LawReader : OUR MAIN - LAW DIGEST INDEX : LAWREADER TIPS & TOPICS : MORE HOME PAGE - 2006 : THE EXECUTIVE BRANCH ETHICS COMMISSION CHALLENGES THE GOVERNOR’S PARDON POWERS

LawReader Discussion of Legal Issues

Prepared by LawReader Senior Editor Stan Billingsley

THE EXECUTIVE BRANCH ETHICS COMMISSION CHALLENGES THE GOVERNOR’S PARDON POWERS.

The Executive Branch Ethics Commission in their Initiating Order against Dan Druen claim a violation of KRS 11A.020. The violation of that statute allows the imposition of a $5000 fine under KRS 11A.100, among other remedial measures that can be imposed on violators.

This matter has become an issue due to the fact that at this time, public disclosures only mention Druen. There is no mention by the Commission of similar complaints being filed against the other state employees who like Druen were pardoned by the Governor.

Further the Commission makes no mention of a complaint being filed against the Governor, and since he was not included in the pardon, it is difficult to imagine why the desire of the Commission to strictly enforce the ethics laws is not extended to the Governor himself.

We appreciate the willingness of the General Counsel of the Executive Branch Ethics Commission to respond to our questions concerning the law supporting their actions. See the e-mail of Hon. John R. Steffen, General Counsel.

In fairness we note that KRS 11A.080 requires confidentiality by the Commission. The statute provides an exception allowing the Commission to confirm their instigation of an investigation if the alleged violator has disclosed that he has received notice of the investigation. So it is theoretically possible that the Commission is on the job and actively investigating the Governor, and all the other pardoned persons to whom the ethics laws in Chapter 11A might apply, and are obeying the confidentiality provisions of KRS 11A.080 .

The Commission is made up of five members, four of whom were appointed by Governor Fletcher in 2004. Everyone in Frankfort is waiting for the other shoe to drop, and for the Commission to confirm that others are or are not being investigated.

This article is not to encourage or discourage the investigation of any party. We do not presume to have knowledge of the facts alleged against any party. Our interest is solely on the legal issues involved. The overriding legal issue raised by the Commission’s actions against Dan Druen is whether or not they are correct in their conclusion that the Governor’s pardon was not broad enough to cover a violation of the state Ethics Code found in Chapter 11A.

This discussion will examine the legal claims of the Commission that they have the right to ignore the pardon and whether their claims are solidly grounded in the law.

This article is footnoted and linked with the source materials discussed in this article. We encourage our readers to review the source materials themselves to evaluate the issues.

We begin with the wording of the pardon issued by Gov. Fletcher on August 29, 2005.

Operative excerpts from Pardon dated Aug. 29, 2005 –

Executive Order: 2005-924

“I, Ernie Fletcher, Governor of the Commonwealth of Kentucky, do hereby grant a full, complete, and unconditional pardon to James L. Adams, Darrell D. Brock, Jr, Danny G. Fruen, Tim Hazlette, Charles W. Nighbert, Cory W. Meadows, Richard L. Murgatroyd, Basil W. Turbyfill, Robert W. Wilson, Jr., and any and all persons who may have committed, or may be accused of committing, any offense up to and including the date hereof, relating in any way to the current merit system investigation being conducted by the special grand jury presently sitting in Franklin County, Ky. and the Office of the Attorney General, including but not limited to any violation of KRS Chapter 18A, all statutes within the Kentucky Penal Code, and in particular 18A.095, KRS 18A.111, KRS 18A.140, KRS 18A.990, KRS 18A.020, KRS 502.020, KRS 506.030, KRS 506.040, KRS 506.070, KRS 506.080, KRS 524.050 or KRS 524.100.

The provisions of this Order shall not apply to Ernie Fletcher, Governor of the Commonwealth of Kentucky.”

***************

The jurisdiction of the Commission’s proceedings against Druen are based on two claims by the Commission.

commissions argument 1):

The Governor’s pardon does not apply to ethics proceedings, since they are civil, not criminal, in nature.

We note that the wording of the Governor’s Aug. 29, 2005 blanket pardon extends to “any and all persons who may have committed any offense...relating in any way...to the ...investigation...including but not limited to ...all statutes within the Kentucky Penal Code...”.

