reason of anything
forbidden or declared to be unlawful by this act may sue therefor .
. . and shall recover threefold the damages by him sustained, and
the costs of suit, including a reasonable attorney’s fee”) with App.
299a (RICO § 1964(c)).
With RICO, Congress employed the “use of an antitrust model
for the development of remedies” against crime. Agency Holding
Corp. v. Malley-Duff & Assocs., 483 U.S. 143, 151 (1987). The
“clearest current in the legislative history of RICO is the reliance on
the [antitrust] model.” Id. (internal quotation marks and citation
omitted). Accord Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479,
489 (1985). It follows that the same language held not to authorize
injunctive relief in an antitrust statute does not authorize injunctive
relief under RICO:
We may fairly credit the 91st Congress, which enacted RICO,
with knowing the interpretation federal courts had given the
words earlier Congresses had used first in § 7 of the Sherman
Act, and later in the Clayton Act’s § 4. . . . It used the same
words, and we can only assume it intended them to have the
same meaning that courts had already given them.
Holmes v. SIPC, 503 U.S. 258, 268 (1992) (citations omitted).
C. Disregard of Text and History of RICO
1. RICO’s Statutory Text
The remedies provision of RICO (18 U.S.C. § 1964) is set forth
14
20The version set forth in the Appendix was effective at the time the
present lawsuit was filed. In 1995, Congress amended subsection (c) in a
way irrelevant here. The 1995 amendment does not apply to actions, like the
present suit, commenced prior to December 22, 1995.
21The Seventh Circuit’s reliance (App. 11a) on Steel Co. v. Citizens for a
Better Environment, 523 U.S. 83, 90 (1990), is puzzling. That case merely
held that a provision giving courts “jurisdiction in actions brought under [a
subsection] . . . to enforce the requirement concerned” did not make every
element of the pertinent substantive subsection “jurisdictional” such that
failure of an element would defeat, not just the claim, but subject matter
(continued...)
in the Appendix, App. 308a-309a.20
Subsection (a) confers jurisdiction upon the district courts and
authorizes broad equitable remedies. This provision, however,
does not specify who may seek the relief authorized. Subsection
(b) authorizes the U.S. Attorney General to “institute proceedings
under this section.” This subsection does not specify the ultimate
relief the Attorney General may seek, and thus such relief plainly
encompasses the full range of remedies for which subsection (a)
creates jurisdiction.
Subsection (c) then specifies that “[a]ny person injured in his
business or property . . . may sue therefor . . . and shall recover
threefold the damages he sustains . . . .” Unlike subsection (b),
there is no blanket authorization to institute proceedings; instead,
the provision specifies a right to sue and a remedy, namely, treble
damages. Subsections (b) and (c) are decidedly not parallel;
hence, contrary to the court below, no “parity of reasoning,” App.
10a, leads to the conclusion that private parties can claim the
universe of relief authorized under subsection (a). Indeed, were the
contrary true, private parties would be entitled to sue, not just for
treble damages and injunctions, but also for such relief as
dissolution of enterprises. See § 1964(a).21
15
21(...continued)
jurisdiction. Id. Petitioner made no such argument regarding RICO.
Meanwhile, the Seventh Circuit’s reliance on RICO’s “liberal
construction” directive, App. 12a, is sheer makeweight, see Reves v. Ernst
& Young, 507 U.S. 170, 183-84 (1993), as is the panel’s invocation of broad
“underlying purposes” of RICO, App. 13a.
The statutory text of RICO therefore indicates that Congress did
not authorize private injunctive relief:
A frequently stated principle of statutory construction is that
when legislation expressly provides a particular remedy or
remedies, courts should not expand the coverage of the statute
to subsume other remedies.
National R.R. Passenger Corp. v. National Ass’n of R.R.
Passengers, 414 U.S. 453, 458 (1974); accord Jett v. Dallas
Indep. School Dist., 491 U.S. 701, 731-32 (1989). For example,
this Court has held that a statute expressly authorizing private
citizens to sue for injunctions would not be construed as implying a
private right of damages. Middlesex County Sewerage Auth. v.
National Sea Clammers Ass’n, 453 U.S. 1, 14-15 (1981). “In
the absence of strong indicia of a contrary congressional intent, we
are compelled to conclude that Congress provided precisely the
remedies it considered appropriate.” Id. at 15. Accord
Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11,
19 (1979) (“it is an elemental canon of statutory construction that
where a statute expressly provides a particular remedy or remedies,
a court must be chary of reading others into it”).
