Amicus Curiae Brief — Scheidler v. National Organization for Women, Inc.

ORIGINAL

, a1: JUL 12 2002

Nos. 01-1118, 01-1119 __|_ OFFICE OF Tem cx mner

IN THE

Supreme Court of the United States

JOSEPH SCHEIDLER, et ai.,

and

OPERATION RESCUE,

Petitioners,

v.

NATIONAL ORGANIZATION FOR WOMEN, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

BRIEF FOR AMICUS CURIAE NATIONAL RIGHT

TO WORK LEGAL DEFENSE FOUNDATION, INC.,

IN SUPPORT OF NEITHER PARTY

RAYMOND J. LAJEUNESSE, JR.*

WILLIAM L. MESSENGER

National Right to Work Legal

Defense Foundation, Inc.

8001 Braddock Road, Suite 600

Springfield, VA 22160

(703) 321-8510

COUNSEL FOR AMICUS

July 2002 * Counsel of Record

———

TABLE OF CONTENTS

TR RITES ov nscccvcanticssivacucesssteute

INTERESTS OF AMICUS CURIAE NATIONAL RIGHT

TO WORK LEGAL DEFENSE FOUNDATION, INC. ......... 1

oF TTT eer ee

Seareo etry Lina Bae re Te I. Under Enmons, Petitioners’ Objectives Must

¥ sg PRS eolin otek eater od Be Wrongful to Establish Liability ............. 3

SO Aa aie Nee Acne pr Nena? A. Emmons Holds That a Wrongful

home SANE REN aoa ES Objective Is a Prerequisite for

ID ol eee y Gaede eer ere erie

B. Petitioners Are Not Liable for

Extortion Under Enmons Because

Their Objective Is Not Wrongful ......... 5

Il. Enmons ’ Interpretation of the Hobbs Act

Cannot Be Limited to the Labor Context ......... 6

apt EES Oe See

< 1 A

SR AD

rake ohh Ms hrs

2 hey tock ry |

6X8 Cpaid, taeet

Sor ea et

Fe et

A. Enmons |s a Textual Interpretation -

GPU UMN EEE cicdccsasvcsscccicece

B. Stare Decisis Requires That

Enmons Be Followed, Regardless

of Its Negative Ramifications,

Unless the Supreme Court

Overrules the Decision................. 8

Il.

TABLE OF CONTENTS-CONTINUED

The Ramifications of Applying Enmons’

Interpretation of Extortion Under the

Hobbs Act Are Unpalatable ...............

Enmons Must Be Overruled ...............

A. Enmons Should Be Overruled

Under the Rationales Utilized in

Hubbard v. United States ...........

(1) Lower Court Jurisprudence

Is a Competing Legal Doc-

trine Entitled to Stare Decisis

Ea

(2) Refusal of Lower Courts to

Follow Enmons for Fear That

It Undermines the Hobbs Act

Demonstrates Its Impropriety ....

B. Enmons |s a “Seriously Flawed

EN ere

(1) — Enmons Is Contrary to the Plain

Language of the Hobbs Act ....

(2) Legislative History Does Not

Support Enmons ............

C. Stare Decisis Is Undermined by Lack

of a Reliance Interest in Enmons ..... .

-ili-

TABLE OF CONTENTS-CONTINUED

Page

D. Enmons’ Ramifications Justify

Overruling It... .. 6... --eeeeeeeeeeees 27

CONCLUSION .....-e cece cece cece eee eeeeereseeees 27

-jv-

TABLE OF AUTHORITIES

CASES ~_

Abood v. Detroit Board of Education,

GS UD. FIP CIGTED cc ccccccccccccccccccceccee |

Agostini v. Felton,

FR rE sk, 10

Air Line Pilots Association v. Miller,

Re pce l

Allen v. Machinists Local 1297,

120 L.R.R.M. (BNA) 2501 (Ohio. Ct. App. 1984),

rev d in part, 490 N.E.2d 865 (Ohio 1986) ......... l

Bell v. Reno,

218 F.3d 86 (2d Cir. 2000) ..................... 21

Bray v. Alexandria Women's Health Clinic,

PINNED snc bkdadedeadensececcanaeee 5

Brogan v. United States,

PIE véteddsduvdedscnedcenaeus 9,19

Brokerage Concepts, Inc. v. U.S. Healthcare, Inc.,

140 F.3d 494 (3d Cir. 1998) ......0 000... 21

C & W Construction Co. v. Brotherhood of

Carpenters & Joiners, Local 745,

687 F. Supp. 1453 (D. Haw. 1988) .............. 6,7

-V-

TABLE OF AUTHORITIES-CONTINUED

Page

Chicago Teachers Union, Local I v. Hudson,

475 U.S. 292 (1986) 0... . cece cece eee eee eens |

Commonwealth v. Coolidge,

128 Mass. 55 (1880) .......... cece cece ee eeeees 16

Communications Workers v. Beck,

487 U.S. 735 (1988) 0... ccc cece cece cee eccnees l

Estate of Cowart v. Nicklos Drilling Co.,

505 U.S. 469 (1992) ..... 2c cece cece ence eeeces 25

Crawford v. United Steelworkers,

335 S.E.2d 828 (Va. 1985) .... 2... eee ee eee eens l

Domestic Linen Supply & Laundry Co. v. Central States,

Southeast & Southwest Areas Pension Fund,

722 F. Supp. 1472 (E.D. Mich. 1989) ........--+-- 17

Ellis v. Railway Clerks,

466 U.S. 435 (1984) 2.2... cece ee eee eee eee eees |

Hall American Center Associates Limited v. Dick,

726 F. Supp. 1083 (E.D. Mich. 1989) .......-.--- 7,16

Hilton v. South Carolina Public Railways Commission,

$02 U.S. 197 (1991)... 2... cece cece eee ence eens 25

Hinote v. Local 4-23, Oil, Chemical & Atomic Workers,

777 S.W.2d 134 (Tex. Ct. App.), error denied,

(Tex. 1989) 22... ccc ec cece cece eee eee eeeeeees |

-Vi-

TABLE OF AUTHORITIES-CONTINUED

Page

Hohn v. United States,

I i a 11

Hubbard v. United States,

POW Wee GIO RPE ccc cccccccccccesccccces passim

Lehnert v. Ferris Faculty Association,

Se eauae l

McCormick v. United States,

ed 21

Murphy Exploration & Product Co. v. U.S.

Department of the Interior,

ee ee ae GE EEE cc cccccccccécecess 21

NAACP v. Claiborne Hardware Co..,

i 12

National Organization of Women v. Scheidler,

267 F.36 GBT (70a Cie. 2001)... ccc ccc ccc cccccccs 5

Overnite Transportation Co. v. Teamsters,

168 F. Supp. 2d 826 (W.D. Tenn. 2001) ....... passim

Patterson v. McLean Credit Union,

ey 10

Patterson v. McLean Credit Union,

I no a 15

-Vii-

TABLE OF AUTHORITIES-CONTINUED

Page

People v. Beggs,

pid ts |B. BPTI 16

People v. Fichtner,

114 N.E.2d 212 (N.Y. 1953) ......... cece eee eee 24

Rivers v. Roadway Express, Inc.,

SER TA SEED ceccccccccescovcccvccsccccs 9

Rodriguez de Quijas v. Shearson/American

Express, Inc., 490 U.S. 477 (1989) .........555: 10,11

Rosenberger v. Rector & Visitors of

University of Virginia, 515 U.S. 819 (1995) ........ 12

In re Sherin,

ESO OL. FEE GED. BREE) .cccccccccccccccccces 16

State v. Bruce, :

