Useful forms of this file can be downloaded that should work
on your own machine, and access all links correctly, when you are online,
including links local to this originating system.
In these downloadable forms, all URLS are given as
absolute.
[Note added: Sat Feb 13 04:59:52 EST 1999]
The Downloadable versions below are just a little behind,
and lack a few corrections and additional links.
[MSDOS/WIN PROSE.zip] should work exactly as it does here (I hope), with all links working and can serve as a starter HTML notebook for further work and study.
Similarly, on Unixes of any type, [Linux/Unix/NT ProSe.html.gz] is a gzipped file, and should work again accessing all links absolutely. These paragraphs and links are included in the downloadable forms. If you have difficulty with the downloading or compression, email me Bill Hammel and I will email you back the uncompressed, human readable HTML source. On the Uther hand, this such, which is coded with absolute URLS, can also be downloaded in source form by any browser. That way, the most up to date version will be obtained.
A Guide To Understanding The Judicial Branch Of The Government [Link]
This an amateur's primer on litigation against one's insurer under federal RICO laws for the consideration of those who may choose to litigate Pro Se, i.e, without benefit of formal legal representation.
First, I examine the theory and text of Supreme Court's decision which validates such action. Second, I examine very general practical aspects of the levels of laws and rules which govern such an action and give links to their sources as they are available on the web. Frankly, I do not want to do defendants' homework for them. However, them choke on this with their immediate and arrogant motions for dismissal:
REGARDING DISMISSAL:
Peterson v. Atlantic Housing Authority, 998 F.2d 984 912 (11th Cir. 1993)
"A complaint may not be dimissed unless the plaintiff can prove no set
of fact which would entitle him to relief." (Citing H.J. Inc. v.
Northwestern Bell Tel. Co. 492 US 229, 249, 109 S. Ct. 2893, 2905,
106, L. Ed.2d 195 (1989)).
There are various such citations from various circuits, some stronger than others, that appropriate. Cf. Our Response to a motion to dismiss, all of which are consistent.
The Supreme Court of the United States of America, on January 20, 1994 unanimously decided in Humana v. Forsyth that insurers are not uniformly protected under federal law in their criminal activities by the McCarran-Ferguson Act; specifically, insurers are not protected from civil prosecution under the RICO laws of the Federal government, and that insurers may indeed be sued for Racketeering Activities under RICO, without frustrating the State's Regulatory Powers.
In their unanimous decision, the justices state,
"On the other hand, the Court is not persuaded that
Congress intended a green light for federal regulation whenever the
federal law does not collide head on with state regulation."
I would take especial notice of words "federal regulation",
as saying exactly what the justices mean, and that the justices do not mean
litigation on the federal level.
This quote from the decision is in reference to
US Code Title 15, Chapter 20, Section 1012(b)
of McCarran-Ferguson, which reads:
"No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance: Provided, That after June 30, 1948, the Act of July 2, 1890, as amended, known as the Sherman Act, and the Act of October 15, 1914, as amended, known as the Clayton Act, and the Act of September 26, 1914, known as the Federal Trade Commission Act, as amended (15 U.S.C. 41 et seq.), shall be applicable to the business of insurance to the extent that such business is not regulated by State Law."
It is clear in the Supreme Court's decision on Humana v. Forsyth that the Justices do not wish the Federal Government to usurp the powers guaranteed by M-F to the States; but, the Justices do state,
"RICO does not proscribe conduct that Nevada's laws governing insurance permit. But the federal and state remedial regimes differ. Both provide a private right of action. RICO authorizes treble damages; Nevada law permits recovery of compensatory and punitive damages."
BEGIN an addendum of July 25, 1999:
It appears that our Federal Government will soon allow the
merger
of UNUM and Provident Compnaies, basically under M-F and the utter
corruption of the Superintendent of Insurance Iuppa of the State of Maine.
The will allow that approximately 80% of all STD and LTD insurance within
the US will be contrilled by this combined demon of hell.
In addition, our Federal Government of Occupation will also allow the
merger of: securities, banking and insurance.
There are two possible consequences here:
One must also remember that these demons of destruction are not
confioned to the US, but are, in fact, mitinational corporations
with considerable presence in terms if policies in mnay other nations.
END of Addendum.
