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Scheidler Victory In Wisconsin Appeal Could Upset Federal RICO Verdict

By Editorial Staff
Published June 1, 1999

Pro-Life Action League ACTION NEWS, June, 1999, Vol. XVII, No. 1

CHICAGO — Press Statement released by Thomas Brejcha, Friday, May 28, 1999, after the Wisconsin Court of Appeals ruled on a case that paralleled the NOW v. Scheidler federal case in Chicago.

Pro-life activist Joseph Scheidler lost a federal racketeering verdict last April, 1998, in a highly publicized class action suit by the National Organization for Women (“NOW”) and the nation’s abortion clinics. But now Scheidler has won a Wisconsin appeal that could upset the federal verdict. Because the appeal reinstated a global settlement and dismissal, with prejudice, of all claims against Scheidler that arose prior to December 1, 1997, this new development could preclude entry of judgment on last year’s federal verdict. Moreover, because the state court case that led to the appeal was closely related to the subject matter of the Chicago class action litigation, the Wisconsin dismissal may bar many, if not all, of the clinics’ and women’s RICO claims.

On Friday, May 28th, defense counsel in NOW vs. Scheidler will ask Judge David Coar to order further investigation into why and how Summit Women’s Health Organization (“Summit”), one of two clinic class representatives in the Chicago RICO suit, filed a parallel lawsuit in Milwaukee Circuit Court. The Wisconsin suit was initiated in August, 1997, just five months after Judge Coar granted class certification, and named Scheidler and the Pro-Life Action Network (“PLAN”) the alleged nationwide “racketeering enterprise” in the RICO suit – along with 50 other defendants. Scheidler’s counsel protested Summit’s new suit in state and federal court alike as duplicative and vexatious. After the Milwaukee trial judge denied injunctive relief, after marathon hearings, Summit offered to settle. Scheidler’s counsel pressed for finality as a condition of settlement, and then moved for dismissal and sanctions before Summit agreed. Otherwise, Scheidler accepted the terms as originally proposed by Summit, which were global in scope. The trial judge accordingly dismissed “all claims against [Scheidler] relating to conduct which occurred prior to” December 1, 1997, when the stipulation and dismissal order were signed and entered, with prejudice.

Judge Pressed by Summit

Thereafter, Scheidler contended in federal court that, under Wisconsin’s claim preclusion law and the Federal Full Faith & Credit Act, 28 U.S.C. §1738, the dismissal also barred the federal RICO claims of Summit and clinics in “privity” with it. Summit’s lawyers raced up to Milwaukee, where they pressed the Milwaukee trial judge for an “emergency” hearing and “extraordinary” post-judgment relief. The upshot was that, on the very eve of the Chicago RICO jury trial, the Wisconsin stipulation was voided and the order was modified to dismiss only the claims Summit pled against Scheidler in state court, where no RICO claim was ever pled. The judge’s new order also recited that he did not intend to affect the federal class suit in any way.

But Scheidler took an appeal, and the Wisconsin Court of Appeals has now reversed the modification, reinstating the ‘global’ stipulation and the original dismissal order, barring “all claims against [Scheidler] relating to conduct.., prior to” December 1, 1997. The appellate court held that “Summit’s … failure to recognize the potential collateral consequences of its own drafting” fell short of the requisite “excusable neglect” or “inadvertence’‘ required for altering a final judgment. Nor Was Summit’s “mistake … based on a fact, but rather was [a] mistake of law when its counsel failed to consider the potential legal consequences of the original stipulation’s broad language.” Nor was there “fraud” or other “misconduct,’‘ as the trial court found no evidence “supporting Summit’s contention that Scheidler’s counsel harbored an intent prior to December 1, 1997, to use the broad language of the stipulation, drafted and submitted for approval by Summit’s counsel, to defeat the pending federal litigation.” Further, the trial court was incorrect “in its attempt to divine the parties’ intent in drafting the stipulation,” absent a prior finding that the language at issue was ambiguous. On the contrary, the appellate court quoted the trial judge’s own recognition “that the relevant language of the stipulation was plain: ‘[T]he plaintiff entered into a stipulation which seems on its face to have clearly released Mr. Scheidler from anything having arisen earlier with respect to the claims made by Summit …. ‘” Finally, the Court of Appeals held that the trial court lacked power to narrow the impact of its order, by stating its intent not to have any effect on the federal class action. Only a successor court could assess the effect of a prior judgment.

Vote To Remand Case

Two Wisconsin appellate Justices voted to remand the case, so that the Circuit Court could address whether there were “[a]ny other reasons justifying relief from the operation of the judgment.” But those Justices also noted that federal decisions under Federal Civil Rule 60(b) were “persuasive authority” under the Wisconsin rule. Recent federal decisions have construed this “catch-all” provision narrowly and required “extraordinary” showings under it a standard unmet by mere disputes over terms of settlement or even change of law by the Supreme Court. Nor does the mere pendency of trial court proceedings seeking to overturn final judgments, or the pendency of appeals, suspend the effect of final judgments.

