| [6] |
Attorneys For Democratic Party OF Kentucky: Sheryl G. Snyder, Brown
Todd & Heyburn, Pllc, Louisville, Ky, Richard M. Sullivan, Conliffe
Sandmann & Sullivan, Louisville, Ky. Attorney For General Drivers
Warehousemen And Helpers Local Union No. 89 And Lon E. Fields, Sr
Scott Coleman Cox, Louisville, Ky. Attorney For Judge William L. Graham:
Julius Rather, Lexington, Ky. Attorneys For A. B. Chandler,
III/COMMONWEALTH OF Kentucky: A. B. Chandler, III, Attorney General,
Frankfort, Ky, Joseph Gutmann, Assistant Commonwealth's Attorney,
Louisville, Ky, William Bryan Jones, Office of the Attorney General,
Special Prosecutions Division, Frankfort, Ky, Karen M. Timmel, Assistant
Attorney General, Special Prosecutions Division, Frankfort, Ky, Scott
White, Assistant Attorney General, Office of the Attorney General,
Frankfort, Ky. Attorneys For Kentucky Registry OF Election Finance: Jon
L. Fleischaker, Cheryl R. Winn, Dinsmore & Shohl, Llp, Louisville, Ky.
Attorneys For Forgy/handy Campaign Committee: Lawrence E. Forgy, Jr.,
Lexington, Ky, Thomas V. Handy, London, Ky, Mark Stephen Pitt, Wyatt,
Tarrant & Combs, Louisville, Ky. |
| [7] |
The opinion of the court was delivered by: Cooper. |
| [8] |
Graves, Johnstone, Lambert, and Wintersheimer, JJ., concur. Stephens, C.J., Dissents by separate opinion. Stumbo, J., not sitting. |
| [9] |
DENYING PETITIONS FOR WRIT OF MANDAMUS |
| [10] |
We are called upon in this action to determine not whether the petitioners will be or should be indicted by a special grand jury empaneled by the Franklin Circuit Court, but only the narrow legal issue of whether a grand jury can return an indictment for a violation of a campaign finance law, KRS Chapter 121, absent a preliminary finding of probable cause by the Registry of Election Finance (Registry). Respondent William L. Graham, regular Judge of the Franklin Circuit Court, has determined that the special grand jury can do just that. In these consolidated actions, the petitioners seek the issuance of a writ of mandamus ordering Judge Graham to prohibit the special grand jury from returning any such indictments until and unless the Registry determines that there is probable cause to believe that a violation of a campaign finance law has occurred. |
| [11] |
I. FACTS. |
| [12] |
In 1995, the Democratic slate won the Kentucky gubernatorial election by a margin of 21,560 out of 980,014 total votes cast. Shortly thereafter, the Republican Party of Kentucky filed a sworn complaint with the Registry alleging that the Democratic Party violated the campaign finance laws during that election campaign. KRS 121.140(1). The Democratic Party countered with a complaint alleging similar violations on the part of the Republican Party. The Kentucky State Police (KSP) was already conducting its own investigation into allegations of election law violations. In April 1996, the Attorney General, at the request of the Governor, KRS 15.200, assumed control of the KSP's investigation. On April 10, 1996, the Attorney General and the chairman of the Registry entered into a "Joint Investigation Agreement" establishing a joint task force to coordinate their investigations. Paragraph 1 of that agreement provides as follows: |
| [13] |
The Task Force will be operated jointly by the Office of the Attorney General and the Kentucky Registry of Election Finance. All matters in which there is deemed to be only a civil violation of the campaign finance laws will be referred to the Kentucky Registry of Election Finance. All matters in which the Kentucky Registry of Election Finance determines that there is probable cause to believe that a campaign finance statute has been knowingly committed (sic) will be referred to the Office of the Attorney General or the appropriate prosecutor. |
| [14] |
In a letter to the Attorney General dated November 7, 1996, the chairman of the Registry expressed his opinion that the Attorney General could not seek an indictment on a campaign finance matter without first referring the matter to the Registry for a probable cause determination. On April 14, 1997, pursuant to a motion and affidavit filed by the Attorney General's office, Judge Graham entered an order empaneling a special grand jury to hear evidence concerning allegations of criminal conduct with respect to the 1995 gubernatorial election. KRS 29A.220. The motion specifically identified certain persons and organizations as targets of that investigation, including the Democratic Party of Kentucky and the Teamsters Union, i.e., General Drivers, Warehousemen and Helpers Local Union No. 89, who are petitioners in this action. Local 89 immediately filed suit in the Franklin Circuit Court seeking to enjoin the Attorney General from presenting evidence to the special grand jury on the same grounds which they assert in this petition. That action was dismissed on a finding that there was no justiciable controversy in the absence of some evidence that the grand jury intended to return an indictment prior to a probable cause determination by the Registry. The dismissal was affirmed by the Court of Appeals. General Drivers, Warehousemen & Helpers Local Union No. 89 v. Chandler, Ky. App., 968 S.W.2d 680 (1998). |
