State v. Douglas

• Decision Date: 04 May 1984
• Docket Number: No. 84-199,84-199
• Citation: 217 Neb. 199,349 N.W.2d 870
• Parties: STATE of Nebraska, Plaintiff, v. Paul L. DOUGLAS, Attorney General of the State of Nebraska, Defendant.
• Court: Nebraska Supreme Court

Page 870

349 N.W.2d 870

217 Neb. 199

STATE of Nebraska, Plaintiff, v. Paul L. DOUGLAS, Attorney General of the State of Nebraska, Defendant.

No. 84-199.

Supreme Court of Nebraska.

May 4, 1984.

Syllabus by the Court

1. Constitutional Law: Impeachment. The concurrence of five or more judges is required to convict in an impeachment proceeding.

2. Impeachment: Rules of Evidence. An impeachment proceeding is a judicial proceeding in the nature of a criminal proceeding in which the rules of evidence apply.

3. Impeachment. An omission for which an officer may be impeached and removed from office must relate to the duties of the office.

4. Impeachment: Misdemeanors. A misdemeanor in office may consist of a violation of some provision in the Constitution or a statute, willful neglect of duty done with a corrupt intention, or negligence so gross and disregard of duty so flagrant as to warrant an inference that it was willful and corrupt.

5. Impeachment: Attorneys at Law. A violation of the Code of Professional Responsibility which is applicable to members of the bar is not, as such, an impeachable offense.

6. Criminal Law: Evidence. When the State introduces statements of a defendant, the State is not bound by exculpatory statements contained therein, but such statements are to be considered by the finder of fact in the light of the surrounding facts and circumstances.

Jerome Warner and Vard R. Johnson, Lexington, for managers.

Richard G. Kopf, Lexington, and Wesley C. Mues and Graten Beavers, Sp. Asst. Attys. Gen., Kearney, for plaintiff.

William E. Morrow, Jr., Thomas J. Culhane and Tamra Lin Wilson of Erickson & Sederstrom, P.C., Judy K. Hoffman, Omaha, and Murray Ogborn of Nelson & Harding, Lincoln, for defendant.

BOSLAUGH, C.J. Pro Tem., HASTINGS, SHANAHAN, and GRANT, JJ., MORAN and HOWARD, District Judges, and COLWELL, District Judge, Retired.

PER CURIAM.

On March 14, 1984, the Eighty-eighth Legislature, Second Session, adopted articles of impeachment against Paul L. Douglas, the Attorney General of Nebraska, by Legislative Resolution 277. A copy of the resolution was delivered to the Chief Justice of this court on March 15, 1984.

Pursuant to Neb. Const. art. III, § 17, a special session of this court was called to try the articles of impeachment. A pretrial conference was held in chambers on March 21, 1984. Douglas entered a plea of not guilty on March 26, 1984, and trial commenced on that day. Trial was concluded on March 29, 1984, and the matter taken under advisement. The parties were given 7 days to submit briefs.

The articles of impeachment against Paul L. Douglas consist of some 30 paragraphs of general allegations, followed by 6 specifications, or counts, each of which charge a specific offense.

Neb. Const. art. III, § 17, provides in part, "No person shall be convicted without the concurrence of two-thirds of the members of the Court of impeachment ...." The effect of this provision is to require the concurrence of five or more judges to convict on any specification.

The court is divided on specifications Nos. 1 and 2. On specification No. 1, Judge Hastings, Judge Shanahan, Judge Grant, and Judge Moran vote to find the defendant guilty. Judge Boslaugh, Judge Howard, and Judge Colwell vote to find the defendant not guilty.

On specification No. 2, Judge Shanahan, Judge Grant, and Judge Moran vote to find the defendant guilty. Judge Boslaugh, Judge Hastings, Judge Howard, and Judge Colwell vote to find the defendant not guilty.

On specifications Nos. 3, 4, 5, and 6, the court is unanimous in finding the defendant not guilty.

Since there was not a concurrence of five or more judges to find the defendant guilty on any specification, it is the judgment of the court that the defendant is not guilty. The defendant, however, is subject to "prosecution and punishment according to law," and, as a member of the bar, may be subjected to sanctions which may be imposed in a disciplinary proceeding.

Under the Constitution of 1866 an impeachment was tried by the Senate in a political proceeding. Neb. Const. art. II, § 28. The Constitution of 1875 changed this procedure by providing that an impeachment should be tried by the Supreme Court. Neb. Const. art. III, § 14. This provision of the Constitution remains in force today. Neb. Const. art. III, § 17. See, also, Neb.Rev.Stat. § 24-101 (Reissue 1979).

