Thursday, July 21, 2005

Chambers vs. Hergert

by Kyle Michaelis
Sounds like a heavyweight championship bout from the early 1980s, doesn't it? But no, State Senator Ernie "King Cobra" Chambers and University of Nebraska Regent David "The Degenerate" Hergert are duking it out not in the ring but in the court of public opinion. Probably a good thing, too, because Chambers is ripped and even at 68 years-old would seem likely to tear the 65 year-old Hergert apart.

At issue, of course, are Hergert's violations of state law in seeking election to the Board of Regents last year and whether or not they are impeachable offenses. On Tuesday, Chambers threw this opening blow in an Omaha World-Herald commentary:
Impeachment is a process created by the Nebraska Constitution involving charges lodged by the Legislature and trial by the Nebraska Supreme Court. If convicted by clear and convincing evidence, the official is removed from office, banned from future office and ineligible for a pardon.

The Supreme Court declared in State v. Hill (1893): "The object of impeachment is to remove a corrupt or unworthy officer." Also, it ruled, an official can be impeached for conduct occurring during a preceding term.

Since the State Constitution says a person can be impeached for a "misdemeanor in office," some contend that "in office" applies solely to the period between taking the oath and the end of the term. However, nothing in the words themselves nor in court decisions supports so restrictive an interpretation but, rather, the opposite. Resolution will hinge on the court's interpretation of the two words.

It borders on the absurd to acknowledge that an official can be impeached for conduct during a term of office as well as a preceding term but contend that impeachment is unavailable for repetitive violations in connection with procuring the office. Such a contention is like asserting that a brigand who breaks into a house and vandalizes the interior can be prosecuted for vandalism but not for breaking and entering.

Hergert, having figuratively broken and entered, is impeachable.

Hergert fired back in Thursday's World-Herald, through his attorney W. Scott Davis:
State Sen. Ernie Chambers has made an argument for impeachment of University of Nebraska Regent David Hergert. As counsel for Regent Hergert, I note that the law of Nebraska does not support Chambers' argument.

Regent Hergert won his election, 55 percent to 45 percent; 45,846 informed western Nebraska voters fully supported him. He carried 29 out of 35 counties in District 7 by a collective margin of 10,000 votes.

There was no voter fraud, no hanging chads and no contested election. But once Regent Hergert voluntarily settled his differences with the Nebraska Accountability and Disclosure Commission and announced his opposition to fetal-tissue research at the University of Nebraska Medical Center, the liberal senator from Omaha decided to disenfranchise the voters of western Nebraska by any means possible, including the false suggestion that errors made by the Hergert campaign in filing campaign-finance forms somehow constitute an impeachable offense.

Hergert continued with this quick three-punch combo:
There are three independent grounds prohibiting consideration of impeachment by the Legislature:

• The Nebraska Supreme Court has stated that an impeachable act must be the equivalent of willful and corrupt conduct in office. Mistakes of judgment or acts of negligence are insufficient to impeach. With respect to a possible violation of a statute committed by a person while in office, the court said the following: "But where it consists of a mere error . . . without the element of fraud . . . it is not impeachable"..."

• Under the Nebraska Constitution, Regent Hergert is only "liable to impeachment for any misdemeanor in office." The Nebraska Supreme Court has held the meaning of that language to be "that acts committed by a person while in office are alone impeachable."

The campaign filing errors occurred in October or November during the 2004 election, clearly prior to the time when Hergert was sworn into office on Jan. 6, 2005. Therefore, there is no basis for impeachment under the constitution.

• Finally, the Nebraska Supreme Court has held that for conduct in office to constitute an impeachable offense, it must "relate to the duties of the office." The filing errors made by candidate Hergert before he was sworn into office relate only to campaign finance, not the duties of office of regent.

Now Chambers was pissed off, so he struck back:
The court, to effectuate the purpose of impeachment, should interpret the words "in office" to embrace conduct committed "in connection with" procuring the office. Significantly, the Political Accountability and Disclosure Act, which Hergert brazenly violated, states that the penalties provided therein "do not limit the power of the Legislature to impeach a public official" (Section 49-14,137).

Directly on point is the illuminating case, State v. Krepela (2000), in which the Supreme Court ruled that a judge could be disciplined for conduct that occurred before the judge took office. It proceeded to suspend Judge Richard Krepela for conduct occurring more than a dozen years prior, when he was a county attorney. The court interpreted constitutional provisions in a manner to carry out their purpose.

