Summary
In Douglas, the three-justice plurality stated that the failure to volunteer information could not offend § 28-901, even if the investigation was thereby deflected, "for the offense [of obstruction of government operations] must consist of physical interference or some unlawful act."
Summary of this case from Nebraska Legislature on Behalf of State v. HergertOpinion
No. 84-199.
Filed May 4, 1984.
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.
Impeachment trial before the Supreme Court under the provisions of Neb. Const. art. III, 14. Judgment of not guilty.
Jerome Warner and Vard R. Johnson, managers.
Richard G. Kopf, and Wesley C. Mues and Graten Beavers, special assistant attorneys general, for plaintiff.
William E. Morrow, Jr., Thomas J. Culhane, and Tamra Lin Wilson of Erickson Sederstrom, P.C., and Judy K. Hoffman, and Murray Ogborn of Nelson Harding, for defendant.
BOSLAUGH, C.J. Pro Tem., HASTINGS, SHANAHAN, and GRANT, JJ., and MORAN and HOWARD, D. JJ., and COLWELL, D.J., Retired.
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 charges 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 of 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 unimproved lots for $105,600 (third contract).
8. July 20, 1979. Douglas and Galter sell 12 lots to Driscoll for $120,000.
Driscoll borrows $132,600.96 from Commonwealth.
Driscoll pays $120,000 by her personal check to Douglas and Galter for 12 lots; she pays Copple $12,600.96.
P.P.S.S. pays Copple $105,600 as full payment for the 12 lots purchased.
9. August 28, 1979. Driscoll borrows $100,500 from Commonwealth to buy 8 lots remaining of the 26-lot sale of April 20, 1977, from Douglas and Galter.
10. August 30, 1979. Driscoll pays Douglas and Galter $100,500 for the 8 lots.
P.P.S.S. pays Commonwealth $119,273 by check, representing the balance due, including accrued interest, on Douglas' $241,774 loan (April 20, 1977, first contract).
Douglas pays Commonwealth $1,345.08 as balance due, including accrued interest, on car loan.
11. September 7, 1982. Douglas pays Commonwealth balance due on his home improvement loan.
The general allegations of the articles of impeachment alleged that Douglas, a lawyer, was Attorney General of Nebraska from 1974 to the present; that as a result of transactions with Marvin Copple while Douglas was Attorney General, he received fees or commissions in excess of $77,000; that on or about March 14, 1983, Douglas received a copy of a letter from an agent of the Federal Bureau of Investigation, which was then discussed with Paul Amen, the Nebraska Director of Banking and Finance; and that at this discussion Amen requested Douglas to investigate, examine, or prosecute alleged financial irregularities at Commonwealth.
It was further alleged that during the spring of 1983, Barry Lake, legal counsel to the Department of Banking and Finance, informed Douglas of possible crimes committed by Marvin Copple involving Commonwealth.
It was further alleged that on or about May 4, 1983, Ruth Anne Galter, an assistant attorney general and the estranged wife of Paul Galter, was assigned to the Department of Banking and Finance to represent the department in regard to investigations, examinations, and prosecutions concerning matters within the jurisdiction of the department; that Ms. Galter was indebted to Commonwealth at this time; and that beyond speaking with certain officers of the Federal Bureau of Investigation, the U.S. attorney, employees of the Nebraska Department of Banking and Finance, and examining an examination report, nothing of substance was done by Douglas or Ms. Galter from March 14 to October 25, 1983, concerning alleged criminal activity concerning Commonwealth or Marvin Copple.
It was further alleged that Commonwealth was declared insolvent on November 1, 1983; that on November 18, 1983, Douglas disqualified himself as to all matters relating to Commonwealth; and that prior to November 1, 1983, Douglas did not disclose to anyone in the office of the Attorney General, or in the Department of Banking and Finance, the specific nature of his financial involvement with Commonwealth, Marvin Copple, or Judith Driscoll, an employee of Copple and a participant in some of the transactions.
Although the general allegations recited that certain documents were attached to the articles and incorporated therein, no documents were attached to the copy of the resolution delivered to this court.
We emphasize again that the foregoing recitation of events taken from the articles of impeachment are simply allegations which were made by the State, some of which are not supported by the record. As a matter of fact, the evidence in this case leaves many questions unanswered. Perhaps the case is characterized more by evidence which is not in the record than by the evidence presented.
The evidence hints at a conspiracy to defraud Commonwealth by mortgaging real estate to it for amounts far in excess of the value of the land. Such a charge was not made and, of course, not proved. The State was content to make peripheral charges, some of which were not impeachable offenses.
The State presented 21 witnesses in support of its case, and some 103 exhibits, 7 of which were not received, and 4 of which were not offered. On March 20, 1984, subpoenas were issued by the State for the attendance and testimony of S.E. Copple, Marvin Copple, Judith Driscoll, and Joan Copple. The subpoenas were not served at the State's request made on March 22, 1984. This court heard no evidence from any of these witnesses.
In addition, four members of the Lincoln Police Department were subpoenaed, together with a certain Lincoln Police Department investigative file, but these witnesses were not called. W. N. Stevenson and other Commonwealth loan officers who handled the Copple-Douglas-Driscoll transactions were not called.
We are not permitted to speculate as to what the testimony of these persons might have been.
Defendant was served a subpoena commanding his appearance to testify, along with the production of certain documents. Defendant filed a motion to quash the subpoena
for the reason that such subpoena violates the Attorney General's rights under the Fifth Amendment to the United States Constitution and under Article I, Section 12 of the Nebraska Constitution because in this proceeding, the Attorney General has a right to remain silent and may not be compelled to testify against himself either by words or by production of his own documents.
This motion was sustained by the court, and defendant did not testify in the trial.
Since the State offered in evidence two sworn statements of defendant, a 36-page letter written by defendant to the special counsel of the Legislature's Special Commonwealth Committee, and the statement and testimony of defendant before the legislative committee, the court was faced with a situation where, although defendant had not testified in the case, many statements made by defendant, exculpatory in nature, were before the court. In Truman v. State, 153 Neb. 247, 251, 44 N.W.2d 317, 319-20 (1950), this court stated:
And in State v. Harris, 324 Mo. 223, 22 S.W.2d 802: "The general rule is that, while the jury may believe any statement made by a defendant which is against his interest, it is not obliged to believe statements in his own interest merely because such statements appear in a statement shown by the State to have been made by said defendant."
While the jury may or may not believe any part or all of a statement made by a defendant, it is not obligated to believe statements in his interest merely because they appear in a statement proved by the State.
When the State introduces a written statement of the defendant it is not bound by exculpatory statements contained therein but such statements are to be considered by the jury in the light of the surrounding facts and circumstances.
The differing conclusions reached by the court may well have resulted from the different weight each member of the court felt should be given to defendant's statements as a whole.
The opinion of the court as to each of the six specifications follows, together with the dissenting and concurring opinions as indicated.
SPECIFICATION NUMBER ONE — DUTY NOT TO MISREPRESENT
1. The general allegations hereinabove recited are incorporated herein as if set forth verbatim;
2. Paul L. Douglas did knowingly misrepresent his knowledge of his receipt of $32,500.00 from Marvin Copple to David Domina in a sworn statement;
3. As a consequence of such knowing misrepresentation, Paul L. Douglas did violate:
A. The Code of Professional Responsibility adopted by the Nebraska Supreme Court, specifically including, but not limited to, DR 1-102(A); or,
B. Neb. Rev. Stat. § 28-901 relating to obstructing governmental operations; or,
C. Neb. Rev. Stat. § 28-924 relating to official misconduct; or,
D. Neb. Rev. Stat. § 7-105 relating to the duties of an attorney; or,
E. Neb. Rev. Stat. § 7-106 relating to deceit or collusion by an attorney.
The first specification charges that Douglas "did knowingly misrepresent his knowledge of his receipt of $32,500.00 from Marvin Copple to David Domina in a sworn statement."
Some background is appropriately discussed at this point. According to the evidence, in March 1976 Marvin Copple, a director of Commonwealth Savings Company, asked Paul Galter, an attorney, to assist him in the development of 80 acres of land Copple had purchased. Because Galter's work would not be part of the regular legal practice of his law firm, he suggested the participation of Douglas. Copple agreed, and Galter then approached Douglas. For the purpose of this development work, Douglas and Galter used the partnership known as P.P.S.S. The development resulted in the subdivision known as Fox Hollow. Douglas also did some work for Copple on his own account on an unsuccessful development called Timber Ridge, some property near Southwest 21st and A Streets, and other relatively minor matters. It is the compensation which Douglas received which is in question.