The pardon says that the pardon is “a full, complete, and unconditional pardon”

So first let us first see what the definition of “offense” is. KRS 500.080 concludes that it means any conduct for which a fine is provided by any law of this state.

KRS 500.080 Definitions for Kentucky Penal Code. (11) "Offense" means conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law, or ordinance of a political subdivision of this state or by any law, order, rule, or regulation of any governmental instrumentality authorized by law to adopt the same;

So we see that the pardon included any offense. It would appear that a violation of KRS 11A.020 which in conjunction of KRS 11A.100 allows the imposition of $5000 fines for each separate offense under KRS 500.080 is an offense.

Next we look at

KRS 500.020 Offenses defined by statute -- Common law abolished.

(1) Common law offenses are abolished and no act or omission shall constitute a criminal offense unless designated a crime or violation under this code or another statute of this state.

So we must see if a violation of KRS 11A.020 is in fact “designated a... violation.”.

KRS 500.080 Definitions for Kentucky Penal Code. (17) "Violation" means an offense, other than a traffic infraction, for which a sentence to a fine only can be imposed;

Kentucky law declares any offense for which a fine only is imposed, is a Violation, and a Violation is included as an offense in the Penal Code. See “KRS 532.020 (4):

“KRS 532.020 (4) Any offense defined outside this code for which a law outside this code provides a sentence to a fine only or to any other punishment, whether in combination with a fine or not, other than death or imprisonment shall be deemed a violation.”

Effective: July 15, 1998

The Ky. Penal Code classifies Felonies, Misdemeanors and Violations in Chapter 532 and thus one may conclude that they are all criminal offenses. Our reasoning is that all offenses found in the Penal Code are criminal offenses.

To see an example of the use of the term “violation” we might look to Robertson v. Commonwealth, No. 2000-SC-0468-DG (Ky. 08/22/2002) which discusses a violation in conjunction with a misdemeanor and states:

“KRS 501.050 states that a person can be guilty of a criminal offense "without having one (1) of the culpable mental states defined in KRS 501.020" only when the offense is a violation or misdemeanor without a defined culpable mental state or when the offense is defined outside of the Kentucky Penal code and "the statute clearly indicates a legislative purpose to impose absolute liability for the conduct described."

While a Violation does not by definition provide for jail time, the Penal Code makes provision for jail time if the person ordered to pay a fine fails to do so. A person who commits a Violation and doesn’t pay the fine can be sentenced to 10 days in jail. See: KRS 534.060 Response to nonpayment of fines.

What about the fact that KRS 11A.020 is not in the Penal Code?

The Penal Code provisions cited above includes all classes of crimes whether in the Penal Code or not by virtue of KRS 532.005 which states:

KRS 532.005 Chapters 532, 533 and 534 to apply to crimes outside provisions of the

Penal Code.

KRS Chapters 532, 533 and 534 apply to all classes of crimes committed outside the

provisions of the Penal Code.

Effective: June 19, 1976

******

KRS 534.040 refers to fines for violations. This statute recognizes the existence of such statutes as KRS 11A.020 and recognizes that other chapters may impose larger fines that other violations. We can’t see how one could conclude that since the fine for a violation of KRS 11A.020 is greater than $250 it isn’t a criminal violation.

KRS 534.040 Fines for misdemeanors and violations.

“(2) Except as otherwise provided for an offense defined outside this code, a person who has been convicted of any offense other than a felony shall be sentenced, in addition

to any other punishment imposed upon him, to pay a fine in an amount not to

exceed:

(a) For a Class A misdemeanor, five hundred dollars ($500); or

(b) For a Class B misdemeanor, two hundred fifty dollars ($250); or

Having shown the authorities which make a case for a violation of KRS 11A.020 being a criminal offense, we further note the case law in Commonwealth v. Lawson Mardon Flexible Packaging which discusses a test the courts are to follow in determining if an offense is criminal or civil in nature. It should be noted that the facts of this case justified a finding that a fine was civil in nature and found a necessity due to the public health issues. It should also be noted that Com. V.. Lawson does not deal with any pardon issues. The court said:

Com. v. Lawson Mardon Flexible Packaging, 10 S.W.3d 488 (Ky. App., 1999)

“In determining whether a sanction is properly characterized as civil or criminal (and accordingly whether it runs afoul of Fifth Amendment Protection), the United

