NOW fails again to squash Pro-Life Action League and other abortion protesters with RICO

Just how small-minded and vindictive the National Organization for Women is was revealed for all to see last week in the federal appeals court here.

That's where NOW got slapped down for the latest chapter in its decades-long effort to club pro-life activists into bankruptcy with the federal racketeering law known as RICO. The 7th U.S. Circuit Court of Appeals minced no words in rejecting out of hand NOW's effort to chisel the pro-life activists out of the meager costs they were owed for successfully defending themselves.

It was almost 28 years ago that NOW sued pro-life activists such as Joseph Scheidler, head of the Pro-Life Action League, for allegedly committing the same kind of crimes as Chicago mobsters.

It was exactly the sort of misuse of the Racketeer Influenced and Corrupt Organizations Act that had troubled liberal Sens. Edward Kennedy and Philip Hart when RICO was debated in 1970. They were concerned that RICO would be used against peace and civil rights protesters.

That would never happen, they were assured, and so RICO was enacted. Then, along came NOW to do precisely what Kennedy feared, claiming in a suit that the pro-life protests amounted to extortion. For more than two decades the case, NOW v. Scheidler, bounced around the federal courts, winding up before the U.S. Supreme Court three times. In 2003 and in 2006, the court ruled in favor of Scheidler, the last time unanimously.

Yet, it still wasn't over. When the defendants — represented throughout all this by the Thomas More Society, a Chicago-based public interest law firm — asked the court to be reimbursed for their expenses, as was their right, NOW high-tailed it back to court to contest the meager sum that was requested.

Even though the total cost of the litigation that began 28 years ago had to be a fortune and Scheidler had to mortgage his house to continue the fight, the defendants sought only $71,933. NOW amazingly argued that the defendants were not entitled to any costs.

The defendants had applied to U.S. District Judge David Coar for the reimbursement in 2007, but he sat on the request for three years before retiring without ruling. The case landed before Judge Charles Norgle, who granted the defendants $63,391.

NOW sprang back into action, refusing to pay and appealing Norgle's decision. Its grounds? Laughably, NOW asserted that the defendants, in effect, didn't hector Coar enough to rule in a timely manner. In other words, NOW insisted that because Coar had retired, the defendants had forfeited their claim.

NOW also asserted that the defendants didn't file their claim soon enough and that the transcripts and copies the defendants paid for weren't all necessarily applicable to the case.

The three-judge appeals panel unanimously quashed NOW on all counts. Writing for the panel, Judge Frank Easterbrook, noting that the defendants have had to wait more than five years for their legally entitled reimbursement, called some of NOW's arguments "preposterous." (Easterbrook's written decision is here. He was joined by Judge David Hamilton and Judge Joseph Bauer.

He pointed out that the award amounted to a mere $2,300 for each year of litigation, understating that it was a "modest" sum for a suit that "entailed discovery, a long trial, many motions in the district court, and appellate proceedings that span a generation."

Easterbrook noted that NOW wanted the claim denied because the defendants suspected that Coar "would rule against them and were happy to wait until the request landed in a different judge's lap." Easterbrook's response: "So what? No statute, rule or decision of which we are aware requires litigants to pester judges for rulings on pain of forfeiture."

Easterbrook wrote, "At oral argument, plaintiffs' lawyer candidly admitted that she did not know of any decision, by any court, creating a badger-the-judge-or-forfeit-the-motion requirement; our search did not turn one up. We will not be the first. The obligation to render timely rulings rests on the judiciary, not the parties.

"This litigation has lasted far too long. At last it is over."

One can hope.

In true justice, NOW should have to empty its treasury for putting the pro-lifers through an extended and venomous war to deny them their civil rights. Its attempt to impose unconstitutional restraints on people it disagrees with shines as a unique, brazen and glaring example of a cynical abuse of the legal system.

This column also appeared in the Chicago Tribune

What was America's greatest come-from-behind war? Go here to find out.

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  • Here is what Chief Justice Rehnquist had to say about your friends Scheidler and the Pro-Life Action League in his opinion for the Supreme Court in 2003: "There is no dispute in these cases that petitioners interfered with, disrupted, and in some instances completely deprived respondent of their ability to exercise their property rights. Likewise, petitioners' counsel readily acknowledged...that aspects of his clients' conduct were criminal." But, although Scheidler and his comrades were criminals, the crime was not extortion, which the Court held was necessary for a Hobbs Act violation, and therefor a RICO violation.

    All of this makes it difficult for me to shed too many tears for Scheidler or the Pro-Life Action League.

  • Right, just like the lunch counter sit-ins.

  • Except that the laws the lunch counter sit-ins violated were declared unconstitutional. The laws Scheidler violate have not.

  • In reply to jnorto:

    Except that the laws were declared unconstitutional after the lunch counter sit-ins, and therefore, under NOW's interpretation, the protestors could have been sued or prosecuted under RICO.

  • In reply to Dennis Byrne:

    But the laws Scheidler and the Pro-Life Action League violated were never ruled to be unconstitutional--either before or after their acts. Why would NOW claim that the violation of unconstitutional laws would support a RICO suit?

