COMMONWEALTH OF KENTUCKY v. J. MARSHALL HUGHES
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RENDERED:
NOVEMBER 22, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-002576-MR
COMMONWEALTH OF KENTUCKY
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 05-CR-00235
J. MARSHALL HUGHES
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
GUIDUGLI AND HENRY, JUDGES; BUCKINGHAM,1 SENIOR JUDGE.
GUIDUGLI, JUDGE:
This case arises from the Franklin Circuit
Court’s sua sponte dismissal of a two-count misdemeanor
indictment against J. Marshall Hughes on the basis of the pardon
issued by Governor Fletcher in Executive Order 2005-924.
The
Franklin County Special Grand Jury, summoned by the Attorney
General to investigate criminal violations of Kentucky’s merit
system hiring scheme, returned the indictment against Hughes.
The Commonwealth raises three issues in its appeal, contesting
1
Senior Judge David C. Buckingham, sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
the validity of Governor Fletcher’s pardon, asserting that
Hughes did not accept the pardon and accordingly could not
benefit from it, and arguing that the circuit court did not have
jurisdiction over the misdemeanor indictment.
While we disagree
with two of the Commonwealth’s arguments in light of the Supreme
Court of Kentucky’s recent decision of Fletcher v. Graham,2 we
agree that the circuit court did not have jurisdiction to
dismiss the indictment.
Accordingly, we vacate the circuit
court’s order and remand.
By way of background, we shall rely upon the Supreme
Court’s brief description of the investigation in Fletcher v.
Graham:3
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.[] 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
2
192 S.W.3d 350 (Ky. 2006).
3
Id. at 355.
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individuals indicted by the grand jury[4] 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.”[]
The grand jury continued its investigation after the pardon had
been entered and issued more indictments for pardoned offenses.
One such person indicted was J. Marshall Hughes.
Hughes was indicted by the special grand jury on
October 20, 2005, on two misdemeanor counts of conspiracy to
violate the prohibition against political discrimination.5
In
particular, Count 1 charged:
On or between January 1, 2004 and May
30, 2005, in Franklin County, Kentucky, the
above-named defendant, J. Marshall Hughes,
having the intention of promoting or
facilitating the commission of a violation
of KRS 18A.140(1), agreed with Richard
Murgatroyd, Dave Disponett, Dan Druen and
other unknown and unindicted co-conspirators
that at least one (1) of them would engage
in a course of conduct constituting a
violation(s) of KRS 18A.140(1) by
appointing, promoting, transferring,
demoting, dismissing or otherwise favoring
or discriminating against persons in some
manner related to positions in the state
classified (merit) service, based upon their
political affiliation or opinion.
Count 2 charged:
4
The nine individuals listed by name in the pardon are James L. Adams,
Darrell D. Brock, Jr., Danny G. Druen, Tim Hazlette, Charles W. Nighbert,
Cory W. Meadows, Richard L. Murgatroyd, Basil W. Turbyfill, and Robert W.
Wilson, Jr.
5
KRS 506.040, KRS 18A.140(1), and KRS 18A.990.
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On or between January 1, 2004 and May
16, 2005, in Franklin County, Kentucky, the
above-named defendant, J. Marshall Hughes,
having the intention of promoting or
facilitating the commission of a violation
of KRS 18A.140(1), agreed with Richard
Murgatroyd, Cory Meadows, Dan Druen and
other unknown and unindicted person(s), that
at least one (1) of them would engage in
conduct constituting a violation of KRS
18A.140(1) by appointing Marjorie Ann
Stewart to the position of Highway District
Administrative Manager for the Kentucky
Department of Transportation, Warren County,
based on her political affiliation or
opinion.
On the basis of the pardon, which included “any and all persons
who . . . may be accused of committing, any offense up to and
including the date hereof, relating in any way to the current
merit system investigation[,] . . . including . . . any
violation of KRS Chapter 18A[,]”6 the circuit court entered a sua
sponte order dismissing the indictment against Hughes on
November 16, 2005.
This appeal by the Commonwealth followed.
The Commonwealth raises three issues on appeal,
contesting the validity of the pardon, Hughes’ acceptance of the
pardon, and the subject-matter jurisdiction of the circuit court
to dismiss the misdemeanor indictments.
Hughes, in turn,
disputes each of the arguments the Commonwealth raises.
Because
the issues raised relate solely to questions of law, we shall
review the circuit court’s ruling de novo.
6
The pardon specifically listed a violation KRS 18A.140 as an offense
included within its reach.
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1.
VALIDITY OF THE PARDON
The bulk of the Commonwealth’s brief addresses the
applicability of Executive Order 2005-924 to future indictments
of individuals not named in the pardon.