Page 491

States Supreme Court has set forth a two-part inquiry. Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), it stated that the trial court must determine 1) whether the legislative body intended the designated sanction or penalty to be civil, and 2) even if it was intended as civil in nature whether its effect is so punitive that it renders the sanction criminal despite its civil purpose.³

The court stated as follows:

Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. (citation omitted.) A court must first ask whether the legislature, "in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other." (citation `omitted.) Even in those cases where the legislature "has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect," ... as to "transfor[m] what was clearly intended as a civil remedy into a criminal penalty," Rex Trailer Co. v. United States, 350 U.S. 148, 154, 76 S.Ct. 219, 222, 100 L.Ed. 149 (1956). Hudson, 118 S.Ct. at 493, 118 S.Ct. 488.

In determining whether the statutory scheme is so punitive as to transform it from a civil remedy into a criminal penalty, Hudson directs us to what it describes as the "useful guideposts" set out Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644 (1963). Hudson, 118 S.Ct. at 493-94.

They are (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment-retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and, (7) whether it appears excessive in relation to the alternative purpose assigned.

Applying these principles to the facts at bar, we must conclude that the penalties assessed against Lawson Mardon under KOSH regulations were civil in nature. First, KRS 338.011 clearly states that its purpose is to promote worker safety and health. It states in relevant part that,

Therefore, the General Assembly declares that it is the purpose and policy of the Commonwealth of Kentucky to promote the safety, health and general welfare of its people by preventing any detriment to the safety and health of all employees, both public and private, covered by this chapter, arising out of exposure to harmful conditions and practices at places of work and otherwise to preserve our human resources by providing for education and training, inspection of workplaces, consultation, services, research, reports and statistics, and other means of furthering progress in the field of occupational safety and health.

Second, KRS 338.991 provides for "civil penalties" for violations of KOSH regulations including up to $7,000 for each serious violation under Subsection (2). The designation of the penalties as civil is a clear and unambiguous expression of legislative intent. See Hudson, 118 S.Ct. at 495. And third, the authority to impose penalties for violations of the KOSH standards is placed in the Kentucky Occupational Safety and Health Commission, an administrative body. As the Court in Hudson stated, "[t]hat such authority was conferred upon administrative agencies is prima facie evidence that Congress intended to provide for a civil sanction (citations omitted)." Hudson, 118 S.Ct. at 495.

Page 492

Having concluded that the General Assembly intended Chapter 338 to impose civil rather than criminal penalties, we turn to the second, part of the analysis, i.e., whether the sanctions are so punitive as to render them quasi-criminal despite the legislature's intent to the contrary. This analysis involves the seven Kennedy factors.

As noted above, the Kennedy analysis examines the degree to which a penalty's effect may properly be regarded as criminal rather than civil. In applying Kennedy to the facts at bar, we cannot conclude that Chapter 338 may reasonably be characterized as "[t]ransform[ed from] what was clearly intended as a civil remedy into a criminal penalty." Hudson, 118 S.Ct. at 493, 494.

While the imposition of a civil remedy (i.e., a fine) may properly be regarded as punitive, the clear purpose of Chapter 338 is to promote worker safety rather than achieve the goals commonly associated with criminal punishment. The record does not demonstrate that the statutory scheme at issue is so punitive in its application that it takes on the character of a criminal statute. As Hudson noted, "... `only the clearest of proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty...." Hudson, 118 S.Ct. at 493, 494.

The "clearest proof" is not present in the matter at bar, and as such we must conclude that Chapter 338 is properly regarded as a civil statute both in form and in application. Accordingly, the imposition of penalties thereunder does not bring about Fifth Amendment protection from subsequent criminal prosecution.

For the foregoing reasons, the order dismissing the indictment is vacated and the matter is remanded for proceedings consistent with this opinion.”

The Kennedy v. Mendoza-Martinez guideposts are further discussed in Smith v. Doe , 2003 SCT 45 (US, 2003):

“In analyzing the effects of the Act we refer to the seven factors noted in Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-169 (1963), as a useful framework. These factors, which migrated into our ex post facto case law from double jeopardy jurisprudence, have their earlier origins in cases under the Sixth and Eight Amendments, as well as the Bill of Attainder and the Ex Post Facto Clauses. See id., at 168-169, and nn. 22-28.

