SB277 RICO lawsuit – Bad arguments and conspiracy theories updated

In previous posts I addressed three of the lawsuits filed against SB277, all of which suffered defeats, at least for the moment: WhitlowBuck, and Torrey-Love. There was a fourth lawsuit, however, filed in July 2016 that I did not address until now – the SB277 RICO lawsuit from Travis Middleton.

This lawsuit had, in my view, the lowest chances from the start, and I was not sure how to cover it in the best manner, given its writing. But I think it’s time, since although a formal decision has not come down, a recommendation to dismiss the SB277 RICO lawsuit was filed. 

The SB277 RICO lawsuit

In July 2016 a group of over twenty individual plaintiffs filed a complaint in a federal court in Los Angeles against a group of legislators, their wives, the governor and his wife (yes, you read that right) making a series of claims. The plaintiffs were not represented by a lawyer. The leader of the case, and as best as I can tell its author, appears to be a gentleman named Travis Middleton. Mr. Middleton is not a lawyer. However, he believes he is well versed in law, as he stated in statements in a variety of video interviews with another plaintiff, Ms. Candyce Estave, and with Mr. Del Bigtree, producer of the anti-vaccine movie Vaxxed (e.g., see this video at approximately the 57th minute). Mr. Middleton has brought other lawsuits in federal courts in the past. None of them, as far as I can see (though I may have missed something) has had any success.

SB277 RICO lawsuit

 

The SB277 RICO lawsuit was, from the start, very problematic on its face. First, it named as defendants a long list of legislators and their wives. There are no specific claims of wrongdoing against the spouse defendants.  The complaint did not make it clear why the wives are included, raising a clear suspicion that they were included for harassment purposes.

In an interview with Mr. Del Bigtree, Mr. Middleton said (at around 1 hour 13 minutes) that it’s based on the biblical principle that the wife falls under the husband’s covering, and whatever the husband does in public comes back to haunt him in private. So if he’s violating his oath and doing wrong she’s culpable because she’s been enriched from it.

It’s hard to start to say just how wrong that argument is. Coverture was the law in the United States as late as the mid to late nineteenth century – women were considered the husband’s property, and their property and contract rights were very limited. But statutes passed in the nineteenth century changed that, giving the married woman her own legal personality and rights.  It was a step forward for women’s rights. Going back to an age when women are property is hopefully not something most support, and one wonders why the female plaintiffs accepted it. Furthermore, whatever Mr. Middleton thinks, the Bible is not a directly applicable legal source in the United States. Certainly not when specific laws moved us away from it. This argument for including spouses does not reflect current law, ignores women’s rights to equal treatment, and ignores the fact that several defendant legislators are women – and the bible certainly did not say a wife’s actions covers her husband.

I wrote longer about this bad argument than is needed, but really, I found it deeply offensive.

In terms of arguments, the complaint went at length into why the authors think vaccines are dangerous. It covered vaccine ingredients, Including several inaccuracies, for example, confusing phenoxyethanol with anti-freeze and expressing already answered concerns about other ingredients like aluminum and formaldehyde. It includes the claim that vaccine preventable diseases have decreased due to sanitation and nutrition, a claim that is incorrect. In short, much of the SB277 RICO lawsuit is devoted to counterfactual claims against vaccines common to the anti-vaccine movement, arguing that they are dangerous and ineffective – but that alone is not a legal argument on which relief can be granted.

Another part is devoted to claiming that SB277 was the result of a conspiracy where legislators were paid by pharmaceutical industry and did the bidding of lobbyists. Again, by itself that would not lead to legal relief.

The plaintiffs’ legal arguments generally appear to claim there is a grandconspiracy by defendants to force dangerous vaccines dangerous vaccines on the plaintiffs’ children; this, allegedly, constitutes violations of both the parents and the children’s civil rights. The legal arguments raise a number of federal statutory claims that they think give rise to damages or action against defendants, and buried in the complaint are also some constitutional claims.

The complaint is not well written. It is hard to tease out the legal arguments. But the Court tried, and we will follow.

