Fletcher v. Graham, No. 2005-SC-1009-MR.

CourtUnited States State Supreme Court (Kentucky)
Citation192 S.W.3d 350
Decision Date18 May 2006
PartiesErnie FLETCHER, in His Official Capacity as Governor of the Commonwealth of Kentucky, Appellant v. Hon. William L. GRAHAM, Judge, Franklin County Circuit Court, Appellee. and Gregory D. Stumbo, in His Official Capacity as Attorney General for the Commonwealth of Kentucky Real Party in Interest
Docket NumberNo. 2005-SC-1009-MR.

192 S.W.3d 350

Ernie FLETCHER, in His Official Capacity as Governor of the Commonwealth of Kentucky, Appellant
v.
Hon. William L. GRAHAM, Judge, Franklin County Circuit Court, Appellee. and
Gregory D. Stumbo, in His Official Capacity as Attorney General for the Commonwealth of Kentucky Real Party in Interest

No. 2005-SC-1009-MR.

Supreme Court of Kentucky.

May 18, 2006.


192 S.W.3d 354
Sheryl G. Snyder, Thomas P. O'Brien, III, Jason Patrick Renzelmann, Frost Brown Todd, LLC, Louisville, James L. Deckard, General Counsel, Office of the Governor, Frankfort, Counsel for Appellant

Pierce Butler Whites, Assistant Deputy Attorney General, Scott C. Sutherland, Assistant Attorneys General, Jennifer B. Hans, Janet M. Graham, Assistant Attorneys General, Frankfort, Counsel for Appellee/Real Party in Interest.

192 S.W.3d 355
Opinion of the Court by Justice JOHNSTONE

In an original action before the Court of Appeals, Appellant, Governor Ernie Fletcher, in his official capacity as Governor of the Commonwealth of Kentucky, sought a writ of mandamus directing the Franklin Circuit Court to issue supplemental instructions to a special grand jury. This special grand jury had been summoned by the Attorney General to investigate allegations of criminal violations of the state's merit system hiring scheme. While the grand jury was in the process of investigating these allegations, and after several indictments had been issued against executive branch employees, Governor Fletcher issued an executive order pardoning all criminal conduct that was under investigation by that special grand jury. Following the issuance of the pardon, Governor Fletcher moved the Franklin Circuit Court to instruct the grand jury concerning the effect of the pardon—to wit, that the grand jury had no authority to issue further indictments for pardoned conduct. The Franklin Circuit Court declined to issue the supplemental instructions, prompting Governor Fletcher to seek a writ of mandamus in the Court of Appeals. The Court of Appeals denied the petition, determining that the pardon, though valid, did not compel the circuit court to issue supplemental instructions to the grand jury investigating the pardoned offenses. Governor Fletcher appealed to this Court as a matter of right. For the reasons set forth herein, we affirm in part and reverse in part.

Background

The investigation began in May 2005, when an employee of the Kentucky Transportation Cabinet contacted the Attorney General and presented evidence of alleged criminal violations of the state merit employee hiring system.1 On May 25, 2005, upon motion of the Attorney General, the Franklin Circuit Court summoned a special grand jury. For several months, the grand jury proceeded to investigate the matter and eventually issued several indictments against executive branch employees alleging both misdemeanor violations of the merit system laws and felony violations concerning evidence and witness tampering. Some three months into the investigation, on August 29, 2005, Governor Fletcher issued Executive Order 2005-924, whereby he sought to pardon nine individuals indicted by the grand jury as well as "any and all persons who 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."2

Notwithstanding the pardon, the grand jury continued its work and issued indictments for pardoned offenses. In response, Governor Fletcher moved the Franklin Circuit Court to supplement its instructions to the grand jury. Specifically, Governor Fletcher sought an instruction advising the grand jury that "pardoned conduct that preceded the pardon is no longer an indictable offense and therefore cannot constitutionally form the basis for an indictment." Governor Fletcher further asked that the grand jury be instructed that pardoned persons may not be indicted "solely for the purposes of naming them in a report." The Franklin Circuit Court denied the Governor's motion, instead telling the grand jurors that the Governor's pardon had no bearing on their work whatsoever.