As to whether Hergert's multiple violations were intentional, court decisions provide clear guidance to resolve the matter. Intent can be established through circumstantial evidence inferred from the nature and results of the conduct. The court declared in State v. Costanzo (1988): "The intent with which an act is committed is a mental process and may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident."

Repetitive violations forming a coherent pattern are especially compelling evidence because they disclose purpose, motive, benefit to Hergert and detriment to his political opponent, who was denied public campaign funds as a direct result of Hergert's self-serving, multiple violations of the law.

Hergert countered...:
The fines paid by Hergert to the Accountability and Disclosure Commission were a civil penalty. The commission did not find reason to bring any criminal charges after its initial investigation and declined to do so again when a second complaint was brought by Sen. Chris Beutler. Chambers continued on the offensive:
Permitting Hergert to retain office simply because he paid a civil fine is tantamount to permitting a student who blatantly cheated to get an "A" on an exam and thereby passed a course to receive a mere public reprimand and keep both the "A" and credit for the course. It smacks of unjust enrichment, capitalizing on fraud and granting a thief good title to stolen goods.

The law is neither so blind nor so helpless. When a thief is caught with the goods, he's got to give 'em up. That's the law. And Hergert is not above the law.

Hergert danced and worked in an effective jab:
Sen. Chambers is clearly wrong on the meaning of "in office." "In office" cannot mean "before in office," "while campaigning for office" or "as long prior to office as will justify what the Legislature wants to do." As the senior member of the Legislature is fond of saying on the floor, "words mean what words mean" (no matter how much it might hurt Sen. Chambers' argument).

Chambers, hearing his own words used against him, erupted, moving in for the kill:
It is shameful, unacceptable and unconscionable to allow a self-confessed, serial scofflaw to encumber a high office of trust, honor and esteem and to formulate polices for the state's university system, whose role and mission is to inspire the mind and ennoble the spirit. How can one who is ignoble speak of nobility? How can one speak against cheating when cheating got him to where he sits? What parent would desire that his or her child follow Hergert's nefarious example?

But, Hergert wasn't done yet. He lunged:
Violations of Nebraska's campaign-finance laws have never been used to set aside elections or as grounds for impeachment, even against a sitting regent such as Drew Miller, who admitted to intentionally violating campaign-finance laws while "in office." Sen. Chambers has made no argument that would justify the dramatic step of overturning the results of a democratic election....

Rather than debate the issue in the press or spend hundreds of thousands of dollars on private lawyers for a special committee, we all should save the taxpayers the cost and expense of a useless impeachment proceeding.....

If the Legislature proceeds on the false assumption offered by Sen. Chambers and fails to persuade the Nebraska Supreme Court, the taxpayers of this state would pay for Sen. Chambers' folly. The taxpayers also would pay all of Hergert's attorney's fees, expert fees and costs, thanks to Sen. Chambers, who helped enact Nebraska Revised Statute 25-1808, which requires the state to pay the fees and expenses of Hergert when the impeachment fails.

As the closing bell sounded, though, Chambers was unfazed. He took a few more goood body shots, leaving the decision to the judges at home:
As long as Hergert the Horrible remains a regent, a banner should festoon every meeting room proclaiming, for the edification of students and the public: "Lying, Cheating and Crime Do Not Pay . . . Except for a University of Nebraska Regent!"

If Hergert refuses to resign before the deadline imposed by Legislative Resolution 98, the Legislature has a moral and constitutional duty to impeach him. The Nebraska Supreme Court, then, should discharge its constitutional duty.

Ding. Ding.

Alas, that's not as easy a match to call as it should be. Of course, if Hergert had an ounce of integrity he would have resigned long ago. But one can almost sympathize with him for feeling ganged-up upon when he was largely doing as Regents Miller and Ferlic had done before without getting called on it.

If Hergert's willing to get off on a technicality, via legal loopholes, he might just survive this, as disgusting as that possibility is. Ultimately, though, his fate is going to rest in your hands, those of the people of Nebraska. Your outrage and your expectations of honesty and fair play from elected officials, especially during the course of elections, is the only thing necessary to drive Hergert and his unprincipled cohorts from power.

Because Chambers is right here...without a doubt...even if state law doesn't allow him to knock-out Hergert completely. We do deserve better - the students of Nebraska deserve better. Hergert sets a terrible example. He brings shame upon the University system, our electoral process, and the entire state. It's time for us to do our part and to join Chambers in seeing justice prevail.


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