This Court has consistently understood subsection (c) as
authorizing a “private treble-damages action,” Sedima, 473 U.S. at
486. Accord id. at 481, 487-88, 490, 493; Agency Holding
Corp., 483 U.S. at 151-52; Klehr v. A. O. Smith Harvestore
16
Products, Inc., 521 U.S. 179, 183 (1997); Rotella v. Wood, 528
U.S. 549, 551 (2000); Beck v. Prupis, 529 U.S. 494, 496 & n.1
(2000) (describing RICO provisions for criminal penalties and civil
suits, and separately noting that RICO “authorizes the
Government to bring civil actions to ‘prevent and restrain’
violations”) (emphasis added). The decision below directly
challenges this consistent understanding of civil RICO.
2. RICO’s Legislative History
The legislative history of RICO confirms, indeed compels, the
conclusion already drawn from the text of RICO: private injunctive
relief is not available under RICO.
a. Selection of treble damages remedy
RICO was enacted as Title IX of the Organized Crime Control
Act of 1970. Sedima, 473 U.S. at 486. The Senate, which
passed the legislation first, did not provide for private party suits
under RICO.
The civil remedies in the bill passed by the Senate, S 30, were
limited to injunctive actions by the United States and became §§
1964(a), (b), and (d).
473 U.S. at 486-87. The “private treble-damages action” was
added, later, in the House of Representatives. Id. at 487-88. The
Senate then adopted the bill as amended in the House. Id. at 488.
As the Fifth Circuit explained, “Section 1964(c), providing the
treble damage remedy, then becomes a branch grafted onto the
already-completed trunk of the statute.” Fredeman, 843 F.2d at
829 (footnote omitted).
This “grafted-on branch” very specifically authorized “a private
treble-damages action,” Sedima, 473 U.S. at 487, as a supplement
17
to federal government enforcement of the statute, and as a remedy
for those wronged by organized crime, id. See also Agency
Holding Corp., 483 U.S. at 151 (RICO’s civil enforcement
provision was designed “to remedy economic injury by providing
for the recovery of treble damages, costs, and attorney’s fees”); id.
(“the mechanism chosen to reach the objective in . . . RICO is the
carrot of treble damages”). The selection of a treble damages
remedy, and only a treble damages remedy, was plainly a
deliberate choice by Congress.
b. Rejection of private injunctive remedy
That Congress deliberately limited private civil relief to treble
damages (and costs and attorney fees) appears even more clearly
from the rejection by Congress of proposals to authorize private
injunctive relief:
in considering civil RICO, Congress was repeatedly presented
with the opportunity expressly to include a provision permitting
private plaintiffs to secure injunctive relief. On each occasion,
Congress rejected the addition of any such provision.
Wollersheim, 796 F.2d at 1086 (emphasis in original).
RICO predecessor legislation in the Senate and in the House
explicitly allowed for private party injunctive relief. Id. at 1084.
See 115 Cong. Rec. 6,992-96 (1969) (discussing predecessor
Senate bills); H.R. 19215, 91st Cong., 2d Sess. (1970)
(predecessor House bill). In fact, Representative Steiger, who
proposed the addition of the treble damages provision, Sedima,
473 U.S. at 487, made that proposal in an amendment which also
included a provision for private injunctive relief. See 116 Cong.
Rec. 27,738-39 (1970) (Steiger Amendment, proposed subsection
(c), provided: “Any person may institute proceeding under
18
subsection (a) [of § 1964] . . . [and] relief shall be granted in
conformity with the principles which govern the granting of
injunctive relief . . .”). The House Committee on the Judiciary,
however, adopted only the private treble damages remedy, not the
private injunctive remedy. See H.R. Rep. No. 1549, 91st Cong.,
2d Sess. 58 (1970), reprinted in 1970 U.S. Code Cong. &
Admin. News 4007, 4034. Rep. Steiger, while “extremely pleased
. . . that the Judiciary Committee has approved . . . a provision
authorizing treble damage actions by private persons,” 116 Cong.
Rec. 35,227 (1970), nevertheless lamented that the committee
version did “not do the whole job,” id. In particular, Rep. Steiger
bemoaned the fact that “the Judiciary Committee version . . . fails
to provide . . . equitable relief in suits brought by private citizens.”
Id. at 35,228.
On the floor of the House Rep. Steiger again “offered an
amendment that would have allowed private injunctive actions”
under RICO, Sedima, 473 U.S. at 487. See 116 Cong. Rec.
35,228, 35,346 (1970). “The proposal was greeted with some
hostility . . . and Steiger withdrew it without a vote being taken.”