BORED, FE GOED cc ccccccccsecccccecececcesess 16

State v. Phillips,

115 P.2d 418 (Idaho 1941) ........... cece ee eeee 16

Stirone v. United States,

961 US. ZID (ISSR) ..nccccccccccsccess 11,13,24,26

Terzi Productions, Inc. v. Theatrical Protective Union,

2 F. Supp. 2d 485 (S.D.N.Y. 1998) ........... 5,16,17

-Vill-

TABLE OF AUTHORITIES-CONTINUED

Page

Town of West Hartford v. Operation Rescue,

915 F.2d 92 (2d Cir. 1990) ........ ce eee ee ee eee 21

United States v. Agnes,

753 F.2d 293 (3d Cir. 1985) 2... 6. cece eee ee eee 7

United States v. Bramblett,

348 U.S. 503 (1955) 2... cece eee eee eee passim

United States v. Castor,

937 F.2d 293 (7th Cir. 1991) 2... . cece eee eee 16,19

United States v. Cerilli,

603 F.2d 415 (3d Cir. 1979) .. 2.2.02. eee eee 9,11,17

United States v. Clemente,

640 F.2d 1069 (2d Cir. 1981) ....... 6. cee eee eee 5,21

United States v. Culbert,

49S UD. S71 CIGTED .cccccccccccccvccccccvcece 24

United States v. Debs, -

949 F.2d 199 (6th Cir. 1991) ..........46.. 11,17,19

United States v. Enmons,

410 U.S. 396 (1973) 2.2... cece ee eee ee eens passim

United States v. French,

628 F.2d 1069 (8th Cir. 1980) ............5. 9,11,17

-ix-

TABLE OF AUTHORITIES-CONTINUED

Page

United States v. Gill,

490 F.2d 233 (7th Cir. 1973) «ee eee errr errrree 24

United States v. Green,

350 U.S. 415 (1956) «0... ee eee eee 22,23,24,26

United States v. Hoelker,

165 F.2d 1422 (9th Cir. 1985)... ee errr errr cree 24

United States v. International Business Machines Corp.,

517 US. 843 (1996)... cece errr erent 25

United States v. Jones,

166 F.2d 994 (6th Cir. 1985)... eee reer e ree 17,19

United States v. Local 807, Teamsters

315 U.S. 521 (1942) ...- ee cere e eee eerrereree _*

United States v. Mulder,

273 F.3d 91 (2d Cir. 2001), cert. denied sub nom.

Johnson v. United States, __ i

122 S. Ct. 1344 (2002)... ee eee cere r seer streees 8

United States v. Pignatelli,

125 F.2d 643 (2d Cir. 1942)... secre ereererrees 24

United States v. Porcaro,

648 F.2d 753 (Ist Cir. 1981) ..------ seer 9,11,16,17

United States v. Quinn,

$14 F.2d 1250 (Sth Cir. 1975) -- +++ seer rere? 17

-X-

TABLE OF AUTHORITIES-CONTINUED

United States v. Russo,

708 F.2d 209 (6th Cir. 1983) ...

United States v Snyder,

930 F.2d 1090 (Sth Cir. 1991)

United States v. Stofsky,

409 F. Supp. 609 (S.D.N.Y. 1973)

United States v. Sturm,

870 F.2d 769 (1st Cir. 1989)

United States v. Sturman,

49 F.3d 1275 (7th Cir. 1995) ....

United States v. Taylor,

92 F.3d 1313 (2d Cir. 1996)

United States v. Traitz,

871 F.2d 368 (3d Cir. 1989)

United States v. Warledo,

557 F.2d 721 (10th Cir. 1977) ...

United States v. Zappola,

677 F.2d 264 (2d Cir. 1982) .....

United States v. Zappola,

523 F. Supp. 362 (S.D.N.Y. 1981),

aff'd, 677 F.2d 264 (2d Cir. 1982)

-Xi-

TABLE OF AUTHORITIES-CONTINUED

Page

Viacom International, Inc. v. Icahn,

747 F. Supp. 205 (S.D.N.Y. 1990) ........++++:: 5,21

West Virginia State Board of Education v. Barnette,

319 U.S. 624 (1943) 2. cc cccccccccccccccccccecs 12

CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES

U.S. Const. amend. 1... 1... cece ccc cee cece eececes 12

IB UBC. GIGS 2. nccccccscscvcccccccccccccss passim

Hobbs Act,

IBU.S.C. IDET 2... cccccccccccccscccccccsccccces l

| Ok Cem 8h.) |!) eee 11,13

18 U.S.C. SIDSIC) 2... . cc cccccccccecccccccees 22

18 U.S.C. § 1951(B)(2) 2... eee eee eee eee 3,20

Anti-Racketeering Act of 1934, 48 Stat.979,§2 ....... 22

U.S. Supreme Court Rule 37.6 ........6- 500s eee e eee |

MISCELLANEOUS

4 A.L.R. Fed. 881 (1970) ........ cece ee eee ee ee eee 21

91 Cong. Rec. 11908 ..... 2... cece cece eee rere eens 8

H.R. 238, 79th Cong., Ist Sess., 9 (1945) .......--55-- 24

A.

INTERESTS OF AMICUS CURIAE NATIONAL RIGHT

TO WORK LEGAL DEFENSE FOUNDATION, INC.

The National Right to Work Legal Defense Foundation,

Inc. (“Foundation”) is a nonprofit, charitable organization that

provides free legal assistance to individual employees who, as

a consequence of compulsory unionism, have suffered viola-

tions of their right to work; their freedoms of association,

speech, and religion; their rights to due process of law; and

other fundamental liberties and rights guaranteed by the

Constitution and laws of the United States and of the states.

The Foundation gives legal aid to employees who have

been physically injured by union violence as a result of exercis-

ing their legal rights. Crawford v. United Steelworkers, 335

S.E.2d 828 (Va. 1985); Allen v. Machinists Local 1297, 120

L.R.R.M. (BNA) 2501 (Ohio Ct. App. 1984), rev'd in part, 490

N.E.2d 865 (Ohio 1986); Hinote v. Local 423, Oil, Chemical &

Atomic Workers, 777 S.W.2d 134 (Tex. Ct. App.), error denied,

(Tex. 1989). The Foundation also has provided counsel in most

United States Supreme Court cases involving the right to refrain

from joining or supporting a labor organization as a condition

of employment. Air Line Pilots Ass'n v. Miller, 523 U.S. 866

(1998); Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507 (1991);

Communications Workers v. Beck, 487 U.S. 735 (1988);

Chicago Teachers Union, Local 1] v. Hudson, 475 U.S. 292

(1986); Ellis v. Railway Clerks, 466 U.S. 435 (1984); Abood v.

Detroit Bd. of Educ., 431 U.S. 209 (1977).

This case marks a watershed moment for the statutory

construction of the Hobbs Act, 18 U.S.C. § 1951, as enunciated

' Pursuant to Supreme Court Rule 37.6, the Foundation states that

no counsel for a party authored this brief in whole or in part, and no person

or entity other than the Foundation, its members, or counsel, made a

monetary contribution to the preparation or submission of this brief.

2.

in United States v. Enmons, 410 U.S. 396 (1973). This Court is

confronted with the stark choice of applying Enmons to the

conduct of Petitioners, or overruling the case. The Foundation,

in its role supporting many of the most significant cases dealing

with the abuses of compulsory unionism that have come before

this Court and numerous lower courts, provides a unique

perspective on this specific issue, and can aid the Court in

analyzing this case.

This brief is filed with all parties’ consent already on file

with the Court.