On November 30, 1983, Mr. David Domina, a special assistant attorney general, questioned Douglas under oath in the presence of a shorthand reporter, who transcribed the questions and answers. The transcription is in evidence. As related by Douglas, he and Galter would enter into an agreement with Copple to purchase lots at a set price. Copple would find a purchaser for the lots, at a higher price, give Douglas a deed, and Douglas would give the purchaser a deed. The profit was the means of compensation of Douglas and Galter. According to testimony at the trial, the net profit to Galter and Douglas, over a period of 3 years and 5 months in such transactions, was $44,700 each, after deduction of some $29,000 in interest paid by them to Commonwealth Savings Company, which financed the first transaction involving 26 lots in early 1977 to the extent of $241,774. That amount, plus interest, was fully paid to Commonwealth. Forty lots were purchased and sold later in 1977, and 12 in 1979. Douglas and Galter were not required to obligate themselves as to these 52 lots, Douglas having complained that the interest charges incurred on the $241,774 loan before resales could be accomplished made the venture too risky. Details of the 40-lot and 12-lot transactions are reserved for other specifications.
The involvement of Douglas in the Fox Hollow development does not appear to have been concealed in any way. His services, as detailed in the evidence introduced by the State, show him to have been in contact with many members of the public and public officials. One witness states that "it was very common knowledge around Lincoln during those years."
In an extended letter dated February 6, 1984, to the special counsel of the Special Commonwealth Committee of the Legislature, Douglas revealed that in addition to profits received from the lot sales above described, he was paid $32,500 by Marvin Copple in three separate checks during 1978, 1979, and 1980 "[b]ecause of the extensive additional work which I did and in which Paul Galter had little participation relating to the noise problems, alternative construction methods, the flowage easement and miscellaneous other matters." If Douglas "did knowingly misrepresent his knowledge of his receipt of $32,500.00 from Marvin Copple" in answering Mr. Domina's questions on November 30, 1983, he did so in the execution of his duties, as he was bound to assist in the investigation; and, accordingly, if the offense be deemed sufficiently serious, he could be removed upon the trial of an impeachment for a "misdemeanor in office" as that constitutional term is judicially construed. We must turn, then, to the actual questions and answers, without paraphrase:
Q. Have you served as counsel, whether that means as a lawyer or not, for Marvin Copple for compensation at any time since 1975, January 1?
A. As a lawyer?
Q. All right. You qualified the question. Let's take that part of it first. Have you served as Marvin Copple's lawyer since January 1 of 1975?
A. I have not. I have never served as Marv Copple's lawyer.
Q. Have you counseled Marvin Copple in some non-legal way for pay?
A. Yes.
What immediately follows is not strictly pertinent. Later in the questioning, the following appears:
Q. Okay. What was your financial involvement, then, in Timber Ridge?
A. When you say financial involvement, I did not invest any money in it.
Q. Did you serve as counsel in connection with that development and receive compensation?
A. Yes.
Q. Were there other developments in addition to the Fox Hollow and Timber Ridge in which you served as counsel for Marv Copple or any of the Copple family?
A. First of all, I did no other business with anybody else in the Copple family except Marv.
Q. All right. Were there other developments, then, besides Fox Hollow and Timber Ridge for which you were paid for services as counsel?
A. There was always something coming up, and as it was requiring my time and my counsel — and I would remind him of it and periodically — he would pay me for it. There was a motel. He had a couple of motels.
Q. Was one of those the Town and Country Motel at 27th and "O"?
A. He owned that one.
Q. And then the Clayton House?
A. Well, I — the Clayton House, but I had hardly anything to do with the Clayton House. He had another one on Cornhusker Highway. He wanted to build some property up at 14th and Superior. We talked about a horse breeding farm in Elkhorn. We had — we talked about some property out on West "A", about 120th. Periodically periodically Marv would have an idea, he would call and say, hey, we've got a chance to buy this and do something with it, do you have any thoughts? We would go out and look at it and talk about it. But for all practical purposes — for all practical purposes the large bulk of the time, and what I would really consider my involvement with Marv, would be Fox Hollow and Timber Ridge.
Q. Did you ever specifically bill Mr. Copple for your counsel on these other projects other than Fox Hollow and Timber Ridge?
A. No.
Q. Did you ever give him orally, you know, a figure or ask for a specific amount of compensation on those other projects?
A. No.
Q. How did he pay you for your services on the projects other than Fox Hollow and Timber Ridge or did he?
A. He never did pay me.
Q. With respect to Fox Hollow, then, what was the arrangement that you had with Mr. Copple for compensation for your services as counsel, then?
A. We were going to — Paul Galter and I would make a contract with Marvin, he would sell us some lots under contract. He would then go out and find a purchaser for those lots. He then would negotiate with that purchaser for the price of the lots. Then we would sign a standard contract that somebody drew up — I suppose Paul Galter did — I don't know who drew the standard contract up — to sell these lots under contract to the purchasers that he would find.
Q. That would be some third person who Mr. Copple would locate, he would agree to buy a lot or a couple lots, whatever the case may be?
A. Yes. He — some were to individual purchasers, some were to contractors.
Q. Then how were you to be paid as a result of that arrangement?
A. The way the contract was originally drawn up he would — he would sell us the lots at a hundred dollars — the original contract that I had with him — that we had with him, that Paul Galter and I had with him listed 26 lots.
Q. All in Fox Hollow?
A. All in Fox Hollow. And there was a set total purchase price of $241,774 for the 26 lots. That was computed on the basis of a hundred dollars per frontal foot for that real estate. And that's in the contract, and I'll give you a copy of the contract. That as he would find a buyer he would give me a deed. I would give the buyer a deed. The buyer would pay me for the purchase of the lot and I would pay Marv Copple for — for that lot. In the contract each lot is not broken down individually, but he did give me a price on every one of the lots so I would know what I paid for each lot for tax purposes, and what the lot was sold for and the difference would be money that Paul Galter and I would jointly get for the sale of the lots which would compensate us for the work that we had done helping Marvin develop those lots.
Q. Was your compensation calculated on a per hour basis or a per transaction basis or how did you know how much you would be paid?
A. I didn't know how much — I had no idea how much I was going to end up making on this except, as I indicated to you, Marvin Copple had led Paul Galter and I to believe — and I'm not saying deceivingly, I'm saying he led us to believe that there was a lot of money to be made and always left us with the assurance that we were going to be well compensated for it, and I remember that if he told me once he told us several times along the way as things were — were progressing very well, that our financial worries were over. He had anticipated that the whole transaction would take about two years.
Q. That is to develop Fox Hollow?
A. He thought in a two year period of time originally we would be, as he said and said, as I say, was told numerous times to both of us, that our financial worries would all be over within a two year period of time. I knew how much money he had invested in it. I knew about what each lot was costing him and I knew what kind of a tax problem he had. I knew because of what I just earlier stated to you and I know — I knew that he wanted to sell 600 lots. I knew he wanted to keep back about a hundred of them, and he was going to hold back a hundred and sell those off much later on.
Asked whether he counseled Marvin Copple in some nonlegal way for pay, Douglas answered in the affirmative. Later asked if he served as counsel in connection with Timber Ridge (a Copple development), Douglas answered in the affirmative, also pointing out that he did not invest any money in Timber Ridge. Finally, asked whether there were other developments besides Fox Hollow and Timber Ridge for which he was paid for services as counsel, Douglas answered, "There was always something coming up, and as it was requiring my time and my counsel — and I would remind him of it and periodically — he would pay me for it." If the purpose of the inquiry was to learn the nature of Douglas' association with Copple and the nature of or reason for payments to Douglas by Copple, it must be conceded that Douglas made a disclosure commensurate with the inquiry. At no time was Douglas asked the amount of compensation received, nor in another lengthy question and answer session 12 days later was the question raised. It had been made clear to the questioner that Douglas had been compensated not only by profit on the sale of lots but otherwise, by payments. "I would remind him of it and periodically — he would pay me for it." It only remained for the questioner to ask the amount and any other details.
