U.S. Supreme Court Justice Antonin Scalia, who once said that writing dissents made life worth living, wrote a scorcher last February.
He was mad at his colleagues for denying review in a case called Sorich v. U.S. that would have forced the Court to make sense of a 21-year-old federal statute that makes it a crime to "deprive another of the intangible right of honest services."
The law has been used to penalize "a staggeringly broad swath of behavior," Scalia wrote, and could, in his view, cover "a salaried employee's phoning in sick to go to a ball game." Referring to the wide disagreement in lower courts over the meaning of the law, Scalia harrumphed that "it seems to me quite irresponsible to let the current chaos prevail."
Scalia's fulminations often go unheeded by his colleagues, but this one must have struck a chord. A few months later, the Court started giving similar petitions a closer look. As a result, beginning on Tuesday, the Court will hear arguments this term in three cases challenging the "honest services" fraud statute -- an almost unprecedented multipart investigation into a single law in a single term. Justices say they don't consciously seek out issues to resolve, but it would be hard to chalk up the confluence to coincidence.
"Justice Scalia put it on the Court's agenda, and I think they want to decide the issue" once and for all, said Mark Harris, co-head of the appellate group at Proskauer Rose, a former assistant U.S. Attorney and Supreme Court law clerk. Why now? "In the post-Enron and post-9/11 era, prosecutors have been much more aggressive in cases that used to be business ethics or civil cases," said Harris, adding that "prosecutors will use this statute to the end of the law and beyond."
The three cases before the Court:
• Black v. U.S., urging that the government should have had to prove that Canadian media mogul Conrad Black intended to cause economic harm to his employer to win a conviction on honest-services fraud.
• Weyhrauch v. U.S., a test of the law's application to public officials. Former Alaska state legislator Bruce Weyhrauch asserts his honest-services conviction for failing to disclose a conflict of interest in a vote on an oil tax should be overturned, because he had no state-law duty to disclose the conflict.
• Skilling v. U.S., in which former Enron chief executive Jeffrey Skilling argues that the honest-services law is unconstitutionally vague and should have required the government to prove he was seeking private gain rather than advancing his company's interests.
The Black and Weyhrauch cases are set for Dec. 8. Skilling's case, not yet scheduled, will be heard next spring.
The trio of cases, as well as Scalia's pique, come at a time of increasing focus on "overcriminalization," a concern that vague federal laws like the honest-services statute are being used as catchalls to criminalize behavior that may be distasteful or unethical, but not illegal. Laws like honest-services fraud, critics say, violate the due process requirement that the public be given fair notice of what conduct is legal or illegal.
"Justice Scalia says he looks at the text of things, and he must have looked at this and said, 'what the hell does this mean?' " said Boston criminal defense lawyer Harvey Silverglate. "Scalia has put his finger on the pulse of a real problem here."
Silverglate, a longtime civil liberties advocate, has written a new book on the problem, Three Felonies a Day, which suggests -- with slight exaggeration -- that average citizens in the course of an ordinary day probably do things that violate as many as three federal laws, broadly construed.
But, as Scalia's strong words indicate, it's not just liberals like Silverglate who are sounding the alarm. Silverglate was featured at an event at the conservative Heritage Foundation. There, he was welcomed by former Attorney General Edwin Meese III, who has also spoken out about overcriminalization. "I was amazed. I wrote some vicious things about him when he was attorney general, with good reason," Silverglate said.
Richard Thornburgh, another former Republican attorney general, now of counsel to K&L Gates, also called the problem of overcriminalization a "slumbering giant" and testified before Congress about it last July. Thornburgh recently spoke at a Dec. 2 event focusing on the honest-services cases co-sponsored by an odd couple: the conservative Washington Legal Foundation and the National Association of Criminal Defense Lawyers.