  • In reply to jnorto:

    You are avoiding the point that Kennedy made. I'd suggest that you go back and review the debate.

  • In reply to Dennis Byrne:

    Which Kennedy? Which point?

  • In reply to Dennis Byrne:

    The point you are avoiding is that Scheidler and the Pro-Life Action League were denied nothing. They committed what Chief Justice Rehnquist said was criminal conduct against NOW. NOW attempted to use RICO to collect compensation, but was told it could not. The dispute you describe as a "unique, brazen and glaring example of a cynical abuse of the legal system." was actually a motion by the criminal, Scheidler, to collect its legal expenses from the victim of the crime. As I said in my original post, "All of this makes it difficult for me to shed too many tears for Scheidler or the Pro-Life Action League."

  • In reply to jnorto:

    Seems that even the liberals on the Supreme Court disagree with you.

  • In reply to Dennis Byrne:

    And what leads you to this conclusion?

  • In reply to jnorto:

    Two Supreme Court decisions, one in 2003 overturned, by an 8-1 vote, a district court's guilty finding against Scheidler, and the second, in 2006, when the court ruled unanimously in Scheidler's favor.

    The first time the case landed in the high court, In 1994, the question was only whether a RICO case could be brought against a non-profit.

    In that case, you cherry-picked the Rehnquist quote. The question he was addressing was whether the defendants' action constituted extortion under the Hobbs act, a separate question. Here is his full quote:

    "There is no dispute in these cases that petitioners interfered with, disrupted, and in some instances completely deprived respondents of their ability to exercise their property rights. Likewise, petitioners' counsel readily acknowledged at oral argument that aspects of his clients' conduct were criminal.9 But even when their acts of interference and disruption achieved their ultimate goal of "shutting down" a clinic that performed abortions, such acts did not constitute extortion because petitioners did not "obtain" respondents' property. Petitioners may have deprived or sought to deprive respondents of their alleged property right of exclusive control of their business assets, but they did not acquire any such property. Petitioners neither pursued nor received "something of value from" respondents that they could exercise, transfer, or sell. United States v. Nardello, 393 U. S. 286, 290 (1969). To conclude that such actions constituted extortion would effectively discard the statutory requirement that property must be obtained from another, replacing it instead with the notion that merely interfering with or depriving someone of property is sufficient to constitute extortion."

    Do you think that you might want to familiarize yourself with the facts before you go on a rant?

  • In reply to jnorto:

    Dennis, you are not ignoring what I have posted. In my first "rant" as you term it, I said, " But, although Scheidler and his comrades were criminals, the crime was not extortion, which the Court held was necessary for a Hobbs Act violation, and therefor a RICO violation." This what your extended quote repeats. The other crimes Scheidler is alleged to have committed and not denied by the Supreme Court are: use of threatened or actual force, violence, or fear to induce clinic employees, doctors, and patients to give up their jobs, give up their economic right to practice medicine, and give up their right to obtain medical services at the clinics and trespass. These are the crimes Chief Justice Rehnquist acknowledged in the language you quote.
    I think you could try to understand your readers' comments before going on your own rants.

  • The real problem with the pro life people and dealing with them is that their position is completely based on their religious beliefs, which makes them less than rational. First and foremost, nobody's religious beliefs should be interjected into the democratic process of government. That would make our system a theocracy, which it was never meant to be. Tenets of Christianity should be anathema to democracy, just as is Sharia law. The irony of the pro life mob is that their only concerned with the rights of unborn Americans. After that, it's tough love all the way.

  • Wrong. My pro-life position and that of many others are based on the scientific reality that a fetus is an individual, a person, possessing unique DNA. Many profilers, while believing that an individual person begins with conception, don't see it as an absolute, in which an abortion is never justified. What I--we--believe is that there are rights of the woman and the fetus that need to be balanced, and at some point the developed fetus has a claim on the right to live. Where that point is is a question for legitimate debate. But please do not imagine that your stereotypes of pro-life people is altogether accurate. It is especially inaccurate to paint all pro-lifers as not caring about the rights of born persons.

  • jnorto, I'll try again. The point of the post wasn't the misdeeds or crimes of the protestors. The point was that RICO could not be used against these protestors. The excessive effort to apply RICO, after the first Supreme Court ruling that it couldn't be used, the amazing decision of the appeals court to virtually ignore that decision, the unanimous slapping down by the Supreme Court of the Appeals Court, the bogus arguments made by NOW to deny the defendants of any of their rightful reimbursements of their costs was the abuse of the legal system I was discussing. By the way, as the post said, it was Sen. Edward Kennedy (you asked which Kennedy) who expressed the concern about the misuse of RICO. You must have missed it when you were reading the post, or else you might not have asked, "Which Kennedy."

  • In reply to Dennis Byrne:

    At last we are in agreement. You acknowledge that the Pro-Life Action League committed crimes. The latest dispute is over whether the victim of those crimes should be required to pay the attorney fees for the criminals. You and I have stated our disagreements, the courts have ruled, Scheidler and the Pro-Life Action League got a modest sum for attorney fees. Senator Ted Kennedy is sleeping peacefully in his grave.

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