LawReader legal analysis: The Melcher Official Act Immunity Doctrine Ruling. Where does it take us?

Legal discussion by Stan Billingsley, Senior Editor of LawReader.com:

      Special Franklin District Court Judge David Melcher ruled orally from the bench on Friday Aug. 11th. that the Governor could not be prosecuted for alleged criminal acts which formed the basis of an indictment by the Franklin County Grand Jury, until he was impeached or until he left office.  The ruling stayed the prosecution until that time.
 

      We have the greatest respect for Judge Melcher. He is a hard working and respected Judge.  We do however, respectfully dissent from his legal conclusions in this important case.  This case applies not only to this governor, but to all constitutional officers, currently in office and those to come in the future if this doctrine is not contested by an appeal.  
 

    The Doctrine of official or Executive Immunity has had a history of great press but minor successes in the courts.  The extension of this doctrine to serve as a defense against criminal prosecution has in the entire history of the United States found no greater authority than the ruling of Judge Melcher in the Franklin District Court.
 

   Judge Melcher’s creation of a new legal doctrine which immunizes constitutional officers from criminal prosecution while in office, flies in the face of the basic philosophy on which this country was founded, that no man is above the law, not even the chief executive.
 

Thomas Paine, Common Sense 57 (Philadelphia 1776).
  “…in America THE LAW IS KING. For as in absolute governments the King is Law, so in free Countries the law ought to be King; and there ought to be no other.  Thomas Paine, Common Sense 57 (Philadelphia 1776).
 

  There is no Kentucky court ruling or statutory enactment that provides support for Judge Melcher’s ruling. On the contrary there are examples of laws which provide for the prosecution of government officials. We suggest that Judge Melcher has confused civil immunity with criminal immunity.
 

   There is a long line of state and federal authorities which uphold executive, legislative and judicial immunity for official civil acts of the officer.  This immunity extends however only to immunity from civil lawsuits against the officer. Even then the doctrine is not a complete immunity, and the case law spells out many exceptions to the general theory of civil immunity.
 

    In 2002, two bright young Supreme Court law clerks wrote a very credible discussion of the current state of the law in Kentucky regarding immunity of public officials.  In their discussion, which they graciously allowed us to publish at www.lawreader.com, they discuss the landmark case in this area of the law, Yanero v. Davis, 65 S.W. 3d 510 (Ky. 11/21/2001) 
RECENT DEVELOPMENTS IN SOVEREIGN IMMUNITY
By Hays Lawson & Adam Shadburne
A. Official Immunity
When successfully invoked, official immunity is absolute immunity. But Yanero holds that the invocation of official immunity depends on both the position an individual holds and the function performed upon which a claim against the individual is based. For example, those entitled to official immunity include: legislators in the performance of their legislative functions, judges for all their judicial acts, and prosecutors with respect to the initiation and pursuit of prosecutions.[18] Yanero stresses that official immunity is afforded to public officials and employees only when there are strong public policy reasons to protect the office itself.[19] Its purpose is not to protect the public official or employee, but rather the office held.[20] the burden is on the defendant to show that he or she is entitled to absolute immunity.[25]
The official immunity discussion in Yanero serves to emphasize that official immunity is the exception when a public official is sued in his or her individual (capacity) …?
   Judge Melcher mentioned the term “official act? in his oral ruling.  That term is frequently used in the discussion of immunity from civil lawsuits by legislative, judicial and executive officers.  This is also known as the doctrine of Sovereign Immunity. Again we must point out that there is no Kentucky case ruling that says this doctrine of civil immunity extends to criminal prosecutions.  The discussion by Lawson and Shadburne we believe correctly demonstrates that “immunity?of public officials is almost case by case situation.  They demonstrate the history of the law which knocks down any assumption that “immunity? is absolute…except for the state itself, and is almost never absolute, as to the person holding the office, for his personal acts or acts outside of his legal authority.
 

