NATE JENKINS / Lincoln Journal Star | Posted: Wednesday, February 8, 2006 6:00 pm
The decision by a Lancaster County District judge to halt a grand jury investigation of University of Nebraska Regent David Hergert before it started and not say why befuddled lawmakers and legal observers, but it does not negate the possibility Hergert can be impeached. Related story: AG asks high court to order grand jury's decision open
Some state senators who learned Wednesday of Lancaster County District Judge Steven D. Burns’ decision to nix a previous decision by another judge to convene a grand jury said they had never heard of such a maneuver.
One of those, Sen. Ernie Chamber of Omaha, Hergert’s chief critic, blasted Burns on the floor of the Legislature. At one point Chambers said the judge was a dunce operating a kangaroo court.
“When a judge has behaved in a way Steven Burns has behaved it casts a cloud over the system,” Chambers said.
Burns did not return a phone message seeking comment.
Burns’ decision reversed a decision made a couple months ago by another Lancaster County District judge, Karen Flowers. She granted Attorney General Jon Bruning’s request to convene a grand jury after the findings of a State Patrol investigation turned up “credible evidence that Mr. Hergert violated the law,” Bruning said at the time.
Hergert, of Mitchell, reached a $33,512 settlement with the state last year after acknowledging he broke four campaign finance laws on his way to unseating Don Blank of McCook. No criminal charges were filed, but Hergert faced that possibility with the now-obsolete decision by Flowers to form a grand jury. A grand jury has the power to subpoena witnesses.
It was unclear Wednesday whether Bruning could pursue criminal charges without a grand jury.
Though Flowers granted Bruning’s request for a grand jury, Burns was handed control of the process when, because of a normal rotation among judges, he took over as presiding judge. The reasons he issued the order dismantling the grand jury process “will not be disclosed at this time,” according to the order.
Burns has issued a gag order on attorneys, including Bruning, and others associated with the case. As with other aspects of the case, Bruning would not comment on what legal response he may have to Burns’ action.
District Court Clerk Sue Kirkland said that because of secrecy rules surrounding grand juries she could not discuss whether Bruning had filed a legal response.
Attorneys surveyed about judges every two years by the Nebraska Bar Association haven’t given Burns high marks. In 1998, a year after he was appointed by then-Gov. Ben Nelson, Burns was one of four judges across the state that more than half of the attorneys surveyed said should not be retained in office. In the 2004 survey, almost 29 percent of attorneys surveyed said he shouldn’t retain office, a greater percentage than all but four other district court judges in the state.
Former Lancaster District Judge Sam Van Pelt, who sat on the bench for 11 years, said he couldn’t recall a time when an order to convene a grand jury was vacated without explanation.
“I can say I’ve never heard of it, but I can’t say it can’t be done,” Van Pelt said.
The law demands that proceedings involving grand juries remain secret, in part to protect the people being investigated should information turned up by the investigations not lead to charges, said Lincoln attorney Robert Bartle, who has been a special prosecutor in several cases that involved grand juries.
But Burns’ order came before the grand jury convened and had a chance to begin an investigation. Unless orders contain information unearthed or heard by a grand jury, one can normally expect the reasons for them to be public, according to Bartle.
“It is somewhat unusual,” Bartle said of Burns’ decision, adding that he didn’t know enough to conclude whether the decision was right or wrong.
Media of Nebraska, an association of the state’s daily and weekly newspapers, as well as radio and television stations, is monitoring the issue and may take legal action to unseal information about why Burns made the order.
“Since there’s no grand jury,” said Larry King, president of the group and executive editor of the Omaha World Herald, “what’s the basis of the secrecy?”
“Sealing of records and gag orders are counter to the public knowing what’s going on,” King said. “We will consider taking whatever legal action we think we can to open up public business to the public,” he added later.
The chairman of a legislative committee charged with recommending to the Legislature whether impeachment of Hergert is a viable legal option, meanwhile, said the judge’s decision “will have no effect” on the committee’s work.
The committee was formed after Hergert ignored a resolution passed by the Legislature last year asking him to resign.
The chairman, Sen. Pat Bourne of Omaha, and the rest of the committee decided recently to wait until a grand jury completed its work before crafting a recommendation.
Now, said Bourne, the committee will move ahead and is waiting on a report from an attorney it hired.
The report is expected to help the committee navigate difficult legal questions related to the state constitution. It states that civil officers are liable for impeachment “for any misdemeanor in office.” Chambers and others argue that Hergert could be impeached because his campaign violations occurred while procuring office.
Reach Nate Jenkins at 473-7223 or njenkins@journalstar.com.