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A Radical and Unlawful Power Grab over
Private Charity and Religion

The Model Protection of Charitable Assets Act
Oversight and Investigations

Mark J. Fitzgibbons¹

Contents

I.  There Are Far Too Many Troubling General Provisions in the Act for It to Be Adopted by Any State

II.  Show Us Your ‘Estate’ Papers

III.  Investigations under POCAA – Good Reasons for States to Reject It, and How to Handle and Even Defeat Administrative Subpoenas Under It

IV.  The Act Violates the Fourth Amendment by Reducing the Standard of ‘Cause’

V.  Application of Search Powers to First Amendment Freedoms

 

Introduction

The Protection of Charitable Assets Act (the “Act,” or “POCAA”), originally called the Oversight of Charitable Assets Act, was adopted at the July 2011 meeting of the Uniform Law Commission.²

POCAA was adopted under the claim for the need to clarify or make more uniform the authority of state attorneys general to correct certain abuses involving charitable assets.

Instead, however, POCAA expands the power of state officials, including those who are not attorneys general.  The Act is actually a radical expansion of power of the state over private charity and even religion.  Additionally, certain key provisions of the Act fly in the face of constitutional limits on government authority.

Through subtle and not-so-subtle defining provisions and reporting requirements, the Act actually would invite government abuse of private charity and/or religion.  The investigation powers under the Act create what would be unlawful trespasses involving private property.

This paper focuses mostly on POCAA’s investigation provisions since, in my opinion, those are the most susceptible to being misused and actually constitute violations of law restricting government authority for searches.  However, this paper will touch briefly on a few other provisions of the Act that demonstrate POCAA is actually an expansion, not clarification, of state authority with regard to charitable and religious entities, assets and rights.

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To read the entire paper, click here.

¹ President of Corporate and Legal Affairs, American Target Advertising, Inc.  This paper is a modified and expanded version of a presentation at the 48th Annual Washington Non-profit Legal & Tax Conference, March 22, 2012, Arlington, Virginia.

² You may link to the text of the Act here:

http://www.law.upenn.edu/bll/archives/ulc/ocaa/MPOCAA_Final_2011.pdf

 

 

1 comment to POCAA's Radical and Unlawful Power Grab

  • Julian Alien

    Well,Golly Gee I am not sure what Republican candidate wants to protect my Constitutional rights?I heard Mitt Romney is a Democrat in drag,Newt is a cheerful guy with a terrible record,Santorum is Frothing at the mouth for war,and then there is this guy who everyone is saying is crazy,but he is making more sense than the other candidates,and his name is Ron Paul.

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