SUMMARY OF ARGUMENT

In Enmons, a closely divided Court (5-4) construed the

definition of “extortion” under the Hobbs Act to require that the

“obtaining of property” be “wrongful.” 410 U.S. at 399-400.

Petitioners Scheidler, ef al., and Operation Rescue (“Petition-

ers” or “the protesters”) seek to stop abortion, which is not a

wrongful objective. Accordingly, under Enmons, an extortion

claim under the Hobbs Act cannot be maintained against them.

The lower courts (but never this Court) have unanimously

refused to apply Enmons beyond its case specifics for fear that

“it could effectively repeal the Hobbs Act.” See n.4, infra. This

apprehension is well founded, for exempting all defendants

seeking a legitimate objective from sanction would undermine

the entire extortion prong of the Act. However, it is doctrinally

untenable for a statutory interpretation of this Court to be

arbitrarily limited because of its negative ramifications. Stare

decisis commands that a Supreme Court construction of a

statute be followed, unless this Court sees fit to overrule it.

The unpalatable ramifications of Enmons dictate overruling

the decision, not artificially limiting its breadth. A statutory

interpretation that cannot be generally applied, lest it subvert the

3.

statute itself, is inherently flawed. This Court should overrule

Enmons and reinstate the Hobbs Act’s plain meaning, in which

a wrongful objective is not a criterion for extortion.

ARGUMENT

I. Under Enmons, Petitioners’ Objectives Must Be

Wrongful to Establish Liability.

A. Enmons Holds That a Wrongful Objective Is a

Prerequisite for Extortion.

The Hobbs Act defines extortion as “the obtaining of

property from another, with his consent, induced by wrongful

use of actual or threatened force, violence, or fear, or under

color of official right.” 18 U.S.C. § 1951(b)(2). In Enmons, this

Court held that the term “wrongful” applies not only to the

means employed, but also to the “property” the defendant is

seeking to “obtain.” 410 U.S. at 399-400.

Enmons involved violent acts of property destruction by

striking employees. Militants blew up a transformer substation,

drained oil from one transformer, and shot three transformers

with highpowered rifles. Jd. at 398. The union was prosecuted

for extortion under the Hobbs Act. The government contended

that the “wrongfulness” element in the Act’s statutory definition

of extortion applies only to the means listed (force, violence,

fear, color of official right), and is easily satisfied by the

destruction of property. Jd. at 399-400.

The Enmons majority rejected the government’s argument

that the adjective “wrongful” applies only to the means used:

[The government’s] interpretation of the Act slights the

wording of the statute that proscribes obtaining property

only by the “wrongful” use of actual or threatened force,

violence, or fear. The term “wrongful,” which on the face

-4-

of the statute modifies the use of each of the enumerated

means of obtaining property—actual or threatened force,

violence, or fear—would be superfluous if it only served to

describe the means used. For it would be redundant to

speak of “wrongful violence” or “wrongful force” since, as

the Government acknowledges, any violence or force to

obtain property is “wrongful.”

Id. (footnotes omitted). Instead, the term “wrongful” was held

to modify the phrase “obtaining of property.” /d. at 400 (““wrong-

ful’ has meaning in the Act only if it limits the statute's coverage

to those instances where the obtaining of the property would

itself be ‘wrongful’ because the alleged extortionist has no

lawful claim to that property”).

Construing the definition of extortion in this fashion, the

Enmons majority found certain union objectives, such as higher

wages and benefits, not to be wrongful, resulting in “no ‘wrong-

ful’ taking of the employer's property.” Jd. Dismissal of the

extortion claim was affirmed.

Enmons, therefore, holds that extortion under the Hobbs

Act requires both a wrongful means and a wrongful end. As

Judge Holschuh of the Sixth Circuit summarized:

[A]s I read Enmons, use of wrongful means—and the use of

violence on a picket line is clearly wrongful—is not enough

to come within the coverage of the Act. To come within

the prohibitions of the Act the objective must be wrongful,

i.e., the use of robbery or extortion or violence to obtain

property to which the defendant “has no lawful claim.”

United States v. Russo, 708 F.2d 209, 223 (6th Cir. 1983)

(Holschuh, J., concurring) (emphasis in original); see also

United States v. Traitz, 871 F.2d 368, 381 (3d Cir. 1989) (“in

Enmons the Supreme Court found that an alleged extortionist

must not only employ an unlawful means but must act in pursuit

-5-

of an unlawful end”) (emphasis in original); United States v.

Clemente, 640 F.2d 1069, 1076 (2d Cir. 1981) (“Extortion, as

defined in the Hobbs Act, consists of the use of wrongful means

to achieve a wrongful objective”); Viacom Int'l, Inc. v. Icahn,

747 F. Supp. 205, 210 (S.D.N.Y. 1990) (“There are two

elements to a Hobbs Act violation: wrongful means and

wrongful objective”); Terzi Prods., Inc. v. Theatrical Protective

Union, 2 F. Supp. 2d 485, 505 (S.D.N.Y. 1998) (“[Enmons]

found that [misconduct] had to be wrongful both in its means

and in its ends”’).

B. Petitioners Are Not Liable for Extortion Under

Enmons Because Their Objective Is Not Wrongful.

Enmons’ construction of the Hobbs Act requires that

Respondents demonstrate that it is “wrongful” for the protesters

to obtain, or try to obtain, the objective which they seek. In this

case, the protesters’ objective is to stop abortions. See National

Organization of Women v. Scheidler, 267 F.3d 687, 693 (7th

Cir. 2001) (“defendant’s goal is frankly to prevent abortions

from taking place”). Opposing abortion and seeking to limit the

performance of abortions is a legitimate objective:

“{A] value judgment favoring childbirth over abortion” is

proper and reasonable enough to be implemented by the

allocation of public funds, and Congress itself has, with our

approval, discriminated against abortion in its provision of

financial support for medical procedures.

Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 274

(1993) (citations omitted).

Respondent National Organization for Women (“NOW”)

contends that “Petitioners here had no lawful claim to obtaining

Respondents’ property, namely their right to do business with

one another.” (NOW Opposition to Petition for Certiorari

(“NOW Opp.”) at 21.) NOW confuses the means with the ends.

-6-

The protesters do not seek to obtain Respondents’ business.

Their objective is to stop abortion. Disruption of an abortion

clinic’s business operations is merely the protesters’ means of

achieving this end.

In Enmons, the union’s violent strike was designed to

interfere with business operations. That disruption was not

employed for its own sake, but “to obtain for the striking

employees higher wages and other employment benefits from

the Company.” 410 U.S. at 398. The Court recognized that

favorable employment terms were the property the union sought

to obtain, not the employer’s business operations.

Similarly, the protesters do not endeavor to disrupt the

business operations of a health clinic just for the sake of doing

So. Rather, their actions are a means of obtaining their overrid-

ing objective: stopping abortion. Thus, the protesters are not

liable under Enmons.

Il. Enmons’ Interpretation of the Hobbs Act Cannot Be

Limited to the Labor Context.

A. Enmons \s a Textual Interpretation of the Hobbs

Act.

Respondent NOW contends that the legitimacy of the

protesters’ objective should not be considered because Enmons

is limited to the collective bargaining context. (NOW Opp. at

21.) Enmons provides a textual interpretation of the definition

of “extortion.” Textual interpretations are of general application

and do not vary based upon to whom a statute is being applied.

“The main issue before the Supreme Court [in Enmons]

was whether the term ‘wrongful’ in the statute applied to the

means used or to the ends sought by the alleged extortioner.”

