Friday, May 03, 2002

RICO And The Church

Several places are reporting today about the RICO suit filed against Cardinal Mahoney. Emily Stimpson asks in one of her posts for people's thoughts on this.

Well, it was only a matter of time before such a case was filed. Personally, I don't think the lawsuit has much of a chance in the courts. If it did, this guy would have filed it long ago. (He's been suing the Church for years.) You can find some legal commentators thoughts on the lawsuit over at Law.com.

First, let me caution people to use a critical eye when reading the comments of lawyers involved in litigation related to these scandals. Litigation is a dirty business. (One of the reasons why I am a transactional attorney.) Today, most lawyers play to the media as much as the judge. Media exposure can put the heat on the other side and force favorable settlements, even if the case never stood much of a chance at trial. Plus, you must realize that the lawyers involved in these cases are repeat players. Some of them have been making a handsome living off of suing the Church for decades. That's not to say that they never bring cases with merit. But let's face it -- these people are working on contingencies and see the fact that if you sue a Catholic priest you can loop in the archdiocese and some real money. This scandal has presented a bigger target. Your storefront bible church doesn't have that same type of payoff. All I'm suggesting is that you realize these people (on both sides for that matter) have reason to skip over facts that hurt their case and have, to put it diplomatically, a tendency towards embellishment and a personal history of going toe to toe.

I have some experience with the RICO statute, having studied it in law school and working briefly during college for a unit of the FBI resonsible for overseeing the Bureau's racketeering enterprise investigations conducted in accordance with the Attorney General's Guidelines. (I studied mostly con law and crim law. Who would have guessed I'd make my living negotiating technology contracts.) Although that was on the criminal side, nonetheless, I got a taste for why lawyers like the statute. Prosecutors like its flexibility and the forfeiture opportunities. The civil side has similar advantages, including treble damages and the awarding of attorneys' fees.

The RICO statute was drafted by Notre Dame Law School's Prof. Blakey, counsel for the U.S. Senate Subcommittee on Criminal Laws and Procedures at the time. He has subsequently helped many states adopt similar statutes. As the name suggests -- Racketeer Influenced and Corrupt Organization -- it was designed as a tool to make it easier to go after the Mafia and to hit them in the pocketbook. Don't feel safe from RICO because you are not a mobster. As pro-lifers have found out recently, the statute has been broadly applied. The Supreme Court has just agreed to hear a case where NOW won a 284,000 dollar RICO judgment against pro-lifers, claiming that their blockades and protests at abortion clinics constituted a pattern of violations of the Hobbs Act. (And if past habits of a circle of friends of mine still holds true, those of the group still in law school likely prepared (or are preparing) an amicus brief for the case. Proof that some good lawyers do graduate from Harvard.)

Many have called for the RICO statute to be narrowed or repealed. Had Monicagate not hit D.C., we might have seen some positive changes on that front as Henry Hyde was prepared to push for reforms.

Take a look at this site for an overview of the history of RICO, its use, and complaints against it. Also, take a look at the RICO FAQ and its outline of the elements of a RICO claim. Setting aside RICO's probable unconstitutionality for the moment, here's my main problem with it: it is too broad and too easy to apply RICO to situations that bear no resemblance to organized crime. A "pattern of racketeering activity" can be the commission of just two acts of "racketeering activity" during a ten year period. The definition of "racketeering activity" includes pretty much everything but the kitchen sink. And the "enterprise" -- the organization in which individuals supposedly committed the "pattern of racketeering activity" -- is very loosely defined, and has even been construed in a few circumstances to apply to one individual acting alone.

To discuss the point further would require more discussion of legal details than I want to do on Integrity. Suffice it to say, I have serious issues with RICO and think lawyers who try to apply it to any collection of people -- despite the lack of clear relations to organized crime or traditional racketeering -- are shamefully taking advantage of a poor law that has been given too liberal of a construction by courts.

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