LawReader Exclusive -  Governor’s Legal Counsel, Sheryl Snyder responds to LawReader editorial concerning Governors actions regarding Murray State Regent  - Cites two examples of judges serving as Trustee of University of Kentucky

       Note: Due to the formatting, there is a space between pages of the two attachments.

Subject: Murray State Regents                                          Oct. 3, 2006

Thanks for putting my op-ed essay from The Courier-Journal on LawReader on
September 18; and I appreciate the fact that you agree with my interpretation of
Robert's Rules of Order.

The legal basis for the Governor rejecting a slate of nominees and requesting a
new slate is set forth in the brief on that issue written and filed by Jim
Deckard and Mike Alexander, which is attached as Attachment 1.

Attached as Attachment 2 is a formal ethics opinion explaining why a sitting
judge may sit on a university governing board.  Barren Circuit Judge Phillip
Patton (our law school classmate) presently sits on the U.K. Board of Trustees
by appointment of Paul Patton.  And you were incorrect in saying that Robert F.
Stephens "sought an appointment to the U.K. Board of Trustees and failed."  In
fact, Stephens was appointed and served his full term; and several other judges
have served on university governing boards over the years.

Finally, you noted that my op-ed essay in The Courier-Journal did not cite any
legal authority for my concurrence with Judge Melcher's constitutional analysis,
saying that Judge Melcher's "ruling is unique in the United States."  I agree
that the ruling is unique, because the case is unique.  But to say that a case
is without precedent is very different from saying that a decision is contrary
to legal precedent.  I believe you will concede that you cannot cite a reported
appellate decision from any state precisely on point that disagrees with Judge
Melcher's decision.  There simply is not a reported precedent in which a sitting
governor was indicted by a state (as distinguished from federal) grand jury for
official misconduct (as distinguished from private acts) in which the governor
invoked the Impeachment Clause in his state's constitution in a motion to
dismiss the indictment.  So, yes, the case is unique, and there is not a
reported appellate decision directly on point for or against the argument made
for the Governor.

When there is not a decision directly on point, lawyers usually reason from
analogous precedents and rely upon commentary by legal scholars.  I was not
counsel of record for Governor Fletcher in the District Court case.  The briefs
for dismissal were written and filed by Steve Pitt, Kent Westberry and their
colleagues.  My team did discuss the issue in a footnote in our Response to the
Motion for Modification of Opinion in Baker v. Fletcher, which was Phillip
Shepherd's motion to have footnote numbered 16 deleted from the opinion in that
case.  The Response declined to respond to the Motion for Modification, stating
that the manner in which the Court chose to articulate its rationale was a
matter for the Court, not for the litigants.  We then discussed the substantive
law in footnote numbered 1 in that Response, which is attached at the end of
this message.  The primary authority cited in that footnote is the formal
opinion of The Office of Legal Counsel of the U.S. Department of Justice, which
is available online.  We cited an analogous precedent from the U.S. Supreme
Court and the Supreme Court of Kentucky on executive immunity in civil
litigation, as well as one of the best law review articles (among a plethora of
law review articles on the issue) by a Yale law professor.  We also discussed
the historical precedent that Special Prosecutor Leon Jaworski determined that
Richard Nixon could not be indicted while in office, but could only be
impeached, and therefore informed the Watergate grand jury that he would not
sign any indictment of Nixon because Judge Sirica had told Jaworski that he
would summarily dismiss the indictment on constitutional grounds.

