LawReader agrees with Justice Scalia….New public corruption law is unfair and vague
Scalia Urges Court to Take on ‘Chaos’ Spawned by Corruption Law
By Debra Cassens Weiss- ABA Journal Feb. 24, 2009
The U.S. Supreme Court refused to hear an appeal yesterday by three former Chicago city officials convicted on corruption charges, and Justice Antonin Scalia wasn’t pleased.
In a dissent from the court’s cert denial, Scalia took on the law barring honest services fraud, saying it is so broad it could be used against “a salaried employee’s phoning in sick to go to a ball game,” SCOTUSblog reports.
The law was amended in 1988 in response to a Supreme Court decision that held the federal mail fraud law protected property rights but not the intangible right to good government. The amendment bars depriving others of “the intangible right of honest services.”
The three former officials in Sorich v. United States were convicted based on allegations they helped politically connected individuals get city jobs.
In Scalia’s view, the law doesn’t adequately warn what kind of conduct is prohibited. “It is simply not fair,” he wrote, “to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail.”
“There is a serious argument that [the amendment] is nothing more than an invitation for federal courts to develop a common-law crime of unethical conduct,” Scalia said. He urged justices to address the law’s meaning and constitutionality. “It seems to me quite irresponsible to let the current chaos prevail.”
Judges differ on the reach of the law. Some courts have interpreted it to require a kickback and some have ruled it requires a violation of state law. The 5th U.S. Circuit Court of Appeals has overturned several Enron convictions based on the honest services theory on the ground that the employees did the company’s bidding and didn’t profit as a result.
But other courts have upheld convictions under the law of students who scheme to turn in plagiarized work, lawyers who paid insurance adjusters to expedite their clients’ claims, and a local housing official with a conflict of interest, Scalia wrote.
In one of the more unusual applications of the law, federal prosecutors in Los Angeles are investigating whether officials in the Catholic church violated the law by covering up priest abuse.