It is, of course possible, that while a State's law may permit, by not specifically forbidding either compensatory or punitive damages, there may not exist substantial case law to show that such damages have been recognized in specific cases by the State's courts. I would argue that the application of RICO in this situation in no way diminishes the power of State Law and regulation, and that the only way that RICO might be clearly erroneously applied to an insurer is if the State in question actually has a body of law which declares racketeering activities and extortion to be legal activities, either generally or specifically in its regulation of insurance companies.
When racketeering activities are proscribed by both State and Federal law, the fact that "remedial regimes" differ is still not a frustration of State Law. This should have as a consequence that even if State law prohibits the remedies of compensatory or punitive damages that the application of RICO is still valid, and further that its provisions for remedy must prevail, when Federal RICO laws are invoked. Such Federal remedies provided by RICO will not impair the State's "goal" of proscribing racketeering activities.
The Justices further note that while M-F "precludes application of federal statute in [the] face of State law 'enacted ... for the purpose of regulating the business of insurance,' if the federal measure does not 'specifically relat[e] to the business of insurance,' and would not "invalidate, impair or supersede" the State's Law. Rico is not such a law, and does not mention or attempt to regulate insurance, an so by the Justices' reasoning cannot be a federal statute whose application is prohibited by M-F. In short, M-F is no defense against RICO.
Humana argued that the word "impair" signaled Congress's intent that all matters of insurance were completely ceded to the States by M-F, while the Justices point out that if that were the case, then the existing dual taxation by Federal and State Governments of insurance companies would not be allowed, citing the later part of the same Section that Humana cites to make their claim.
The logical crux of the Justices' decision is adopting and applying the principle of "Direct Conflict" used by the Ninth Circuit Court of Appeals as to whether the application of a Federal Statute would be be in direct conflict with the intent or goal of existing State Law. In doing so, the Justices find:
*) As a general principle, the application of RICO is
not in conflict with either the language or
the intent of McCarran-Ferguson.
*) That to impair, hinder or frustrate a State's law
includes hindering its operation or "frustrating
a goal of that law." Citing Shaw v. Delta Airlines, Inc.
463 US 85, 101-103, and SEC v. National Securities, Inc.,
393 US 453, 463 as also in accord with the principle of
"Direct Conflict" adopted by the Ninth Circuit Court.
*) That in the absence of Direct Conflict, RICO may be
applied, and even should the "remedial regimes" of
of RICO and any State differ, the remedies of RICO
are available.
For further discussion of RICO see Civil Use of RICO Laws, which includes links to the text of the previous H v F pleadings, and the following notes written by Judy Morris, MD who is already in RICO litigation Pro Se, against UNUM, et. al.
///////////////////////////////////////////////////////////////////
Also From Jim Mooney
http://www.insurancejustice.com/
MORE ON RICO -- SUE YOUR FRIENDLY INSURER FOR FEDERAL RACKETEERING
Although most of the huge law firms are working for those demonic entities
called "insurance companies," one large firm that is working for the human
beings is Anderson, Kill and Olick. For an excellent article on the
Humana/Forsythe decision which overrides the cosy protection from wrongdoing
the insurance industry has enjoyed under McCarran-Ferguson, go here:
http://www.andersonkill.com/policyholder/
This is the March '99 issue, under which date it will be archived if you
look for it next month.
///////////////////////////////////////////////////////////////////
The Disadvantages of ProSe Filing:
1) As a rule of thumb, courts (judges), especially those receiving
RICO filings, are reasonably disgruntled by the the filings
of those complaints that have no real cause of action, and that
allege no provable damages to "business or property". The number
of such completely stupid RICO cases brought by genuine attorneys
is already astronomical. STUDY! Most attorneys haven't got
the time for that luxury, so the disadvantage turns into an
advantage. They may have more deep pockets and more resouces,
but, they simply don't have the time. Drive your nails through
their vulnerabilities - as they will try to do to you.
2) The attoneys for defendants will not take the allegations of
your complaint seriously, and suggest to the court, in their
interminable memoranda, that because of your pro se status,
are incompetent, that you misapprehend everything in sight, and
that you are and idiot. This can actually work to your advantage
since if they underestimate you, thay can expose themselves in
ways upon which you can pounce. Make sure that you study every
case that they cite. Many of these will be inapplicable, and
when they are, the inapplicablcability should be brought to the
attention of the court in a resposive pleading.
Appeals courts happen to take a dim view of missapplied
case law, as indicative of trickery.