United States v. Sturm, 870 F.2d 769, 772 (1st Cir. 1989); see

also C & W Constr. Co. v. Brotherhood of Carpenters &

—%

Joiners, Local 745, 687 F. Supp. 1453, 1468 (D. Haw. 1988)

(“In interpreting the Hobbs Act, the Court focused on the word

‘wrongful’”). The Emmons majority concluded that the term

“wrongful” applies to the phrase “obtaining of property.” 410

U.S. at 399-400 n.3; see also Hall Am. Ctr. Assoc. Ltd. v. Dick,

726 F. Supp. 1083, 1095 (E.D. Mich. 1989) (“Enmons inter-

preted ‘extortion’ in the Hobbs Act as consisting of the use of

wrongful means to achieve a wrongful objective”).

Some lower courts have justified restricting Enmons to

union violence on the basis of the Court’s analysis of legislative

history. See United States v. Agnes, 753 F.2d 293, 298 (3d Cir.

1985); United States v. Zappola, 677 F.2d 264, 269 (2d Cir.

1982). Enmons cited legislative history for the proposition that

Congress did not consider legitimate union goals to be wrongful

objectives proscribed by the Hobbs Act. 410 U.S. at 401-08.’

However, the Court’s consideration of the legitimacy of the

union’s objectives proves that the Emmons majority saw a

wrongful objective as a textual criterion for extortion under the

Act. If the term “wrongful” did not modify “obtaining of

property” in the definition of extortion, the legitimacy of the

objective sought would be irrelevant.

The Enmons Court’s consideration of the wrongfulness of

the property the defendant sought is the result of statutory

construction. In Enmons, the government argued that the

_ legitimacy of the obtaining of property is irrelevant under the

Hobbs Acct. Jd. at 400 n.3 (when “‘wrongful’ force and violence

are used, even for a legal objective, the Government contends

? Congress intended that “illegitimate objectives . . . , such as the

exaction of personal payoffs, . . . not be exempted from the Act.” 410 U.S.

at 407. But, the majority concluded, legitimate union objectives, “such as

higher wages in return for genuine services,” id. at 400, were meant to be

exempt from sanction.

-8-

that the statute is satisfied”). The Court’s majority rejected this

contention on textual grounds: “that interpretation simply

accepts the redundancy of the term ‘wrongful’ whenever it

applies to ‘force’ and ‘violence’ in the statute.” Jd. Thus, the

Court held that the obtaining of property must also be “wrong-

ful.” Jd. Legislative history was even utilized to support this

construction of the statute’s language. See id. at 399 n.2

(“Congressman Hobbs indicated that ‘wrongful’ was to modify

the entire section”) (citing 91 Cong. Rec. 11908).

It is arbitrary to limit Enmons’ interpretation of the Hobbs

Act only to unions, as Respondent NOW suggests. The adjec-

tive “wrongful” would have to modify the term “obtaining

property” only when a union is a defendant, but not when the

statute is being applied to anyone else. The rules of grammar are

not altered when a union happens to be a defendant.

B. Stare Decisis Requires That Enmons Be Followed,

Regardless of Its Negative Ramifications, Unless

the Supreme Court Overrules the Decision.

Although Enmons is a statutory construction, lower courts

nonetheless have limited it to “a labor exception to culpability

for Hobbs Act extortion,” United States v. Mulder, 273 F.3d 91,

104 (2d Cir. 2001), cert. denied sub nom. Johnson v. United

States, U.S. __, 122 S. Ct. 1344 (2002); see also United

States v. Taylor, 92 F.3d 1313, 1319 (2d Cir. 1996) (Enmons is

a “labor exception” to the Act). This is based on fear of the

decision’s odious ramifications: “Despite its broad language,

most federal appellate courts, including this court, have re-

stricted Enmons and its claim of right defense to the labor

context, fearing that a broader application ‘could effectively

-9-

repeal the Hobbs Act.”” Sturm, 870 F.2d at 772.’ As discussed

in Part III, infra, this apprehension is well founded.

The refusal of a lower court to apply Enmons beyond the

labor context, because of the negative consequences of doing so,

is doctrinally untenable. Until Enmons is overruled, stare decisis

mandates that its interpretation of the Hobbs Act be followed.

| See Rivers v. Roadway Express, Inc., 511 U.S. 298, 312 (1994)

(“It is this Court’s responsibility to say what a statute means,

and once the Court has spoken, it is the duty of other courts to

respect that understanding of the governing rule of law”). An

artificial restriction which lacks a textual basis cannot be

sustained, irrespective of the validity of the policy justifications

supporting it. This Court’s recent rejection of two special

exceptions to 18 U.S.C. § 1001, which criminalizes making

false statements, is dispositive.

In Brogan v. United States, 522 U.S. 398 (1998), the

“exculpatory no” exception to a false statement, that had been

widely adopted by the lower courts, was repudiated because it

lacked a basis in the text of the statute. See id. at 400-04. The

lower courts’ policy rationales for the exception were of no

avail. “Courts may not create their own limitations on legisla-

tion, no matter how alluring the policy arguments for doing so,

and no matter how widely the blame may be spread.” Jd. at 408.

In Hubbard v. United States, 514 U.S. 695 (1995), this

Court refused to adopt the “judicial function exception” that

lower courts had invented to limit the negative effects of a

statutory interpretation of § 1001 made in United States v.

Bramblett, 348 U.S. 503 (1955). Hubbard, 514 U.S. at 713.

* Citing United States v. Cerilli, 603 F.2d 415, 419 (3d Cir. 1979),

accord Zappola, 677 F.2d at 269; United States v. Porcaro, 648 F.2d 753,

760 (1st Cir. 1981); United States v. French, 628 F.2d 1069, 1075 (8th Cir.

1980).

-10-

“We think the text of [18 U.S.C.] § 1001 forecloses any

argument that we should simply ratify the body of cases

adopting the judicial function exception.” /d.; see also id. at 716

(Scalia, J., concurring) (rejecting exception as arbitrary). Rather,

the Hubbard Court overruled Bramblett’s interpretation that the

lower courts were attempting to limit. See Part [V(A), infra.

That lower courts recoil from applying Enmons because it

would undermine the Hobbs Act is grounds for overruling

Enmons, not arbitrarily limiting its coverage. See Part IV infra.

However, the subservient role of lower courts prevents those

courts from overruling Enmons, as only this Court may do so.

See Agostini v. Felton, 521 U.S. 203, 237 (1997) (“‘[ilf a

precedent of this Court has direct application in a case, yet

appears to rest on reasons rejected in some other line of deci-

sions, the Court of Appeals should follow the case which

directly controls, leaving to this Court the prerogative of

overruling its own decisions””’) (quoting Rodriguez de Quijas v.

Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)).

Thus, lower courts only have the option of applying Enmons

(and its consequences) or arbitrarily limiting it. Faced with this

Hobson’s choice, the lower courts have simply selected the

lesser of two evils.

This Court’s status as the nation’s highest court exempts it

from the hierarchical restrictions that have compelled lower

courts to limit Enmons to alleviate its negative effects. This

Court is empowered to correct flawed previous decisions. See

Patterson v. McLean Credit Union, 485 U.S. 617, 617-18

(1988) (citing cases where previous siatutory interpretations

have been overruled). This case confronts the Court with a

compelling reason to exercise this power.

-l1-

IIL. The Ramifications of Applying Enmons ’ Interpretation

of Extortion Under the Hobbs Act Are Unpalatable.

If this Court does not overrule Enmons, the principles of

stare decisis mandate that it be applied to the case at hand. See

Hohn v. United States, 524 U.S. 236, 252-53 (1998) (“Our

decisions remain binding precedent until we see fit to reconsider

them, regardless of whether subsequent cases have raised doubts

about their continuing vitality”) (citing Rodriguez de Quijas,

490 U.S. at 494). The disturbing implications of following

Enmons should give this Court pause.