Because the Mendoza-Martinez factors are designed to apply in various constitutional contexts, we have said they are "neither exhaustive nor dispositive," United States v. Ward, 448 U. S., at 249; 89 Firearms, supra, at 365, n. 7, but are "useful guideposts," Hudson, 522 U. S., at 99. The factors most relevant to our analysis are whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a non-punitive purpose; or is excessive with respect to this purpose.”

Also see: Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) for additional tests to be considered in determining if an act is criminal opposed to civil in nature.

“ This Court has recognized a distinction between punitive measures that may not constitutionally be imposed prior to a determination of guilt and regulatory restraints that may. See, e. g., Kennedy v. Mendoza-Martinez, supra, 372 U.S., at 168, 83 S.Ct., at 567; Flemming v. Nestor, 363 U.S. 603, 613-614, 80 S.Ct. 1367, 1374-1375, 4 L.Ed.2d 1435 (1960); De Veau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 1154, 4 L.Ed.2d 1109 (1960). In Kennedy v. Mendoza-Martinez, supra, the Court examined the automatic forfeiture-of-citizenship provisions of the immigration laws to determine whether that sanction amounted to punishment or a mere regulatory restraint. While it is all but impossible to compress the distinction into a sentence or a paragraph, the Court there described the tests traditionally applied to determine whether a governmental act is punitive in nature:

"Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding

Page 538

of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions." 372 U.S., at 168-169, 83 S.Ct., at 567-568 (footnotes omitted).

Because forfeiture of citizenship traditionally had been considered punishment and the legislative history of the forfeiture provisions "conclusively" showed that the measure was intended to be punitive, the Court held that forfeiture of citizenship in such circumstances constituted punishment that could not constitutionally be imposed without due process of law. Id., at 167-170, 186, 83 S.Ct., at 566-569, 576.

The factors identified in Mendoza-Martinez provide useful guideposts in determining whether particular restrictions and conditions accompanying pretrial detention amount to punishment in the constitutional sense of that word. A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. See Flemming v. Nestor, supra, 363 U.S., at 613-617, 80 S.Ct., at 1374-1376.¹⁹ Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on "whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it]." Kennedy v. Mendoza-Martinez, 372 U.S., at 168-169, 83 S.Ct., at 567-568; see Flemming v.

Page 539

Example of presidential pardon recognizing the power to pardon civil offenses

In a letter Jack Quinn, attorney for financier Marc Rich, discussed a request for a presidential pardon sought from President William Jefferson Clinton, January 18, 2001. It was agreed that the application for a pardon would be for a limited pardon, and that while all criminal sanctions would be pardoned, Rich would remain subject to the jurisdiction of the courts relating to all civil penalties. See Letter.

If the pardon power did not include the right to relieve the accused of civil penalties and proceedings, there would have been no need for this discussion. The President did in deed follow up with a limited or conditional pardon, and the condition was that no civil fines would be exempted or remitted.

conclusion on Point one – civil vs. criminal

We see a compelling argument that the Penal Code has declared any offense imposing a fine as a violation and a violation is a criminal offense.

We also note that by the wording of KRS 11A.100 the fine is designated as a “civil” fine. The commission has concluded that this is purely a “civil” matter and that being a “civil” matter it is therefore exempt from the pardon.

So with these two opposing arguments we go to the case law and see that at best this issue is subject to judicial review.

To conclude that KRS 11A.100 only imposes a civil fine because it says “civil fine” is to ignore the intent of the Legislature in its definitions and classification statutes in the Penal Code, and the required review standards created by the U.S. Supreme Court in Kennedy v. Mendoza-Martinez, Smith v. Doe, and Bell v. Wolfish .

Even if the fine and procedure are found to be entirely civil in nature, this does not settle the issue in the Commission’s favor. We submit that pursuant to Section 77 of the Kentucky constitution the Governor has the power to pardon civil offenses as well as criminal offenses.

Section 77 does not use any language that suggests that only criminal offenses may be pardoned. It uses no language to suggest that only criminal fines and forfeitures can be pardoned. To reach such a conclusion the Commission has to interpret or add language to Section 77 that was not included by our founding fathers. When Section 77 says “fines and forfeitures” and “pardon” it does not limit itself to criminal fines and forfeitures or criminal pardons.

