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