Courier Journal article says Lambert footnote ill advised. LawReader says Lambert unfairly treated on this one

Andrew Wolfson writing for the Louisville Courier Journal quotes a number of legal authorities on the topic of Chief Justice Lamberts footnote in a decision regarding immunity of public officials from civil suits. The controversial footnote said: “though unsettled, there is a strong argument in favor of barring criminal charges against a sitting executive for actions taken while in office”…

In a prior article posted on LawReader and in an interview with Wolfson, LawReader Senior Editor Stan Billingsley made the point that the footnote was merely dicta, and that it was not unusual for judges to add dicta to their rulings.  Billingsley further argues that Lambert did not rule that Fletcher or any other executive was immune from prosecution prior to impeachment. He only made a comment that there was an argument in the law about such a theory.  “The footnote was surplusage, but it is not unusual for authors of legal opinions to comment on other arguments that might show the outer parameters of the pending legal issue.”  Billingsley who disagrees with the cited argument that there is a “strong” argument for executive immunity from prosecution, has nevertheless written that Lambert is being unfairly criticized for a scholarly comment.

In the Courier Journal article, Wolfson wrote:
 Lambert wrong, legal experts say   Fletcher footnote called ill-advised

By Andrew Wolfson  Reprinted from The Courier-Journal June 25, 2006

Legal experts say Kentucky Chief Justice Joseph Lambert showed poor judgment when he weighed in on whether Gov. Ernie Fletcher may be prosecuted while still in office. They also say he got it wrong.

In a footnote to a June 15 Supreme Court opinion, Lambert suggested that Fletcher may be prosecuted only if impeached first. But five sitting governors in the United States have been convicted of crimes over the past 30 years, and U.S. Justice Department spokeswoman Donna Sellers said in an interview last week that “there is nothing to prevent a sitting governor from being prosecuted.”

Several nationally recognized experts on legal ethics also said that it was ill-advised for Lambert to comment on a roiling political controversy, and that he undermined confidence in the judiciary by appearing to aid a friend and fellow Republican.

“Given the current charges against the governor, I believe it was an error in judgment,” said New York University law professor Stephen Gillers.
Lambert has declined to comment, saying he doesn’t talk about pending cases. But his general counsel and chief of staff, Jason Nemes, issued a statement Friday defending the footnote. Nemes noted that “highly regarded legal scholars,” including Laurence Tribe of Harvard and Erwin Chemerinsky, of Duke, have said that the president of the United States, as chief executive, cannot be prosecuted while in office because it would interfere with his ability to run the government. Nemes said the same logic applies to the governor, as a state’s chief executive.

Nemes also noted that prosecution of sitting governors in other states isn’t relevant unless their state constitutions are the same as Kentucky’s.
And he cited a 1951 case in which Kentucky’s high court held that a judge who was indicted on a charge of misfeasance in office could not be prosecuted because impeachment “sufficiently protects the public interest” and “must be considered exclusive.”

In an interview last week, Justice Bill Graves, who joined in the majority opinion in which the footnote was inserted, defended it as “an interesting side point.”
He also noted that “you can logically infer that impeachment should come before prosecution because otherwise an aggressive prosecutor could indict a sitting governor and put him in jail on charges that aren’t well founded. You would have a coup d’etat.”

Lambert offered the footnote in a 4-2 ruling against state employees who claimed they were inadequately paid in 2002 when the General Assembly adjourned without passing a budget. The suit named the governor and turned in part on his immunity in civil cases.

Lambert wrote that “though unsettled, there is a strong argument in favor of barring criminal charges against a sitting executive for actions taken while in office” because both the federal and state constitutions say that after an officer is impeached, he ” ‘shall be nevertheless liable and subject to indictment, trial, judgment and punishment.’ ”

Lambert suggested that language means a governor can only be prosecuted after he is impeached. The General Assembly has taken no steps to impeach Fletcher.

Heated debate

The footnote, one of 36 in the 13-page majority opinion, doesn’t carry the force of law, but it ignited a heated debate in blogs and the legal community.
One of Lambert’s colleagues, Justice William Cooper, who is retiring, was quoted in the Lexington Herald-Leader last week as saying Lambert’s comment was “kind of inane — not only doesn’t it have to do with this case, but the argument was specious.”

The controversy is one of several recent ones involving Lambert, who was re-elected chief justice by his colleagues earlier this year.
The Courier-Journal reported last month that Lambert wrote to Fletcher and got him to speed up the start date of an anti-double-dipping law that would penalize a campaign opponent of Lambert’s wife, a family court judge seeking re-election. Lambert said the move had nothing to do with his wife’s candidacy.
Lambert also was the subject of an ethics complaint that accused him of failing to recuse himself from a decision upholding a $14.5 million award for a coal operator who had funneled $9,000 in straw-man contributions to Lambert’s wife’s 2000 election campaign.

The Judicial Conduct Commission dismissed the complaint in March, which Lambert said showed he did nothing wrong.
Writing about the June 15 footnote in LawReader, a nonpartisan newsletter for lawyers, senior editor Judge Stan Billingsley, a retired district judge, said he could find no case anywhere supporting the proposition that a governor is immune from prosecution while still in office.

In an interview, Billingsley said Lambert misinterpreted the impeachment clause in the U.S. and Kentucky constitutions. Billingsley and other analysts say the framers included that language — that impeached officers are nevertheless subject to prosecution — not to say they had to be impeached before being prosecuted, but to keep them from claiming they couldn’t later be prosecuted because of the protection against double jeopardy.
In state and federal prosecutions, the governors of Maryland (Marvin Mandel, 1977), Alabama (Guy Hunt, 1993), Arkansas (Jim Guy Tucker, 1996), Arizona (Fife Symington, 1997) and Ohio (Bob Taft, 2005) all were convicted of various crimes while in office.

Fletcher’s criminal defense lawyer, M. Stephen Pitt, declined to say whether the governor would mount an immunity defense. His motion to dismiss charges of conspiracy, official misconduct and political discrimination is due July 7 in Franklin District Court, where Fletcher is scheduled for trial Nov. 8.
There is no rule barring judges from making comments in footnotes, even about future cases.

But George Mason University law professor Ronald Rotunda said Lambert’s inclusion of the footnote was “not prudent.” Professor Monroe Freedman of Hofstra University said it is “injudicious to use a dictum on such an important and complex issue without its having been thoroughly briefed and argued.”
Retired Kentucky Court of Appeals Judge Michael McDonald said the footnote was “ill-advised” because it could cause “a lot of mischief in the lower courts.”
McDonald added that he was surprised that none of the other court justices commented in writing about the footnote, including Cooper, who dissented.
“I know when I wrote things that were goofy,” McDonald said, “other judges said, ‘You ought to think about that.’ ”

Reporter Andrew Wolfson can be reached at (502) 582-7189.


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