Complaint is made that Douglas never provided access to his tax returns. Yet, during the second (December 12, 1983) questioning of Douglas, copies of Douglas' federal income tax returns were at hand. He was asked, "Could I have copies of those returns, please?" and he answered, "I think you indicated that you wanted to see it and I have no problem in showing you this." The questioner replied, "All right. That's fine." And according to the trial testimony of Mr. John Miller:
A. Mr. Douglas never let go of the tax returns, and in — the questions were asked and the answers were given but what happened is Mr. Douglas held the tax returns, one page, and he would — he would — he came around his desk and in front of David and he would point to the tax returns, and he did not — when David asked for the tax returns, he said well you said you wanted to see them, and he showed them.
In fairness to Paul, I'm sure he showed more than one page with respect to the specific questions that were asked, but he never released those tax returns from his possession, neither I nor David ever had physical possession of those returns. They never left the possession of Paul Douglas.
We cannot conclude from this that Douglas withheld pertinent information on his tax returns in a procedure agreed to by his questioner. Finally, according to Douglas in his statement to the legislative committee, introduced into evidence by the State, he had by that time turned over his "entire income tax returns from '75 through '82" to the committee's special counsel.
There is a discrepancy in Douglas' answers to questions in the November 30 session. Asked whether he was paid for services as counsel other than for Fox Hollow and Timber Ridge, Douglas answered affirmatively. Later in the statement, however, asked how he was paid for services on projects other than Fox Hollow and Timber Ridge, Douglas answered, "He never did pay me," meaning, according to Douglas in his statement to the legislative committee, that he was not paid for projects other than Fox Hollow and Timber Ridge. We are unable to resolve the discrepancy with the evidence at hand, but Douglas is not charged with it in the specification, nor would we be at liberty, even if requested, to permit amendment of the specification, impeachment being in the nature of an indictment by a grand jury. State v. Leese, 37 Neb. 92, 55 N.W. 798 (1893).
The defendant having disclosed receipt of payments from Marvin Copple, he cannot be said knowingly to have misrepresented their amount when he was never asked. Nor can it reasonably be maintained that the failure to volunteer the information offends Neb. Rev. Stat. § 28-901 (Reissue 1979) (obstructing government operations) even if, which is not fairly inferable from the record, the investigation was thereby deflected, for the offense must consist of physical interference or some unlawful act. Even words deliberately calculated to frustrate law enforcement have been held insufficient to support a claimed violation of a virtually identical statute. People v. Case, 42 N.Y.2d 98, 365 N.E.2d 872, 396 N.Y.S.2d 841 (1977), and cases cited. As for the alleged violations of other statutes, it is enough to say that they are clearly inapplicable.
Much of what we have heard in the evidence is disturbing, but as stated in the impeachment case of State v. Hastings, 37 Neb. 96, 123, 55 N.W. 774, 783 (1893), "It should be remembered in the first place that this is a criminal prosecution and we are not to enter upon the field of conjecture in search of a theory upon which the respondents may be pronounced guilty."
The State failed to prove specification No. 1 beyond a reasonable doubt.
SPECIFICATION NUMBER TWO — DUTY NOT TO LIE
1. The general allegations hereinabove recited are incorporated herein as if set forth verbatim;
2. Paul L. Douglas did knowingly misrepresent or knowingly lie to David Domina in a sworn statement, or, to the Counsel on Discipline of the Nebraska State Bar Association in a letter dated on or about December 13, 1983, or, to the Special Commonwealth Committee of the Legislature in a letter response dated on or about February 6, 1984, regarding the issue of whether Paul L. Douglas had knowledge that certain lots purchased from Paul L. Douglas and Paul Galter by one Judy Driscoll were financed by Commonwealth Savings Company;
3. As a consequence of such knowing misrepresentation or knowing lie, Paul L. Douglas did violate:
A. The Code of Professional Responsibility adopted by the Nebraska Supreme Court, specifically including, but not limited to, DR 1-102(A); or,
B. Neb. Rev. Stat. § 28-901 relating to obstructing governmental operations; or,
C. Neb. Rev. Stat. § 28-924 relating to official misconduct; or,
D. Neb. Rev. Stat. § 7-105 relating to the duties of an attorney; or,
E. Neb. Rev. Stat. § 7-106 relating to deceit or collusion by attorneys.
The letter from Douglas to the Counsel for Discipline referred to in the specification was not received in evidence.
This specification charges that Douglas did knowingly misrepresent or knowingly lie when he denied knowledge that Judith Driscoll had obtained loan funds from Commonwealth Savings Company to pay Douglas and Galter for eight lots that they sold to her. It fails for these reasons: (1) Douglas believed that he was speaking the truth at the time; (2) The alleged offense, if proven, was only a technical violation; (3) The alleged offense, if proven, was not an impeachable misdemeanor in office; and (4) The State failed to meet its burden of proof.
In effect, this specification accused Douglas of perjury: lying under oath in his sworn statement to Domina. Thus, the basis for the charge of "knowingly misrepresent or knowingly lie" appears to be grounded in Neb. Rev. Stat. § 28-915 (Reissue 1979):
Perjury . . . (1) A person commits perjury if, having given his oath or affirmation in any judicial proceeding or to any affidavit on undertakings, bonds, or recognizances or in any other matter where an oath or affirmation is required by law, he deposes, affirms or declares any matter to be fact, knowing the same to be false, or denies any matter to be fact, knowing the same to be true.
Technically, the perjury statute may not have been applicable, because an oath may not have been required by law. For the purposes of our discussion here that distinction is not important.
"Precise questioning is imperative as a predicate for the offense of perjury." Bronston v. United States, 409 U.S. 352, 362, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973). In the Bronston case the U.S. Supreme Court, in a unanimous opinion, held that an unresponsive answer if literally true does not constitute perjury, even if it is intentionally misleading and by negative implication false. See, also, United States v. Esposito, 358 F. Supp. 1032 (N.D. Ill. 1973). If the answer is literally true, the failure to volunteer more explicit information is not perjury even though the answer may create a misleading impression. In re Rosoto, 10 Cal.3d 939, 519 P.2d 1065, 112 Cal.Rptr. 641 (1974). See, also, State v. White, 31 Wn. App. 655, 644 P.2d 693 (1982); State v. Workman, 635 P.2d 49 (Utah 1981).
"To lie is to make an untrue statement with intent to deceive. . . . Even though a statement as to the truth of a fact is mistaken, the statement is not a lie if the sayer himself honestly believes it to be true." State ex rel. Nebraska State Bar Assn. v. Cook, 194 Neb. 364, 380, 232 N.W.2d 120, 128 (1975).
Whether an answer is false depends upon how the witness understands the question. If the answer given is true when the question is interpreted in accordance with the understanding of the witness, then the answer is not false and his statement is not a lie. It may be a question for the trier of fact whether the witness so understood the question that the answer was true. Seymour v. United States, 77 F.2d 577 (8th Cir. 1935).
The essence of perjury is the belief of the witness concerning the veracity of his statement, not his knowledge of the interrogator's intent. State v. Olson, 92 Wn.2d 134, 594 P.2d 1337 (1979).
In a case where the question propounded admits of several plausible meanings, the defendant's belief cannot be adequately tested and it is necessary to determine what the question meant to him when he gave the disputed answer. United States v. Lattimore, 127 F. Supp. 405 (D.C. D.C. 1955), aff'd, 98 U.S.App.D.C. 77, 232 F.2d 334 (1955).
United States v. Wall, 371 F.2d 398, 400 (6th Cir. 1967).
A witness who does not understand the question and gives a nonresponsive answer does not commit perjury. United States v. Paolicelli, 505 F.2d 971 (4th Cir. 1974).
"The meaning of the word 'know,' when used in a penal statute, varies with the context in which it is used." (Syllabus of the court.) Hancock v. State ex rel. Real Estate Comm., 213 Neb. 807, 331 N.W.2d 526 (1983).
To determine whether the statement of Douglas that he was unaware of the fact that Driscoll was financing the purchase through Commonwealth was a lie — a conscious, deliberate untruth — it is necessary to determine what Douglas understood the question to mean. His testimony indicates that he was interpreting the word "know" to mean actual or direct knowledge, as distinguished from notice of substantial probability. His explanation that he thought the lots had been sold to third parties is consistent with a theory that Driscoll was only a conduit.