Sedima, 473 U.S. at 487-88. See 116 Cong. Rec. 35,346-47
(1970). As this Court has explained, the reason for this hostility,
for the withdrawal of the proposal, and for the reference of the
proposal instead to a committee, was precisely because the
proposed amendment “included yet another civil remedy,” Agency
Holding Corp., 483 U.S. at 154, namely, private injunctive relief.
See 116 Cong. Rec. 35,346 (1970) (statement of Rep. Poff)
(Steiger amendment “does offer an additional civil remedy” and
“prudence would dictate that the Judiciary Committee very carefully
explore the potential consequences that this new remedy might
19
22Congress failed to enact legislation, proposed the very next term after the
enactment of RICO, which was designed “to broaden even further the
remedies available under RICO. In particular, it would have . . . permitted
private actions for injunctive relief.” Agency Holding Corp., 483 U.S. at 155.
See also Sedima, 741 F.2d at 489 n.20. See 117 Cong. Rec. 46,386 (1971)
(statement of Sen. McClellan) (Title IV of “Victims of Crime Act of 1972"
would “authorize private injunctive relief from racketeering activity”); id. at
46,393 (text of bill proposing to amend RICO to add private injunctive
remedy); Victims of Crime: Hearings on S. 16, S. 33, S. 750, S. 1946, S.
2087, S. 2426, S. 2748, S. 2856, S. 2994, and S. 2995 Before the Subcomm.
on Criminal Laws and Procedures of the Senate Comm. on the Judiciary,
92d Cong., 1st Sess. 3 (1970-1971) (text of proposed bill providing for private
injunctive relief under RICO); id. at 51 (same); id. at 158 (statement of
Richard Velde, Associate Administrator, Law Enforcement Assistance
Administration) (proposed legislation “would expand the available civil
remedies. Section 1964 [of RICO] would be amended to permit any person
to institute a civil proceeding to prevent or restrain violations . . . . Now
only the United States can institute injunctive proceedings”); 118 Cong.
Rec. 29,368 (1972) (text of “Civil Remedies for Victims of Racketeering
Activity and Theft Act of 1972" proposing inter alia to amend RICO to add
private injunctive relief); id. at 29,370 (statement of Sen. McClellan) (bill
“authorizes private injunctive relief from racketeering activity”).
In 1973, Congress again considered, and failed to enact, a bill to amend
RICO by adding private injunctive relief. See 119 Cong. Rec. 10,317-19
(1973) (“Civil Remedies for Victims of Racketeering Activity and Theft Act
of 1973").
have”).22
In sum, Congress repeatedly declined to authorize private
injunctive relief under RICO. See Russello v. United States, 464
U.S. 16, 23-24 (1983) (citing “evolution of [RICO’s] statutory
provisions” as aid to statutory construction, and adding, “[w]here
Congress includes [certain] language in an earlier version of the bill
but deletes it prior to enactment, it may be presumed that the
[omitted text] was not intended”).
20
D. Importance of the Question
As noted above, the court below has created a conflict in the
circuits. And by in effect amending RICO to authorize private civil
suits for injunctive relief, the Seventh Circuit has abolished the
federal government’s exclusive prerogative to seek such relief. Not
only is this an affront to a unique federal executive power, it is an
open invitation to abuse. Under the decision below, private parties
are no longer limited to damages for the harm they suffered; they
now can seek prospective relief wholly independent of, and
potentially in conflict with, the decisions of the Attorney General
regarding pursuit of such relief. Furthermore, private parties do not
have the political accountability, or the duty to exercise
prosecutorial discretion, that apply to the federal government.
Hence, the RICO injunctive weapon, thanks to the court below,
can now be misused -- as in the present case -- as a means of
waging political or commercial warfare against one’s adversaries.
II. THE SEVENTH CIRCUIT STRETCHED THE
HOBBS ACT BEYOND RECOGNITION.
The Seventh Circuit has in effect eliminated the “obtaining of
property” element from the federal criminal extortion statute,
replacing it with “interference with rights.” App. 36a. This is a
gross overreading of the Hobbs Act, 18 U.S.C. § 1951 (App. N).
The consequences of this rewriting of the Hobbs Act are dramatic
and dangerous: now any unlawful protest activity, and any
governmental interference with rights, constitutes federal criminal
extortion and racketeering.