The magistrate’s recommended decision

On December 13, 2016, the SB277 RICO lawsuit went through a hearing and on December 15, 2016, the magistrate filed a recommendation to dismiss the case with leave to amend – a recommendation that would not become final until the judge accepted it, but judges usually do.

The recommendation summarized the plaintiffs’ legal claims thus:

Plaintiffs allege nine claims:

(1) violation of RICO (Racketeering Influenced and Corrupt Organizations Act) claim under 18 U.S.C. § 1961, against all Defendants;

(2) violation of RICO under 18 U.S.C. § 1962(a), (d), against all defendants;

(3) conspiracy to promote the sale and use of biological weapons on California citizens in violation of 18 U.S.C. § 175, against the Legislative Defendants;

(4) conspiracy to promote the sale and use of chemical weapons on California citizens in violation of 18 U.S.C. § 178, against Legislative Defendants;

(5) violation of 18 U.S.C. § 241 against Legislative Defendants;

(6) violation of 18  U.S.C. § 242 against Legislative Defendants;

(7) violation of 42 U.S.C. § 1983  against Legislative Defendants;

(8) violation of 42 U.S.C. § 1986 against Legislative Defendants; and

(9) intentional infliction of emotional distress against all Defendants. Plaintiffs seek damages, declaratory judgment and an injunction against enforcement of SB277.

The recommendation’s discussion suggests that all of these claims were ill-founded. However, the magistrate is recommending to dismiss the defendants’ claims because of a different and preliminary issue. It would dismiss it because the claim could not be brought against the named defendants. The grounds were a little different for the legislative defendants and Governor Brown.

For the legislative defendants, the recommendation was based on the fact that our jurisprudence provides absolute immunity for legislators from civil action for damage, state and federal, for legislative activity. Passing a law is, obviously, legislative activity. There is a long line of precedents saying that those actions are protected from liability. In fact, one cited case – Chappell v. Robbins, 73 F.3d 918 (9th  Cir. 1996) – found such immunity when the legislator was actually accused of taking a bribe. When a legislator acts as legislator, she is immune from liability in civil action (though not criminal). Period.  Mr. Middleton does not accept that; but it’s very well settled law, and the court upheld it. The goal is to allow legislators to speak freely and act as legislators without fear of lawsuits.

For the Governor, the basis was a little different. The Eleventh Amendment to the United States Constitution prevents certain suits against officials – and in this case, Governor Brown’s role in relation to SB277 was too general, and sovereign immunity protects him from the suit.

Mr. Middleton was told that at the hearing. As discussed below, however, he disagreed with the claims and insists that his reading of the law is correct. In the legal context, as the admirable Colin McRoberts pointed out, that doesn’t work so well – while in the pseudoscience area you can cling to your beliefs and ignore corrections (as long as you don’t kill yourself by rejecting modern medicine when your life is in danger). In law it’s trickier:

A pseudolawyer is in a different boat [then a pseudoscientist]. Legal theories usually get decided in court, sooner or later. It forces a comparison between the irrational belief and reality, and exposes its flaws. That can happen with scientific and medical theories, such as when a miracle cancer cure fails to cure any cancer, but it’s less common for any individual believer to experience that. In the legal world, if you decide you’re allowed to drive without a driver’s license because you’re a special kind of super-citizen, sooner or later the system is going to force you to test that belief. And the theory is going to fail, because it’s wrong.

That’s what happened here, in my best judgment. The plaintiffs’ theory failed in critical points, because it was wrong. Simply rejecting established jurisprudence just doesn’t work in court. One can argue against it, suggest distinctions, and suggest overturning precedent. But wanting it to be different and just insisting it’s different than it is doesn’t work.

The recommendation’s guidance

The recommendation dismissed the complaint. But it gave plaintiffs leave to amend. It doesn’t really explain why it gave leave to amend. Since the guidance it gave the plaintiffs on how to amend strongly suggests the complaint has no merit, my unsupported opinion is that the magistrate was being nice to the plaintiffs because they are not legally represented.