The State itself has introduced into evidence the testimony of Douglas that he was told the ultimate purchaser or purchasers had been found and that the "transaction had all been put together, that when we got there, it was just a matter of paperwork, and we got the check." Defendant stated that, at the closing, "Mr. Marvin Copple said that he would give to me a deed. I would give Judy Driscoll a deed, and Judy Driscoll would give it to the ultimate purchaser. I had no reason in the world to think that she was going to go upstairs and finance those lots." The defendant, according to evidence introduced by the State, told the Counsel for Discipline, "At no time were we advised that Mrs. Driscoll was financing them with Commonwealth Savings Company." At the legislative hearing, the point the State attempts to make is found in the question, "Despite the fact you had the check in your hand, you didn't know that she was financing it through Commonwealth Savings Company?" In the December 12 statement are the following questions and answers:
Q. Now, in any event later on Judy Driscoll then borrowed some money from Commonwealth to buy lots from you, didn't she?
A. You told me that.
Q. Did you know that?
A. I did not know that.
Q. Did Marvin Copple ever tell you that he was going to use Judy Driscoll to borrow money from Commonwealth because he couldn't?
A. No, never.
Q. You suspected that, didn't you?
A. I did not.
There is no evidence that defendant knew Judith Driscoll had signed a note in favor of Commonwealth Savings Company. The statements of Douglas were corroborated by the testimony of Paul Galter.
What must not be overlooked is that the defendant was not questioned as to Commonwealth's obvious involvement, but rather that of Judith Driscoll — whether she in fact had borrowed money from Commonwealth and, more to the point, whether she was acting not on her account but as a strawwoman for Marvin Copple. Defendant denied such knowledge. What the specification amounts to is that Douglas should have drawn an inference from the $371,814 check, and the earlier transactions, that Judith Driscoll had in fact borrowed money from Commonwealth. Perhaps that is so, but the failure to draw that inference and recall the transaction 4 years later is not a lie. Douglas did not knowingly lie or misrepresent.
The situation presented here, as shown by the evidence, was a business transaction to close a land sale. Douglas and Galter were required to deliver deeds of conveyance in return for payment of the agreed selling price. This occurred without complication or suggestion of irregularity. Douglas had no "in fact" notice, and he had no reason or duty to inquire concerning the "in fact" source of financing funds provided Driscoll. Subsequent to this transaction, there were no circumstances either requiring or suggesting to Douglas that he should inform himself as to the source of the loan funds.
The assumption urged by the State fails to overcome the belief of Douglas that he was telling the truth. At most, it displays the wisdom employed 100 years ago of removing impeachment proceedings from the political atmosphere of the Legislature to the judicial forum.
It is conceivable that if this allegation had been an element of conspiracy or of aiding and abetting a felony, and proven, there would be some substance to the charge. However, the only offense alleged here is that Douglas did not say what the State already knew and what it wanted him to admit. The State possessed the information sought from Douglas, and any of the answers given by Douglas on this subject neither hindered nor delayed any inquiry the State was making. Further, even if the evidence is accepted as proof of the specification, it is not an impeachable offense, because it was only a technical violation as referred to in State v. Hastings, 37 Neb. 96, 55 N.W. 774 (1893).
"[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 . . . ."
. . . .
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 . . . .
(Emphasis supplied.) State v. Hastings, supra at 115, 128, 55 N.W. at 780, 785.
And lastly, the acts alleged in this specification do not meet the test of a misdemeanor in office that warrants impeachment, since it is not "one in its nature or consequences subversive of some fundamental or essential principle of government or highly prejudicial to the public interest." State v. Hastings, supra at 115, 55 N.W. at 780.
The State failed to prove specification No. 2 beyond a reasonable doubt.
SPECIFICATION NUMBER THREE — DUTY TO DISQUALIFY
1. The general allegations hereinabove recited are incorporated herein as if set forth verbatim;
2. On or about March 14, 1983, Paul L. Douglas in his capacity as Attorney General was notified by virtue of a letter received from the Federal Bureau of Investigation of certain transactions, which were possibly criminal in nature, occurring at Commonwealth Savings Company, and which were similar in nature to certain transactions in which he had engaged in at Commonwealth Savings Company;
3. In the spring of 1983, Paul L. Douglas was informed that Marvin Copple may be guilty of crimes involving Commonwealth Savings Company;
4. In July of 1983, Paul L. Douglas was informed that Marvin Copple may be guilty of crimes involving Commonwealth Savings Company;
5. That at all pertinent times, Paul L. Douglas was acting in his capacity as Attorney General of the State of Nebraska;
6. That notwithstanding Paul L. Douglas' previous business relationships with Marvin Copple and Commonwealth Savings Company, Paul L. Douglas acting in his capacity as Attorney General of the State of Nebraska, accepted employment from the State of Nebraska regarding possible criminal activities involving Marvin Copple or Commonwealth Savings Company without obtaining the consent of his client, the State of Nebraska, after full disclosure at a time when the exercise of his professional judgment on behalf of his client, the State of Nebraska, would be or reasonably might be affected by his financial, business, property, or personal interests;
7. Notwithstanding Paul L. Douglas' previous financial and business dealings with Marvin Copple or Commonwealth Savings Company, Paul L. Douglas failed to decline proffered employment from the State of Nebraska respecting the possible criminal activities regarding Marvin Copple or Commonwealth Savings Company at a time when the exercise of his independent professional judgment, in behalf of his client, the State of Nebraska, was or might likely be, adversely affected by the acceptance of the proffered employment;
8. As a consequence of such actions, Paul L. Douglas did violate:
A. The Code of Professional Responsibility adopted by the Nebraska Supreme Court, specifically including, but not limited to, DR 5-101(A); or,
B. The Code of Professional Responsibility adopted by the Nebraska Supreme Court, specifically including, but not limited to, DR 5-105(A).
To attempt to prove this charge, the State does not point to any constitutional provision or statute, but rather relies solely on the claimed infractions of Canon 5, DR 5-101(A) and DR 5-105(A), of the Code of Professional Responsibility.
DR 5-101(A) provides:
Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.
The language of DR 5-105(A) is as follows:
A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of his client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interest, except to the extent permitted under DR 5-105(C) [not applicable].
As we have pointed out earlier in this opinion, the violation of the Code of Professional Responsibility may form the basis for a disciplinary proceeding, but such violation does not, per se, constitute an impeachable offense. However, the same conduct which may constitute a violation of the disciplinary regulations may amount to such a breach of the defendant's official responsibilities as to constitute negligent conduct.
We believe that the Attorney General had the duty of serving the public with undivided loyalty, uninfluenced in his official actions by any private interest or motive whatsoever. As stated by Chief Justice Vanderbilt of the Supreme Court of New Jersey, in Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 474-76, 86 A.2d 201, 221-22 (1952):
They [public officers] stand in a fiduciary relationship to the people whom they have been elected or appointed to serve. . . . As fiduciaries and trustees of the public weal they are under an inescapable obligation to serve the public with the highest fidelity. In discharging the duties of their office they are required to display such intelligence and skill as they are capable of, to be diligent and conscientious, to exercise their discretion not arbitrarily but reasonably, and above all to display good faith, honesty and integrity. . . . They must be impervious to corrupting influences and they must transact their business frankly and openly in the light of public scrutiny so that the public may know and be able to judge them and their work fairly. . . .
These obligations are not mere theoretical concepts or idealistic abstractions of no practical force and effect; they are obligations imposed by the common law on public officers and assumed by them as a matter of law upon their entering public office.
In Copple v. City of Lincoln, 202 Neb. 152, 167, 274 N.W.2d 520, 528 (1979), this court cited the following language from another New Jersey case: "'The decision as to whether a particular interest is sufficient to disqualify is necessarily a factual one and depends on the circumstances of the particular case.'"
The substance of the third specification is that notwithstanding that the defendant had been advised in March of 1983 that certain transactions of a possible criminal nature had occurred in the operations of Commonwealth, "similar in nature to [those] in which he [the defendant] had engaged," and notwithstanding that in July of 1983 the defendant had been advised of possible criminal actions of Marvin Copple, with whom the defendant had become involved in some rather bizarre business dealings, he nevertheless "accepted employment from the State of Nebraska" regarding those various activities without disclosing the nature of his previous relationship with Copple and Commonwealth, and he "failed to decline proffered employment from the State of Nebraska." We feel compelled to state at this point that we were furnished with no details as to the time of occurrence or nature of the "transactions, which were possibly criminal in nature," which prevents us from fully exploring the scope of the defendant's alleged conflict of interest.