The essence of the argument is that it applies only to the chief executive, not
even to the lieutenant governor, much less to lesser executive branch officials;
and the argument applies only to official acts (for which Fletcher was indicted)
and by definition does not contend that a governor cannot be indicted for murder
or bribery, to mention two examples.  Accordingly, the prosecutors' contention
in interviews and op-ed essays that an appellate affirmance of Judge Melcher's
ruling would impact pending and future political corruption prosecutions is wide
of the mark.  Second, while the scholarly commentary is focused on the
President, not state governors, the separation of powers principle is the same
when the governor is indicted by a state (not federal) grand jury.  In a federal
prosecution of a state official, the separation of powers provisions of the
state constitution are by definition inapplicable, and would be preempted by the
Supremacy Clause in any event.  However, where the indictment is issued by a
state grand jury and the prosecution is undertaken by state prosecutors, the
Impeachment Clause and the Separation of Powers Clauses in the state
constitution do come into play, just as the Impeachment Clause and Vesting
Clauses (the basis for the doctrine of separation of powers in the federal
constitution) come into play in the indictment of the federal chief executive,
the President.  I simply agree with the scholarly commentary that the
constitutionally authorized manner for proceeding against a sitting chief
executive for official misconduct is for the House of Representatives to
determine whether the misconduct warrants prosecution by voting articles of
impeachment.  If the House is unwilling to initiate impeachment, a grand jury
(an arm of the judicial branch) should be precluded from issuing an indictment
of the sitting Chief Executive.  Thus, I agree with Judge Melcher's analysis,
but think the result that logically flows from the analysis is dismissal of the
indictment, not abatement of the prosecution.  Some of the authorities for this
conclusion were marshaled in the footnote mentioned above, which reads as
follows:
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As a matter of constitutional law, the Opinion of the Court was correct when it
stated that "there is a strong argument in favor of barring criminal charges
against a sitting chief executive for [official] actions taken while in office .
. . ", slip opinion, p. 8, n.16; because the sole authority to proceed against
the Governor for official acts while in office is textually vested exclusively
in the Legislative Branch through the Impeachment Clauses and the Separation of
Powers Clauses.  In fact, a strong argument has been made in the Governor's
motion to dismiss the indictment, filed July 7 in Franklin District Court.  The
motion relies upon Nixon v. Fitzgerald, 457 U.S. 731 (1982) and Yanero v. Davis,
65 S.W.3d 510 (Ky. 2001) for the well-settled proposition that the Chief
Executive has absolute immunity for his official acts.

Beginning with the resignation of Vice President Agnew, the Office of Legal
Counsel of the U.S. Justice Department has long adhered to its official opinion
that "only the House of Representatives has the authority to bring charges of
criminal misconduct [against a sitting President] through the constitutionally
sanctioned process of impeachment." A Sitting President's Amenability to
Indictment and Criminal Prosecution, U.S. Dept. of Justice, Office of Legal
Counsel, Oct. 16, 2000, 2000 WL 33711291.  The Justice Department's official
position "has a very distinguished, and bipartisan, pedigree." Akhil Reed Amar,
On Prosecuting Presidents, 27 Hofstra L. Rev. 671, 672 (1999), citing The
Federalist No. 69, at 232 (Alexander Hamilton); The Federalist No. 77, at 284,
299 (Alexander Hamilton); 3 Joseph Story, Commentaries on the Constitution of
the United States §814, at 579 (1833).

Leon Jaworski, the Special Watergate Prosecutor, reached the same legal opinion
as had Solicitor General Robert Bork in the Agnew case.  In his memoirs,
Jaworski wrote:  "While legally an indictment could be returned against a
sitting President for the offense of murder, say, I did not believe the U.S.
Supreme Court would permit indictment of a sitting President for obstruction of
justice" predicated upon official acts of the President.  "The proper
constitutional process, it seemed to me, would be for the [House Judiciary]
Committee to proceed first with its impeachment inquiry." Leon Jaworski, The
Right and the Power:  The Prosecution of Watergate, p. 100.  (Thomas Y. Crowell
Co. 1976). The federal judge presiding over the Watergate special grand jury
shared Jaworski's legal opinion.  In his memoirs, Judge Sirica wrote:  "But it
seemed fairly clear that the Constitution prescribed that Congress, through the
impeachment process, should have the primary jurisdiction over a president who
committed criminal acts."  John J. Sirica, To Set the Record Straight, p. 212
(W.W. Norton & Co. 1979).  In fact, Sirica told Jaworski that "[h]e will condemn
the grand jury for overreaching, and . . . he will dismiss the action out of
hand."  James Doyle, Not Above the Law:  The Battles of Watergate Prosecutors
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Cox and Jaworski, p. 285 (William Morrow & Co. 1977).  Consequently, the
Watergate special grand jury did not indict President Nixon. Instead, it
forwarded the evidence, under seal, without any narrative description of the
evidence, to Judge Sirica with the "recommendation" that Judge Sirica forward
the evidence to the House Judiciary Committee to consider in its deliberations
whether to impeach the chief executive.  Richard Ben-Veniste and George
Frampton, Jr., Stonewall:  The Real Story of the Watergate Prosecution, pp.
242-249 (Simon & Shuster 1977).

Under these authorities, the present indictment of Governor Fletcher for, inter
alia, "official misconduct" contravenes both the Impeachment Clauses, §§66-68
Ky. Const., and the Separation of Powers Clauses, §§27-28 Ky. Const.  It is
worth noting that a 4 Justice majority concurred in footnote 16, and the
dissenters did not note any disagreement with it - at least not until former
Justice Cooper's after-the-fact, ex cathedra comments to a newspaper reporter.

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Open to read Attachment 1- Governor's pleadings to seek dismissal of Murrary State University regent nominees:   http://www.lawreader.com/pdf/snyderexchange1.pdf

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