Fletcher v. Graham

Concurring in Part and Dissenting in Part opinion by

Justice SCOTT.

I concur wholly with Justice Johnstone’s Opinion of the Court, except as to the *404Governor’s constitutional power to appoint Special Justices. I write separately, however, regarding the permissible scope of the grand jury report, and to distinguish between individuals indicted before the issuance of the pardon, those indicted after the pardon (amnesty), and those granted amnesty and who will not be indicted.1

In the opinion of the court, we state that “[bjecause the Governor has conceded at oral argument that it is the prerogative of the grand jury to issue a general report of its investigation, so long as pardoned or unindicted individuals are not specifically identified, we need not address the issue.” I believe the reference, “so long as pardoned individuals are not specifically identified” refers only to those indicted after the pardon (amnesty) was issued and those who have not, or will not, be indicted. I also believe we should address the issue of the report.

As to the extent of the report, we have said that “a grand jury in Kentucky cannot file a report which reflects on the character of a citizen or public officer unless that report is accompanied by an indictment against that citizen or officer.” Democratic Party of Kentucky v. Graham, 976 S.W.2d 423, 427 (Ky.1998) (citing Bowling v. Sinnette, 666 S.W.2d 743, 745 (Ky.1984)) (emphasis added); see also Matthews v. Pound, 403 S.W.2d 7, 10 (Ky.1966). But see Greenfield v. Courier-Journal & Louisville Times Co., 283 S.W.2d 839 (Ky.1955) (holding that newspaper publication of a grand jury report was privileged, as was the grand jury, even though the public officials against which the report spoke, were not indicted). It is noteworthy that the comment extracted from Bowling, supra, was premised upon the statement that the grand jury “should not be permitted to cast aspersions on citizens when the evidence before it is insufficient to persuade the members of the jury that probable cause exists that an offense was committed.” Bowling, 666 S.W.2d at 745 (emphasis added).

In Matthews, supra, the Kentucky Attorney General was in the process of conducting a follow-up investigation of the grand jury allegations. There, the court ordered the report — made without any supporting indictments — published to the Kentucky Attorney General, so that the report could be “evaluated as to [any] future official action that may be required.” Matthews, 403 S.W.2d at 10. The report in Matthews indicated “that certain parole board members may be chargeable with activities constituting violations of the law of the Commonwealth.” Id. at 9. In fact, I found no reported case where we have upheld any damage awards against grand jurors, acting as such. Cf. Greenfield, supra. A report without indictments, however, is not in question here, as initial indictments were returned, although later pardoned.

On the other hand, there is authority to say that “Kentucky grand juries can make reports even if not required by law. Typically, these reports relate to grand jury investigations which reveal transactions of questionable propriety, though not criminal.” 8 Leslie W. Abramson, Kentucky Practice, Criminal Practice and Procedure § 10:31 (4th ed.2003). See also Bowling, Matthews, and Greenfield, supra. While it is arguable that a grand jury may not file a report reflecting on the character of someone when no indictment is returned against that person, see Bowling v. Sinnette, 666 S.W.2d 743 (Ky.1984), there is no reason or justification that has been offered as to why the grand jury cannot *405file a report reflecting on the conduct of state government and the conduct of state public officials who have pre-pardon indictments returned against them, regardless of the later pardon.

The opinion of the court is wrought with references to cases and the Debates of the Kentucky Constitutional Convention of 1890, all of which point out that once a pardon has been issued, all legal proceedings against the pardonees must cease as the court is without jurisdiction or constitutional authority to continue. However, the delegates to the Kentucky Constitutional Convention of 1890 did not discuss the effects of a pardon on the report of the grand jury concerning government misconduct or individuals already indicted. Even though criminal proceedings against these individuals must cease as a result of the pardon, that does not mean the grand jury should be prohibited from discussing its conclusions regarding issues of public importance of which all citizens of Kentucky should have knowledge.

Clearly, when the delegates sought to amend the Kentucky Constitution in 1890 by allowing for a pardon in which the governor describes the alleged offense and why the pardon is being issued, they meant to give the citizens of Kentucky a means by which they might know what had happened in a particular situation and why, presumably so that the public could act (vote) accordingly. Having said that, I do not believe that the failure of the Governor’s pardon, along with the application therefore, to disclose the actual conduct pardoned in this instance, invalidates the pardon power as Justice Cooper suggests. The pardon power does exist and has been used. Moreover, it is, as was intended, a discretionary power for the Executive. It is one of the inherent powers of government, which traditionally exists with the Executive, unless constitutionally placed elsewhere. However, without the grand jury’s report disclosing the acts (not the evidence) upon which the indictments were premised, the public, in some future event, could very well go uninformed about the details of the situation. People govern themselves and their governments best, when they are knowledgeable about the matters at issue.