Social protest has a long and revered history in this nation. From
the burning or hanging of effigies in colonial times, to the
temperance activists’ disruption of taverns, to the civil rights and
21
23The court below claimed support in “a long line of precedent,” id., but
the “precedent” is merely lower court dicta. See generally Note, Protesters,
Extortion, and Coercion: Preventing RICO from Chilling First Amendment
Freedoms, 75 Notre Dame L. Rev. 691, 718-19 & n.124 (1999).
anti-war sit-ins of the 1960’s and 1970’s, demonstrations -- even
illegal ones -- have been both an outlet for dissent and an instrument
for social and legal change. In totalitarian regimes, demonstrators
are crushed by tanks. By contrast, this nation boasts the rule of law
-- no more, no less. To be sure, protesters may be arrested, fined,
or jailed for offenses they commit, but they are not treated like
hardcore criminals -- unless the Seventh Circuit's misreading of the
Hobbs Act stands.
The court below held that pro-life sit-ins at abortion facilities
violate the federal extortion statute, 18 U.S.C. § 1951, and thus
qualify as “racketeering” under RICO, 18 U.S.C. § 1961(1).
According to the Seventh Circuit, despite the text of § 1951
(“‘extortion’ means the obtaining of property from another . . .”), an
“extortionist” can “violate the Hobbs Act without either seeking or
receiving money or anything else,” App. 36a. “A loss to, or
interference with the rights of, the victim is all that is required.” Id.23
Thus, any protest activity that crosses into tortious or illegal
behavior (a trespass, an obstruction, an instance of physical
contact) now subjects the actor to federal criminal felony liability as
an “extortionist” under the Hobbs Act and a “racketeer” (if two or
more acts are involved) under RICO. A more deadly recipe for
social protest could scarcely be imagined.
The decision below also creates considerable mischief for
government actors. The Hobbs Act proscribes the extortionate
“obtaining of property . . . under color of official right.” §
1951(b)(2). Under the decision below, this means “[causing a] loss
to, or interfer[ing] with the rights of, the victim,” App. 36a, under
22
color of official right. Thus, any police misconduct (false arrest,
excessive force, etc.) or other act of government officials (e.g.,
withholding a municipal permit for a pornography business or gun
store) that interferes with someone’s rights, has now become
federal criminal extortion and racketeering.
The decision below creates mischief for federal robbery law as
well. The “robbery” section of the Hobbs Act also uses the term
“obtaining”: “robbery” is the “taking or obtaining of personal
property from the person or in the presence of another, against his
will, by means of actual or threatened force, or violence, or fear of
injury . . .,” 18 U.S.C. § 1951(b)(1). Under the panel’s distorted
view of “obtaining,” a protester who pushes someone to the
ground, causing that person’s pants to tear or glasses to break,
commits “robbery” (“obtaining” the pants or glasses by actual
force). The bumping of opposing demonstrators would become the
stuff of felony prosecutions and civil RICO suits.
The Seventh Circuit’s rewriting of the Hobbs Act does not
square with the law. In United States v. Enmons, 410 U.S. 396
(1973), the defendants wrongfully caused property losses and
interfered with rights, id. (recounting acts of violence); id. at 399
(“wrongful violence” is redundant), yet there was no extortion:
defendants did not wrongfully obtain property, id. at 399-400.
See id. at 400 (distinguishing the obtaining of “personal payoffs”);
id. at 406 n.16 (distinguishing “obtaining a financial benefit for
himself” and a “payoff”: the “entire character [of the demonstration]
changed . . . when it was used as a pressure device to extract the
payment of money”) (emphasis added). See also Evans v.
United States, 504 U.S. at 255, 259-60 (1992) (common law,
from which Hobbs Act borrowed, required that public official “took
. . . money” under color of his office in order to constitute
extortion).
23
The Ninth Circuit, in sharp contrast to the Seventh Circuit,
recently explained the proper significance of the “obtaining” element
in the Hobbs Act:
The [defendants] sought not only to put [the victim] out of
business, but actually to get his business interests for themselves.
That is important with regard to the “obtaining” element of the
Hobbs Act. . . . [U]nder the Hobbs Act, extortion, which is a
larceny-type offense, does not occur when a victim is merely
forced to part with property. Rather, there must be an
“obtaining”: someone -- either the extortioner or a third
person -- must receive the property of which the victim is
deprived. . . . [C]f. United States v. Nedley, 255 F.2d 350
(3d Cir. 1958) (finding allegation that defendant tried to put
victim out of business insufficient to show “obtaining” for
purposes of “robbery” under the Hobbs Act). See generally
Brian J. Murray, Note, Protesters, Extortion, and Coercion:
Preventing RICO From Chilling First Amendment
Freedoms, 75 Notre Dame L. Rev. 691, 704-712 (1999)
(tracing extortion from the common law through the Hobbs Act
and concluding that extortionate “obtaining” requires not only
that a victim be deprived of property, but also that someone get
the property as a result of the deprivation).