| [15] |
On May 18, 1998, at the request of the special grand jury and pursuant to RCr 5.24(1), Judge Graham entered an order granting disclosure to the Registry of all evidence presented to the grand jury and ordering the grand jury to remain in session pending receipt of an opinion from the Registry. On July 27, 1998, both the Attorney General and the Registry requested permission to publicly disclose all of the evidence heard by the grand jury. The Registry is of the opinion that its hearings must be open to the public; and, therefore, its proposed probable cause hearing with respect to the 1995 gubernatorial election would require public disclosure of the grand jury evidence. Judge Graham denied the disclosure requests, rescinded his May 18, 1998 order, and instructed the grand jury to proceed with its deliberations and the performance of its duties, i.e., return either an indictment or a finding of "no true bill." That order was reduced to writing and entered on July 29, 1998. Local 89 filed its petition in the Court of Appeals on August 8, 1998, and the Democratic Party filed its petition on August 13. On August 19, the Court of Appeals entered an order recommending transfer, and we granted transfer that same day. CR 74.02(5). |
| [16] |
II. JUSTICIABLE CONTROVERSY. |
| [17] |
The preliminary issue is the same one resolved adversely to Local 89 by the Court of Appeals in General Drivers, Warehousemen & Helpers Local Union No. 89 v. Chandler, supra, viz : Do the petitioners presently have standing to raise the issues addressed in their petitions, or, put another way, is there a present justiciable controversy? |
| [18] |
The gist of the petitioners' claim in this regard is that the Attorney General and the grand jury are acting without jurisdiction. Thus viewed, the argument is analogous to that raised in Goodwin v. City of Louisville, 309 Ky. 11, 215 S.W.2d 557 (1948), in which the plaintiff brought an action to enjoin a threatened prosecution for violation of zoning laws. Therein, we stated: |
| [19] |
The concept of the term jurisdiction embraces action, or contemplated action, by the body without power and in the given case, it is necessary for the judiciary to restrain the agency in order to prevent irreparable injury. |
| [20] |
Id., 215 S.W.2d at 559. |
| [21] |
That, of course, raises the question of whether the return of an indictment would constitute irreparable injury per se. Petitioners assert that irreparable injury need not be proven if the challenged statute infringes on First Amendment free speech rights. See Colorado Republican Federal Campaign Committee v. Federal Election Commission, 518 U.S. 604, 116 S. Ct. 2309, 135 L. Ed. 2d 795 (1996). However, petitioners are not challenging the provisions of KRS Chapter 121 in this action, but are relying on those provisions to support their claim for relief. Nor are we persuaded that the notoriety and embarrassment which might accompany the return of an indictment constitutes irreparable injury. Cf. Jones v. Hogg, Ky., 639 S.W.2d 543 (1982). Petitioner Fields posits that the mere return of an indictment against him would result in his automatic removal from office as president of Local 89. For this proposition, he cites the Consent Decree entered in the United States District Court for the Southern District of New York in the case of United States of America v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 88 CIV. 4486 (DNE). A perusal of that Decree reveals no language which could be interpreted as providing for an automatic removal from office upon the mere return of an indictment. |
| [22] |
Nevertheless, because of the importance of the issue raised in this action and the certainty of its recurrence, especially if indictments are returned against any of these petitioners, we choose not to decide this case on the basis of whether the return of an indictment would result in irreparable harm, but to proceed instead to the merits. |
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