California Coalition is grateful that the materials we’ve made available at Weightier Matter, including the Powerpoint video and research libraries, have been well-received by so many families and children who have been harmed by Family Court professionals.
Among the hundreds of emails and phone calls we receive each month, the most common question is “how can I file a RICO action in my jurisdiction?” It’s a great question, and we’re eager to help, but unfortunately the answer is complex and depends greatly on factors unique to each jurisdiction. Therefore, our ability to give firm guidance is usually limited.
However, there are some common suggestions we can pass along to you based on our experience to date. What can you do to bring a RICO action in your jurisdiction? Here are a few tips.
While any individual can bring a RICO lawsuit, we suggest that potential RICO litigants consider finding other like-minded families within your jurisdiction (i.e., state or county) who can help with the grass-roots work. RICO and civil rights conspiracy cases are enormously complex, requiring pleading detailed facts to support claims describing the inner-workings of your jurisdiction’s Family Courts, lawyers, psychologists, social workers, and other related professionals. We have seen many parents attempting to fight alone fail. Organizing with others has many benefits that help you avoid common pitfalls.
Every jurisdiction has dozens of harmed litigants, yet it is likely that each individual who has been harmed has only seen one facet of the Family Law Community. By reaching out to others to form groups, litigants can “share notes” to find common illegal practices, bad actors, veiled relationships, and systemic behaviors that support RICO elements of enterprise, scheme to defraud, quid-pro-quo, and conspiracy. Litigants’ pooled knowledge can enable collection, analysis, and recordation of the foundation of a viable lawsuit.
Initial steps should be directed toward reaching out to other litigants, setting up initial meetings to share experiences, and moving toward solidifying relationships into a more cohesive and organized team. Creating a “tent” and “foundation” from which to build a more formal entity which may be able to join or support any eventual action is the initial goal. Identify existing resources such as special expertise. Perhaps you can recruit parents who are also lawyers, psychologists, or other professionals with special knowledge, contacts, or financial resources. The key is to reach out with the goal being creation of a more formal entity.
Establish Means of Communication: Assuring reliable, flexible, and confidential communications is key at this stage. You might consider immediately setting up an online group thread that is access-controlled such as Google Groups. Google Groups is easier than email lists, allows access control, opt-in or opt-out, communication to the entire list with a single email, and banning.
Members control their participation, change their email addresses, and post common or private messages. The service includes easy tools for file sharing and storage. It works well with other common resources on Google such as commonly-editable spreadsheets and documents. The manager/s of the group has control over who’s in or out, the level of security, and can monitor all activity. It’s free and easy to use.
Clear the Air: Your members likely look at their personal experience as unique to them, and perhaps private. Many of us left Family Courts with personal pain, fear, and unjustified shame. Many are understandably reserved about sharing. These emotions create blockage that impedes reform. By creating an open (but private to the group) non-judgmental environment to share experiences, you can achieve something like group therapy—an outlet to share, be heard, listen, and heal in common. This process may allow your group to share common experiences, and get beyond the “It’s all my ex’s fault” stage.
Complete healing isn’t necessary—or perhaps even possible. The scars won’t go away, but moving toward healing, even only a little, is key to prohibit the pain from blocking more productive thinking and behavior.
Distill the Facts: The “clear the air” stage also allows for collecting initial data. When an attorney considers taking on a client, the initial stage normally involves the client “getting it all out”—perhaps as much about psychotherapy as legal analysis. Hopefully the client in the process reveal facts that the attorney can use to help the client’s cause, but equally important it is therapeutic for the client who is assured “finally, someone who can do something cares enough to listen.”
California Coalition initiated this stage by sending emails asking everyone to “tell their story” or “give us a timeline and who’s who in your case.” In written form the group’s experience is preserved for use later, and people can take time to read and exchange ideas or common experiences—the “that happened to me too!” effect. The result is a body of common experiences, knowledge of resources, and source of ideas from which liability theories can be developed
Like group therapy, the open forum can be an attraction for group members that keeps them coming back, creating cohesion. The goal at this stage is “Get it all out” “share information and reactions” and “keep coming back.”
Identify Existing Resources: You’ll likely be surprised how many resources your group already has access to. When our President, attorney Cole Stuart, approached California Coalition we were suspicious of attorneys, but he related his own horrific divorce experience and explained he was just another parent who got screwed by the industry and courts. Stuart had previously worked with the United States Attorney’s Office in Washington, DC, working closely with the F.B.I. forensics laboratory, and thereafter practiced for many years performing forensic investigations as a lawyer. We soon accepted him, and hoped he would have answers to why parents are so badly abused by Family Courts and professionals. He shared his perspective, which confirmed ours, that the Family Law Community was the problem, not the litigants. Recruit attorneys!