However, the
Commonwealth conceded in its reply brief that the Supreme Court
decided this issue in Fletcher v. Graham.7
The Supreme Court
held that Section 77 permits the issuance of blanket pardons, as
“[n]othing in the language of Section 77 infers that general
pardons are prohibited, nor is there any indication that a
governor may not pardon a class of persons.”8
Likewise, the
Supreme Court held that the governor could issue pardons prior
to formal indictments for the pardoned offenses:
“[T]here is no
language whatsoever in Section 77 identifying a particular stage
in the criminal proceedings after which a pardon is
permissible.”9
2.
ACCEPTANCE OF PARDON
Next, the Commonwealth argues that the dismissal order
is invalid because Hughes never formally accepted the pardon
granted by the Executive Order, while Hughes asserts that the
only requirement is that the defendant must bring the existence
7
Fletcher v. Graham was rendered after the Commonwealth filed its initial
brief in the present appeal.
8
Id. at 358.
9
Id. at 359.
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of the pardon to the attention of the trial court to obtain its
benefit.
As with the first issue, the Supreme Court addressed
this argument in Fletcher v. Graham.
The Supreme Court, in addressing the acceptance
requirement, held that a formal acceptance is not required:
Upon a thorough review of these
[foreign] cases, we agree that acceptance of
a pardon need not be formal, but may be
inferred by the circumstances. This
position embodies the notion that a pardon
may be rejected, but also the common-sense
assumption that such rejection will be the
rare exception. Where the circumstances of
the case evidence the clear intent of the
governor to issue the pardon, and there is
no evidence or circumstances from which to
infer that it was rejected, acceptance must
be assumed.10
In deciding that acceptance of the pardon was assumed, the
Supreme Court held that “there is no indication that any person
within its ambit has rejected the pardon.”11
In the present case, the Commonwealth argues that
under the Fletcher v. Graham analysis, this matter must be
remanded to allow it an opportunity to demonstrate, and the
lower court to determine, if there is any evidence to infer that
Hughes rejected the pardon.
We disagree that such fact-finding
is necessary in the instant case, as there are no circumstances
or evidence showing that there is any question that Hughes
10
Id. at 362.
11
Id.
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accepted the pardon.
Indeed, had Hughes evidenced any intention
to reject the protection offered by the pardon, he would have
contested the circuit court’s dismissal and he certainly would
not have filed a brief in this appeal opposing the
Commonwealth’s arguments for reversal.
3.
JURISDICTION
For its final argument, the Commonwealth raises the
issue of subject-matter jurisdiction.
It asserts that the
circuit court lacked jurisdiction to dispose of the misdemeanor
charges filed against Hughes, as the district court (not the
circuit court) has exclusive jurisdiction over such charges
pursuant to KRS 24A.110.
The Commonwealth relies upon the
Supreme Court’s opinion in Commonwealth v. Adkins12 to support
this proposition:
“KRS 24A.110(2) provides that the district
court has exclusive jurisdiction over final disposition of
misdemeanors, except when the charge is joined with an
indictment for a felony.”
In this case, the grand jury did not
charge Hughes with having committed any felony offenses.
In response, Hughes argues that the special grand jury
was under the supervision of the circuit court and would
therefore maintain jurisdiction over the charges presented to
it, and that it was in the discretion of the circuit court to
either retain jurisdiction or remand the matter to the district
12
29 S.W.3d 793, 794 (Ky. 2000).
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court.
Hughes also points out that the Commonwealth is barred
from raising this issue on appeal, as it was not previously
raised before the lower court and is therefore unpreserved.
Initially, we note that Hughes’ preservation argument
is not well-taken, as the issue before the Court on this issue
relates to subject-matter jurisdiction.
“Defects in subject-
matter jurisdiction may be raised by the parties or the court at
any time and cannot be waived. . . .
Specifically, subject-
matter jurisdiction may be raised for the first time on
appeal.”13
We agree with the Commonwealth that the circuit court
did not have jurisdiction over this case.
As the indictment
contained only misdemeanor charges, the district court’s
jurisdiction would necessarily be exclusive.14
While a remand to
the district court will needlessly prolong a case that will
immediately be dismissed on the basis of the pardon, we must
vacate the circuit court’s order as it was without jurisdiction
to act.
For the foregoing reasons, the order of the Franklin
Circuit Court is vacated, and this matter is remanded to the
Franklin District Court for dismissal of the indictment.
ALL CONCUR.
13
Privett v. Clendenin, 52 S.W.3d 530, 532 (Ky. 2001).
14
KRS 24A.110.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
Steven O. Thornton
Bowling Green, Kentucky
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, Kentucky
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