192 S.W.3d 356
While recognizing the Governor's constitutional authority to issue pardons, the trial court concluded that the requested instructions would impermissibly infringe upon the grand jury's independence. Rather, the trial court determined that the grand jury could continue issuing indictments, even against pardoned persons, though such indictments would immediately be dismissed

Governor Fletcher then petitioned the Court of Appeals for a writ of mandamus directing the Franklin Circuit Court to deliver the requested instructions. The Court of Appeals denied the petition, ultimately concluding that the Governor's pardon, though valid, did not oblige the circuit court to instruct the grand jury concerning the effect of the pardon. Governor Fletcher now appeals to this Court as a matter of right.

Standard of Review

We first address our standard of review of a request for a writ of mandamus. A writ of mandamus is essentially a command from a higher court to "stop some action which is threatened by or is being proceeded with by an inferior court."3 It has long been characterized as an "extraordinary remedy"4 that is granted conservatively and only in "exceptional situations."5 Accordingly, a writ of this nature is granted for only two purposes: (1) when the lower court is acting beyond its jurisdiction, and (2) when the lower court is acting or is about to act erroneously, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.6 In reviewing the grant or denial of a writ of mandamus, the standard of our review depends on the nature of the writ and the circumstances of the case.7 Generally speaking, however, the basic standard of review of the grant or denial of a writ is abuse of discretion, while questions of law are reviewed de novo.8

Here, the Governor sought a writ of mandamus of the second category, and the Court of Appeals determined that the petition was properly before the court. Noting that Governor Fletcher sought to completely prohibit indictments for pardoned offenses rather than simply prevent erroneous indictments, the Court of Appeals agreed that no adequate remedy by appeal existed. The Court of Appeals further found that the potential "insult" to the Governor's pardoning power fulfilled the "great and irreparable injury" requirement. The Attorney General now argues that the Court of Appeals erred in its holding that great and irreparable injury would potentially result from the denial of the requested writ.

We agree with the Court of Appeals' determination that the prerequisites for a writ of mandamus—i.e., no adequate remedy by appeal, and great and irreparable harm—were met in this instance. Because the Governor specifically seeks to prevent the indictment of any pardoned person, it would not be an adequate remedy

192 S.W.3d 357
to simply dismiss any indictments as they were issued. As the Court of Appeals noted, "a post-indictment remedy... would not protect the interests the Governor asserts." We also concur with the Court of Appeals' holding that, if his arguments are correct, the Governor faces great and irreparable injury. The Governor alleges a violation of the separation of powers, as well as misconstruction of his constitutional power to pardon; correction of this possible error is certainly "necessary and appropriate in the interest of orderly judicial administration."9 Accordingly, the Court of Appeals did not abuse its discretion in concluding that the procedural prerequisites for a writ of mandamus were satisfied in this case

Supplemental Instructions to the Grand Jury

Turning to the merits of the case, we must first determine the validity of the August 29 pardon, as the circuit court would be under no obligation to instruct the grand jury concerning a legally ineffectual document. The pardon, contained in Executive Order 2005-924 read, in pertinent part:

[B]y virtue of the authority vested in me by Section 77 and related provisions in the Constitution of the Commonwealth of Kentucky. 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. Druen, Tim Hazlette, Charles W. Nighbert, Cory W. Meadows, Richard L. Murgatroyd, Basil W. Turbyfill, Robert W. Wilson, Jr., and any and all persons who 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, Kentucky and the Office of the Attorney General .... The provisions of this Order shall not apply to Ernie Fletcher, Governor of the Commonwealth of Kentucky.

The Attorney General challenges the scope of the Governor's pardon on three grounds: (1) that Section 77 does not authorize general, or blanket, pardons; (2) that pardons may not be granted prior to indictment; and (3) that formal acts of acceptance are essential to a valid pardon. We first address the issue of the so-called "blanket" pardon.