The lower courts have overwhelmingly recognized that

Enmons has the potential to undermine the entire extortion

prong of the Hobbs Act." If pursuit of a legitimate objective

automatically exculpates a defendant, a substantial amount of

conduct previously considered extortionate would no longer be.

The Hobbs Act’s very purpose, which is to prevent interference

with interstate commerce, would be almost completely under-

cut. See 18 U.S.C. § 1951 (a); Stirone v. United States, 361 U.S.

212, 215 (1960).

An illustrative example is Overnite Transportation Co. v.

Teamsters, 168 F. Supp. 2d 826 (W.D. Tenn. 2001). In

Overnite, the complaint alleged that the Teamsters were

responsible for 221 separate criminal acts, including shooting at

truck drivers and dropping cinder blocks on Overnite trucks

4 See Sturm, 870 F.2d at 772 (“broader application [of Enmons}

‘could effectively repeal the Hobbs Act”); Cerilli, 603 F.2d at 419 (“Any

application of Enmons to cases outside of {the labor] context must be done

with caution. Otherwise there is a danger that Enmons _.. could effectively

repeal the Hobbs Act”), Russo, 708 F.2d at 215 (same); United States v.

Debs, 949 F.2d 199, 200-01 (6th Cir. 1991) (en banc), Porcaro, 648 F.2d

at 760 (“we concur in (the Cerilli Court’s] reading of Enmons”); French,

628 F.2d at 1075.

o}] 2.

from highway overpasses. Jd. at 834-35. Over 50 of the acts

alleged were found to adequately plead attempted murder. Jd. at

846. All allegations had to be presumed factually true, as the

District Court was addressing a motion to dismiss.

Despite the scope and savagery of the union’s campaign,

Enmons mandated that all of plaintiffs’ claims under the Hobbs

Act be dismissed because the defendants were ostensibly

pursuing legitimate objectives. Jd. at 842. The Overnite court

also dismissed plaintiffs’ claims under all other extortion

provisions that could serve as predicate offenses under the

Racketeer Influenced and Corrupt Organization Act, such as the

Travel Act and state extortion statutes, because of Enmons. Id.

Enmons’ continuing validity as precedent mandates that the

free pass granted to the Teamsters in Overnite be extended to ail

other defendants who seek a legitimate objective. Defendants

using wrongful means to collect a debt owed, to enforce a

lawful contract, or to recover disputed property, would be

exempt from the Hobbs Act. As Respondent NOW recognizes,

under Enmons, “every defendant charged with extortion would

claim a rightful purpose, whether political, religious, environ-

mental, moral, or something else.” NOW Opp. at 22. It would

be difficult for a court to find any ideological objective wrong-

ful, as that requires a value judgment as to the validity of the

viewpoint. See West Virginia State Bd. of Educ. v. Barnette, 319

U.S. 624, 642 (1943) (“If there is any fixed star in our constitu-

tional constellation, it is that no official . . . can prescribe what

shall be orthodox in politics, nationalism, religion, or other

matters of opinion”); cf Rosenberger v. Rector & Visitors of

Univ. of Va., 515 U.S. 819, 828-29 (1995) (government sanction

based on viewpoint of speaker contrary to First Amendment);

NAACP v. Claiborne Hardware Co., 458 U.S. 886, 918-19

(1982) (state may not impose civil liability based on affiliation).

%

Enmons places even the most egregious campaigns of

orchestrated violence in pursuit of a legitimate objective safely

beyond the Hobbs Act’s reach. An environmental extremist

group shooting at truck drivers and dropping projectiles on

trucks transporting nuclear waste over the nation’s highways, in

an attempt to compel the trucking company not to transport such

waste, would be exempt from federal sanction under Enmons.

Seeking to limit the use of nuclear energy is a common,

legitimate objective.

The sweeping scope of the Enmons exemption would

subvert the Hobbs Act’s purpose, which is to punish anyone

who “obstructs, delays, or affects commerce or the movement

of any article or commodity in commerce by . . . extortion.” 18

U.S.C. § 1951(a); see Stirone, 361 U.S. at 215 (Congress

intended to use all of the constitutional power it had to punish

interference with interstate commerce). For example, Overnite

involved a nationwide campaign against a large trucking

company. 168 F. Supp. 2d at 832-34. Violence was alleged to

have occurred in twenty-one states. Jd. at 835 n.2. If true, it is an

enormous interference with interstate commerce. Yet, Enmons

exempted it from federal sanction.

IV. Enmons Must Be Overruled.

This Court is confronted with the stark choice of applying

Enmons to this case or overruling Enmons. The lower courts’

arbitrary restriction on Enmons’ scope is untenable-the term

“wrongful” either applies to the phrase “obtaining of property”

in the definition of extortion, or it does not. Until Enmons is

overruled, stare decisis mandates that a wrongful obtaining of

property is a prerequisite for extortion under the Hobbs Act. As

discussed above, the ramifications of this are unacceptable.

Thus, this Court should overrule Enmons and return to the plain

meaning of the Hobbs Act, u>“-r which a wrongful objective is

not a prerequisite for extortion.

-14-

Stare decisis does not prevent this Court from reconsidering

Enmons. Under the rationales invoked in Hubbard v. United

States, 514 U.S. 695 (1995), the lower court jurisprudence

contrary to Enmons undercuts its claim to stare decisis. The lack

of a legitimate reliance interest in the decision has the same

effect. Since Enmons itself is a deeply flawed opinion, this

Court should overrule it to avoid the unpalatable consequences

of having to apply it to the protesters and all other defendants.

A. Enmons Should Be Overruled Under the Rationales

Utilized in Hubbard v. United States.

In Hubbard, this Court confronted a situation identical to

the one at bar. Hubbard involved 18 U.S.C. § 1001, which

criminalizes making false statements in any “department . . . of

the United States.” The issue was whether the statute applied to

false statements made in judicial proceedings. In United States

v. Bramblett, 348 U.S. 503 (1955), this Court had held that an

Article III court is a “department.” However, the lower courts

subsequently adopted a “judicial function exception,” exempt-

ing false statements made while a court is performing adjudica-

tive functions. See Hubbard, 514 U.S. at 698-99. The judicial

function exception was “an obvious attempt to impose limits on

Bramblett’s expansive reading of § 1001.” Jd. at 708. It was also

textually incompatible with Bramblett, as a court is either a

“department,” or it is not. Jd. at 712.

Two different lines of reasoning were utilized in Hubbard

to reach the same result. Justice Stevens, writing for the

plurality, held that the judicial function exception was a

competing legal doctrine, and thus stare decisis did not neces-

sarily compel allegiance to Bramblett. 514 U.S. at 715. A

concurrence led by Justice Scalia found that the existence of the

judicial function exemption demonstrated the impropriety of

Bramblett. Id. at 716. Both opinions rejected using the judicial

function exception to limit Bramblett, as it lacked a textual

-15-

basis. Jd. at 713, 716. Ultimately, a six-member majority in

Hubbard opted to overrule Bramblett and return to the plain

meaning of § 1001. /d. at 715.

The parallels between Hubbard and the situation here are

compelling. Both involve statutory interpretations by this Court

(Bramblett and Enmons) that lower courts have limited because

of the ill consequences of applying them. In both cases, this

Court’s opinions and the respective lower court jurisprudence

limiting those interpretations are incompatible under the

statutes’ text. Accordingly, use of the rationales employed in

Hubbard is apt. Enmons and the artificial restrictions placed

upon it should be overruled, and the plain meaning of extortion

under the Hobbs Act reinstated.

