Michael Horne
Plenty of Horne

Kaye to Pay in Tossed RICO Suit — Updated!

By - Jul 12th, 2006 12:00 pm
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“Only a Fool has Himself for a Lawyer”
–proverb

On September 13th, 2005, Atty. Joe Kaye filed a lawsuit on his own behalf (“pro se”) in U.S. District Court for the Eastern District of Wisconsin alleging a violation of federal Racketeer Influenced and Corrupt Organization Act (RICO) by a number of entities, including the City of Milwaukee, Ald. Michael D’Amato, Julilly Kohler, Lincoln Fowler and others, claiming they conspired to wrongfully deny him the opportunity to buy and develop city-owned real estate.

The riverfront property at 1142-58 E. Kane Place was eventually sold to Kohler, who had been vice-chair of the City of Milwaukee Plan Commission.

On July 11th, 2006, U. S. District Judge J. P. Stadtmueller dismissed the case, finding it to be frivolous, and ordered sanctions against Kaye, including that he “reimburse the defendants for their reasonable and necessary attorney’s fees.”

Kaye made many allegations in his complaints, including behind-the-scenes machinations between Kohler and fellow commissioner Fowler; that Ald. D’Amato collaborated with officers of the East Village Association [EVA] to create a historical preservation district that would exempt Kohler’s proposed development; that D’Amato, Kohler and others engaged in a fraudulent scheme to manipulate the EVA election; that a wire fraud scheme existed; that D’Amato stole a yard sign from a neighbor; and that D’Amato’s actions constituted theft and extortion.

The allegations were contained in a rambling 19 page complaint riddled with grammatical and spelling errors, reminiscent of “Riddley Walker,”a post-apocalyptic cult novel of which Kaye is apparently fond.

His business address on court documents is listed as “Grooling and Smarling, 7355 N. Green Bay Av., Glendale.” “Grooling and Smarling” are neologisms introduced in the novel, which is either gibberish or inspired, depending upon the reader. [Editor’s note: It is gibberish.]

The city attorney’s motion in November, asking to dismiss the suit, called Kaye’s case “a rambling, disjointed and unsupported complaint that fails to state a claim.

“[Kaye’s claims are] fatally deficient in every material respect … [and are] linguistically and logically incoherent.”

In other words, the sort of case one might find from a jailhouse lawyer, but not from a licensed attorney.

In the court’s ruling yesterday, Stadtmueller said, “While we treat pro se litigants gently, a pro se attorney is not entitled to special treatment,” the veteran jurist ruled. “Although the court liberally construes allegations in a pro se litigant’s complaint … the court does not apply this principle of construction to Kaye’s complaint because Kaye is an attorney.”

He added, “Kaye does not specify the many victims, the time frame involved, the five separate schemes or the distinct injuries. Kaye does not cite to any allegations within his complaint or to any exhibits.

“Kaye’s RICO claims must be dismissed for another reason: Kaye has not properly pleaded the existence of an enterprise. … Each of the RICO claims, therefore, fails to state a claim upon which relief may be granted.

“Kaye should have known that his RICO claims had no legal basis,” he added.

The amount Kaye must pay in attorney fees is not known at this time, but it could be considerable. The city attorney, for example, hired Foley & Lardner, the state’s oldest and largest law firm, to assist it. Kohler likewise hired an attorney.

If you would like to send some business his way, to help with the bills, you may contact him at the address above. Or, perhaps the folks who talked Kaye into filing this suit might ante up. But chances are you could stuff the tip jar at Wolski’s with hundred dollar bills every day for a month and not have enough to cover the bills. (We’ll tell you the totals as they become available.)
(See milwaukeeworld’s original posting for more information.)

[Author’s note: As has been mentioned before, I lived for many years in the adjacent property on E. Kane Pl. owned by Julilly Kohler and now incorporated into the proposed development site.]

Update:

According to a news release from Ald. Michael S. D’Amato, legal fees in the case may top $50,000.

The Milwaukee Journal Sentinel got around to reporting the story on Wednesday, including this inaccurate passage: “Stadtmueller did not state his reasons for granting the dismissal or the sanctions, which include an undisclosed amount for defendants’ attorneys’ fees.”

Reporter Gina Barton pulled that sentence out of the air, since Judge Stadtmueller, as readers of milwaukeeworld know, had plenty to say about his reasons.

Judge Stadtmueller’s Reasons

We’ll throw a couple more reasons at you, quoted directly from the court’s decision, signed by the judge:

“Kaye has not properly pleaded predicate acts of racketeering or a pattern of racketeering.”

“Because each of Kaye’s RICO claims requires that Kaye plead a pattern of racketeering activity, … he fails to state a claim against the City of Milwaukee Defendants.”

“Kaye describes conduct that does not constitute predicate acts.”

“Kaye does not sufficiently allege a predicate act of wire fraud in connection with the purported EVA election fraud.”

“Kaye is required to plead allegations of fraud with particularity … Indeed, Kaye does not allege, and Exhibit 56 does not reveal, who sent the document, when it was sent, or to whom it was sent. … Because Kaye fails to plead allegations of wire fraud with particularity, the court does not consider wire fraud to be a properly alleged predicate act.”

“Kaye does not specify the many victims, the time frame involved, the five separate schemes, or the distinct injuries. Kaye does not cite to any allegations within his complaint or to any exhibits.”

“Even if this court accepts Kaye’s allegations as true, the alleged predicate acts of bribery do not constitute a pattern of racketeering and Kaye’s RICO claims must be dismissed.”

“The moving defendants also argue that Kaye commits ‘the cardinal sin’ of alleging an enterprise. … If Kaye committed a cardinal sin in drafting his complaint, he is unrepentant in his response brief. Kaye improperly pleads the existence of an enterprise by describing the enterprise’s alleged purpose rather than its structure, duration or organization.”

“Kaye should have known that theft is not a predicate act under RICO; that the complaint does not allege facts that constitute extortion; that he must plead fraud allegations with particularity; that the alleged bribery scheme does not constitute a pattern of racketeering; and that a RICO enterprise is defined by its structure, duration and organization, not by its purpose and conduct.”

The above makes one wonder whether reporter Barton simply read the judge’s order and not his decision and his many reasons for ruling against Kaye and for imposing sanctions.

This article was originally published by Milwaukee World.

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