We were lucky to have a psychiatrist in our group who also corroborated that Family Court psychologists are behaving contrary to professional standards. From our common knowledge we came to understand how custody evaluations are fraudulent. A county supervisor in the group shared his access to emails from the county bar that proved the county bar’s family law subsection was coordinating client fraud, perjury, and forging court documents. The former county government worker in the group confirmed that the common perception in county government was the family courts are badly broken and heavily influenced by outside money. A retired family law attorney in the group helped us identify the various “money trails” that influence the local Family Law Community. A retired cop shared his knowledge of how federal grant monies influence police training and policy regarding domestic violence.
By process of elimination we learned that the excuses the courts, attorneys, and government use—like “disgruntled litigant” or “crazy parent”—weren’t accurate, and that the Family Law Community is largely aware that they are illegal enterprises heavily influenced by money, power relationships, and politics—everything but law.
Once we understood the core problems within the industry, we began seeing the true enemy was not our ex, or even a specific judge presiding over our case, but the “behind the curtain” players who gain from the money flow and power plays within the local Family Law Community. Our members accepted a new perspective: Both ours and our ex’s attorneys were working together and with judges and psychologist evaluators to defraud and extort litigants. That turning point enables release from the low-level struggles in our individual cases, re-focusing energies against the true culprits.
At this stage, look for patterns, money flow, campaign relationships, personal connections, or common illegal activity or lies. Patterns of fraudulent or extortionate behaviors are potential “schemes to defraud” elements for RICO fraud claims. Through the process of “getting it out” you may discover a goldmine.
Tasking and Follow-Through: Through these stages it will become clearer which people have talent, time, energy, and other resources that they are willing (or can be persuaded) to contribute. Task people who have initial knowledge and inclination with continuing to build on their knowledge base through investigation. Ask members to generate reports, photos, documentation, or other evidence to be shared with the group. Designate a detail-oriented person to scour local government or professional group websites, the wider internet, and public records for news items, witnesses, speaking engagements, publications, campaign contributions, grant monies, and other facts relating to the bad guys. Designate a high-energy person to track tasking and rally meetings.
Information Maintenance: As the gold nuggets start falling out it may be helpful to create personal dossiers on targets. Obtain contact information, job histories, professional and personal memberships, friends and family, etc. You can circulate targeted or general questionnaires collecting information such as “who was your custody evaluator/attorney/judge?” “how much did you pay to whom?” “What happened/what went wrong?” and other relevant data, then save the data in folders accessible by the group. Provided the data is collected and maintained confidentially within the group and in preparation for litigation, it may be protected by litigation privileges. You can use the data later as the foundation for an attorney’s further investigation and in litigation.
Stay Active: Keep the group going. A common problem for reform groups is that litigants run a phase from “irate,” to “actively reforming,” to “out of gas,” to “moving on with life.” Preventing drop-outs and building numbers is crucial. Hold regular meetings, potlucks, dinner or coffeehouse gatherings, give out membership cards or t-shirts. Sending regular questionnaires and keeping the discussion updated with events keeps people active and involved.
At some point you may want to consider incorporating. California Coalition is formed as a Delaware public benefit corporation. A corporate entity is beneficial for many reasons including creating a separate identity from individual “disgruntled litigants.”
It can be a platform for lobbying, public relations, and fundraising. An association has litigation advantages down the road, including providing unique legal standing as an association, and non-profit fundraising. Delaware’s secretary of state has an easy online form for public benefit corporations. Simple corporate kits are available online and contain standard documents, seals, stock certificates, and more.
Litigation Advantages: When you’re ready to approach an attorney, an organization adds value to the relationship. The organization has already performed substantial due diligence investigation so the attorney’s initial time investment is smaller than usual. If the entity joins the suit it brings a respectable reputation often far more attractive than a single “disgruntled” client. Attorneys (and judges) who would look down their nose at an individual client may take a fresh look at a public benefit (or nonprofit) corporation with a good reputation and sensible community values.