(1) Lower Court Jurisprudence Is a Competing

Legal Doctrine Entitled to Stare Decisis Effect.

The plurality in Hubbard found the jurisprudence support-

ing the judicial function exception to be an “intervening

development of the law.” 514 U.S. at 713 (quoting Patterson v.

McLean Credit Union, 491 U.S. 164, 173 (1989)). “[T]he

judicial function exception is almost as deeply rooted as

Bramblett itself.” 514 U.S. at 708. “It is thus fair to characterize

the judicial function exception as a ‘competing legal doctrin{e]’

that can lay a legitimate claim to respect as a settled body of

law. Overruling Bramblett would preserve the essence of [stare

decisis] and would, to that extent, promote stability in the law.”

Id. at 713 (emphasis added; citation & footnote omitted).

There is extensive intervening lower court jurisprudence

holding that a wrongful objective is not a criterion for extortion

under the Hobbs Act. “{I]n an extortion case, a defendant’s

claim of right to the property is irrelevant. One may be found

guilty of extortion even for obtaining one’s own property.”

United States v. Sturman, 49 F.3d 1275, 1284 (7th Cir. 1995)

-16-

(citing United States v. Castor, 937 F.2d 293, 299 (7th Cir.

1991)); see also Zappola, 677 F.2d at 269 (“Congress meant to

punish as extortion any effort to obtain property by inherently

wrongful means, . . . regardless of the defendant's claim of right

to the property’’). This rule has deep roots in state extortion law.

See State v. Bruce, 24 Me. 71 (1844).’ It is also consistent with

the plain meaning and legislative history of the Hobbs Act. See

Part IV(C)(i) infra.

Lower courts utilize this doctrine when the statutory

construction Enmons adopted is not followed.° This is the vast

majority of the time, as lower courts refuse to apply Enmons

outside of the labor context.’ Lower courts have expressly

declined to consider an allegedly lawful right to the property

* A person whose property has been! stolen cannot claim the right

to punish the thief himself, without process of law, and to force him to

compensate him for the loss of his property by maliciously threatening to

accuse him of the offense, or to do an injury to his person or property, with

intent to extort property from him. State v. Bruce, 24 Me. 71 (1844); see

People v. Beggs, 172 P. 152 (Cal. 1918); State v. Phillips, 115 P.2d 418

(Idaho 1941); Commonwealth v. Coolidge, 128 Mass. 55 (1880); In re

Sherin, 130 N.W. 761 (S.D. 1911).

* As discussed in Part II supra, the refusal of lower courts to follow

Enmons in all situations is doctrinally untenable.

” See Porcaro, 648 F.2d at 760 (“We are aware of no case

sustaining an Enmons defense to a Hobbs Act conviction outside the labor

area, and of several that have explicitly declined to do so”); Russo, 708 F.2d

at 215 (“Enmons’ exception to the application of the Hobbs Act has been

held to be confined to payments gained or sought in furtherance of legitimate

labor objectives”) (emphasis in original; citation omitted); Terzi, 2 F. Supp.

2d at 507 (“Enmons should be read narrowly to apply only in the

employer-employee context”); Hall Am. Ctr. Assoc. Ltd., 726 F. Supp. at

1095 (“Enmons . . . has been limited by most courts to the labor context.”).

-17-

sought in situations involving a collection of a debt owed," a

contractual claim between businessmen,’ a state employee's

solicitation of political contributions,'’ and an Indian nation’s

property claim against a railroad.'' Even within the collective

bargaining context, use of Enmons is sharply limited."

* See United States v. Zappola, 523 F. Supp. 362, 368 (S.D.N.Y.

1981) (“you cannot beat someone up to collect a debt, even if you believe he

owes it to you”), aff'd, 677 F.2d 264 (2d Cir. 1982); see also French, 628

F.2d at 1075 (Enmons does not protect extortion to collect a debt, as it does

not apply to “other kinds of ‘wrongful’ taking of money to which the

extortioner may also have a rightful claim”).

° Porcaro, 648 F.2d at 760 (“no basis for extending Enmons to . . .

use of force and threats to resolve a contractual dispute among

businessmen”).

© Cerilli, 603 F.2d at 419.

'! United States v. Warledo, 557 F.2d 721, 730 (10th Cir. 1977).

'2 “Even within the labor context, some courts . . . have been

reluctant to extend Enmons to union activities beyond the scope of

traditional employer-employee labor disputes.” Terzi, 2 F. Supp. 2d at 505

(citing United States v. Debs, 949 F.2d 199, 200 (6th Cir. 1991) (Enmons

does not apply to violence incident to union election campaign)); see United

States v. Jones, 766 F.2d 994, 1002-03 (6th Cir. 1985) (doubting whether

Enmons covers use of violence to persuade employees of non-union

employer to join union); United States v. Stofsky, 409 F. Supp. 609, 616

(S.D.N.Y. 1973) (doubting whether Enmons applies to force used against

neutral, non-union employer, as “it must be recognized that Enmons deals

specifically with employer-employee disputes”); United States v. Quinn, 514

F.2d 1250, 1259-60 (Sth Cir. 1975) (violent labor picketing not protected by

Enmons when defendant “was never authorized by [the company’s]

employees to represent them”); Domestic Linen Supply & Laundry Co. v.

Central States, Southeast & Southwest Areas Pension Fund, 722 F. Supp

1472 (E.D. Mich. 1989) (Enmons does not protect violence incident to

union’s objective to include supervisors in the collective bargaining unit).

-18-

However, this doctrine and Enmons are mutually incompat-

ible within the text of the Hobbs Act. Enmons mandates that the

term “wrongful” modify the phrase “obtaining of property,” in

the definition of extortion. See Parts I and II(A) supra. The

jurisprudence that does not take into consideration the legiti-

macy of the objective requires that the term “wrongful” nor

apply to the phrase “obtaining of property.” Because the text of

a statute can only be read one way, the doctrines are irreconcil-

able and cannot coexist.

Because both doctrines are established precedent, stare

decisis supports retaining either. See Hubbard, 514 U.S. at 712

(considerations of stare decisis “point in two conflicting

directions”). Accordingly, overruling Enmons and adopting the

plain meaning of the Hobbs Act-in which a wrongful obtaining

of property is not a prerequisite—does not infringe upon the

sanctity of stare decisis, as it supports an equally deep line of

jurisprudence.

(2) Refusal of Lower Courts to Follow Enmons for

Fear That It Undermines the Hobbs Act Dem-

onstrates Its Impropriety.

Justices Scalia’s and Kennedy’s concurrence in Hubbard

held that the existence of the judicial function exemption

demonstrated Bramblett to be erroneous:

[T]he significance | find in the fact that so many Courts of

Appeals have strained so mightily to discern an exception

that the statute does not contain . . . demonstrates how great

a potential for mischief federal judges have discovered in

the mistaken reading of 18 U.S.C. § 1001, a potential we

did not fully appreciate when Bramb/ett was decided.

514 U.S. at 716 (Scalia, J., concurring in part and concurring in

judgment).

.]9-

Federal appellate and district courts have literally restricted

Enmons to its facts.'* Their refusal to follow Enmons’ construc-

tion of the Hobbs Act is compelling evidence of its impropriety.

Generally, any statutory interpretation that cannot be applied,

lest it undermine the statute itself, is inherently flawed. Here,

the lower courts have expressly stated that their refusal to utilize

Enmons is due to the legitimate fear that it “could effectively

repeal the Hobbs Act.” See cases cited n.4 supra; see also Part

III supra. The lower courts have all but proclaimed Enmons

unfit to be utilized as precedent.

