Legal experts take exception with Melcher’s ruling which creates immunity for Gov. Fletcher from criminal prosecution

A legal shieldOfficial immunity not one-size-fits-all -
By Dan Hassert Cincinnati  Post staff reporter
The police officer couldn’t take it anymore.
Accused of making a false arrest, he’d been sued in federal court for allegedly violating a suspect’s civil rights. And even though a judge threw out the case, the extensive discovery process and an appeal had taken its toll. The officer couldn’t stand the prospect of knowing every split-second decision he made on the streets could bring another lawsuit.
“The ordeal, the stress, the anxiety, the deposition, the waiting – he got out of the profession,” said Covington attorney Jeff Mando.
Mando, who has made a career out of defending police officers, city council members and other government employees against lawsuits filed by citizens upset at their decisions, said the officer’s story, circa the late ’90s, illustrates the rationale behind an oft-misunderstood legal doctrine called immunity.
The legal protection, he said, gets a bad rap from critics who say it puts officials above the law. That’s not true, Mando said.
“Immunity is not designed to insulate elected officials who are acting with some type of ulterior motive, or acting for personal gain or to get revenge,” he said.
Rather, it’s to keep public offices from being ground to a halt by disgruntled citizens, to keep officials from being “unduly cautious” in making decisions, to keep government from going bankrupt and to prevent fear of legal attacks from driving off would-be employees.
But immunity is a complicated, controversial concept whose application isn’t always clear-cut.
That has been made apparent over the last week with a judge’s decision to award Kentucky Gov. Ernie Fletcher temporary executive immunity in a case alleging he broke state hiring laws.
The decision, announced verbally at a hearing Aug. 11, effectively postpones any prosecution of Fletcher as long as he is governor, said Special Franklin District Court Judge David E. Melcher.
Melcher’s seven-page written ruling, released Friday, cites a federal case that suggests forcing a chief executive to be tied up in court would limit his or her ability to run the country. “Proceeding with a criminal case for official misconduct is presently outweighed by the time intrusion it would impose on the executive branch,” Melcher’s ruling says.
But the decision, and his rationale, has elicited criticism from legal experts and others who maintain the judge confused civil immunity – protection from being sued for decisions made in the course of public duties – with criminal immunity, or protection from prosecution for alleged criminal acts. The protection for civil liability is a lot broader and stronger and has clearer basis in the law.
Melcher’s “creation of a new legal doctrine … 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,” wrote Stan Billingsley, a former district and circuit judge from Northern Kentucky, in a column shortly the decision came out last week.
In an interview on Friday, Billingsley, who writes and edits, an electronic newsletter for legal professionals, noted that Melcher’s written ruling was careful to award criminal immunity for only official acts, not unofficial ones. Still, he said, the ruling had no basis in either federal or state law.
“He got himself in the trap of writing legislation,” Billingsley said.
Immunity from arrest is awarded (via the U.S. Constitution) only in the narrowest of circumstances – to state legislators discussing or voting on the floor, or preparing to do so, he said. And even then, if the charge involves bribery, that immunity disappears.
But in their motion asking that charges be dismissed, attorneys for Fletcher argued that the same protection awarded in civil cases be extended to criminal cases on several grounds – that it was suggested by the separation of powers section of the state Constitution, that criminal proceedings would cripple a governor’s ability to do his job, that fear of being a target of a politically motivated attorney general would make a governor too cautious in his decisions, and because a governor can’t be jailed for official acts while in office.
They noted that the immunity would be only for official acts, not for unofficial ones like murder or fishing without a license.
But Ken Katkin, who teaches constitutional law at Chase College of Law in Highland Heights, said in his opinion the distinction between official and unofficial capacity in this case is irrelevant – there is no shield from criminal proceedings for governors, period.
Still, he said, it’s easy to be confused.
“I don’t blame the judge,” Katkin said. “The doctrines (for civil and criminal immunity) use a lot of the same language and overlap a lot.”
Furthermore, the case law is ragged and spotty.
“There’s no case in history where push comes to shove and the prosecution goes forward against a sitting president or governor and the immunity issue gets aired out,” Katkin said.
Whereas governors from other states, such as Bob Taft of Ohio, have been convicted of crimes, those governors didn’t try to invoke the immunity defense. Taft, for example, pleaded no contest to four misdemeanor counts of failing to report gifts from people doing business with the state.
Part of the confusion is that there’s so many different kinds of immunity protection outlined in piecemeal fashion in court cases, the Constitution or English law, Katkin said.
For example, government agencies themselves typically enjoy sovereign immunity.
Likewise, the U.S. Supreme Court has given the president absolute immunity from civil lawsuits arising from his or her official acts. And a president, unlike a governor, enjoys a sort of “practical” immunity when it comes to criminal prosecution, since he can fire any attorney general who starts investigating him, just like former President Nixon did during the infamous Saturday Night Massacre, Katkin said.
In Kentucky, the state Constitution and court cases arising from it have given legislators limited absolute immunity from arrest or lawsuit during their official acts, such as votes on the floor. For the most part, judges enjoy similar protection when issuing rulings from the bench. That’s because if defendants could sue judges, “cases would never be final,” said state Appellate Judge Dan Guidugli.
Likewise, public employees like police officers and zoning officials receive qualified immunity that generally protects them from being sued for reasonable decisions made in the course of their duties.
Interestingly, there’s been a retreat in some areas: Charitable immunity (for churches and non-profit hospitals) no longer applies, nor does spousal immunity (forbidding spouses from suing each other), Mando said. And the protection of the Good Samaritan rule has eroded.
Guidugli said he’s seen numerous cases dealing with civil immunity during his many years on the bench but has never seen one involving criminal immunity like the governor’s.
“This is sort of uncharted territory,” he said, and one that requires caution.
“Once you give (a governor) executive privilege on the smallest charges, you have to give him immunity on the greatest charges, and that’s a dangerous precedent,” he said

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