3) While the judge's clerk is available to the attoneys for the
opposition, they will not be available to you. Make friends
with the Clerk of the Court, or someone under them. This
person can be very helpful regarding court procedures that are
not contained in FRCP, or in 28 USC.
4) Continuing (3) previous, you may have studied and understood
the "Rules of Precedure" and the approprite jurisprudence
(case law), but, that doesn;t mean that you know how the
court operates. A friendly relation with the Clerk of the
Court is of great help there.
The Advantages of ProSe Filing:
1) You are not a member of the "boy's club", and don't have
to worry about meeting your opposition's attorney again
in court, hoping for some pretrial settlement in which he
may be flexible.
2) You are not a member of the boy's club and the opposition
hasn't the slightest idea what to expect from you.
3) You can afford to piss the judge off without worrying about
seeing him again either. Contemptible actions are still
not well received by the court.
4) You have a de facto remarkable freedom that is not enjoyed
by attorneys who must see other attorneys and judges throughout
their careers, and are thus intimidated. You are in control
of your own case! Study, and study hard, this is again a
luxury that attorneys can't afford. You, as Pro Se, can push
harder than any attorney you can engage. How many people
have been screwed by an attorney's timidity - or decision
based on profit?
5) While attorneys have hundreds of other cases, you have only
*one*, upon which you can lavish whatever energies you have.
6) Rules of Procedure, Statutes, Rules of Evidence, as well as
US code and a great body of jurisprudence is all on the net
You have a better chance of using this effectively than
attorneys, and most of it is free - as it should be.
My
Prelude:
When litigating under federal RICO, you are litigating
under Federal law and not under State law.
[U.S. Jurisdiction Law]
The proceedings therefore start immediately
in a district court, by federal Statute.
Some States have RICO laws of their own, and these in particular,
must not be frustrated by application of Federal code.
Check the contents of any State laws, and know them, just in case.
Often, however, the State laws are modeled on and amplifications
of Federal RICO.
It makes sense to file in a district court
in the federal district of your residence.
You can find this information through:
[Federal District Courts by State]
The top level body of current ruling law is United States Code (suppl. 3) which is conveniently provided by the Government Printing Office (GPO) [GPO Gate, Catalog for United States Code (suppl. 3)] by access through the University of California.
Citing and finding specific Laws of US Code is by a hierarchy of Title, Chapter, Section. The Title part tell what the laws under it is about. Often the text of one law will reference another in order to declare a relationship with it. It is a good idea to print out a sheet with title numbers and subjects and even to memorize them, so if you see a reference to a Title number which corresponds to maritime or immigration law, you can in the situation discussed here, know immediately that this *not* something you have to go search out and study.
US Code is only one of legal data bases provided by GPO. The top level entry for all the databases are directly at [Connect to GPO Access Databases] and also by access through the university of California. [GPO Gate at University of California]
Along with US Code, which the theory part also comes the Federal Rules of Civil Procedure (FRCP), [LII: Law about...Civil Procedure] which are the rules for applying US Code in a Federal court. These can be found at the Electronic Cornell Law Library [Federal Rules of Civil Procedure -- Structure], or through the top level GPO database links given above.
If you want to make a bookmark file for specific rules, or write an private or online exposition of something, GPO provides directions for making such referencing links to their database at [Establishing HTML Links to GPO's CFR WAIS Databases].
Federal and State Laws
Federal Laws and State Laws are never exactly disjoint.
[State & Federal Court Rules]
In fact federal district courts will generally try to
accommodate the state laws, unless of course it is clear
that Federal Law rules.
It would appear, in light of the Supreme Court decision
discussed above, that in our case, Federal Law rules with very little
leeway.
Rules of the District Court
These are mostly formal rules of filing, like whether or not
a cover sheet is required and how many copies are required
for various pleadings.
In some districts, a judge will stay through the case from
beginning to end; in other districts this is not the case.
Some district rules are available on the web.
Try
[Rules of Court - Local Law]
You may have to call or write for these rules.
Rules of the Judge
You can get these from the court clerk.
These will also be of a formal nature, which will specify that documents
all have a uniformity that he or she prefers so that
finding various parts of a document is not an expedition
with every document.
Remember that judges have to read a lot, and in remembering that,
try to give documents in as best quality print that you can.
It will be appreciated, even if only subliminally.
By law you cannot be legally penalized for not following the judge's rules, but give the judge a break; the rules may seem arbitrary or even picky to you, but they make, for the judge, some order out of something that is intrinsically messy.