Enmons’ flawed nature is grounds for overruling the

decision—not artificially limiting its application with restrictions

foreign to the statute’s text. In Hubbard, the concurrence found

that “Bramblett{’s] . . . unacceptable consequences . . . can be

judicially avoided (absent overruling) only by limiting

Bramblett in a manner that is irrational or by importing excep-

tions with no basis in law.” 514 U.S. at 716. This counseled

overruling Bramblett, as importing exceptions cut from whole

cloth is “much more arbitrary than simply overruling a wrongly

decided case.” Jd. at 717; see also Brogan, 522 U.S. at 406-07

(rejecting as arbitrary the importing of case-by-case exceptions

into criminal statutes).

Similarly, limiting Enmons’ construction of the definition

of extortion, as the lower courts have done, is unsupportable

under the Hobbs Act’s text and legislative history. See Part Il

"3 See United States v. Debs, 949 F.2d 199, 201 (6th Cir. 1991)

(“Enmons has not been extended beyond its own facts”); United States v.

Jones, 766 F.2d 994, 998 (6th Cir. 1985) (“Subsequent decisions of various

courts of appeals have refrained from extending the rationale of Emmons

beyond the facts of that case”) (citations omitted); Castor, 937 F.2d at 299

(“Several courts have expressed the view that Enmons should be limited to

its facts, specifically cases of obtaining property by force, threat or use of

fear in the context of a labor dispute”) (citations omitted).

-20-

supra. In fact, the primary reason lower courts have refused to

apply Enmons—that it could subvert the Hobbs Act-is actually

the most compelling justification for overruling the decision.

Thus, Enmons should be overruled.

B. Enmons \s a “Seriously Flawed Opinion.”

A prerequisite to overruling any decision is that it be

erroneous. In Hubbard, the Court recognized that Bramblett was

a “seriously flawed opinion” because it failed to follow the plain

language of the statute, and because of misreading of legislative

history. 514 U.S. at 702. Similarly, Enmons misconstrued the

ne Act’s plain language and turned legislative history on its

(1) Enmons Is Contrary to the Plain Language of

the Hobbs Act.

Enmons’ consideration of the legitimacy of the objective

sought by a defendant is contrary to the statute’s plain meaning.

“The term ‘extortion’ means the obtaining of property from

another, with his consent, induced by wrongful use of actual or

threatened force, violence, or fear, or under color of official

right.” 18 U.S.C. § 1951(b)(2). The plain meaning of this

language is that the term “wrongful” modifies only the “use of

. . . [methods listed].” The words “induced by” immediately

preceding the phrase “wrongful use of” make this clear. Thus,

extortion under the Hobbs Act requires only wrongful means,

not a wrongful end.

Enmons’ construction is grammatically impossible. The

adjective “wrongful” simply cannot reach back to modify

-21-

“obtaining of property.” In fact, under the last antecedent rule,'*

the entire clause—“induced by wrongful use of . . . [methods

listed]”—modifies only the phrase “with his consent,” not the

“obtaining of property” phrase.

The Enmons majority relied heavily on the proposition that

applying the term “wrongful” to only the methods listed would

render the adjective superfluous. 410 U.S. at 399-400. This

concern is unfounded, as the term “wrongful” does add to the

meaning of the methods listed. An entire field of jurisprudence

details when use of “fear” is wrongful or legitimate, particularly

economic fear.'* Neither is obtaining property “under color of

official right” inherently wrongful.'* In regards to force, passive

resistance, such as a sit-in or chaining oneself to a tree, is not

necessarily wrongful. See Town of West Hartford v. Operation

Rescue, 915 F.2d 92, 102 (2d Cir. 1990) (resistance to police

'* Under the last antecedent canon, modifying phras¢s and clauses

in a statute are to be applied only to the word or phrase immediately

preceding (i.e., the last antecedent), and not to others more remote. See

Murphy Exploration & Prod. Co. v. U.S. Dep't of the Interior, 252 F.3d 473,

482 (D.C. Cir. 2001); Bell v. Reno, 218 F.3d 86, 91 (2d Cir. 2000).

'S See Clemente, 640 F.2d at 1077 (“fear of economic loss is not an

inherently wrongful means”); see also Sturm, 870 F.2d at 773 (“We

therefore hold that for purposes of the Hobbs Act, the use of legitimate

economic threats to obtain property is wrongful only if the defendant has no

claim of right to that property”( footnote omitted)); Brokerage Concepts, Inc.

v. U.S. Healthcare, Inc., 140 F.3d 494, 503 (3d Cir. 1998); Viacom Int'l, Inc.

v. Icahn, 747 F. Supp. at 210-11; 4 A.L.R. Fed. 881 (1970), § 6(b)

(collecting cases).

"© See McCormick v. United States, 500 U.S. 257, 271 (1991)

(receipt of campaign contributions because of office not illegal without quid

pro quo), United States v. Snyder, 930 F.2d 1090, 1093 (Sth Cir. 1991)

(“color of official right means the wrongful taking by a public officer of

money or property not due to the officer or the office”).

-22-

efforts to clear abortion protestors from health clinic is not a

““wrongful use of actual or threatened force, violence or fear,””

18 U.S.C. § 1951(b)). Nor would threatening use of civil

disobedience be inherently wrongful. Only actual use of

violence would seem inherently wrongful in the context of the

Hobbs Act.

(2) Legislative History Does Not Support Enmons.

Enmons relied on the legislative evolution of the Hobbs Act

for the proposition that Congress did not consider seeking

legitimate labor ends a wrongful obtaining of property meant to

be proscribed by the Act. See 410 U.S. at 401-07. This conclu-

sion is inconsistent with the Hobbs Act’s history, congressional

intent, and the rulings of this Court.

Congress enacted the Hobbs Act’s current incarnation in

direct response to United States v. Local 807, Teamsters, 315

U.S. 521 (1942). In Local 807, this Court exempted a Teamster

highwayman scheme from prosecution on the basis of an

exemption in § 2 of the Anti-Racketeering Act of 1934, 48 Stat.

979, for the “‘payment of wages by a bona-fide employer to a

bona-fide employee.” Enmons, 410 U.S. at 401-03 (footnote

omitted). Congress’ primary purpose in passing the Hobbs Act

was eliminating that exemption. United States v. Green, 350

U.S. 415, 419 n.5 (1956). Nevertheless, the Enmons majority

utilized a handful of statements from the House floor to

effectively read the exemption right back into the Act. See 410

U.S. at 403-08."

aie '’ The dissent in Enmons accurately points out that most of the

legislative history relied on by the majority was from the 78th Congress, not

the differently constituted 79th Congress that enacted the Hobbs Act. 410

U.S. at 414 (Douglas, J., dissenting).

-23-

Enmons’ counter-intuitive conclusion that Congress, while

removing organized labor’s explicit textual exemption from the

Hobbs Act, intended to exempt violent union campaigns from

its auspices, is “unsound” at best. Cf Hubbard, 514 U.S. at

705."* In Green, this Court recognized that “[t]he legislative

history makes clear that the [Hobbs] Act was meant to eliminate

any grounds for future judicial conclusions that Congress did

not intend to cover the employer-employee relationship. The

words were defined to avoid any misunderstanding.” 350 U.S.

at 419 (footnote omitted). A vigorous dissent in Enmons, by

four Justices, reached the same conclusion. 410 U.S. at 414-17

(Douglas, J., dissenting) (citing extensive legislative history).