However, one of the problems with the charge as specified is that it really does not fit this situation. The defendant in this case was employed by the State of Nebraska before, during, and after his extracurricular dealings. There were no statutory provisions precluding outside employment on the part of the Attorney General in effect at the time. By case law, a public officer is not necessarily required to give every instant of his time to the public service in such a sense that he cannot, if wholly consistent with public duties, perform any other service or earn money from any other source. State v. Hinshaw, 197 Iowa 1265, 198 N.W. 634 (1924). Nevertheless, we believe that Douglas had a duty to avoid entanglements which potentially could cause a division of his loyalties. Because he did not choose to do so, we must examine his personal situation as of the spring of 1983.
The defendant had engaged in a series of intricate real estate dealings with Marvin Copple, commencing in about 1977. These are set forth in considerable detail in other portions of this opinion. The conclusion of those transactions occurred on July 20, 1979, when Marvin Copple was paid for the last of the lots purchased by Douglas and Galter.
In addition, the defendant did certain other work for Marvin Copple, during the years 1978, 1979, and 1980, for which he was paid the sum of $32,500. Altogether, Douglas devoted approximately 1,500 hours to his dealings with Copple.
During this same period of time, the defendant had made several loans with Commonwealth. With the payoff of the final loan in the amount of $54,048.51 on September 7, 1982, his business relations with that institution apparently ceased. However, the source of funds used to repay that loan was a $55,000 loan from First Security Bank Trust Co. of Beatrice, Nebraska, an institution with a management familial relationship with Commonwealth. That loan was paid in full on November 25, 1983.
As nearly as can be determined from the record, no business relationship existed between Douglas on the one hand and Copple and Commonwealth on the other hand as of March 14, 1983. Therefore, it cannot be said that Douglas was at that point actively representing interests which conflicted with those of the State.
The State would seem to argue, however, that the defendant's enthusiasm for investigation of, and judgment as to possible prosecution for, insider loans to Marvin Copple might very well be dimmed by the fact that the defendant's own personal interests and conduct may have been a link in the chain of alleged illegal activities. Certainly, such thoughts have occurred to a number of people.
However, there is no evidence that Douglas acted in the discharge of the responsibilities of his office any differently than he would have, had the unfortunate prior dealings never occurred. According to the practices and procedures of that office, the Department of Banking and Finance would have remained primarily obligated to investigate the condition of Commonwealth and other financial institutions. An assistant attorney general would have been assigned full time for the general investigative and legal work required by the Department of Banking and Finance. That assistant attorney general would have been directed by the Department of Banking and Finance and would have been directly responsible to Deputy Attorney General Gerald Vitamvas. That is exactly how this case was handled; and the work performed by the assistant attorney general assigned to the Department of Banking and Finance to investigate many financial institutions, including Commonwealth, was done in a professional manner and was thoroughly acceptable to the department.
The Attorney General did have the appearance of possessing a conflict of interest, and normally should have made a full public disclosure. However, when one considers that the Department of Banking and Finance was interested in avoiding prosecution, if possible, and even in avoiding adverse publicity so as not to cause the "house of cards" to come tumbling down, the defendant's reticence to "rock the boat" is understandable. These facts are set forth in great detail in our discussion of specification No. 5.
In order to warrant a finding of guilty, we must conclude beyond a reasonable doubt that the defendant's conduct rose to the level of willful neglect with a corrupt intention or that it amounted to gross negligence accompanied by such a flagrant disregard of his duty as to warrant an inference that it was done willfully and corruptly. On the basis of the record before us, we cannot do so.
SPECIFICATION NUMBER FOUR — DUTY TO AVOID INSIDER BORROWING
1. The general allegations hereinabove recited are incorporated herein as if set forth verbatim;
2. During 1979, Marvin Copple was an officer or Director of Commonwealth Savings Company;
3. On or about August 28, 1979, Marvin Copple borrowed from Commonwealth Savings Company, directly or indirectly, without first having secured the approval of the Board of Directors of such industrial loan and investment company, the sum of $100,500.00, and Paul L. Douglas aided, abetted or assisted in such borrowing;
4. As a consequence of the foregoing, Paul L. Douglas violated the provisions of Neb. Rev. Stat. § 8-409.06.
Although there may be some doubt whether this specification as phrased would support a criminal charge, it is sufficient in this impeachment proceeding considering the full impeachment resolution. Douglas is informed that he was charged with aiding and abetting Marvin Copple to borrow funds from Commonwealth Savings Company in violation of Nebraska statutes, Neb. Rev. Stat. § 8-409.01 and 8-409.06 (Reissue 1983), and that such conduct was a misdemeanor in office, Neb. Const. art. IV, 5.
The following is a summary of the evidence relevant to this specification. In 1977 Paul Douglas and Paul Galter, as partners, purchased 26 residential lots from Marvin Copple for $241,774; the deeds of conveyance were executed in favor of Douglas as grantee; Douglas borrowed all of the purchase price, $241,774, from Commonwealth Savings Company, and immediately paid this sum to Marvin Copple. This paid Copple in full for the 26 lots. The Douglas loan was paid in full with accrued interest on August 30, 1979.
On or about August 28, 1979, Douglas sold eight of these lots to Judith Driscoll for $100,500, which sum she borrowed from Commonwealth, represented by its check dated August 30, 1979. On August 30, 1979, Driscoll paid Douglas $100,500 by her check, which he deposited in the P.P.S.S. partnership account; those funds, with some additional partnership money, were paid that date to Commonwealth to pay the balance of the $241,774 loan with all accrued interest. The evidence before us, including records of Commonwealth, is silent as to any fact that Marvin Copple either (1) originated, approved, or benefited from this Driscoll loan, or (2) directly or indirectly obtained any proceeds from this loan, or (3) directly or indirectly borrowed all or any part of this Driscoll loan. Marvin Copple had been paid in full for any interest he had in these eight lots on April 20, 1977.
The State argues that this loan transaction must be viewed in the light of all of the previous real estate transactions wherein Douglas was involved with either Marvin Copple, Driscoll, or Commonwealth, claiming that from these it is clear that both Douglas and Copple benefited from this Driscoll loan and that the "borrowing" statutes were violated.
The "insider borrowing" statutes involved here became law on August 24, 1979. They provide:
8-409.01. Industrial loan and investment company; loan to director, officer, or employee; requirements. No director, officer, or employee of an industrial loan and investment company, no corporation in which an officer of the industrial loan and investment company is the owner of a controlling interest, and no partnership in which an officer of the industrial loan and investment company is a member, shall borrow any of the funds of the industrial loan and investment company, directly or indirectly, without first having secured the approval of the board of directors of such industrial loan and investment company. The approval shall be made at a meeting of the board and a record of such approval shall be made and kept as part of the records of such company. The amount of any loan shall be limited as provided in sections 8-409 and 8-409.02.
8-409.06. Violations; penalty. Any officer, director, or employee of an industrial loan and investment company, or any other person who shall violate sections 8-409.01 to 8-409.05, or who shall aid, abet, or assist in such violation shall be guilty of a Class IV felony.
The terms "borrow" and "indirectly" are not defined in the statutes; however, they have been considered in our prior decisions involving similar banking situations:
(1) Lending by the bank involved to the borrowing official, either directly or indirectly. (2) On the part of the delinquent officer, it implies making himself indebted for; to appropriate; to take, receive or derive, funds of the bank lending to him, either directly or indirectly. (3) It involves the diminishment of the "funds of the loaning bank" to the extent of the loan made. It must, in other words, amount to a debtor and creditor transaction in which the delinquent officer is the ultimate debtor, and the bank involved the ultimate and real creditor.
Hinds v. State, 121 Neb. 508, 512, 237 N.W. 617, 619 (1931).
"Indirectly" signifies the doing by an obscure circuitous method something which is prohibited from being done directly, and includes all methods of doing the thing prohibited except the direct one.
State v. Pielsticker, 118 Neb. 419, 423, 225 N.W. 51, 52 (1929).
Since the statutes do not define a "person who shall . . . aid, abet, or assist," we look to the applicable statutes, enacted in 1977.
28-205. Aiding consummation of felony; penalty. (1) A person is guilty of aiding consummation of felony if he intentionally aids another to secrete, disguise, or convert the proceeds of a felony or otherwise profit from a felony.
(2) If the crime involved is a felony of any class, aiding consummation of crime is a Class IV felony.
28-206. Prosecuting for aiding and abetting. A person who aids, abets, procures, or causes another to commit any offense may be prosecuted and punished as if he were the principal offender.
