Damn the Widows and Orphans Courts unlimited Executive Pardon ruling makes hard law

An editorial by Stan Billingsley, Senior Editor of LawReader.com

Many years ago in a UK law school class on contract law, Professor Flickinger in discussing a case from the textbook called on me to opine as to the successful party on a particular wrongful death claim.  Being full of first year student ignorance, and not being clear on the point of law being discussed, I answered that I felt that the widow involved in the case would win on that point as there would be sympathy for her.
     Professor Flickinger turned cherry read, closed the case book, raised it high over his head and slammed it into the floor as hard as he could and shouted:
           “Damn the widows and orphans! They make bad law!?
    Some thirty years later I still remember the point he so graphically made to everyone in the class.  (I have often wondered if he had not masterfully set me up for that demonstration.)
   Over my years of practice and many years on the bench, I have seen many occasions where I was guided by his teaching.  Once while advising the local Planning and Zoning Board, I advised against allowing a mobile home to be placed in an area of the city where they were forbidden, but was overridden by the board who had taken pity on the family they had allowed to be excepted from the zoning laws due to the fact there home had recently been burned down.
 The Board paid dearly for their surrender to their hearts and thereafter spent three years and a great deal of litigation to get the mobile home removed.  They couldn’t believe the number of other cases that came before them and asked for the same exemption.
      Professor Flickinger was correct.  You can’t make an exception just to solve a special case or to make an exception for a sympathetic figure or cause.  This legal maxim has also been expressed as “Hard cases make hard law.?
     Such exceptions set a precedent, and may be very hard to explain in the future and may be even harder to live with as others attempt to benefit from the precedent you have created.  By giving into a hard case, you may cause a greater harm in the long run.
     Professor Flickinger’s example came to mind this week while I read the Kentucky Supreme Court’s decision in Fletcher v. Stumbo – Graham, where they upheld the application of Governor Fletcher’s pardon powers, and limited the power of the Grand Jury to investigate, report and indict wrongdoers.
   Justice Cooper wrote a dissent to that decision that may be one of the best reasoned dissents ever written in the history of Kentucky jurisprudence.  Justice Scott added his dissent which also was well reasoned.  Justice Wintersheimer joined in the dissent.
   One can only wonder what harm was done to Grand Jury investigations in the future, and the resulting expansion of the Executive’s pardon powers. This issue is not about Republicans or Democrats, neither have cornered the market on abuse of power over the years, and can not reasonably be expected to be free of abuses of the law in the future. But this precedent will linger long after we all are gone. It is hard law indeed.
    The Fletcher decision permits the unrestrained power of future governors to call for an annual barbecue at the mansion, and issue blanket pardons for all who do their bidding.
   There are no checks or balances left in place to prevent an outright criminal conspiracy that could even allow the assassination of whistleblowers or political opponents.
The majority decision attempts to even hide the names of the suspects from public view. Even Mafia bosses will be envious of such unrestrained freedom from investigation and criminal prosecution.
   Government operates largely on trust. Trust that any elected official will conform to a sense of  respect for the law and legal traditions that protect the public interest. We have the right to expect that if a law is broken by a public official, that it will be investigated and if probable cause is found to exist that such an offense did indeed occur, that the official will be tried before a jury.  We all pay lip service to the idea that all men are equal before the law.
    The majority of states require that a person be accused, tried and convicted before the governor of the particular state can grant executive clemency.  They must admit to their criminal conduct before the pardon applies.  With the Kentucky ruling, the governor can issue blanket pardons without their ever being a criminal charge investigated, there need be no admission of guilt by the pardonee, and to add insult to injury, the decision handcuffs all grand juries from issuing indictments after the pardon has been issued.  The governor in Kentucky doesn’t even have to specify the guilty party he is pardoning, and need not identify the facts of the crime pardoned.
If those in power are exempt from the application of the criminal laws, and even public disclosure of their acts are restricted, then we have made some public officials creatures above the law….and that is a place where tyrants reside.
    When that public trust and sense of fair play is broken, then perhaps it is time to consider the right of future governors to grant unlimited blanket pardons that shield him and his supporters from any investigation or prosecution.
      If this governor can conceive of such a plan, and he clearly has, then we can surely expect future governors to consider a similar strategy when they get their backs against the wall of some future scandal.
  While it is possible a future court could overrule the Fletcher v. Stumbo decision, the only sure remedy for this problem is for the legislature to draft a constitutional amendment for consideration by the voters, which would limit the granting of non-reviewable pardons when they benefit the person granting the pardon and insulates him against prosecution and investigation. There is a great deal of precedent in other states for limitations on a governor’s pardon powers. These precedents are listed in Justice Cooper’s dissent.
   The polls show that members of both political parties are troubled by the actions of this governor with regard to his use of the pardon power.  This is to important to be a partisan issue. This is a Kentucky issue.  The solution calls for a Kentucky solution. 
To read the full text of this decision including dissents go to: 2005-SC-001009-MR.pdf

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