The Tear Sheet: Fletcher gets an axe — but a double-edged one

It’s too early to tell, of course, who Louisville voters will send as their representative on the Supreme Court in place of wild-haired Justice Martin Johnstone, who is retiring.

But it is safe to say that either William McAnulty and Anne O’Malley Shake — the two top vote-getters in last week’s primary — will have to serve at least as long as Johnstone, elected 10 years ago, to author an opinion that equals his latest ruling in sheer ballsiness.

Johnstone wrote the majority opinion issued last Thursday that declared a governor’s power to pardon state crimes is all but unlimited.

“The law is clear and well-established: ‘The pardon is itself an absolute exemption from any further legal proceedings,’” Johnstone wrote for the court, quoting a 1928 Kentucky case. “There is no room for equivocation on this point.”

In a wide-ranging, 23-page opinion that often dismissively rebukes dissenting Justice William Cooper, the court ruled that Kentucky’s constitution gives governors unchecked power to issue blanket pardons to as many people as they want, for as many alleged crimes as necessary, and absolutely without regard to whether they‘ve ever been charged with anything.

There is, the ruling makes clear, essentially no limit on how many, for whom or for what grounds a governor can issue pardons.

Should he choose, Gov. Ernie Fletcher, or any governor, could make it a practice to begin every Friday with a blanket pardon for every member of his administration — and there is not a court of a prosecutor in the commonwealth who could say otherwise. It’s as broad a re-iteration of gubernatorial prerogative as Fletcher could have hoped for.

The immediate impact of the decision will be that the special grand jury investigating the political hiring scandal in Frankfort will be told it cannot issue any new indictments of anyone covered by Fletcher’s pardon.

Johnstone’s opinion, however, won’t stop the investigation of Fletcher, since the grand jury indicted him the week before, and Fletcher has not pardoned himself.

Still, the long-range effects of the decision could be momentous. In his dissent, Justice Cooper, of Elizabethtown, evoked the image of ancient despots from Europe’s Age of Kings clapping their hands in hell over such an astonishing declaration of executive power.

“Dead kings of England would rise from their graves with huzzas if they knew that one (though only one) jurisdiction of the Anglo-Saxon legal tradition has finally espoused their cause and rolled back hundreds of years of anti-corruption jurisprudence, including the hard-won independence of the grand jury,” Cooper wrote. “But history also has its claims. And 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.”

Johnstone dismissed the criticism, adding in a footnote, “These dead kings very well might turn in their graves in reaction to our opinion herein. Conversely, medieval kings would likely also be alarmed to learn that Kentucky law permits women to vote and own property.”

So far, Fletcher has not pardoned himself — but he may read into the decision a blank check and a get-out-of-jail card.

But the best judges are subtle thinkers, and I am guessing Johnstone knew that — and included a warning that just because a governor can do something, doesn’t mean he should … or that he will survive in office if he does.

“We would be remiss if we failed to acknowledge the persuasive and substantial public policy concerns permeating the Attorney General’s arguments,” Johnstone wrote toward the end of the opinion. “It has been argued that the governor’s blanket pardon of anyone committing violations of the state’s merit system prior to investigation is repugnant to citizens of this commonwealth who expect transparency in government, that it is patently offensive to those who seek open review of allegedly corrupt governmental actions, and that it erodes public confidence not only in the governor but also the entire criminal justice system.”

After 30 years sitting astride one Louisville bench or another, Johnstone has written a decision that might have given the governor just enough rope to risk hanging himself.

For if pardons are the ultimate example of unchecked gubernatorial power, then impeachment is the tool by which the legislature can respond.

Michael Lindenberger wrote the Tear Sheet column for LEO from June 1996-December 1999. He rejoins LEO as a contributing writer after reporting stints at The Dallas Morning News and, most recently, The Courier-Journal. Send him story ideas at [email protected]