"Aiding and abetting involves some participation in the criminal act or involves some conscious sharing in the criminal act, as in something that accused wishes to bring about, in furtherance of the common design, either before or at the time that the criminal act is committed, and it is necessary that he seeks by his action to make it succeed. . . ."
State v. Alvarez, 189 Neb. 276, 280, 202 N.W.2d 600, 603 (1972).
"Where a crime requires the existence of a particular intent, an alleged aider or abettor cannot be held as a principal unless it is established that the aider knew that the perpetrator of the act had the required intent, or that the aider himself possessed the required felonious intent."
State v. Dittrich, 191 Neb. 475, 480, 215 N.W.2d 637, 640 (1974).
Where in an impeachment proceeding the act of official delinquency consists in the violation of some positive provision of the constitution or statute which is denounced as a crime or misdemeanor . . . it is a misdemeanor in office within the meaning of section 5, article 5, of the constitution.
(Syllabus of the court.) State v. Hastings, 37 Neb. 96, 55 N.W. 774 (1893).
The State had the burden to prove beyond a reasonable doubt each of these elements: That on or about August 28, 1979, (1) Marvin Copple was a director, officer, or employee of Commonwealth Savings Company; (2) Marvin Copple did directly or indirectly borrow funds from Commonwealth Savings Company; (3) such borrowing was done without his first having secured the approval of the board of directors of Commonwealth Savings Company at a meeting of that board wherein a record of the approval was made and kept; (4) Paul Douglas did intentionally aid and abet Marvin Copple to violate 8-409.01 in that he did secrete, disguise, or convert the proceeds of a felony or otherwise profit from a felony; and (5) such acts or omissions of Paul Douglas constituted a misdemeanor in office warranting his impeachment.
We review the record as to these elements. The evidence lacks depth on the issue of Copple's official business association with Commonwealth; however, the reports filed by Commonwealth with the Nebraska Department of Banking and Finance show that in 1978 and 1979 Marvin Copple was a member of the board of directors of Commonwealth. The State met its burden in this impeachment proceeding as to element (1).
On the element of "borrowing" there is no direct evidence in the record before us that Marvin Copple was the ultimate debtor and that he either directly or indirectly had any legal obligation as a debtor to pay the $100,500 Driscoll loan to Commonwealth. The circumstantial evidence previously suggested by the State includes the personal and business relationships between Copple and Douglas, Douglas' loans with Commonwealth, and the sale of the lots to Judith Driscoll, Copple's private secretary, who borrowed all of the purchase price of the lots from Commonwealth. Such circumstantial evidence is entirely speculative; it falls far short of the required proof. See State v. Buchanan, 210 Neb. 20, 312 N.W.2d 684 (1981). The State failed to prove element (2) beyond a reasonable doubt, and therefore we need not discuss the remaining elements. Specification No. 4 must fail.
SPECIFICATION NUMBER FIVE — DUTY TO INVESTIGATE
1. The general allegations hereinabove recited are incorporated herein as if set forth verbatim;
2. On or about March 14, 1983, Paul L. Douglas received a copy of a letter from the Federal Bureau of Investigation generally describing financial irregularities occurring at Commonwealth Savings Company;
3. Sometime in March, 1983, Paul L. Douglas met with Barry Lake and Paul Amen, and possibly others, to discuss the F.B.I. letter and financial irregularities;
4. In the spring of 1983, on a date unknown, Barry Lake advised Paul L. Douglas of possible criminal activity involving Marvin Copple and Commonwealth Savings Company;
5. On or about May 4, 1983, Paul L. Douglas assigned, or consented to the assignment of, Ruth Anne Galter, an Assistant Attorney General, to the Nebraska Department of Banking and Finance for the purpose of assisting said Department in prosecuting "white collar" crime;
6. At all material times, Paul L. Douglas was aware of the fact that Ruth Anne Galter was personally indebted to Commonwealth Savings Company for large sums of money and that she was the estranged wife of Paul Galter;
7. In July of 1983, on a date not known, Ruth Anne Galter advised Paul L. Douglas of the possibility of criminal activity involving Marvin Copple and Commonwealth Savings Company;
8. The Nebraska Department of Banking and Finance made available or would have made available to Paul L. Douglas or Ruth Anne Galter all information it had in its possession regarding alleged criminal activity involving Marvin Copple or Commonwealth Savings Company from and after March 14, 1983;
9. Substantially nothing was done to prosecute or investigate Marvin Copple or Commonwealth Savings Company, from March 14, 1983, until Commonwealth Savings Company was declared insolvent on November 1, 1983, by Paul L. Douglas or any of his subordinates;
10. By virtue of the foregoing, Paul L. Douglas violated the provisions of Neb. Rev. Stat. § 84-205(4) and other laws of the State of Nebraska generally.
Paragraphs 2 to 8 of the specification are general statements of information, knowledge, and evidence that Douglas is alleged to either have possessed or had available to him as Attorney General; they all concern financial irregularities at Commonwealth and the possible criminal activity of Marvin Copple. The charge in paragraph 9, "Substantially nothing was done to prosecute or investigate . . .," falls far short of being specific. From this charge we conclude that the State admits that Douglas did in some way respond to the information he either possessed or had available to him; however, it then alleges his judgment and response did not meet the standard imposed by the Constitution, statutes, and his inherent common-law duties, and implies that his acts or omissions were "'subversive of some fundamental or essential principle of government or highly prejudicial to the public interest . . . .'" State v. Hastings, 37 Neb. 96, 115, 55 N.W. 774, 780 (1893).
The principal facts upon which the specification is based relate to the March 10, 1983, FBI letter, a carbon copy of which was received by the defendant, and a conversation between the defendant and Barry Lake which took place sometime during the spring of 1983.
The gravamen of the charge is that substantially nothing was done to prosecute or investigate Marvin Copple or Commonwealth Savings Company from March 14, 1983, until after November 1, 1983, the date on which Commonwealth was declared insolvent by the Department of Banking and Finance. The evidence shows that some investigation was made but no prosecution was commenced during this period. Thus, the charge is that the defendant failed to do sufficient investigation during this time, and failed to prosecute Copple.
The last paragraph of the specification refers to Neb. Rev. Stat. § 84-205(4) (Reissue 1981), and alleges that the defendant violated this statute and "other laws of the State of Nebraska generally." The statute cited provides that the duties of the Attorney General shall be:
(4) At the request of the Governor, the head of any executive department, the Secretary of State, State Treasurer, Auditor of Public Accounts, Board of Educational Lands and Funds, State Department of Education or Public Service Commission, to prosecute any official bond or any contract in which the state is interested, deposited with any of them, and to prosecute or defend for the state all actions and proceedings, civil or criminal, relating to any matter connected with any of their departments; Provided, that, after investigation, he is convinced there is sufficient legal merit to justify the proceeding; and none of the above-named officers shall pay, or contract to pay, from the funds of the state any money for special attorneys or counselors at law, unless the employment of such special counsel shall be made upon the written authorization of the Governor or the Attorney General.
This statute requires the Attorney General, when requested by the Governor, the head of any executive department, or certain other named officers, (1) to prosecute any official bond or any contract in which the State is interested; and (2) to prosecute or defend for the State all actions and proceedings for the named departments.
Under this statute there is no duty to investigate until the Attorney General has been requested to prosecute or defend. The investigation which is to be made is for the purpose of determining if there is sufficient legal merit to justify the proceeding.
We recognize that the Attorney General has some duties which are not purely statutory and are sometimes referred to as the common-law duties of the office. In State v. State Board of Equalization and Assessment, 123 Neb. 259, 242 N.W. 609 (1932), we stated that the Attorney General is clothed and charged with all such common-law powers and duties except insofar as they have been limited by statute; and in the absence of some express legislative restriction to the contrary, he may exercise all such power and authority as the public interests may require from time to time. See 7 Am. Jur. 2d Attorney General 9 (1980).
"It is generally acknowledged that the attorney general is the proper party to determine the necessity and advisability of undertaking or prosecuting actions on the part of the state." 7 Am. Jur. 2d, supra 16 at 20; State v. Pacific Express Co., 80 Neb. 823, 115 N.W. 619 (1908). This discretion is obvious when exercising inherent powers; and it is also recited in 84-205(4), "Provided, that, after investigation, he is convinced there is sufficient legal merit to justify the proceeding . . . ." (Emphasis supplied.)