“This is [not inconsistent] with the requirement that grand jury proceedings remain secret, RCr 5.24; for one of the reasons for secrecy is to protect witnesses and the good names of innocent persons who are investigated, but not indicted.” Id. (citing Greenwell v. Commonwealth, 317 S.W.2d 859, 861 (Ky.1958)). In fact, RCr 5.24(1) specifically commands, “subject to the authority of the court at any time to direct otherwise, all persons present during any part of the proceedings of a grand jury shall keep its proceedings and the testimony given before it secret .... ” (Emphasis added). Thus, a report should not recite, or divulge, evidence introduced and supporting the grand jury conclusions. But that is not to say that the report may not recite the conduct the grand jury has probable cause to believe occurred.

One delegate to the Constitutional Convention of 1890 rightly pointed out that “the right of investigation by the Grand Jury is one of the greatest protections the citizen has.” Debates, Ky. Constitutional Convention of 1890, Yol. 1, p. 1221.

Another delegate recognized the broad investigative powers of the grand jury when he offered the following resolution: “Resolved, That it shall be the duty of the Grand Jury in each county, at least once a year, to investigate the official acts of all officers having charge of public funds, and report the result of their investigations, in writing, to the Court.” Debates, Ky. Constitutional Convention of 1890, Vol. 1, p. 265 (resolution offered by Mr. W.R. Ram*406sey, delegate from Laurel and Rockcastle counties).

Although this resolution never made it into the Kentucky Constitution, the notion that the grand jury has these broad investigative powers survives to this day. For example, in Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626 (1972), the United States Supreme Court opined that

[bjecause [the grand jury’s] task is to inquire into the Existence of possible criminal conduct and to return only well-founded indictments, its investigative powers are necessarily broad. “It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.”

(Quoting Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919)). It is these “broad, independent investigative powers which enable it to bring to light official misconduct and neglect as well as criminal activities which may have been committed or concealed by public officials.” 8 Leslie W. Abramson, Kentucky Practice, Criminal Practice and Procedure § 10:1 (4th ed.2003).

Therefore, reviewing Bowling, Matthews, and Greenfield, I necessarily distinguish between an investigation of one’s government and its public officials, as has occurred here, and an investigation of private individuals. A distinction is also noted where there is probable cause to believe the conduct occurred. Obviously, the likelihood that injury could occur through the report of the grand jury when no indictment has issued is far greater when a private individual is the subject of the inquiry. Governments have significant assets, and media contacts, with which to defend themselves; individuals, most often, do not.

Thus, in Greenfield v. Courier-Journal & Louisville Times Co., 283 S.W.2d 839 (Ky.1955), this Court addressed the propriety of a newspaper’s publication of a grand jury report where no indictments had been returned against the subjects. The subjects of that report, city officials, investigated for the commission of crimes while in office, then initiated suit for libel and slander. Although no pardon was at issue, we upheld the publication of the grand jury report as privileged, finding that “[t]he public must be presumed interested in official acts and records.” Id. at 842. Further, we stated:

[A] report of this nature may constitute a vicious attack upon one’s character and may well offend the American sense of fair play. This was recognized by the trial judge in his excellent opinion. However, we have one of those situations where the right of the individual must be sacrificed to a more compelling public interest.

Id.

It is important to point out that in Bowling, Matthews, and Greenfield, supra, no indictments were returned. Yet, we held in Bowling that the grand jury report could not “cast aspersions” on county officials for which the evidence presented was insufficient to form a basis for an indictment. Bowling, 666 S.W.2d at 745. We also recognized that a proper remedy was to file a motion to have the circuit judge strike the offending comments, the results of which could be checked in an original action in the Court of Appeals. In Matthews, we noted, “it is in the interest of the grand jurors to see that all matter which is believed to be a proper basis for future investigation and prosecution should be included in the report.” Id. at 10. We then *407held that the Kentucky Attorney General was entitled to the full report, including the secret addendums withheld, for use in his further investigation of the matter. Id. at 11. In Greenfield, we noted a “compelling public interest” in the facts of that case, which are somewhat similar in nature to the allegations at issue here. Thus, in Greenfield, we upheld the publication of the grand jury’s report without supporting documents and found such publication to be privileged and immune from suit for libel or slander, due to a “compelling public interest” in the substance of the grand jury report.