Court Clerks
These people, or person in some cases, are responsible for the smooth
and efficient functioning of the court.
They are usually overworked and under payed.
When the court schedule gets messed up, guess who gets the flack?
Be understanding of that in a real way and they can help
you in many tedious little details in a way that no one else can.
Case law, or precedent, is a strange custom that some think ought to be abolished so that every case should be considered on its own merits regardless of previous decisions in "similar" cases, and that a kind of shadow law should not be creeping into the legal system. In a very practical sense, a law with no precedent behind it has no standing: it can essentially be ignored.
There are arguments pro, namely uniformity in the application of law and uniformity in the developing of law; and arguments con, *no* two cases are really the same: to force one upon another is lunacy.
From this thesis/antithesis, justices develop what seem like good principles of interpretation. Look for these in your studies, and see how the are applied. These principles can also function as general precedents that are adopted in up and down direction in the legal hierarchy. See the principle of "Direct Conflict" discussed above, and how it migrated from the Ninth Circuit Court of Appeals to the Supreme Court. Also study how the general principles developed in section (a) are applied to the specifics of the case in section (b).
Whatever one's philosophical position on "legal precedent" as a metaprinciple of law, we have it, and it must be dealt with. Case law and its setting of precedent is, along with the use of precedents of principle like "Direct Conflict", fused by logic and consistency, are the basis of arguments on matters of law, and its application.
Matters of evidence constitute another realm, and there there are two fundamental considerations: 1) the necessary requirements of law, and 2) the sufficient requirements to convince to the degree stated by law.
As an example, RICO requirements, to establish racketeering activity as necessary by law is loosely, two predicate acts not separated by more than 10 years. Those are really, *only* the necessary conditions for filing. If you were a reasonable juror, could you convict on that basis? Hardly. I know that such meager evidence would not be enough to convince me. Even in music, three times is necessary to establish a pattern of "sequence".
A juror must be convinced that these two predicate acts, the price of admission, are merely representative of an incontrovertible pattern of racketeering. On one hand, it's obvious: anybody who is paying attention knows perfectly well what is going on. But, the "average" juror who has been paying attention to what insurers have been doing, would be disqualified, and the others have to be convinced with a great "preponderance of evidence" of what to us is well known. Documenting, as much as possible, chronologically, specifically and clearly, is crucial in presenting predicate acts.
In our cases, the insurance cartel has smugly and routinely been violating the provisions of RICO for so long that this behavior has become an entrenched "way of doing business"; this is how they've always done it, and gross patterns of behavior are hard to change. Thus, there will usually be a long sequence of many predicate acts going far beyond the two required by RICO. Study that which constitutes such predicate acts; Seek, and ye shall find.
One of the insurance cartel's favorite negotiating goals, especially if you have been severely injured, is to make sure, through denials and delays, that you are stripped of property and your ability to be employed. They expect that then you will accept any small crumbs that they may offer "in settlement", if in fact, they ever offer anything. You are then destitute and cannot afford the many hundreds of dollars in succeeding lumps for filing costs, document reproductions, or necessary service. These are the burdens that the court will lift from you if you file 'in forma pauperis', and here is generally how it works.
You give your complaint to the court clerk, telling him of you desire to file as a pauper. He will tell you what the local requirements, or the judge's requirements are, and you will write a brief petition to the court, in a form that may be prescribed, that will outline how you are a pauper, and then submit that to the clerk. The judge will decide whether he will admit your filing in forma pauperis. The moment he does, your complaint will be so filed, by the Clerk of the Court, and all appropriate relief will be automatic from then on.
Another advantage to filing this way, if it is appropriate, is that often the court is more flexible when it comes to deadlines for filings and such. As a rule of thumb, Federal courts tend to be more exacting and persnickety about not only the letter of the law, but also about the letter of the rules.
The controlling case in this regard is:
ADKINS V. E. I. DU PONT DE NEMOURS & CO. 331,335 U.S. 331 (1948)
Also see in Re: Petition to file in forma Pauperis;
Sup. and Dist. Ct. cases citing this case
Judydoc's Home Page
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Uncivilization and its Discontents
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A Note: The case of Judy Morris MD, has now been reduced for the present to an ERISA case. The RICO element has been dismissed without prejudice, meaning that it may once again be filed in Federal District Court, without having to go the Court of Appeals.
Email me, Bill Hammel