The United States Supreme court has recognized that procedures which might be denominated and defined as civil actions, may in nature be criminal, and if so, are subject to the protection of the 5^th. Amendment. We would suggest that this theory likewise applies to the pardon powers, i.e. a pardon applies to civil offenses which are criminal in nature. A forfeiture procedure is said to be a formally a civil proceeding, but due to their punitive nature, are sufficiently criminal to require the application of the 5^th. amendment rights applying to purely criminal proceedings.

See: United States v. United States Coin and Currency 25 8212 26, 1969, 28 L.Ed.2d 434, 91 S.Ct. 1041, 401 U.S. 715 (1971)

“The Government now relies heavily on the fact that Marchetti and Grosso only held that 'a claim of privilege precludes a criminal conviction premised on failure to pay the tax.'² (Emphasis supplied.) It argues that just as it may collect taxes in a civil action, the Government may also initiate forfeiture proceedings—which are also formally civil in nature—without offending Marchetti and Grosso. But as Boyd v. United States, 116 U.S. 616, 634, 68 S.Ct. 524, 534, 29 L.Ed. 746 (1886), makes clear, 'proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offences committed by him, though they may be civil in form, are in their nature criminal' for Fifth Amendment purposes. (Emphasis supplied.) From the relevant constitutional standpoint there is no difference between a man who 'forfeits' $8,674 because he has used the money in illegal gambling activities and a man who pays a 'criminal fine' of $8,674 as a result of the same course of conduct. In both instances, money liability is predicated upon a finding of the owner's wrongful conduct; in both cases, the Fifth Amendment applies with equal force. See also One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700, 85 S.Ct. 1246, 1250, 14 L.Ed.2d 170 (1965).”

Frederick Schick v. United States No 222 William Broadwell v. United States No 223, 195 U.S. 65, 24 S.Ct. 826, 49 L.Ed. 99 (1904):

So, in Huntington v. Attrill, 146 U. S. 657, 667, 36 L. ed. 1123, 1127, 13 Sup. Ct. Rep. 224, 227, after referring to the maxim of international law (The Antelope, 10 Wheat. 66, 123, 6 L. ed. 268, 282), that 'the courts of no country execute the penal laws of another,' and observ-

Page 77

ing that there was great danger, when interpreting that maxim, of being misled by the different shades of meaning allowed to the word 'penal' in our language, this court said: 'In the municipal law of England and America the words 'penal' and 'penalty' have been used in various senses. Strictly and primarily, they denote punishment, whether corporal or pecuniary, imposed and enforced by the state for a crime or offense against its laws. . . . Penal laws, strictly and properly, are those imposing punishment for an offense committed against the state, and which, by the English and American Constitutions, the executive of the state has the power to pardon.' Besides, the act throughout uses the words 'fine,' and 'fined,'—words which, in their primary sense, import the punishment of a person convicted of crime.

I cannot doubt, after a scrutiny of the entire act, that every offense prescribed by it, and for which a fine is imposed, was intended to be made and is a criminal offense,—a crime against the United States,—to be punished as such.”

Dixie Wholesale Gro., Inc. v. Martin, 278 Ky. 705 (KY, 1939) The Supreme Court of the United States held that while the information under which the papers and invoices were demanded was technically a civil proceeding, it was in substance, a criminal one. The court said [116 U.S. 616, 6 S. Ct. 534]:

"As, therefore, suits for penalties and forfeitures, incurred by the commission of offenses against the law, are of this quasi criminal nature, we think that they are within the reason of criminal proceedings for all the purposes of the fourth amendment * * * and of that portion of the fifth amendment which declares that no person shall be compelled in any criminal proceeding to be a witness against himself."

Com., Transp. Cabinet, Dept. of Vehicle Regulation v. Williams, 833 S.W.2d 385 (Ky. App., 1992)

The court reasoned that the revocation process is at least quasi-criminal in nature, because the motorist must take affirmative steps to defend herself

commissions argument 2)

The Governor’s pardon does not apply to ethics proceedings.

The Commission correctly states that there are limitations on the scope of a pardon in that a pardon does not prevent any and all consequences of the pardoned offense. Collateral consequences of the offense may still follow. As stated in Fletcher v. Graham, Ky., 192 S.W.3d 350, 362-363 (2006):

“[W]hile a pardon will foreclose punishment of the offense itself, it does not erase the fact that the offense occurred, and that fact may later be used to the pardonee’s detriment.”