Here, we have state public officials who allegedly committed crimes while in office — crimes which are alleged to have resulted in the loss of employment for some state merit employees. This creates a much more “compelling interest” for inclusion of the grand jury conclusions regarding the alleged events than the typical situation where an unindicted private citizen is about to be razed by the unsubstantiated conclusions contained in a grand jury’s report. Moreover, it is important that the grand jury here found probable cause to believe that a crime was committed as it returned indictments against several public officials prior to the issuance of the pardon. As a delegate to the Kentucky Constitutional Convention of 1890 stated:

[The] grand jury sit by themselves as an inquisitorial power sworn to do justice and right as much so as a petit jury when they try the question of guilt or innocence. They accuse a man of crime upon what? Not upon rumor, not upon their own volition, but upon legal testimony delivered to them upon the oaths of witnesses.

Debates, Ky. Constitutional Convention of 1890, Vol. 1, p. 1104.

Thus, if a grand jury is to provide some transparency into governmental actions, we should be inclined to allow a grand jury report to contain then- conclusory findings of alleged wrongdoings by state officials indicted prior to the issuance of the pardon 2, as well as, the general conduct of the government, or agency involved. And in this last instance — even where no indictments are issued. Were this not so, a future governor might issue a pardon (amnesty) prior to a grand jury investigation, thereby foreclosing the investigation. This should never be an allowed result.

But for the pardon, legal proceedings would continue against those already indicted; as a result of the pardon, legal proceedings must cease. However, the grand jury must still be allowed to perform its function of investigating and issuing a report as it relates to the actions of our government. Although any alleged wrongs will, as a result of the pardon, go untested or unpunished in the legal sense, a government should always be subject to answer in the political arena for any wrongs it is alleged to have committed.

All too often we ignore the constitutional powers specifically retained by the people, exercised by and through their voting power. In this instance, the grand jury is the one agency that has the power (more than any other) to compel public officials to disgorge information as to their conduct and thus, the ability to inform the public of what may or may not have transpired. To deprive the grand jury of the right to discover and disclose their conclusions from the information they receive, robs us, as citizens, of our ability to exercise politi*408cal power in an informed manner. Thus, I find the public interest in the alleged violations of the state’s merit hiring system by public officials to be just as compelling as the situation in Greenfield, supra.

Therefore, I believe it is appropriate to permit the grand jury’s report to contain references to those individuals indicted before the pardon %vas issued, as well as, the grand jury’s conclusions as to their, and the government’s, alleged illicit actions, so that the public may hear both sides of “the story.”3 I say “both sides” — for the government’s side will find its way into the public domain too. Thus, the people can listen, evaluate and act accordingly at the polls. This is the constitutional right, and I believe, the obligation, of the people.

All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety, happiness and the protection of property. For the advancement of these ends, they have at all times an inalienable and indefeasible right to ... reform ... their government in such manner as they may deem proper.

Ky. Const., § 4. For Section 4 to work appropriately, it is imperative that the people always be able to evaluate the conduct of their government. A properly functioning grand jury, made up from the people, will always assist in this regard.

The people of Kentucky have a great sense of right and wrong and can be trusted to decide for themselves if actions or mistakes were political, intentional, or innocent. And much more ominous, to those who would violate their will, there is no wrangling or political appeal from their decision at the polls. So with the knowledge that matters such as this are politically risky, we, as a court, should not expect to be overwhelmed with these matters in the future.

I do not expect partisan Republicans, against whose “political will” the sword of this grand jury is now poised to strike, to understand or approve of the constitutional policy upon which my concurring opinion is based. Nor, do I expect partisan Democrats to appreciate that this same constitutional policy, which they applaud today, will, in the not-so-distant future, be the hand that wields this same sword against them. I do hope, however, that the people of this great Commonwealth and from whom both political parties draw their real strength, will appreciate their rights to be kept informed as to actions of their government through the power of the grand jury, composed “of the people, by the people, for the people” (Abraham Lincoln, The Gettysburg Address (Nov. 19, 1863)), and will use it well, both in disciplining and electing their government. It is this policy of responsibly acquiring and disseminating information that the Constitution protects, not the political parties, or their partisans.

Having thus expressed my views on these two subjects, I concur heartily with Justice Johnstone’s Opinion of the Court. My only dissent is as to the Governor’s right to appoint sufficient justices to constitute a full court. In that regard, I have joined Special Justice Green’s opinion.

. A pardon granted to an identified class of people prior to an investigation or indictment is an amnesty. However, for the remainder of this opinion I will use the word "pardon.”

. Those indicted after the issuance of the pardon are thus protected from disclosure through the report, albeit conclusions as to the general conduct of the government, or agency involved, are not.

. Again however, RCr 5.24(1) mandates that the evidence heard remain secret, except where otherwise approved, in appropriate situations, by the trial court.