Lawsuit Rapture

Harold Camping predicted that the Rapture would take place on May 21, 2011. He was, um, wrong. This was not a surprise. He continues to insist that the world will actually end on October 21.

What’s a little more interesting is that Camping and his organization, Family Stations, Inc., solicited money donations from people at the same time they were predicting that the world was about to end, and continue to do so to this day. This raises the issue of whether those donations are being solicited by way of fraud or unlawful business practices. There are some interesting issues raised by the linked request for investigation and prosecution, and it gives me a chance to show all you non-lawyers out there a little bit of how the secret sauce of litigation is made.

As a threshold matter, I have to concede that Camping’s belief was likely sincerely misguided, as opposed to maliciously misguided. That may well be a factual defense to a criminal prosecution for most kinds of fraud. I also have a significant Constitutional qualm about criminally prosecuting someone for engaging in speech that is, at least in part, protected by the First Amendment. But there are other options.

Camping and his organization solicited money while they were saying the world was nearing its end. People sold their cars, quit their jobs, and so on — that works a harm not just on individuals but on the public as a whole; this caused a drag on the economy, a disruption to normal life, and may well have scared some people unnecessarily. So Attorney General Harris has three options: she can pass, she can file criminal charges for criminal fraud, or she can refer it to the civil division and file a civil suit on behalf of the People for a cause of action called “Unlawful Business Practices” under California’s Business & Professions Code § 17200 (FFRF cites section 17500 in its letter, linked above, which would be the right section for a criminal prosecution, but I’m exploring the civil option here).

The civil suit has the advantage of a lower burden of proof and a comprehensive remedy requiring Camping to disgorge (that is, “refund”) the donations he received in response to his campaign, without having to shut him down forever or put him in prison for having made statements that are, in part, religious speech protected by the First Amendment. He can preach about the end of the world all he wants. But he can’t tell people things he has no particular reason to believe to be true, in order to get them to send him money.

Camping can afford and will hire good lawyers to respond to this. They would respond with a motion to dismiss the case as suppressing constitutionally-protected speech under Code of Civil Procedure § 425.16, our anti-SLAPP statute. That motion would require the People to demonstrate a “probability of success on the merits,” meaning a demonstration that as a matter of law, Camping’s solicitation of money in conjunction with his predicitons of the imminent Rapture are not protected under the First Amendment, and as a matter of fact, that Camping received money in response to this media campaign and not some other kind of activity.

Since the anti-SLAPP statute serves as a temporary bar to discovery, the attorney general will need to use other avenues of investigation to prepare to meet that motion. Camping’s group is, no doubt, a not-for-profit public benefit corporation, which means that its books and records are subject to regular audits by… the Nonprofit Division of the Attorney General’s office. So the first step will be for that division of the office to request Camping to cough up the paperwork and bank records. After that, the referral for civil prosecution under B&P 17200 can be made because there will be sufficient evidence to respond to the anti-SLAPP motion.

The remedy for successful prosecution under B&P 17200 is an order that Camping make restitution of all the donations he received that were responsive to his unethical campaign of predicting the end of the world, and that he pay the People’s attorney’s fees incurred in the proseuction of that claim. As a practical matter, if Camping loses the anti-SLAPP motion, that will effectively end the case since the “probability of success” standard is the same as the standard needed to ultimately win, and there is no real need for either side to do much further investigation at that point. In the meantime, Camping will certainly feel like he’s being prosecuted (and preach endlessly about his status as a martyr, no doubt), and most members of the public won’t distinguish between a state-filed civil suit and a criminal action anyway.

B&P Code 17200 has a limitations statute of four years. So don’t look for any such civil suit to get filed directly against Camping any time soon — the AG will take her time doing her “routine audit” and completing the follow-up investigation before making a direct filing. But this seems to me to be the best way for the AG to go, and it would be just and fair that she do so. Besides, I really want to know what answer Camping is going to give to the question, “So if the world was really about to end, what use was the money going to be to you?”