FRANKFORT - The Kentucky Supreme Court ruled yesterday that a special grand jury investigating state hiring practices cannot issue any more indictments for offenses covered by Gov. Ernie Fletcher's pardons.
The court's 4-2 ruling doesn't affect the recent misdemeanor indictments of the governor because Fletcher didn't include himself when he pardoned nine indicted administration officials on Aug. 29, 2005. He also issued a blanket pardon for any future indictments relating to the hiring practices.
"Our sole concern must be the constitutionality -- not the prudence -- of the governor's actions," wrote Justice Martin Johnstone.
The ruling lets stand indictments of two officials for offenses alleged to have occurred after the pardons.
The court also said the grand jury can issue a general report about its yearlong investigation of state personnel issues. Justices disagreed on whether the report could identify officials who were indicted before the pardons -- leaving that issue in doubt.
Two justices strongly disagreed with the majority, saying that the Supreme Court essentially helped a governor escape scrutiny.
"History will not forget nor fondly remember the day that the Supreme Court of Kentucky put its imprimatur on a governor's scheme to cover up alleged wrongdoing within his administration by granting a blanket pardon to all persons under investigation by a sitting grand jury," wrote Justice William Cooper in a stern dissenting opinion that was joined by Justice Donald Wintersheimer.
Observers said the ruling to uphold the blanket pardons helped Fletcher.
"This is perhaps one of the few wins the governor has had to this point in regards to this investigation" largely because it protects many Fletcher aides from more charges, said Joe Gershtenson, director of the Center for the Study of Kentucky History and Politics at Eastern Kentucky University.
Fletcher has been dogged by the hiring investigation that has seen the indictment of 13 former or current aides in addition to Fletcher himself.
"I'm very pleased with the decision," Fletcher told reporters. "The Kentucky Supreme Court has vindicated us on all points and ruled that Greg Stumbo has been acting unconstitutionally." Fletcher then abruptly left the briefing.
In addition to Fletcher's indictment, the grand jury also returned 14 sealed indictments on May 11. The Supreme Court's decision effectively keeps those indictments secret because they referred to charges covered by the pardons. Sheryl Snyder, an attorney for Fletcher's office, said those indictments could even be expunged from the court record.
The ruling could have an effect on a trial of Fletcher, whom the grand jury indicted on charges of conspiracy, official misconduct and political discrimination. Officials who were pardoned now may not be able to take their Fifth Amendment right not to incriminate themselves on the witness stand.
"That would depend on whether there was any other ... jeopardy" such as a federal investigation or the admission of a crime that occurred after the pardons, said Snyder.
Attorney General Greg Stumbo, whose investigators have led the hiring probe, said in a statement that the Supreme Court has recognized the grand jury's power to indict Fletcher as well as two other officials charged with committing offenses after the pardons.
He noted that the court also found that the grand jury may issue a public report detailing its investigative findings and may continue its review of evidence relating to possible post-pardon criminal activity.
Saying he was "pleased" with the ruling, Stumbo added: "The value of the hard work of the ordinary citizens on the special grand jury has been recognized in this opinion."
Stumbo has 20 days to petition the court for a rehearing. His office would not comment on whether he will do that or try to appeal to a federal court.
Forthcoming trials include those of Fletcher, whose arraignment is scheduled for June 7, as well as Transportation Secretary Bill Nighbert and former highway engineer Sam Beverage, who were charged with committing crimes after the governor issued the pardons.
The grand jury indicted Nighbert on Sept. 20 on a charge of violating the state's Whistleblower Act by blocking a witness in the investigation from getting an award.
The grand jury indicted Beverage May 11 on one felony count of perjury stemming from his 38-minute appearance before the jurors on Aug. 30.
"Neither this opinion, nor Governor Fletcher's pardon, has any effect whatsoever on the grand jury's investigation of post-pardon allegations of criminal conduct or an investigation of the governor himself," the ruling states.
Gershtenson, from EKU, said he doesn't think the court's decision will have broad implications on how the grand jury system works.
"This probably doesn't have a real chilling effect on the bigger picture," said Gershtenson. "Most governors aren't going to make it a pattern to pardon people who haven't been convicted yet."
The confusion over whether a grand jury report can identify pardoned or unindicted individuals stems from the 25-page majority ruling, written by Johnstone. Though the overarching issue of pardons ended in a 4-2 vote, the issue of identifying people in a grand jury report appeared to end in a 3-3 split. Johnstone's opinion said names could not be used in the report, and additional opinions differing on the issue were written by Cooper and Justice Will T. Scott.
Cooper noted in his 53-page dissenting opinion that "no state court has ever held that a pardon could be validly issued before indictment. Until today."
The opinions of the six justices came after an unusual round of shuffling on the court. Chief Justice Joseph Lambert and Justice John Roach recused themselves last winter, allowing Fletcher to appoint replacement justices.
Both Fletcher's initial appointees had connections to his political campaigns. One of the special justicies, Circuit Judge Jeffrey Burdette of Mount Vernon, eventually stepped aside. But the other, Lexington attorney Ronald Green, remained.
When Fletcher tried to fill Burdette's spot again, the Supreme Court found that the additional appointment wasn't proper. Yesterday's ruling reaffirmed that by saying six justices constitute a full court.
Meanwhile, the grand jury is scheduled to meet again today.
Earlier this week, the attorney general's office asked Franklin Circuit Judge William L. Graham to extend the grand jury's term another 90 days.
Snyder, Fletcher's attorney, said he did not know whether he would oppose the extension.
Fletcher's BlackBerry at issue
Download and read a copy of the Kentucky Supreme Court decision.