In State v. Hastings, 37 Neb. 96, 55 N.W. 774 (1893), it was held that an impeachment proceeding is to be classed as a criminal prosecution in which the State is required to establish the essential elements of the charge beyond a reasonable doubt. While an impeachment proceeding is not a criminal prosecution in the strict sense of the word, it is a judicial proceeding in the nature of a criminal proceeding in which the rules of evidence apply. Before Douglas can be found guilty and removed from office, the State must have proved beyond a reasonable doubt one or more of the specifications. The purpose of the present constitutional provision is to ensure a strictly judicial investigation of the charge according to judicial methods. State v. Hastings, supra.

An important issue in this case is what constitutes an impeachable offense. The Constitution provides that all civil officers of this State shall be liable to impeachment "for any misdemeanor in office." Neb. Const. art. IV, § 5. We think this provision of the Constitution means that the act or omission for which an officer may be impeached and removed from office must relate to the duties of the office. In State v. Hastings, supra, it was said that

where the act of official delinquency consists in the violation of some provision of the constitution or statute which is denounced as a crime or misdemeanor, or where it is a mere neglect of duty willfully done, with a corrupt intention, or where the negligence is so gross and the disregard of duty so flagrant as to warrant the inference that it was willful and corrupt, it is within the definition of a misdemeanor in office.

Id. at 116, 55 N.W. at 780.

In Hastings, the court recognized certain principles that are equally applicable today:

[T]he provision for the trial of impeachments before the supreme court was to insure a strictly judicial investigation according to judicial methods.... [W]e have endeavored to adopt the rule best sanctioned by authority and which is just, alike to the state and its servants...." "[A]n impeachable high crime or misdemeanor is one in its nature or consequences subversive of some fundamental or essential principle of government or highly prejudicial to the public interest, and this may consist of a violation of the constitution, of law, of an official oath, or of duty by an act committed or omitted, or, without violating a positive law, by the abuse of discretionary powers from improper motives or for an improper purpose."

Id. at 114-15, 55 N.W. at 780.

It is better that the state should be confined to the remedy afforded by the Criminal Code and civil action on the bonds of its officers, than an alternative so dangerous and so liable to abuse as impeachment for technical violations of law, errors of judgment, mistake of fact, or even neglect of duty ....

Id. at 128, 55 N.W. at 785.

Four of the specifications contain references to disciplinary rules of the Code of Professional Responsibility, which has been adopted by this court as the standard relating to persons admitted to the practice of law. While the provisions of the Code of Professional Responsibility are applicable to the defendant in his capacity as a lawyer, and he may be held accountable in a disciplinary proceeding for any violation of the provisions of the code, it is our opinion that a violation of a disciplinary rule as such is not an impeachable offense. Further comments regarding the code are found in our discussion of specifications Nos. 3 and 6.

The defendant, Paul L. Douglas, was admitted to the practice of law in Nebraska in 1953. His public service began in 1956, when he was appointed deputy county attorney for Lancaster County, Nebraska. Later, he was elected and served as Lancaster County attorney from 1961 to 1974. He has been the elected Attorney General of the State of Nebraska since January 1975.

The articles of impeachment relate generally to a series of transactions between the defendant Douglas and Marvin Copple, a real estate developer and director of Commonwealth Savings Company. Paul Galter, a lawyer practicing in Lincoln, Nebraska, was associated with Douglas in these transactions. Douglas and Galter were partners in a partnership known as "P.P.S.S."

The following is a brief chronology of some events and transactions involving Douglas that are relevant to this proceeding.

1. December 29, 1973. Douglas buys a car from Marvin Copple; payment is made by his $6,500 note to Copple, who the same day assigns it to Commonwealth (paid in full with interest August 30, 1979).

2. December 3, 1976. Douglas borrows $25,000 from Commonwealth for home improvements (paid in full with interest September 7, 1982).

3. January 12, 1977. Douglas and Galter contract with Marvin Copple to buy 26 unimproved lots for $241,774 (first contract).

4. April 20, 1977. Douglas borrows $241,774 from Commonwealth (guaranteed by Galter); the loan proceeds check is endorsed and delivered to Copple for the 26 lots (Commonwealth loan paid in full August 30, 1979).

5. September 8, 1977. Douglas and Galter contract with Marvin Copple to buy 40 unimproved lots for $320,755 (second contract).

6. December 27, 1977. Douglas and Galter convey the 40 lots to Judith Driscoll; consideration, $371,814.

Driscoll borrows $371,814 from Commonwealth.

Driscoll endorses the $371,814 loan proceeds check from Commonwealth and delivers it to P.P.S.S.

Douglas and Galter pay Copple $320,775 with P.P.S.S. check (payment of second contract).

7. June 1, 1979. Douglas and Galter contract with Marvin Copple to buy 12 ...