Association Standing: By aggregating the individual client and the interests of the association members you can also assert the standing of similarly situated non-members state-(or county) wide. This is often overlooked but a powerful double barrel of individual injury (money but weaker standing for injunctions) as well as association standing (maybe no money but statewide/county wide injury for prospective relief). Standing for prospective relief (injunctions stopping judges from doing something illegal or declaring laws and practices to be illegal) can be difficult for individuals who perhaps can’t assert the necessary elements of standing such as the likelihood that they’ll be injured in the same way again. The association represents all similarly situated people, including those who have not yet been injured, and can overcome this standing bar. Joining both individual claims and association claims in a single lawsuit can be a very powerful “double barrel.”
Association vs. Class Action: Association standing is similar to a class action, but easier to achieve (class actions are challenging because in family court everyone’s injury is unique). The advantage of a class action is it captures small losses by a large class of people who were injured in exactly the same way (e.g., buying the same defective flashlight), but who would not sue individually because the product (flashlight) isn’t worth the cost of suit. Classes rarely seek prospective relief, but can seek money damages for the (slight) injury. Family cases usually have injuries so disparate they can’t qualify for class status. As an association you can sue with one or any number of similarly—but not identically—injured individual plaintiffs in the same lawsuit, achieving both monetary recovery for each member of the group as well as future relief to achieve more effective reform through judicial process.
Digging Deeper: From the grass roots database you can build more pointed investigations. Once you’ve identified targets you can focus aim and increase caliber by digging through the state and county bar association websites, family divisions of the county courts, family section of the state bar, local domestic violence, child custody evaluator, or other professional websites.
Dig into local charities’ and professional organizations’ sites to find names buried in their archives. There are dozens of divorce industry groups and thousands of professionals—digging to “connect the dots” builds evidence to create foundations for enterprise and conspiracy RICO claims.
Google a Single Site: A useful tool for searching an entire website with Google is the “site:” search operator. For example, a search of “site:sdcourt.ca.gov ‘restraining orders’” searches the entire San Diego County Court website for the term “restraining orders.” Through this site we found valuable information supporting our motion for preliminary injunction against the San Diego court’s use of illegal forms to obtain restraining orders. The same type of search may help uncover relationships between public and private entities. Google publishes a list of several helpful search operators here. There are many software tools which allow copying an entire site, examining the links between servers (government to private, etc.), and searching old versions of sites.
Court Calendars: Survey online court calendars monthly to chronicle which attorneys and cases are appearing before which judges. There may be patterns raising suspicion. Search professional websites for the names of judges or attorneys—perhaps they hold a position, gave a speech, wrote a paper. There are mountains of useful data that can be sifted for gems to build allegations of enterprise and conspiracy.
Courtwatch: Set up “courtwatch” teams to go into court and observe. A few members on a few days off sitting in court could uncover patterns and relationships.
Investigation takes time and diligence—but if the group is directed toward common goals of reform and litigation, and under an organization that can capture and organize the data, it is an invaluable investment. The key is efficient coordination of disparate group members. Articulate the overall investigation plan, assure everyone knows the big picture values and direction, knows specifically how what they’re looking for fits in, can contribute easily and meaningfully, and understands that their (volunteer) efforts support the group’s broader goals.
The investigation should be directed to uncovering facts that create the basic foundations of a RICO claim. If you haven’t already viewed our short video about RICO cases, please take time to study it thoroughly. We’ve also prepared tables and worksheets to assist litigants in building a case. An accurate, easy to understand article discussing civil RICO from a defendant’s perspective is here.
The key fundamentals of a RICO case are 1. identifying at least two predicate crimes; 2. identifying one or more enterprises; and 3. identifying property damage caused by the enterprise crimes.
Civil RICO plaintiffs base claims on predicate crimes in the same way that a United States Attorney’s office does. This allows a civil plaintiff to take advantage of the sweeping scope of state and federal criminal codes to capture entities causing harm. Start by looking at 18 U.S.C. § 1961 (1)(B)—the long list of federal crimes that may be the foundation of a civil RICO claim.
Crimes possibly relevant to family court include:
18 U.S.C. Sections:
- Section 1346—Honest Services Fraud (see video for detail). This includes bribes and kickbacks to an official or professional violating the law—including civil rights laws. Honest services fraud is a powerful claim for family court litigants because Family Courts often receive monetary benefits from federal programs such as Health and Human Services, Social Security, and VAWA grants. If your jurisdiction is receiving funding conditioned upon certain behavior, and that behavior has harmed you, you may have a solid claim against the court—including the judge himself—for honest services fraud.
- Section 1951—Extortion and Robbery (see video for detail). Extortion is defined very broadly under federal law to include use of force or fear to separate you from your property. In the Family Court context, fear of loss of your child (custody) or loss of your liberty (contempt), or the undue pressure of a settlement negotiation may qualify as force or fear.