The guidance first devotes room to addressing potential constitutional claims that can be raised here. It mentions the Federal Supreme Court’s jurisprudence that upheld vaccination mandates, starting with the famous cases of Jacobson v. Massachusetts, Zucht v. King and Prince v. Massachusetts and mentioning shortly the latest federal cases. It also mentions a California Supreme Court case, Abeel v. Clark, 84 Cal. 226 (1890), that upheld such law, making the point that vaccine mandates are constitutional, both federally and in California.

It reminds us that under Prince v. Massachusetts, “[t]he right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”
The First Amendment, as we discussed before, does not prevent the states from passing school immunization mandates without a religious exemption.

Similarly, there is no equal protection problem here – the children are not discriminated against – because vaccine-deprived children are not the same as vaccinated children. Discrimination is treating like cases differently; the at-risk (pdf) vaccine-deprived children are not like children protected from disease by vaccines, and the state does not have to treat them similarly. It can exclude vaccine-deprive children from school in its quest to protect public health and safety.

So much for the constitutional claims, and the damages that accompany them.

The complaint tried to allege violation of a number of criminal statutes, including – for example – conspiracy to promote the sale and use of biological weapons on California’s citizens. The court avoided having to explain that vaccines are not a biological weapon – in fact, they can protect against use of certain germs as biological weapons – by pointing out that private citizens cannot bring a criminal charge. It’s the state that wields criminal law.

RICO

To a large extent, the heart of the complaint was a RICO – Racketeer Influenced and Corrupt Organizations Act – claim. Popehat, in his colorful way, explained why that’s almost never right.

Here, it’s also barred against the legislators because of their immunity. I don’t see how the plaintiffs can amend the suit to revive it: the claims, as far as I understand them, are that there was a conspiracy to pass SB277, and that’s somehow criminal, and that’s a claim that’s specific to the legislators.

But let’s try and address it seriously here. A RICO suit, as Popehat explains, was created to deal with organized crime. It is a complex conspiracy suit to try and capture members of an enterprise – an organization – engaged in criminal activity that is one of a specific list of federal crimes that harmed the plaintiffs’ business or property. This claim has problems in several elements. Popehat explains:

To win, a plaintiff would have to prove:

  1. conduct,
  2. of an enterprise,
  3. through a pattern,
  4. of racketeering activity called “predicate acts,”
  5. causing injury to the plaintiff’s “business or property.”

Popehat explains:  “An enterprise is a legal entity or group of people.”

Here, the complaint appears to suggest the legislature is the enterprise for the purpose. But the cases it brings do not support seeing a legislature as one. They have police, courts, etc’. But not legislatures. Maybe there’s an argument for expanding these cases to legislatures – but plaintiffs haven’t made one.

Just as important, plaintiffs haven’t really pointed to a violation of one of the federal crimes that can count as racketeering activity. They just didn’t. RICO, as Popehat points out, isn’t “defendant did something I don’t like.” Plaintiffs have to point to a specific act. What is it here?

Although the complaint implies bribes, and maybe plaintiffs think that’s their crime, it doesn’t bring evidence of any; what it actually focuses on is  campaign contributions.

Now, I don’t like our campaign finance system. I agree it can open the door to undue influence, but campaign contributions cannot be cast as criminal bribes.

In the SB277 case, the evidence isn’t there that the law was passed primarily for monetary purposes. There is, however, abundant evidence that SB277 was what it seemed: a law to make schools safer, supported by the California PTA, medical associations, school boards, and others.

But even if there was strong reason for the concerns about undue influence, as long as we have the current system in place, taking campaign contributions is not wrongdoing. So that’s not a crime.

Where is the crime?

The court points out that it doesn’t see how the claims fit RICO. If plaintiffs want to try an SB277 RICO lawsuit again, however, the court points out they need to claim an injury to their business or property –and they haven’t done that, either.

Next steps?

