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MICNERSKI v. SHEAHAN

September 16, 2003

DENIS MICNERSKI, AND ALL OTHER EMPLOYEES AND CONTRACTORS SIMILARLY SITUATED, PLAINTIFFS,
v.
MICHAEL F. SHEAHAN, ET AL. DEFENDANTS



The opinion of the court was delivered by: John Grady, Senior District Judge

MEMORANDUM OPINION

The court has under advisement the motions of the defendants to dismiss this two-count complaint. The plaintiff, Denis Micnerski, is an employee of the Cook County Sheriff's Department. He brings the action against Sheriff Michael F. Sheahan and various employees of the Sheriff's Department as well as Citizens for Michael F. Sheahan, a political organization formed to collect funds for Sheriff Sheahan's reelection campaigns.

The crux of the complaint is that Micnerski and other employees of the Sheriff's Department are routinely solicited by Citizens for Sheahan and various supervisors in the Sheriff's Department to make contributions to the campaign fund. Plaintiff alleges that such contributions are a requirement for retaining employment with the Sheriff's Department and that when he objected [ Page 2]

to making a contribution, and made it under protest, he was demoted "shortly thereafter" to an entry-level position.

This requirement of campaign contributions in return for job security is the basis for both counts of the complaint. Count I is a RICO claim and Count II is a First Amendment claim pursuant to 42 U.S.C. § 1983. Plaintiff seeks to bring the action on behalf of himself and a class of Sheriff's Department employees.

Count I — The RICO Count

Defendants move on a number of grounds to dismiss the RICO count for failure to state a claim. We agree with many of defendants' arguments and, in addition, have a few reasons of our own why this count cannot stand.

Like many litigants, plaintiff seeks to plead a case that will gain for him the numerous advantages of the RICO statute, 18 U.S.C. § 1962(c), such as treble damages and attorneys' fees, as well as compensatory damages and injunctive relief. In order to do that, plaintiff has to plead a "pattern of racketeering activity." This is criminal conduct, the actionable varieties of which under RICO are listed in 18 U.S.C. § 1961. It can include violations of the federal mail and wire fraud statutes, and this is what plaintiff Micnerski principally relies on. He alleges in Count I that the requirement of political contributions is a "scheme and artifice to defraud the employees of Cook County Sheriff's Department of money, property and their right to honest services of certain Sheriff's [ Page 3]

Department employees, and to obtain money and property from the employees of the Cook County Sheriff's Department by materially false and fraudulent pretenses and representations. . . ." (Count I, ¶ 14.) In an order dated June 24, we asked the parties for further briefing and specifically asked plaintiff to explain how a representation that he would be disciplined if he did not make a campaign contribution could be regarded as false and "fraudulent" if in fact, as plaintiff alleges, it was true. Plaintiff has responded with the explanation that:

This representation is false because the Defendants knew it was illegal to require such quid pro quo payments and it violated an express policy of the County of Cook. In this sense the representations of the Defendants were `intentionally misleading' because they were legally untrue.
(Plaintiff's Supplemental Brief to Court at 3.) This makes no sense to us. The essence of fraud is falsity, and that means factually untrue. See United States v. Church, 888 F.2d 20, 23 (5ch Cir. 1989). "Legally untrue," whatever that might mean, is not a basis for a mail fraud charge. Plaintiff suggests that the defendants' conduct falls within the amendment to the mail fraud statute enacted in 1988, which provides that:
For the purposes of this chapter, the term "scheme or artifice to defraud" includes a scheme or artifice to deprive another of the intangible right of honest services. [ Page 4]
18 U.S.C. § 1346. Plaintiff argues that he had a right to "honest services" from the defendants and that this included a duty on their part not to retaliate against him for failing to make or objecting to making political contributions. But we think this interpretation of the statute would distort the meaning of both "honest" and "services." A straightforward demand for political contributions, however inappropriate, is not "dishonest" in the ordinary sense of that term, nor is the making of such a demand the performance of "services." To say that a defendant who made such a demand of the plaintiff would thereby fail to render honest service either to the public or to the plaintiff would be stretching language for the sole purpose of making it seem to fit within the statute.

We hold that Count I of the complaint does not allege a scheme to defraud within the meaning of 18 U.S.C. § 1341 & 1346.

A RICO claim must allege "a pattern" of racketeering acts, which means more than one criminal act of the kind listed in 18 U.S.C. ยง 1961. Count I of the complaint purports to allege four ...


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