The Attorney General maintains that the language of Section 77 does not expressly authorize blanket pardons, which are pardons issued to classes of persons rather than specified individuals. Here, though the Governor does pardon nine identified individuals, the pardon also included a class of persons: "any and all persons who have committed, or may be accused of committing, any offense up to and including the date hereof." The Governor argues that nothing in the language of Section 77 prohibits this type of general or blanket pardon, and that the governor's power to issue general pardons has long been recognized. We agree.

Section 77 provides: "[The Governor] shall have power to remit...

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31 practice notes
  • State v. Radcliff, No. 11AP–652.
    • United States
    • United States Court of Appeals (Ohio)
    • October 11, 2012
    ...it does not erase the fact that the offense occurred, and that fact may later be used to the pardonee's detriment.” Fletcher v. Graham, 192 S.W.3d 350, 363 (Ky.2006). See also Talarico v. Dunlap, 177 Ill.2d 185, 190, 226 Ill.Dec. 222, 685 N.E.2d 325 (1997) (concluding that because a pardon ......
  • Zuckerman v. Bevin, 2018-SC-000097-TG
    • United States
    • United States State Supreme Court (Kentucky)
    • November 15, 2018
    ...as possible left to implication[.]" City of Louisville v. German , 286 Ky. 477, 150 S.W.2d 931, 935 (1940). Fletcher v. Graham , 192 S.W.3d 350, 358 (Ky. 2006).To demonstrate the point that the 1891 Constitution does not reflect a "pro-labor, populist, progressive" point of v......
  • In re Misc. 4281, No. 724, Sept. Term, 2016
    • United States
    • Court of Special Appeals of Maryland
    • December 2, 2016
    ...263 N.E.2d 832, 833 (1970) (a criminal proceeding does not commence until the grand jury returns an indictment); Fletcher v. Graham , 192 S.W.3d 350, 402 (Ky. 2006) (“the grand jury does not conduct criminal proceedings; it initiates criminal proceedings by the return of an indictment”); Im......
  • Hentz v. State, No. 2013–CA–01217–SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • December 11, 2014
    ...v. Commodity Futures Trading Comm'n, 414 F.3d 679, 682 (7th Cir.2005) (emphasis in original); see also Fletcher v. Graham, 192 S.W.3d 350 (“[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......
  • Request a trial to view additional results
31 cases
  • State v. Radcliff, No. 11AP–652.
    • United States
    • United States Court of Appeals (Ohio)
    • October 11, 2012
    ...it does not erase the fact that the offense occurred, and that fact may later be used to the pardonee's detriment.” Fletcher v. Graham, 192 S.W.3d 350, 363 (Ky.2006). See also Talarico v. Dunlap, 177 Ill.2d 185, 190, 226 Ill.Dec. 222, 685 N.E.2d 325 (1997) (concluding that because a pardon ......
  • Zuckerman v. Bevin, 2018-SC-000097-TG
    • United States
    • United States State Supreme Court (Kentucky)
    • November 15, 2018
    ...as possible left to implication[.]" City of Louisville v. German , 286 Ky. 477, 150 S.W.2d 931, 935 (1940). Fletcher v. Graham , 192 S.W.3d 350, 358 (Ky. 2006).To demonstrate the point that the 1891 Constitution does not reflect a "pro-labor, populist, progressive" point of v......
  • In re Misc. 4281, No. 724, Sept. Term, 2016
    • United States
    • Court of Special Appeals of Maryland
    • December 2, 2016
    ...263 N.E.2d 832, 833 (1970) (a criminal proceeding does not commence until the grand jury returns an indictment); Fletcher v. Graham , 192 S.W.3d 350, 402 (Ky. 2006) (“the grand jury does not conduct criminal proceedings; it initiates criminal proceedings by the return of an indictment”); Im......
  • Hentz v. State, No. 2013–CA–01217–SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • December 11, 2014
    ...v. Commodity Futures Trading Comm'n, 414 F.3d 679, 682 (7th Cir.2005) (emphasis in original); see also Fletcher v. Graham, 192 S.W.3d 350 (“[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......
  • Request a trial to view additional results

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