Today we got the full ruling from Melcher on the Fletcher case. It contains his reasoning on each of the motions brought forward by Fletcher's defense team. Let's take a look at the ruling.
Ground 1: Selective and Vindictive Prosecution in violation of the equal protection clauses of Kentucky and U.S. Constitutions
This issues has caused this court concern. However, unlike City of Ashland v Heck relied on by the Defendant, here, there are no alleged existing officials openly violating the same law which this defendant is charge with violating who are not being prosecuted. The "historical" argument while troubling is not the focal point. The present situation ist he focal point and therefore, this ground for the motion is denied
To me this line of reasoning is a bit weak. The only people in office currently is the Governor. Who else could be offending this law "presently" in state Government. The fact that the current AG has not prosecuted similar cases (ie Patton administration) within the statue of limitations seems to violate equal protections laid out in the Heck decision. I would think this is definite grounds for appeal.
Ground 2: Criminal intent could not have been formed on count 3 as a matter of law because the discharged employee was in probationary status.
Melcher overruled this motion because he does not feel he has enough ground to make a ruling on this. Basically it should be decided by a jury.
Ground 3:Counts I and II are time barred under the one year statue of limitations for misdemeanors.
I didn't realize how close of a time line it really was as far as the statue of limitations. In the original complaint I thought it was silly that the AG's office would include the Blue Ribbon Panel as part of the "conspiracy". But it turns out he needed it to be able to make the statue of limitations.
Although this is a close call, the Bill of Particulars does appear to set forth overt acts after May 11, 2005. The Court would be remiss, however, if it did not mention that it is extremely difficult if not impossible to see how the creation of a "Blue Ribbon" task force to investigate Merit System problems, which included the Attorney General, can in any way be relied upon by the Commonwealth. Nonetheless, this ground is overruled.
This is basically a case of "I don't believe it", but I'll give the AG a pass on this one. This would be another count for the Governor to appeal.
Ground 4:KRS 18A.140 Does not State a Crime.
Ground 5: The indictment is hopelessly deficient and fails to put the defendant on notice of the conduct with which he is charged
I don't know why this was even attempted. 18A.140 does prohibit certain conduct and 18A.990 describes the penalty. A clear dud.
Ground 6: Separation of powers provides a sitting governor with immunity from indictment and prosecution for his official acts.
This one seems straight forward to me and makes sense. The state constiution lays out three separate brances of government that are equal. Since the Governor is acting within his constitutionaly granted powers, he can not be prosecuted by the judicial branch. Therefore it is up to the legislative body to determine the severity of law breached and move forward with impeachment. Otherwise, the judicial system is powerless to prosecute until the Governor leaves office.
Of course, I find this ruling strange because he is very broad in his rejection of other claims, but very narrowly rules on this issue. I can definetly see why the AG would want to appeal this ruling. If for nothing else than to codify the law. My guess is that this ruling will hold up under appeal.
Official misconduct encompasses illegal actions taken in the exercise of an official function, i.e. hiring and firing employees. Misconduct that is not "official" would include bribes, burglaries,etc, none of which is aleged herein. This court finds that unofficial misconduct can be pursued against any citizen (including the governor) at anytime, if the statue of limitations is satisfied.
This indictment, however, makes allegations of official misconduct in the exercise of gubernatorial powers...
Even if present charges are well founded, they should not be pursued until the Governor is either impeached or leaves office. There is no absolute immunity here barring a later prosecution. Charges can be brought, but nor pursued. This result is required by teh "balancing test" set out in Nixon v Fitgerald and by the Separtion of Powers Doctrine.
Note that unofficial acts of office are prosecutable immediately. So this is not blanket "immunity" for the Governor.
Bottom line, it appears to me that Fletcher has two very good grounds for immediate appeal of the rulings by Melcher. He should take them and see what the higher courts say.
