580). RICO's language is not to be construed differently in its criminal and civil provisions. Sedima, 473 U.S. at 492, 489; Beauford v. Helmsley, 865 F.2d 1386, 1391 (2d Cir. 1989) (en banc). Look to the policy of the statute. Sedima, 473 U.S. at 493; Russello, 464 U.S. at 24; Turkette, 452 U.S. at 590. Look to its legislative history. H.J. Inc., 57 U.S.L.W. at 4953; Sedima, 473 U.S. at 486; Turkette, 452 U.S. at 586. The statute is to be read broadly and liberally. H.J. Inc., 57 U.S.L.W. at 4956 ("drafted broadly"); Sedima, 473 U.S. at 497-98 ("to be read broadly"); Russello, 464 U.S. at 21 ("concepts of breath"); Turkette, 452 U.S. at 593 ("preventive and remedial"). "[T]he fact that RICO... [may be] applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth." Sedima, 473 U.S. at 499 (citing Haroco, 747 F.2d at 398). 1. RICO Violations Were Pled and Proven by Suffolk County. Prior to the trial of this action, the District Court specifically upheld Suffolk County's "well-pleaded allegations" of RICO violations. Suffolk County v. Long Island Lighting Co., 685 F. Supp. 38, 40 (E.D.N.Y. 1987). After trial, the Court conceded that a RICO violation had been established, holding: "Nor can it be said that the evidence failed to establish the elements of a RICO claim."14/ The Court pointed out that, "The jury's verdict was supportable on its view of the facts and the credibility of the witnesses," 15/ despite disagreement with that view. "Despite the court's view of the evidence, it cannot be said that the jury was unreasonable in taking a contrary Nonetheless, the District Court overrode the jury verdict, reversing its own 14/ Amended Mem., p. 12. 15/ Id. 16/ Id. at 13-14. previous ruling in the process. Rather than follow the clear teachings of the Supreme Court, the District Court implied17/ an exception in the statute, which has no basis in the text, plain meaning, policy or legislative history of the statute and which, not only narrows the statute in this situation, but threatens to undermine its general application, both criminally and civilly. Either the exception is principled or it is not. If it is principled, it should extend to all similar situations. W. Douglas, We The Judges, 409 (1956) ("the law must reach all in like circumstances or conditions"). Lines will, of course, have to be drawn, but they must be based on "rational considerations." 10 E. 4th St. Bldg. v. Callus, 325 U.S. 578, 584 (1945) (Frankfurter, J.). If the exception is not principled, it should be rejected out of hand. What is the basic rationale of the exception? The indispensable principle seems to be that the activity is "regulated." No reason exists, therefore, to confine the exception to civil litigation. If it were limited to civil litigation, it would pose the striking contrast of the complaining witness in a criminal case under RICO being without a remedy in a civil case under RICO, a result hard to justify under a statute that expressly provides for criminal and civil sanctions to vindicate its violation. As such, it threatens to undermine the criminal enforcement of the statute. 17/ It may be useful here to call things by their right names. When matters are "implied" in statutes, Bentham's sharp structures become relevant. For him, such "fictions" were "wilful falsehood[s] having for ...[their] object the stealing of legislative power, by and for hands which could not, or durst not, openly claim it...." I.J. Bentham, Works at 2443 (J. Browning ed. 1843). "The short answer [to arguments resting on implied exceptions] is that Congress did not write the statute that way." Russello, 464 U.S. at 23 (1983) (quoting United States v. Naftalin, 441 U.S. 768, 773 (1979). Legislative power must remain in the hands of legislators. - Of the considerations offered to justify the exception, only one is limited to state regulation. As such, it should be equally applicable, if the regulation were federal. No reason exists to limit the exception to utilities, that is, heat, power, light, gas, water, cable TV, phones, etc. As such, it should be equally applicable to banking, insurance, welfare and pension funds, securities, etc -- any "regulated" activity. No reason exists to limit the exception to rate setting. Economically, all regulation impacts on cost and price. Any regulated industry would, therefore, fall within the exception. But not only industries are regulated. What of professions? As such, it should apply to doctors, lawyers, accountants, etc. This analysis of the scope of a principled "regulated" exception could continue, but once