"'[I]nvestigation' means the process of inquiring into or tracking down through inquiry . . . 'investigate' means to follow up by patient inquiry or observation; to inquire and examine with systematic attention to detail and relation." Mason v. Peaslee, 173 Cal.App.2d 587, 592 n.2, 343 P.2d 805, 808 n.2 (1959).
Although 84-205 provides that the Attorney General shall have the same powers and prerogatives in each of the several counties of the state as the county attorneys have in their respective counties, the affirmative duty to prosecute all criminal matters is specifically placed upon the county attorney. Neb. Rev. Stat. § 23-1201 (Cum. Supp. 1982). This is a common arrangement throughout the United States. See 7 Am. Jur. 2d, supra 13.
The evidence shows that with regard to criminal prosecutions the usual and customary practice, and the procedure which had been followed by the office of the Attorney General, was to refer them to the proper county attorney after an investigation by the interested department had developed sufficient information to establish that a criminal prosecution was justified. This policy had been one of necessity because the office of the Attorney General did not have sufficient personnel or resources to carry on investigations, except in a few limited areas, and the other departments had skilled employees who were trained and experienced in their particular fields of operation. This was especially true with respect to financial institutions which were supervised and examined routinely by personnel of the Department of Banking and Finance.
The evidence further shows that this procedure was followed in 1982 in connection with a prosecution in Douglas County, Nebraska, for the violation of banking laws and regulations. The Department of Banking and Finance, through Barry Lake, delivered a complete report of investigation, together with a suggested form of complaint, to the office of the Attorney General. The matter was referred to the county attorney of Douglas County, Nebraska, and prosecutions instituted and completed in 1983.
The FBI letter of March 10, 1983, was addressed to the Director of Banking and Finance, and stated that during an investigation at Beatrice, Nebraska, information was obtained concerning similar transactions at Commonwealth, including a $1,250,000 transaction in which S.E. Copple received $750,000 of the proceeds. The letter advised the director that the FBI could provide further details concerning the matter. The letter, which did not mention Marvin Copple, was not a surprise to the banking department because it had been advised in 1982 about the investigation being made in Beatrice.
On March 14, 1983, after the copy of the FBI letter had been received by the Attorney General, there was a conference at the office of the Attorney General with Paul Amen, the Director of Banking and Finance, and Barry Lake, an assistant director of the banking department and counsel to the department, concerning the letter. The evidence is in conflict as to other personnel present at this meeting.
The substance of the conversation was that the Director of Banking and Finance was very concerned about the financial condition of Commonwealth and a number of other industrial loan and investment companies. The director testified that he related his "deep concern about the industrials"; that any type of prosecution "would blow the lid"; and that it would mean "a number of these industrials would come tumbling down." He further testified that he felt the failure of one institution, or perhaps even some adverse publicity, could cause a run and eventually topple the entire industry.
Lake admitted that at this conference they did not disclose to the defendant in any extensive detail the information in the reports of examination or information the department had on insider transactions. As early as March 31, 1982, the department knew of "numerous insider transactions" at Commonwealth, including a loan to Dana Saylor in which the proceeds were endorsed to Newt Copple.
Although the director did not specifically ask the Attorney General not to investigate Commonwealth, there was no request to investigate and no request to prosecute anyone connected with Commonwealth at that time. The director testified that "our position was simply to point out the seriousness of our problem and what we thought would happen if there were an investigation and possible prosecution." It was concluded at the meeting that someone should talk to the FBI about the letter. Barry Lake testified that "it was resolved that I would go to the Federal Bureau of Investigation and discuss that letter with them."
It was the aim and purpose of the Department of Banking and Finance to save the institution for the depositors, if possible, by obtaining an infusion of capital and finding a purchaser. In accordance with banking department policy, criminal prosecution was the last step in the process, and was not to be commenced until the institution had been saved or all efforts to save the institution had been attempted.
The effort to save Commonwealth was successful only in part, in that S.E. Copple contributed additional property and capital to the institution. The department was unable to find a buyer, and on November 1, 1983, Commonwealth was declared insolvent and was closed by the Department of Banking and Finance. After the institution was closed there was some delay in commencing the receivership proceeding because the director was still trying to find a purchaser and did not want the Attorney General to file a petition in the district court immediately.
During 1983 and earlier, the Department of Banking and Finance had been trying to obtain the services of a full-time assistant attorney general to assist the department with the large number of matters that were then pending in the department. Most of these matters involved security law violations, but there were also banking law violations. Lake estimated that the department had about a 2-year backlog of securities cases and an increasing number of criminal cases involving banks and other depository institutions like industrial loan and investment companies. On October 1, 1982, an assistant attorney general was hired and assigned to the banking department full time, but this employee left for a better paying job on October 11, 1982. There was a delay in finding another employee, partly due to transitional problems resulting from a change in the office of the Governor. During the interim, an assistant attorney general was assigned to the department, but not on a full-time basis.
On July 1, 1983, upon the recommendation of Gerald Vitamvas, the deputy attorney general, Ruth Anne Galter, an assistant attorney general of some 5 years' experience, was assigned to the Department of Banking and Finance full time. The assignment was actually made on May 4, 1983, but her duties with the banking department did not commence until June 1, and she was not full time until July 1, 1983.
On May 10, 1983, Ms. Galter met with Barry Lake and Patricia Herstein, also an assistant director and legal counsel to the department. Ms. Herstein had prepared two memorandums, one of which was a detailed list of matters which were under investigation and of concern to the department. The list contained 25 to 35 items, but Commonwealth was not on the list.
On or about May 4, 1983, Barry Lake mentioned to the defendant that a report of examination of Commonwealth disclosed that Marvin Copple had received two $250,000 fees or commissions as part of a real estate transaction, which Lake thought amounted to theft. He did not testify to, and the record does not show, the date the fees or commissions were received. At this conversation the defendant stated that he had had "a personal and prior business relationship with Marvin Copple but he said that would not make any difference with respect to any criminal prosecution" and that "if Marv Copple was guilty of any crimes, that he would prosecute Marv Copple."
According to Lake, he advised Ms. Galter at a meeting with her on June 24, 1983, that she was to "review and supervise" any potential criminal activity in regard to Commonwealth and its principals. A typewritten status report of department investigations prepared by Lake and dated June 23, 1983, listed seven matters under investigation. Two items were added to this list in handwriting, one of which was "Commonwealth Sav Co. — Copples." The list included cases involving two industrial loan and investment companies other than Commonwealth, a cooperative credit association, and four banks. Lake testified that each of the nine items was discussed with Ms. Galter on June 24, 1983.
Lake testified that he met with Ms. Galter "every other two weeks" to discuss matters that she was working on and that he was satisfied with the progress which she made. Lake further testified that in his discussions with Ms. Galter he told her that, because of the large volume of cases that had been referred to her, "we should try to be as efficient as we could and that we should try to piggyback off of the FBI's investigation as much as possible." He further testified, "I mentioned to her my meeting with the FBI, the general substance of it and said I thought it would be a good idea for her to meet with the FBI and possibly the U.S. Attorney's office to try to get as much of the — of evidence from their investigation as she could so that she wouldn't have to duplicate interviewing the people they had already interviewed."
On June 30, 1983, Ms. Galter met with Ronald Lahners, the U.S. attorney, concerning the Commonwealth matter. She was referred to Agent Campbell of the FBI, and she had several telephone conversations with Campbell. Campbell mentioned the names of several people, but stated that the information she wanted could be found in the records of the Department of Banking and Finance. She requested information concerning Commonwealth from both Lahners and Campbell, but it was not made available to her.
According to Ms. Galter, when she looked over a report of examination of Commonwealth in July, she requested a copy of the report, but it was not furnished to her. She requested a copy of the report again in October, but it was not given to her.
Both Lake and Ms. Galter testified that from time to time Lake would advise her as to which cases had priority and should be worked on first. Lake testified that the department did not set any specific priority on the Commonwealth matter. There is no evidence that Commonwealth was ever given a high priority by the banking department or that Ms. Galter was instructed to give it preference over the many other cases which had been assigned to her.
It is important to recognize the number of cases which had been assigned to Ms. Galter between July 1 and November 1, 1983, by the Department of Banking and Finance through Lake. During this time, Ms. Galter assisted the county attorney of Buffalo County in two cases. One, State v. Giese, involved a complicated fraud and theft charge. The other, State v. Doolittle, involved investigation in numerous counties. She was involved in State v. Soukup and State v. Adams, both of which were filed in Sarpy County but involved transactions in both Douglas and Sarpy Counties. There were two criminal matters in Knox County which required her time. When the Bank of Niobrara failed, that matter required a week of her time. The financial crisis involving the Bank of Blair took a week of her time.