Scheidler argues that Summit’s final dismissal of “all claims” against him prior to December 1, 1997 necessarily barred the RICO claims at issue in Summit’s federal class action. He also contends that, as Summit’s state court suit also focused on the “same series of transactions” -alleged clinic disruptions incident to annual national PLAN meetings – out of which Summit’s RICO claims arose, even Wisconsin’s modified dismissal barred the RICO claims. Wisconsin has adopted an expansive, modern, “broad brush” doctrine of claim preclusion, barring re-litigation of all claims that could have been raised, whenever a lawsuit has finally been determined, on the merits, between the same parties, or their “privies.”

Dismissed on the Merits

Here, under Taffin v. Levin, 493 U.S. 455 (1990), federal RICO claims could have been raised in Summit’s state court suit equally as in the federal class suit. Therefore, Summit’s dismissal on the merits and with prejudice spelled the demise of its (and its privies’) RICO claims as well as the claims actually pled. Under the Federal Full Faith & Credit Act, 28 U.S.C. §1738, every federal court throughout the U.S. must give the dismissal order the same effect it would have in Wisconsin.

Scheidler seeks Judge Coar’s authorization for “limited discovery” and then a hearing to explore how far any claim preclusion could extend beyond Summit itself. Summit’s fellow clinic class representative, Delaware Women’s Health Organization (“DWHO’), is also owned and managed by Summit’s corporate parent, National Women’s Health Organization (“NWHO”). Susan Hill, key clinic witness at the RICO trial, had been president of NWHO, DWHO, and Summit, as well as other class clinics from Fargo to Florida. Another Milwaukee abortion clinic, also a party to the global settlement there and a member of the federal RICO class in Chicago, was owned or operated by Planned Parenthood, as are many other class clinics in the federal RICO case. Whether NWHO, Planned Parenthood, and other class clinics were “in privity” with Summit and DWHO, judicially-certifled class representatives and “legal proxles’ for every abortion clinic in the country, who sued (and settled) in Milwaukee for their patients as well as themselves, must be fully explored.

Dismissal Decertifies NOW

Alternatively, Scheidler also contends that the Wisconsin dismissal affords new grounds for defendants’ pending motion to “decertify” Summit, DWHO, and NOW (who were all represented by the same counsel in the RICO class action suit) from their status as certified class representatives. Having recklessly risked the claims of NWHO clinics, Planned Parenthood clinics, and all the other class clinics, Summit and its privy DWHO should be disentitled from suing for anybody but themselves. Summit’s dead-end detour into Wisconsin belied prior representations by which it won certification, namely, that class-wide adjudication was “superior” to “individual lawsuits … in every city and town in the 46 states, the District of Columbia and Puerto Rico where the class member clinics are located.’‘ When Summit sought relief, it shunned class-wide RICO relief, instead seeking duplicative, vexatious relief against Scheidler, PLAN, and others in state court. Neither NWHO’s Susan Hill, nor her corporate counsel, nor the RICO plaintiffs’ class counsel did anything to stop it.

At any rate, Scheidler will contend that the Wisconsin’s reinstatement of Summit’s global settlement and dismissal undercuts the April, 1998, RICO verdict. At plaintiffs’ behest, cross-examination and evidence about Summit’s state court lawsuit, and its willingness to jettison all its claims (and its patients’ claims) against Scheidler (and PLAN) that arose prior to December 1, 1997, was barred. Wholesale exclusion of all this critical evidence, when Summit’s witnesses were allowed to testify freely about alleged “racketeerlng activism by persons allegedly “associated with PLAN” and supposedly “directed” by Scheidler, was patent error that undercuts the verdict.

Thomas Brejcha and Richard Caro
185 North Wabash Ave. – Suite 1207 Chicago, Illinois 60601
Tel. 312-782-1680/Fax 312-782-1887

Editor’s Note: Tom Brejcha and Richard Caro appeared before Judge Coar Friday morning, May 28 and attempted to present the issues raised by the Wisconsin lawsuit. Judge Coar began by stating, “Frankly I don’t understand the motion.” He then denied the motion to reopen the record to include the impact of the Wisconsin decision. The League’s attorneys are pursuing other avenues while waiting for Judgo Coar to enter a judgment on the original jury verdict of April 20, 1998. There is a broad range of issues involved in the case which concern those who have a sanctity for the law — not to mention the sanctity of human life. Foremost among them, as Brejcha notes, is that such enforcement of the “RICO law raises terrible constitutional problems with freedom of association.”

Among other concerns is the impact this decision might have on peaceable, nonviolent forms of civil disobedience. The case built against Scheidler et al suggests that civil rights protests such as those advanced by Dr. Martin Luther king would -not be permissible today. Also notable is the 900 “mini-trials” for each of the abortion clinics around the country which could result should the judge agree with the plaintiffs that all have been hurt by the defendants. Any injuno tion against the defendants also would be of very questionable validity. No one knows when the judgment will be delivered. In the meantime, however, the League continues to be emboldened by the prayers and support of pro-lifers throughout the country. Any new developments will be reported in Action News and on the ProLife Action League newsline, which is (773) 777-2525.

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