the rationale of the exception is explored at all even less than to the extent of the limits of its logic it is immediately seen that only arbitrary line drawing could cabin it. The mind shudders to think of the litigant, lawyer, and judicial time to say nothing of the loss of forests to make paper that will be expended exploring the validity and contours of the District Court's novel technique for limiting the scope of RICO. But the carving out of such exceptions to general categories and their limitation to particular situations is essentially a legislative function, best performed, not by courts, but legislatures. The District Court wrote an interesting essay on federalism; it would have better spent its time exploring the doctrine of separation of powers. The Founders not only created a federal system, they also rejected a "Council of Revision." J. Madison, Notes of Debates in the Federal Convention of 1787 61, 461 (Ohio University 1966) (motion for council of revision failed 81-3) ("Mr. Gerry [of Massachusetts] doubt[ed] whether the judiciary ought to form a part of a ... [council of revision]... It was quite foreign from the nature of [their] offices to make them - - ... - judges of the policy of public measures"). This Court should follow the Founders, not the District Court. 2. Primary Jurisdiction: Inapplicable Factor for Narrow Construction of RICO. If the scope of the "regulated" exception is largely without rational limitation, the justifications offered in adopting it are equally inapplicable. As the District Court correctly noted: Pursuant to the doctrine of primary jurisdiction, courts stay or trative agency of the issues within the latter's special competence. Usually, primary jurisdiction operates to suspend the judicial process during referral of "special competence" issues to the administrative body for its review. 4 K. Davis, Administrative Law Treatise 81 (2d ed. 1983). It does not result in dismissal on the merits; it also usually operates before a matter is tried, not afterwards. In this respect it differs from exclusive jurisdiction, granted to an agency to resolve issues subject only to limited judicial review. Id. at 84. Indeed, the District Court properly conceded:19/ ... [T]he ... [Public Service Commission] has no jurisdiction to try a RICO claim as such, although it may consider the Nevertheless, the District Court dismissed, rather than stayed the action; it also acted not before the proceeding had begun, but after it had terminated. The District Court's reliance upon the primary jurisdiction doctrine as a factor to use in construing RICO was, moreover, misplaced because of the faulty premise that Suffolk County's claim for relief was premised on the rate-making determinations of the Lighting Company ("LILCO") perpetrated on the PSC, as well as the County and its residents in obtaining rate increases by misrepresentations. The District Court itself explained the continuing nature of the fraud long after rate hearings thusly: The increased rates on LILCO's electric bills cannot be considered passive after-effects of a past fraud, as defendants argue. The monthly collection of fraudulently inflated payments constitutes active, continuing fraud, just as would continuing collection of vigorish by a loan shark in a criminal prosecution. This premise is significant in undermining the entire judgment of the Court, for the PSC has no "special expertise" regarding fraud. Indeed, fraud is traditionally the province of courts and juries. The Supreme Court succinctly stated the distinction in Great Northern Railway Co. v. Merchants Elevator Co., 259 U.S. 285, 305-306 (1922): To determine what rate, rule or practice shall be deemed reasonable for the future is a legislative or administrative function. To determine whether a shipper has in the past been wronged by the exaction of an unreasonable or discriminatory rate is a judicial function. In Nader v. Allegheny Airlines Inc., 426 U.S. 290 (1976), the Court rejected the argument that the Civil Aeronautics Board had primary jurisdiction over plaintiff's fraudulent misrepresentation claim for the airline's failure to disclose its practice of overbooking, rather than the reasonableness from a regulatory standpoint of the practice itself, noting: The standards to be applied in an action for fraudulent misrepresentation are within the conventional competence of the courts, and the judgment of a technically expert body is not likely to be helpful in the application of these standards to the facts of this case. 20/ Suffolk County, 685 F. Supp. at 40. |