United States v. Panaro, 266 F.3d 939, 948 (9th Cir. 2001)
(emphasis added).
The Seventh Circuit’s expansive rewriting of federal extortion
law also flies in the face of several established norms of statutory
construction: avoidance of constitutional difficulties (here, for
example, the due process problem of post hoc transforming the
traditional social protest tactic of the sit-in into felony extortion, see
Bouie v. Columbia, 378 U.S. 347 (1964)); the “clear statement”
24
24If the term “extortion” in RICO did not have a meaning determined as a
matter of federal law, the scope of RICO would be at the mercy of state
statutory labelling. One state could apply the label “extortion” to include
coercion or assault or trespass, while another could decline to use the label
“extortion” for any offense at all, instead employing a term like “blackmail.”
The Nardello Court repudiated such an approach: “the fallacy of this
contention lies in its assumption that, by defining extortion with reference
(continued...)
rule for federal incursions into traditional state police powers; and
the rule of lenity.
III. THE SEVENTH CIRCUIT UPHELD A JUDGMENT
RESTING IN PART UPON FICTIONAL GENERIC
STATE EXTORTION LAW.
NOW alleged acts of predicate extortion in violation of the laws
of various states. The district court obliterated the distinct extortion
law of the several states and instead substituted a generic state
extortion law in its jury instruction. This was the antithesis of
respect for state law. Furthermore, the generic extortion offense
was not a RICO predicate. The court below ruled that any error
was harmless, App. 36a, but on this the court below was plainly
wrong, supra note 15, and in conflict with the pertinent precedent
of this Court, see Griffin v. United States, 502 U.S. 46, 53-56,
59 (1991) (reviewing court must overturn jury verdict that may rest
on unconstitutional or illegal theory).
Predicate acts under RICO include “any act or threat involving
. . . extortion . . . which is chargeable under State law and
punishable by imprisonment for more than one year . . . .” 18
U.S.C. § 1961(1)(A). This provision entails two separate criteria.
First, the offense must constitute “extortion” within the meaning of
RICO, § 1961(1)(A). This is a question of federal law. United
States v. Nardello, 393 U.S. 286 (1969).24 Second, the offense
25
24(...continued)
to state law, Congress also incorporated state labels for particular offenses.”
Id. at 293.
must be a criminal violation under state law punishable by
imprisonment in excess of one year -- a question of state law.
A. Federal criterion
In Nardello, this Court construed the term “extortion” in the
federal Travel Act to mean “acts prohibited by state law which
would be generically classified as extortionate,” i.e., “obtaining
something of value from another with his consent induced by the
wrongful use of force, fear or threats.” 393 U.S. at 290; id. at 295.
The same construction applies to the term “extortion” as used in
RICO. “When Congress uses well-settled terminology of criminal
law, its words are presumed to have their ordinary meaning and
definition.” Salinas v. United States, 522 U.S. 52, 63 (1997)
(construing RICO). The federal, Nardello definition of extortion
essentially tracks the elements of the Hobbs Act; hence, the same
failure to require the “obtaining of property” that dooms the Hobbs
Act predicates in this case also requires reversal of the state
predicates, even apart from the trial court’s failure to instruct on the
elements of state extortion law.
B. State criterion
The judgment below also fails the second, state-law criterion.
The district court failed to instruct the jury on the elements of
extortion applicable in the various states where predicate acts
allegedly occurred. Instead, the district court gave a generic
instruction supposedly valid for all fifty states. Tr. 4946-48.
This generic approach was erroneous. NOW had an obligation
to prove, for each supposed act of state law extortion, the elements
26
25The Wisconsin statute also proscribes similar acts “with intent to compel
the person so threatened to do any act against the person’s will or omit to
do any unlawful act,” id., but this is the distinct offense of coercion, which
is not a RICO predicate act. See App. O (“coercion” not listed among RICO
predicates); 31A Am. Jur. 2d Extortion, Blackmail, and Threats, §§ 40, 49-
50 (1989) (coercion and extortion as independent offenses); Model Penal
Code § 212.5 & cmt. 2 at 264, 266 (1980); id. § 223.4 & cmt. 1 at 201-03; id. at
§ 223.0(5). That Wisconsin has chosen to classify extortion and coercion
under the same statutory label is irrelevant. Supra note 24.
26Such defects were addressed at length in the briefs filed below
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