Section 1951 also criminalizes causing property loss by use of a “color of official right.” “Color of right” will clearly apply to a policeman demanding a bribe, but also includes for example a judge forcing you to pay someone’s attorney’s fee, a psychologist or GAL fee, or any other demand—even if backed by a law—that separates you from your money. Recall that RICO defendants may not be entitled to immunity, so even a judge exercising judicial power causes you a property loss, it may be extortion under color of right.Section 1951 criminalizes robbery, which is essentially taking property from your person of the person of your family, or someone in your presence, by force or fear (see video for detail). If your former spouse took something from you or your family by force or fear, you may have a claim against them.
- Section 1952 criminalizes crossing state lines in aid of racketeering. This can be a very powerful cause of action if any person in your enterprise travels a part of their (enterprise-related) business, or if you former spouse lives in another state.
- Section 1959 criminalizes violence in aid of racketeering. If you or your family has been a victim of domestic (or any other type of) violence, you may be able to state a claim under this section.
- Section 1961 lists several dozen additional claims which may be relevant to your case, including debt peonage, obstruction of justice, and passport fraud. Study each section carefully.
State law predicate crimes:
Under 18 U.S.C. § 1961(1)(A) a plaintiff can also look to state criminal codes to assert predicate crimes. Any state felony statute criminalizing acts or attempts “involving murder, kidnapping, gambling, arson, robbery, bribery, extortion,” drug dealing, and obscenity peddling is a predicate crime.
Relevant to family court would be state laws prohibiting kidnapping (custody disputes), murder threats or attempts (domestic violence), robbery, extortion (see also federal law above), and bribery (improper payments to a custody evaluator, judge, attorney, etc.). Note that only felony state crimes may be predicates (“punishable by imprisonment for more than one year”).
Also note that the state crime doesn’t have to actually be “kidnapping” for example, but only “related to” kidnapping. Thus, theft of your car (grand theft auto is a felony) in order to kidnap your child in a custody battle is “related to” kidnapping. Perjury or forgery of papers to, for example, force you to abandon your home (robbery) may also be a predicate crime. A creative mind can help build a case.
Finally, attempt and threat (even if no crime is actually committed) qualify as predicate crimes.
Study your state’s criminal code to detect state felonies committed in your case. If the felony relates to a “core” racketeering crime (kidnapping, etc.) you may find additional grounds on which to build your case.
The second essential element of a racketeering case is that the predicate crimes be committed during the “conduct or participat[ion]” or an enterprise. Enterprise is an extremely complex, yet flexible concept. An enterprise easily includes a business, government agency or unit, law firm, court, or even an individual courtroom. Every formal organization, association, or group—legitimate or otherwise—is an enterprise. If the legitimate organization engages in two or more predicate crimes, it is a racketeering enterprise.
However it also includes “association-in-fact” enterprises that lack formal organization. Since 2009, cases in the United States Supreme Court and Circuit Courts of Appeal have eliminated many hurdles to proving the “enterprise” element. Association-in-fact enterprises today only require proof of one or more person/s or entity/ies (1) with a common purpose, (2) which are engaging in a course of conduct above and beyond the commission of the predicate crimes. Formerly cases had required a plaintiff alleging an association-in-fact enterprise to prove the enterprise operated like an organized business or gang, with clear roles, hierarchy, documentation, or leadership. These limiting factors are no longer required, giving civil plaintiffs far more flexibility in identifying an enterprise.
In the Family Court context, association-in-fact enterprises could be applied to virtually any person or group. For example, the professionals in your lawsuit (including yours, your former spouse’s, GALS, psychologists, etc.) are likely an enterprise. Your local divorce bar association is an enterprise. A specific group of “bad guy” divorce professionals who collaborate by exchanging business referrals or otherwise coordinate efforts is an enterprise. Local groups of psychologists who work regularly with certain judges are an enterprise. Your former spouse and his/her family is an enterprise. Your family mediator and your former spouse may be an enterprise. Any group of entities that has forged some common purpose that carries on beyond the mere commission of the predicate crimes (i.e., your spouse and her family will continue their relationships after they rob/extort you) can be an association-in-fact.
Once you’ve identified at least two predicate crimes committed by related persons, today defining enterprise isn’t difficult.
