Monday, February 23, 2009
This blog has previously noted the problems with section 1346 of the mail fraud statute (see here). The "intangible rights" doctrine has been the subject of much concern.
But Justice Scalia, in a dissent to a denial of certiorari, voiced a strong opposition to the progression of the intangible rights doctrine in a direction that needs correction. Although the Court did not accept cert in the Sorich case, a case involving "city employees who engaged in political-patronage hiring for local civil-service jobs," Justice Scalia noted that the "28 words" in the statute had "been invoked 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." He stated that "[w]ithout some coherence limiting principle to define what 'the intangible right to honest services" is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct." Justice Scalia concludes his dissent by stating that "it seems to me quite irresponsible to let the current chaos prevail."
See also Lyle Denniston, Scotus Blog here
(esp)(w/ a hat tip to Peter Goldberger)