When Ruth Anne Galter reported to the defendant that she was investigating the matter of the $500,000 in commissions received by Marvin Copple, she was directed by the defendant to "keep on it" and "keep him advised." There is no evidence that Ruth Anne Galter failed to pursue the investigation or did anything which hampered or prejudiced the investigation of the commissions received by Marvin Copple from Commonwealth.
It is true that Ruth Anne Galter was indebted to Commonwealth at the time she was assigned to the Department of Banking and Finance and that she was the estranged wife of Paul Galter, who was a participant in the real estate transactions with the defendant. She was concerned about the possibility of a conflict of interest, and discussed the matter with the defendant and obtained legal advice from private counsel. She was advised by her counsel that there was no conflict of interest at that time. When Commonwealth was declared insolvent, Ruth Anne Galter requested that she be relieved of any further duties in regard to Commonwealth because of the conflict of interest arising out of her indebtedness to Commonwealth, which was then about to be placed in receivership.
From our consideration of the evidence we find that the allegations contained in specification No. 5 were not proved beyond a reasonable doubt and that the specification forms no basis upon which to remove the defendant from office. There is no evidence of gross neglect of any duty of the office, and no evidence of corrupt conduct or other malfeasance.
We believe it is appropriate to point out that whatever delay there may have occurred in regard to a prosecution of Marvin Copple was consistent with the policy of the Department of Banking and Finance and its efforts to save the institution. There is no evidence of any prejudice to the State whatever in regard to a prosecution of Marvin Copple because of a failure to commence a prosecution at any time prior to November 1, 1983. Insofar as an investigation of Commonwealth is concerned, from the evidence presented in this case it would appear that most of the essential information was already in the possession of the banking department at the time of the conference with the Director of Banking and Finance at the office of the Attorney General on March 14, 1983. There is no evidence whatever of any prejudice to the State from a failure to conduct a more extensive investigation during the 7 1/2-month period prior to November 1, 1983, alleged in the specification.
Under the evidence in this case the Attorney General had no duty to refuse to cooperate with the Director of Banking and Finance in his efforts to save the institution. While these efforts may have been futile because of the condition of the institution, there is no evidence that the Attorney General was aware of the true financial condition of Commonwealth, and no evidence that he should have questioned the judgment of the Director of Banking and Finance in the matter.
SPECIFICATION NUMBER SIX — DUTY TO AVOID EVEN THE APPEARANCE OF IMPROPRIETY
1. The general allegations hereinabove recited are incorporated herein as if set forth verbatim;
2. From approximately 1973 until approximately 1982, Paul L. Douglas engaged in various business transactions with Marvin Copple, Judy Driscoll, or Commonwealth Savings Company which were not in the ordinary course of business, all as more specifically described in the report of Officer Lowe of the Lincoln Police Department, dated February 21, 1984, and the report of David Domina and John Miller, dated January 20, 1984;
3. Paul L. Douglas did not fully and openly and honestly cooperate with Special Assistant Attorney General David Domina in Mr. Domina's investigation into possible acts of official wrongdoing;
4. As a result of the foregoing, Paul L. Douglas violated:
A. The Code of Professional Responsibility adopted by the Nebraska Supreme Court including, but not limited to, DR 1-102, or,
B. The Code of Professional Responsibility adopted by the Nebraska Supreme Court, including, but not limited to, the ethical considerations related [to] DR 8; or,
C. The Code of Professional Responsibility adopted by the Nebraska Supreme Court, including, but not limited to, the ethical considerations related to DR 9; or,
D. Neb. Rev. Stat. § 7-105 relating to the duties of attorneys; or,
E. Neb. Rev. Stat. § 7-106 relating to deceit or collusion by attorneys; or,
F. Neb. Rev. Stat. § 28-901 relating to obstructing governmental operations; or,
G. Neb. Rev. Stat. § 28-924 relating to official misconduct.
Paragraph 2 of the specification refers to reports which were not received in evidence. The allegation that various transactions "were not in the ordinary course of business" did not allege an impeachable offense, because it does not describe an official delinquency.
The allegation in paragraph 3 that Douglas did not fully, openly, and honestly cooperate was discussed in part in connection with specifications Nos. 1 and 2. To the extent that the allegations are intended to expand upon those in specifications Nos. 1 and 2, they do not contain any specific statements of fact sufficient to constitute an impeachable offense. The Miller-Domina report was not received in evidence and the police report was not offered.
The State's theory is that (1) Douglas was engaged in financial transactions outside of the ordinary course of business, (2) Douglas was neither candid, open, nor honest when interviewed by John Miller and David Domina, and (3) such acts and omissions violated his duty to avoid the appearance of impropriety.
Specification No. 6 alleges that Douglas violated Canon 9 of the Nebraska Code of Professional Responsibility. This code in its present form was proposed in 1969 by the American Bar Association (ABA); it was later adopted, with few exceptions not applicable here, by the Supreme Court of the State of Nebraska.
The general purpose of the code is to encourage and develop the conscience and ethics of lawyers in their professional and private lives, to the end that the institution of the law merits and receives the trust and respect of the public. These excerpts are taken from the Preliminary Statement of the ABA draft of the code to further explain the code.
The Code is designed to be adopted by appropriate agencies both as an inspirational guide to the members of the profession and as a basis for disciplinary action when the conduct of a lawyer falls below the required minimum standards stated in the Disciplinary Rules.
. . . .
The Canons are statements of axiomatic norms, expressing in general terms the standards of professional conduct expected of lawyers in their relationships with the public, with the legal system, and with the legal profession. . . .
. . . .
. . . . The Code makes no attempt to prescribe either disciplinary procedures or penalties for violation of a Disciplinary Rule, nor does it undertake to define standards for civil liability of lawyers for professional conduct.
(Emphasis supplied.) ABA Code of Professional Responsibility 2 (Final Draft 1969).
The following from Canon 9 of the code, referred to in the specification, lends further explanation of the lawyer's duty to avoid the appearance of professional impropriety.
EC 9-1. Continuation of the American concept that we are to be governed by rules of law requires that the people have faith that justice can be obtained through our legal system. A lawyer should promote public confidence in our system and in the legal profession.
. . . .
EC 9-6. Every lawyer owes a solemn duty to uphold the integrity and honor of his profession; to encourage respect for the law and for the courts and the judges thereof; to observe the Code of Professional Responsibility; to act as a member of a learned profession, one dedicated to public service; to cooperate with his brother lawyers in supporting the organized bar through the devoting of his time, efforts, and financial support as his professional standing and ability reasonably permit; to conduct himself so as to reflect credit on the legal profession and to inspire the confidence, respect, and trust of his clients and of the public; and to strive to avoid not only professional impropriety but also the appearance of impropriety.
The present Nebraska State Bar Association (NSBA) was formed as an integrated bar in 1937. In re Integration of Nebraska State Bar Ass'n, 133 Neb. 283, 275 N.W. 265 (1937). The Supreme Court of the State of Nebraska governs the admission of lawyers to practice law and their professional conduct; it is vested with the singular power and authority to discipline lawyers, including power to disbar, suspend, and/or censure, as the nature and circumstances of the case warrant. Complaints concerning alleged violations of the code are processed through disciplinary committees and the Counsel for Discipline of the NSBA.
We do not intend to say that violations of a code disciplinary rule do not have substance. On the contrary, the code is viable, but it concerns only standards of conduct, discipline, and penalties relating to a lawyer's professional life. Whether the defendant has violated the Code of Professional Responsibility is a matter to be determined in a disciplinary proceeding commenced for that purpose.
Although an act or omission by a lawyer may be both a violation of a disciplinary rule and an impeachable offense, it does not follow that a violation of a disciplinary rule, as such, is an impeachable offense.
It is further noted that in addition to possible disciplinary measures under the Code of Professional Responsibility, and dependent upon the nature and the circumstances of an alleged violation, a lawyer may be held liable in the civil courts and prosecuted in the criminal courts.
Insofar as specification No. 6 alleged a duty to avoid even the appearance of impropriety, it did not allege an impeachable offense.
For the reasons stated the defendant is adjudged not guilty of all specifications.
JUDGMENT OF NOT GUILTY.