Civil RICO plaintiffs may only recover for property damage proximately caused by commission of a predicate crime. This limitation distinguishes RICO cases from other civil actions which generally permit recovery for personal injuries and general damages (pain and suffering, emotional distress). Property damage includes loss or damage to real or personal property, but also to lost business income, wages, and even prospective business advantage resulting from, for example, injury to your business or professional reputation following wrongful accusations during a divorce. Professional licenses are considered property, and loss of driving licenses and passports may possibly qualify as property loss.
One way Family Court plaintiffs may overcome this property damage limitation is to simultaneously bring RICO and civil rights conspiracy claims. Under federal civil rights laws, plaintiffs may recover traditional civil damages of personal injury, including general damages of pain and suffering and emotional distress. Our video touches on potential civil rights conspiracy theories and how they may be closely related to RICO recovery.
RICO plaintiffs may recovery attorneys fees, costs of suit, and interest as damages. Under RICO, successful plaintiffs automatically recover treble (tree times) damages, meaning a $100,000 property loss recovers $300,000.
Finally, under both RICO and civil rights conspiracy statutes, plaintiffs may recover punitive damages based upon a defendant’s abuse of color of law authority (oppression), fraud, and malicious intent—elements which are already necessary to prove a case-in-chief. Thus, unlike ordinary negligence cases, a finding of liability in a RICO/civil rights case provides a strong foundation for an additional award of punitive damages. Federal courts rarely strike down a jury’s determination of a punitive damage award, meaning a plaintiff may reasonably ask a jury to award punitive damages in multiples of three, five, ten, or even higher in addition to actual damages.
A unique feature of RICO damage calculation is that a plaintiff may recover for all property damage proximately caused by the crime. This opens up some unusual avenues for recovery not available with other civil actions. For example, defendant X commits fraud against person A, causing person A to default on a loan obligation to person B, in turn causing person B to suffer lost income from the loan, and costs and attorney’s fees in foreclosing on the loan to person A. Both person A and person B may recover from the defendant, even though person B was not defrauded, and defendant X was unaware of, took nothing from, and did not intend to injure person B. Under RICO any person injured “by reason of” a racketeering crime may recover from the person committing the racketeering crime.
In the context of a divorce or custody case, this causation rule means you can recover from anyone committing racketeering–even adversaries who normally are insulated from civil liability. For example, say your former spouse is defrauded by his attorney–inducing him to undertake expensive, unwise litigation, or hire a fraudulent custody evaluator. That attorney’s fraud or extortion costs your ex-spouse, but also costs you–in defending the unwise litigation or participating in a fraudulent custody evaluation. Under civil RICO, you can recover your property damage because you suffered it “by reason of” your ex-spouse’s fraud. In addition, if your ex-spouse’s attorney seeks recovery from you of the fees he fraudulently charged your ex-spouse for his fraudulent advice, you may be able to recover your own fees in defending the fraudulent action, as well as return of any fees your ex-spouse’s attorney actually collected (or attempted to collect) from you!
Conspiracy, Aiding and Abetting
Another unique feature of RICO liability is that a plaintiff may seek recovery from the persons actually “conducting or participating” in the predicate crimes as well as everyone else involved with the enterprise—even persons not strictly members of the enterprise. RICO’s intent is to stamp out racketeering crimes, and the statute gives broad powers to a plaintiff to root out the criminals themselves as well as anyone merely agreeing with or helping criminal activity. Thus, any person conspiring to commit racketeering, though not a member of the enterprise, may be liable if they agreed with the general purposes of the enterprise. Further, even persons not intending to support the enterprise’s purposes may be liable as aiders and abettors if they materially assist in the operation of the enterprise.
Thus a RICO plaintiff may set an extremely broad dragnet against those actually committing crime as well as anyone remotely involved with the enterprise.
RICO and civil rights conspiracy cases are extraordinarily complex, but can be extraordinarily powerful tools to clean up your jurisdiction’s Family Courts.
There is no immunity to crime, and given the magnitude of damages and extent of collaboration in each jurisdiction, you should expect a successful case to require substantial effort. That effort is best undertaken in coordinated groups of individuals working together to build a case.
In bringing suit, consider suing on behalf of both the organization as well as a specific group of individual plaintiffs. This “double barrel” can be a formidable litigation force, and may be far more attractive to an attorney considering taking your case.
California Coalition regularly works with attorneys who can handle part of a racketeering case, but are not as familiar with the diverse bodies of family law, federal litigation, constitutional law, and RICO. We are available to consult with your group or an attorney considering a case to assist in identification of strengths and weaknesses, and to suggest options for improving outcomes. When the time is right for you, please feel free to contact California Coalition for assistance.
Good luck families.