      In the reading of the law, one is required to cite authorities for their decisions.  The personal opinions of a particular judge is rarely considered, unless it is backed up with footnotes or citations of other cases which justify the author’s conclusion.  In determining the merit of a legal decision one would first look for rulings of the Kentucky court or the Kentucky legislature.  Next one would look at rulings of the U. S. Supreme Court and the Federal Courts.  Next one would look for rulings of other states, then other countries, and at some point along the way one would look for learned treatises of legal scholars.
 

When applying these standards to the Melcher ruling, we find no Kentucky case, no Kentucky statute, no Federal case, no case of a sister jurisdiction and no learned legal treatise that reaches the conclusion that a governor is immune from criminal prosecution while in office.
 

     In United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531 (1971) the U.S. Supreme Court demonstrated that an official act could be criminal and prosecuted under the criminal law.:
 

“Another count of the indictment against appellee alleges that he ‘asked, demanded, exacted, solicited, sought, accepted, received and agreed to receive’ money ‘for and because of official acts performed by him in respect to his action, vote and decision on postage rate legislation which had been pending before him in his official capacity. . . .’
  This count is founded on 18 U.S.C. § 201(g), which provides that a Member of Congress who ‘asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself for or because of any official act performed or to be performed by him’ is guilty of an offense. Although the indictment alleges that the bribe was given for an act that was actually performed, it is, once again, unnecessary to inquire into the act or its motivation. To sustain a conviction it is necessary to show that appellee solicited, received, or agreed to receive, money with knowledge that the donor was paying him compensation for an official act. Inquiry into the legislative performance itself is not necessary; evidence of the Member’s knowledge of the alleged briber’s illicit reasons for paying the money is sufficient to carry the case to the jury. 
     There is a long line of cases which discuss official acts, these cases are almost universally related to issues of civil immunity.  Criminal defendants have often tried to hide behind the official nature of their acts while in office and have attempted to extend the civil protection for acts taken under color of their office to provide a defense against criminal charges.

In Kentucky the legislature has recognized that an official performing an official act can be criminally prosecuted for that act.  The legislature has adopted laws which specifically provide criminal penalties for official acts of an officer.  We have never seen any authority that a defense against these “official acts crimes? was successfully based on the theory created by Judge Melcher’s decision, that “all official acts are immune from criminal prosecution.?

  A good example of a crime which in fact requires as its very nexus the performance of an official act before prosecution cab be justified.
 See: 
 

“ KRS 521.030 Soliciting unlawful compensation(1) A public servant is guilty of soliciting unlawful compensation when he requests a pecuniary benefit for the performance of an official action knowing that he was required to perform that action without compensation or at a level of compensation lower than that requested…?
 Let us emphasize this example again.  KRS 521.030 clearly authorizes a criminal penalty for the performance of an ? official action?.  

     Under the legal doctrine created by Judge Melcher, the Commonwealth could never prosecute any public official who performed an official act as a result of bribery (until after he left office).  Under the Melcher doctrine, the power of the Executive would far exceed the powers of the Legislative branch or the Judicial branch of government which might attempt to limit such abuses of office.

     Under the Melcher Doctrine, the official who accepted a bribe could with impunity continue to engage in his illegal enterprise indefinitely.  He would remain immune from prosecution as long as the public continued to re-elect him, and the legislature couldn’t muster the courage to impeach him. 

We can envision a terrible result of such blanket immunity of a massive bribery scheme which involved all the key members of the legislature…if they were in on the deal, they surely wouldn’t have any incentive to impeach.

     The use of the concept of “official act immunity? as applied as a defense for criminal prosecution is a misreading and misapplication of the law.  The only exception we can find for this is for immunity of officials for comments they make while performing their official duties.  A Senator cannot be prosecuted for his comments during a debate which defame the Governor.  On the other hand, no one seriously advances the theory, that if the Senator pulls a pistol from his pocket and shoots the Governor dead, that he will be immune from prosecution (and presumable immune from arrest) until such time as he is impeached or the voters remove him from office.

Let us suppose that the Governor straps a suicide vest filled with dynamite to himself, and during the State of the State address says he is going to blow the place up in five minutes.  Under the Melcher extension of “official act immunity? the Governor while giving his State of the State address is performing an “official act? and therefore can’t be prosecuted (or we guess even subdued and carried out of the building).  