Moreover, the startling moral implications of the intent

Enmons subscribes to Congress cast serious doubt on the

analysis. An unblinking analysis by the district court in Overnite

Transportation Co. v. Teamsters, 168 F. Supp. 2d 826 (W.D.

Tenn. 2001), concluded:

The Supreme Court [in Enmons] recognized that violence,

property damage, and extortion often went hand-in-hand

with “lawful” strikes and was willing to exempt such

conduct from the debilitating penalties of tough federal

laws. In essence, the Supreme Court impliedly recognized

the unique circumstances of labor disputes, and the reality

that extortion is an integral part of the labor landscape.

Id. at 842. Can it be seriously contended that Congress consid-

ered violence a legitimate means of obtaining an objective,

much less “an integral part of the labor landscape””?

'® As in Enmons, the Bramblett Court carried forward features from

a predecessor statute that Congress had excised when it enacted the current

version of the statute. 514 U.S. at 705-07. The Hubbard Court recognized

this reasoning as “unsound,” id. at 705, and a “historical misapprehension,”

id. at 708.

-24-

That proposition is not only shocking, but contrary to this

Court’s opinion in Green. There the Court said:

There is nothing in [the Clayton Act, Norris LaGuardia Act,

Railway Labor Act, or National Labor Relations Act]...

that indicates any protection for unions or their officials in

attempts to get personal property through threats of force or

violence. Those are not legitimate means for improving

labor conditions.

350 U.S. at 419-20 (emphasis added; footnote omitted); see id.

at 420 n.7 (collecting cases). Yet, Enmons requires that Con-

gress be attributed the motive described in Overnite.

Contrary to Enmons, Congress actually intended “‘to

prevent anyone from obstructing, delaying, or affecting com-

merce, or the movement of any article or commodity in com-

merce by robbery or extortion as defined in the bill.’” United

States v. Culbert, 435 U.S. 371, 377-78 (1978) (quoting H.R.

238, 79th Cong., Ist Sess., 9 (1945)) (partial emphasis added).

“The Act speaks in broad language, manifesting a purpose to

use all the constitutional power Congress has to punish interfer-

ence with interstate commerce by extortion, robbery, or physical

violence.” Stirone, 361 U.S. at 215. Exemptions for particular

groups or ‘iidustries were not intended.”

Moreover, New York state extortion law, upon which the

Hobbs Act is based, recognized that a lawful claim to property

sought through illegitimate means is not a defense for extortion.

See United States v. Pignatelli, 125 F.2d 643, 647 (2d Cir.

1942); see also People v. Fichtner, 114 N.E.2d 212 (N.Y.

"% See United States v. Hoelker, 765 F.2d 1422, 1424-25 (9th Cir.

1985) (insurance industry not exempt); United States v. Gill, 490 F.2d 233,

237 (7th Cir. 1973) (liquor industry not exempt).

~

-25-

1953). This view was also widely accepted in other states when

the Hobbs Act was enacted. See n.5 supra.

However, the most egregious error committed by the

Enmons majority was utilizing legislative history to avoid the

Hobbs Act’s plain meaning. “Courts should not rely on incon-

clusive statutory history as a basis for refusing to give effect to

the plain language of an Act of Congress . . . .” Hubbard, 514

U.S. at 708; see also id. at 702-03 (“a historical analysis

normally provides less guidance to a statute's meaning than its

final text”); Estate of Cowart v. Nicklos Drilling Co., 505 U.S.

469, 475 (1992) (“when a statute speaks with clarity to an issue

judicial inquiry into the statute’s meaning, in all but the most

extraordinary circumstance, is finished”). The conclusions the

Enmons majority drew from legislative history cannot be

squared with the Hobbs Act’s text. The statute’s plain meaning

precludes consideration of whether a defendant is seeking a

legitimate objective, as the term “wrongful” simply does not

modify the phrase “obtaining of property.”

C. Stare Decisis ls Undermined by Lack of a Reliance

Interest in Enmons.

“Stare decisis is a ‘principle of policy,’ and not ‘an inexora-

ble command.”” United States v. International Bus. Machs.

Corp., 517 U.S. 843, 856 (1996) (citations omitted). Reliance is

one of these policies, as overruling a previous decision has the

potential to “dislodge settled rights and expectations or require

an extensive legislative response.” Hubbard, 514 U.S. at 714

(quoting in part Hilton v. South Carolina Pub. Ry. Comm'n, 502

U.S. 197, 202 (1991)). in Hubbard, “the absence of significant

reliance interests in adhering to Bramblett” was a key factor in

overruling the latter case. Hubbard, 514 U.S. at 713. Similarly,

the lack of legitimate reliance on Enmons undercuts its claim to

stare decisis.

26.

There is not, and cannot be, a reliance interest in Enmons.

Enmons’ practical effect is to excuse campaigns of force and

violence, otherwise actionable under the Hobbs Act, from

liability because of their ostensibly legitimate objectives. Only

persons who orchestrate violent or threatening undertakings can

possibly rely on the shelter Enmons provides. Providing refuge

for scoundrels is not a legitimate reliance interest. See id. at 717

(Scalia, J., concurring) (“Those whose reliance on Bramblett

induced them to tell the truth to Congress or the courts, instead

of lying, have no claim on our solicitude”) .

Overruling Enmons would not expose legitimate means of

applying pressure, such as lawful picketing or political demon-

strations, to liability under the Hobbs Act.” Such tactics, if

nonviolent, could only constitute “fear” under the Hobbs Act.

Use of fear, particularly economic fear, is not “wrongful” in a

variety of circumstances. See n.15 supra.

Thus, a typical labor strike, boycott, or political demonstra-

tion will not be sanctionable under the Hobbs Act if Enmons is

overruled. Only campaigns that utilize illegitimate means, such

as violence, will fall under its auspices. Force and violence are

not legitimate methods to obtain any objective in a civil society,

including union goals. See Green, 350 U.S. at 420 (“[threats of

force or violence] are not legitimate means for improving labor

conditions”); id. at 420 n.7 (collecting cases). In fact, the Hobbs

Act’s very purpose is to punish such behavior when it interferes

with interstate commerce. See Stirone, 361 U.S. at 215.

° In Enmons, the majority mistakenly feared such a result: “The

Government’s broad concept of extortion . . . would cover all overtly

coercive conduct in the course of an economic strike, obstructing, delaying,

or affecting commerce.” 410 U.S. at 410.

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D. Enmons’ Ramifications Justify Overruling It.

Finally, the most compelling justification for overruling

Enmons is the negative ramifications of not doing so. As

recognized by the lower courts and demonstrated in Part Il

supra, the consequences of allowing a legitimate objective to

automatically exempt a defendant from the Hobbs Act would be

catastrophic for both the Act and the interests it protects. Since

Enmons is a textual interpretation that cannot rationally be

limited to its facts, this Court must overrule Enmons to avoid its

odious ramifications.

CONCLUSION

For the reasons articulated in this brief, Enmons’ construc-

tion of the Hobbs Act either must be applied to the protesters or

overruled. Although Amicus Curiae National Right to Work

Legal Defense Foundation takes no position regarding whether

the opinion of the United States Court of Appeals for the

Seventh Circuit should be affirmed or reversed, amicus does

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seek equal application of the law. Amicus respectfully urges that

this Court overrule Enmons.

Respectfully submitted,

Raymond J. LaJeunesse, Jr.*

William L. Messenger

National Right to Work Legal Defense Foundation, Inc.

8001 Braddock Rd., Suite 600

Springfield, VA 22160

(703) 3218510

COUNSEL FOR AMICUS

*Counsel of Record

July 2002