The plaintiffs were given until January 9, 2017 to file a response to the recommendation. They didn’t. Instead, they filed a Motion to Recuse the Judge. The motion claimed that “[t]he magistrate Judge failed to address Plaintiffs’ ‘RICO’ and civil rights issues” (which isn’t my reading of the recommendation). It claimed that this was discrimination between the unrepresented (“pro se”) litigants and professional attorneys. It also claimed that the court applied the wrong legal standard to Mr. Middleton’s previous RICO suits and dismissed them, and that shows prejudice.

The main argument appears to be that Mr. Middleton thinks that the magistrate is wrong to find that defendants are immune from suit. That’s because his opinion is that the immunity does not apply to officials who perjured their oath. I have not seen Mr. Middleton point to any civil cases that support that view.

This motion is not well founded, and is problematic. The court is not required to agree with Mr. Middleton’s reading of the law (especially one that is not well based in the jurisprudence), and just rejecting his claims does not show bias. Mr. Middleton did not point to any actual source of bias or mistreatment.  The motion refers to 28 U.S.C. §455 that governs when judges should disqualify themselves https://www.law.cornell.edu/uscode/text/28/455 but there is no part of that statute that appears to apply – at least, Mr. Middleton has not pointed to personal bias against him, aside from not accepting his previous suits. That’s not bias.

This kind of attack on the deciding judge is not a good substitute for a legal argument on the merits of the recommendation, and not a way to present a good case. I would be surprised if the motion is accepted.

My best prediction is that this case, which is not well founded or argued, will be dismissed.

SB277 RICO lawsuit (pdf)

RICO recommendation dismissed with leave to amend

RICO recommendation dismissed with leave to amend SB277 RICO Motion to recuse judge

SB277 RICO lawsuit – July 2017 update

On July 13, 2017 Judge Stephen V. Wilson accepted the magistrate’s recommendation and dismissed Mr. Middleton’s claim with leave to amend. He also, however, ordered filed the second amended complaint that Mr. Middleton submitted, apparently, on January 9, 2017. The new complaint does not fix any of the issues the magistrate highlighted. In fact, it repeats verbatim most of the initial (fatally flawed) complaint. What it does do is change the defendants, omitting some legislators, and adding in the lawyers for the state and the magistrate that recommended dismissing the suit.

The complaint makes some extreme accusation against the lawyer and magistrate, among other things, accusing the magistrate of “lynching” the plaintiffs. The thrust of those paragraphs is that rejecting the plaintiffs’ legal claims is a conspiracy to obstruct justice. Basically, Mr. Middleton sees the refusal to accept his view on legal matters as a crime. That, of course, is incorrect. Not accepting Mr. Middelton’s opinions on the law is no crime.

It is, therefore, extremely unlikely this new and not improved complaint would fare any better than the original. While there is no legal limit on the times that a federal court may allow plaintiffs to amend their complaint, at some point the trial judge, faced with this kind of no-amendment-amendment – may decide not to give leave again.

Further, at some points the judge may well consider that the plaintiffs’ behavior violates their duty to the court, and impose sanctions. At the very least, given the fact that there’s a good case to be made that including the spouses, the state attorneys and the magistrate was done to harass, the judge can and likely should issue an order to show cause under the Federal Rules of Civil Procedure – FRCP 11(c)(3) why sanctions should not be applied.

Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions

(a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name—or by a party personally if the party is unrepresented. The paper must state the signer’s address, e-mail address, and telephone number. Unless a rule or statute sp…

The judge could demand that each of the pro-se plaintiffs – each of which is representing him or herself – come to court to explain why they should not be sanctioned. The sanction might be nonmonetary (FRCP 11(c)(4)) to begin with, but at some point, they need to understand that they might be forced to pay real money as a sanction.

Our courts are generally generous and patient with unrepresented plaintiffs – but that is not an open license to use the judicial process to impose costs and burdens on people who disagree with you.

Middleton Second Amended Complaint (pdf)

Middleton Second Ammended complaint part II (pdf)

Order accepting magistrates recommendation Middleton (pdf)

 

 
 
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Dorit Rubinstein Reiss

This article is by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy and the law. 


Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.