Third time the charm?
Scheidler case goes back to high court Nov. 30

By Michelle Martin
Staff writer

If Chicago attorney Thomas Brejcha feels caught on a legal treadmill in the ongoing case of NOW vs. Scheidler—a treadmill to the Supreme Court—he can be forgiven.

Brejcha was brought into the case—in which the National Organization for Women and two abortion clinics sought to stop anti-abortion protestors and get damages from them—because it started as an anti-trust suit. Brejcha, a business litigator with anti-trust experience, was asked to help out.

Going on 20 years later, Brejcha is preparing to take the case to the Supreme Court this month for the third time. The anti-trust aspects of the case were dismissed long ago; now the clinics and NOW are seeking recourse under the RICO (Racketeer-Influenced and Corrupt Organizations) Act. Brejcha has left most business law behind, starting the St. Thomas More public interest law firm for pro-life issues and becoming steeped in the ins and outs of representing protestors.

However the case is decided, it won’t make much of a difference to how pro-life groups act. Protest tactics are limited by the Freedom of Access to Clinic Entrances Act of 1994. The act prohibits using force, threat of force or simple “physical obstruction” to prevent someone from entering a clinic that provides “reproductive health services,” including abortion.

But other protest groups have done everything from chaining themselves to bulldozers to blocking building entrances to protest environmental damage, nuclear weapons, war and myriad other issues, Brejcha noted.

“They have a bigger stake in this than the pro-lifers,” he said. “Except the pro-lifers who are my clients. For the rest, it’s an effort to pin a rap on somebody and discredit them in the public eye.”

DePaul University Law School Professor Jeffrey M. Shaman, who teaches constitutional law, said that using RICO against demonstrators could have a “chilling effect” on free speech. But, at the same time he cautioned that it would not be severe.

“If it’s only being applied to extortion and violence and threats of violence, then demonstrators really shouldn’t be doing that,” Shaman said.

However, for Joe Scheidler, his family and the other defendants named in the lawsuit, losing will mean financial ruin, Brejcha said, because they were assessed triple damages—$280,000—plus two decades of legal fees.

“When you escalate the stakes so high, you leave the protests to those with assets to spare or none to lose,” Brejcha said. “The danger is especially acute with the racketeering laws because of the guilt by association and the treble damages.”

RICO makes it a crime to direct or manage an association—formal or informal—that works together to commit certain crimes characteristic of organized crime, such as extortion or gambling.

Indeed, Scheidler, the vocal and often abrasive leader of the Chicago-based Pro-Life Action League, and his co-defendants have attracted supporting briefs from labor unions, peace activists and other groups that demonstrate, who question the idea that RICO applies to groups that practice civil disobedience, such as mounting sit-ins or vigils.

In 1994, the high court agreed that the case should at least be heard, and Scheidler and his co-defendants lost in federal court in Chicago. They were ordered to cease certain protest tactics, such as blocking clinic entrances, and to pay damages.

The protestors appealed, lost, and appealed again to the Supreme Court, arguing that they could not be guilty of extortion—as the trial court had found on 117 counts—because the law the case was based on defines extortion as “obtaining” someone else’s property. They also argued that the law does not allow private plaintiffs such as NOW to get injunctions stopping them from mounting protests.

That time, they won, a “resounding 8-1 victory,” said Brejcha, in which the court ruled that there was no extortion and “all of the predicate acts supporting the jury’s finding of a RICO violation must be reversed, [and] the judgment that petitioners violated RICO must also be reversed. Without an underlying RICO violation, the injunction issued by the District Court must necessarily be vacated.”

The Seventh Circuit Court of Appeals, based in Chicago, did not agree, finding that the court had ruled only on the 117 counts of extortion leading the jury to conclude that the protestors had violated RICO, not four counts of physical violence or threatened physical violence, and sent the case back for another trial.

“It comes down to, does ‘all’ really mean ‘all,’ does ‘must’ really mean ‘must’ and does ‘necessarily’ really mean ‘necessarily,’” Brejcha said, “There are three musts, reinforced by a rather strong adverb, ‘necessarily.’”

Scheidler and the protestors appealed that decision back to the Supreme Court; that is the case that will be heard Nov. 30.

The new case actually includes three questions: Whether the Seventh Circuit disregarded the Supreme Court’s mandate by holding that “all” of the acts supporting the jury’s finding of a RICO violation were not reversed, that the judgment that the protestors violated RICO was not necessarily reversed and that the injunction issued by the district court might not need to be violated?

Whether the Hobbs Act, which enumerates some of the crimes that can lead to a RICO violation, includes acts or threats of physical violence not tied to extortion or robbery, even though other appellate courts have said the Hobbs Act only applies when threats or violence are used to extort or rob the victim?

And whether private plaintiffs in civil RICO cases can get injunctions ordering triple damages?

The third question was part of the case the Supreme Court considered three years ago, but was never answered, Brejcha said.

“They ruled there was no legal wrong, so there was no question of any remedy,” he said.

When in comes to the acts of violence, Brejcha questions whether they jury’s findings would stand on appeal—especially since the jury was never asked which four of more than 30 alleged acts of violence it believed the protestors to have committed.

In any case, Scheidler has always been outspoken, but never violent.

“His job is not to cozy up to people and make allies. His job is to speak the truth, and he beats the drum pretty loudly. People don’t like it, because someone is making the public statement that what you’re doing is gravely wrong.”

“His job is not to cozy up to people and make allies. His job is to speak the truth, and he beats the drum pretty loudly. Someone is making the public statement that what you’re doing is gravely wrong.”