But the Commission appears to overlook other statements of the Fletcher court.

Fletcher v. Graham, Ky., 192 S.W.3d 350, 362-363 (2006) also says:.

See: Fletcher v. Graham Court's Ruling

""A 'pardon' is '[t]he actor an instance of officially nullifying punishment or other legal consequences of a crime."37 It operates to eviscerate prosecution of the pardoned offense, because the pardonee is regarded as innocent: The pardoned man is relieved from all the consequences which the law has annexed to the commission of the public offense of which he has been pardoned, and attains new credit and capacity, as if he had never committed that public offense."Fn38

“There are no legal or semantic gymnastics by which an indictment may be characterized as a collateral consequence of an offense. It is axiomatic that grand jury investigations and indictments are stages in the criminal prosecution of the offense itself. The law is clear and well-established: "the pardon is itself an absolute exemption from any further legal proceedings...." Fn 41

“There is no room for equivocation on this point. When a pardon has been issued, the court is without jurisdiction or constitutional authority to continue legal proceedings against the pardonee: "[w]hen a pardon... is brought to the attention of the court, it is the duty of the court to discharge the defendant and dismiss the proceedings against him...." Fn 42

“. A gubernatorial pardon operates to cease any further legal proceeding concerning the pardoned conduct, including indictments.”

“, any person falling within the class specified by the Governor's pardon now holds a right, by virtue of the constitutional force of the pardon, to be free of any further legal proceedings. "In their proceedings the grand jurors cannot deprive a citizen of any substantial right assured by the constitution."49

The Commission has made a questionable interpretation into what the Ky. Supreme Court said in Fletcher v. Graham. Their argument takes a lonely stand on the words that pardons “may later be used to the pardonee’s detriment.”

The Court said:

“A pardon does not prevent any and all consequences of the pardoned offense: collateral consequences of the offense may still follow. For example, an attorney who has been pardoned for the offense of forgery may not be punished for that crime, but may be disbarred as a result of that offense.39”

Note the Court’s reference to Footnote 39. Footnote 39 says:

“39. Nelson v. Commonwealth, 109 S.W. 337, 338 (Ky. 1908).”

That reference to the Nelson case refers to a case decided in 1908 where the attorney was indicted for forgery, plead guilty, a jury was impaneled, he was found guilty and sentenced to two years in prison, the Judge (judges had real power in those days), then conducted his own disbarment hearing and disbarred the attorney ONLY THEN did the Governor issue a pardon to Attorney Nelson. The court reasoned that once the a person had been removed from the office of Attorney, the subsequent pardon would not reinstate him to that office.

Further the court said that the requirement for continued membership in the bar was the continuing requirement for good character. They held that under the facts of that case, his character could be considered at any time and he could be found deficient to continue to be a member of the bar and that the fact he had been convicted and pardoned were allowed to be considered. Those were considered to be the consequences of his conviction and pardon. The court went on to require that there had to be a procedure for fact finding where his guilt could be determined.

Nelson v. Commonwealth, 109 S.W. 337, 338 (Ky. 1908 says:

“In the Matter of Niles, 48 How. Prac.(N.Y.) 246, it was held that by conviction and sentence for a crime punishable in the state prison the office of an attorney and counselor was forfeited, that such forfeiture was like that of a the forfeiture of any other public office, and was not a temporaty suspension. If this view is sound, and we are inclined to think that it is, then the conviction and sentence had worked a forfeiture to E. of the office of attorney and counselor, and the pardon does not reinstate him. In that view he stands very much as if he had held some office, as for instance that of county judge. His pardon would not have reinstated him in office.”

“We think a careful analysis of those decisions holding that an attorney cannot be disbarred for an offense for which he has been pardoned shows that the rule is confined to those case where the disbarment is part of the penalty for the offense, and the courts have no inherent power to disbar except for a conviction of the offense.

In this state ...the courts have the power, independently of the statute above referred to, to disbar an attorney who has been guilty of forgery upon the ground that the commission of the offense shows that he is lacking in those qualities which are necessary for him to possess in order to continue as an attorney at law.”