    Any close examination of the path that the Melcher “official act immunity? doctrine will take us reveals that such a theory would result in chaos.  

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    The United States Supreme Court has clearly held that government officials are not immune from criminal prosecution while in office.  We present several authorities which discuss the limitations of “official immunity? as it applies to criminal prosecution defenses.
 

O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed. 2d 674, decided Jan. 15, 1974.
 

“We have never held that the performance of the duties of judicial, legislative or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights.  Cf. Ex parte Virginia, 100 U.S. 339, 25 L.Ed 676 (1879)
 

United States v. Brewster 8212 45, 408 U.S. 501, 92 S.Ct. 2531 (1971. “…the judicially fashioned doctrine of official immunity does not reach ?so far as to immunize criminal conduct proscribed by an Act of Congress***?.
 

?it is, therefore, sufficiently plain that the constitutional freedom from arrest does not exempt Members of Congress from the operation of the ordinary criminal laws, even though imprisonment may prevent or interfere with the performance of their duties as Members***?
“ It is well known, of course, that Members of the Congress engage in many activities other than the purely legislative activities protected by the Speech or Debate Clause. These include a wide range of legitimate ‘errands’ performed for constituents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called ‘news letters’ to constituents, news releases, and speeches delivered outside the Congress.
The range of these related activities has grown over the years. They are performed in part because they have come to be expected by constituents, and because they are a means of developing continuing support for future elections. Although these are entirely legitimate activities, they are political in nature rather than legislative, in the sense that term has been used by the Court in prior cases. But it has never been seriously contended that these political matters, however appropriate, have the protection afforded by the Speech or Debate Clause. Careful examination of the decided cases reveals that the Court has regarded the protection as reaching only those things ‘generally done in a
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session of the House by one of its members in relation to the business before it,’ Kilbourn v. Thompson, supra, 103 U.S., at 204, or things ‘said or done by him, as a representative, in the exercise of the functions of that office,’ Coffin v. Coffin, 4 Mass. 1, 27 (1808). “
“The subsequent case of Long v. Ansell, 293 U.S. 76, 55 S.Ct. 21, 79 L.Ed. 208 (1934), held that a Member’s immunity from arrest in civil cases did not extend to civil process. Mr. Justice Brandeis wrote for the Court:
            ’Clause 1 (of Art. I, § 6) defines the extent of the immunity. Its language is exact and leaves no room for a construction which would extend the privilege beyond the terms of the grant.’ Id., at 82, 55 S.Ct. at 22.
           We recognize that the privilege against arrest is not identical with the Speech or Debate privilege, but it is closely related in purpose and origin. It can hardly be thought that the Speech or Debate Clause totally protects what the sentence preceding it has plainly left open to prosecution, i.e., all criminal acts.
                                                        ********
 

  Whatever immunities or privileges the Constitution confers for the purpose of assuring the independence of the co-equal branches of government they do not exempt the members of those branches “from the operation of the ordinary criminal laws.?
 

“Criminal Prosecution of an Incumbent President? by John H. Kim, Esq.
 “While there are different legal opinions about the President, there is a general consensus that Vice President and other “civil officers? of the United States can be indicted and prosecuted while they are still in office, prior to any impeachment.
 

There are numerous  legal cases that have firmly established this rule. For instance in 1804, Aaron Burr, while Vice President, was indicted for the killing of Alexander Hamilton both in the state of New York and New Jersey. Burr never claimed an immunity from prosecution in the case, and had to serve out his office with the stigma of indictment.
  Likewise, Spiro T. Agnew, while Vice President, was investigated by the U.S. Attorney in Baltimore for allegedly receiving payoffs from contractors when Mr. Agnew as governor of Maryland. Before entering a plea bargain to a reduced charge and resignation, Vice President Agnew made a motion to the federal court to enjoin the grand jury proceedings against him on the ground of immunity while in office. In response, then Solicitor General Robert Bork filed a brief arguing that “considerations based upon the Constitution’s text, history and rationale which indicate that all civil officers of the United States other than the President are amenable to the federal criminal process either before or after the conclusion of impeachment proceedings.?
 

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