Justice Antonin Scalia, dissenting from the Supreme Court’s refusal on Monday to review a Chicago public corruption case, complained that the federal law governing such cases is so loosely worded that it could even be used against “a salaried employee’s phoning in sick to go to a ball game.”  He used that example, and others, to illustrate what he argued was the open-ended nature of the current law that punishes as a criminal fraud an effort “to deprive another of the intangible right of honest services.”

Scalia spoke only for himself as the Justices declined, without explanation, to hear Sorich, et al., v. U.S. (08-410).  The Court’s order and Scalia’s opinion can be found here.  He contended that the Court should take on the task of interpreting the fraud law, and deciding whether, in fact, it is unconstitutional.  “It seems to me quite irresponsible to let the current chaos prevail,” he wrote.

The case involves three former officials of Chicago’s city government — Robert Sorich, who was head of a city office on intergovernmental affairs, his deputy Timothy McCarthy, and Patrick Slattery, who was a high official in the city’s Streets and Sanitation Office.  Federal prosecutors charged them with defrauding the city by depriving it of their honest services, for running an alleged scheme of getting jobs for politically favored individuals, in violation of city policies against patronage hiring and a court consent decree on the subject.

Each was convicted of mail fraud; Sorich was sentenced to 46 months in prison, McCarthy to 19 months and Slattery to 27 months.

Their joint petition for review argued that the Circuit Courts are split on whether there can be a fraud case involving the honest services provision if there is no proof of a state-imposed legal duty, and no proof that the official gained personally from the alleged fraud.

A considerable part of the case against them was based on Congress’ attempt, in 1988, to close what it considered a loophole in the federal mail fraud law.  A year before, the Supreme Court had ruled, in McNally v. U.S., that the law as it then read was limited to protecting property rights, and not to protect the right of citizens to honest services by public officials.  Congress responded by saying the law did include the crime of depriving “another of the intangible right of honest services.” (The section at issue is 18 U.S.C. 1346.)

Those 28 words, Scalia wrote, have led lower courts “to impose criminal penalties upon a staggeringly broad swath of behavior, including misconduct not only by public officials and employees but also by private employees and corporate fiduciaries.”  The Justice listed some of these wide applications, and suggested others than could well be considered within the language of the statute.

The Court has long held, Scalia noted, that criminal laws must give fair warning of the conduc that is made criminal. “It is simply not fair,” he said, “to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail.”

The others on the Court did not say why review had been denied.  But the Justice Department, in urging the Court not to hear this case, dismissed the differing interpretations of the law by lower courts, saying the petition here overstated the differences.  Moreover, the Department contended, this particular case was not a “suitable vehicle” to consider the scope of the law or its constitutionality since any error on the honest-services theory of prosecution would be harmless since the convictions were based on another, independent theory.

The Justice Department also noted that the Court had repeatedly declined to hear the same issues raised in this petition.  And the Department defended the constitutionality of the law against the claim here that it is invalid because it is too vague. 

The National Association of Criminal Defense Lawyers, an advocacy group, supported review of the case.   Its brief argued that “the fractured approaches of courts of appeals are but symptoms of the statute’s true, fundamental defect: sec. 1346 is unconstitutionally vague, in violation of the Fifth Amendment’s guarantee of due process of alw.  For the same reason the statute provides no meaningful guidance to courts, it fails to provide criminal defendants with fair notice of what conduct is prohibited.”

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