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John Schaaf: Court of Appeals refusal to rehear Schickel case sends strong pro-ethics message

Kentucky’s Legislative Ethics Commission (KLEC) recently scored several more important wins in the federal court case filed against the members of KLEC by Sen. John Schickel, whose lawsuit claims he has a constitutional right to accept meals, beverages, and campaign contributions from legislative lobbyists.

First, the U.S. Court of Appeals for the Sixth Circuit denied Schickel’s request that his case be heard again by the same three-judge panel that issued the sweeping opinion upholding the constitutionality of ethics laws that were challenged by Schickel.

Schickel also asked that the case be heard by all 16 of the Sixth Circuit’s judges, sitting as a single panel. That request was denied after Schickel’s motion was circulated among all the Circuit Judges and no judge requested a vote on the suggestion for a rehearing.

Next, Schickel and two Libertarian Party co-plaintiffs asked the Sixth Circuit to delay its mandate to U.S. District Judge William Bertelsman, requiring him to enter a final order in the case. After that “motion to stay the mandate” was denied, the Sixth Circuit issued its mandate to the lower court, and a final order will soon be issued by Judge Bertelsman.

Finally, Schickel and one of the Libertarians asked the U.S. Supreme Court to extend from 90 days to 150 days the time in which Schickel’s attorneys must file a petition for Writ of Certiorari.  That’s a document a losing party files, asking the Supreme Court to review a decision of a lower court. 

In the motion to the Supreme Court, Schickel’s attorneys referred to Operation BOPTROT as “a scandal in which a couple members of the harness racing industry were involved with bribing legislators and other government officials.” 

That brief description of a serious FBI investigation of the General Assembly is not consistent with the language of the Sixth Circuit’s decision. In the 1990’s, BOPTROT led to 21 convictions, including 15 legislators, several from Northern Kentucky. The Sixth Circuit cited BOPTROT as giving Kentucky an important government interest in preventing corruption and adopting a strong ethics law. In the Schickel decision, the Sixth Circuit states:

“In the aftermath of BOPTROT, the public lost faith in its elected officials, and public standing plunged to an all-time low. (Tom Loftus & Al Cross, Lies, Bribes and Videotape, The Courier-Journal, July 1, 1993.) Corruption was rampant and came cheap – in some cases, legislators accepted as little as $400 from lobbyists in exchange for influencing legislation. (Martin Booe, Ethics: Kentuckians Amazed that $400 Can Buy a Lawmaker, L.A. Times, April 13, 1993.)”

The request from the attorneys for Schickel and the Libertarian for more time was denied by U.S. Supreme Court Justice Sonia Sotomayor, who is assigned by Chief Justice John Roberts to rule on all such requests from the Sixth Circuit.

If Schickel or one or both Libertarians intend to ask the U.S. Supreme Court to hear an appeal from the Sixth Circuit’s decision, their petition to the Supreme Court must be filed by early October, within 90 days of the day the Sixth Circuit denied their motion for a rehearing.

The Sixth Circuit’s ruling was a unanimous decision by a panel of judges appointed by Presidents George W. Bush, Jimmy Carter, and Donald Trump.

If the Sixth Circuit’s decision stands, it’s a stamp of approval for Kentucky’s legislative ethics law, and a clear signal in support of strong public ethics laws across the nation.

In the 26 years since the adoption of Kentucky’s Code of Legislative Ethics, no Kentucky legislator has been charged or convicted of misusing his or her legislative office.

The federal court ruling is an important message to the other 49 states, hundreds of cities and counties, and to the U.S. Congress, that they can adopt strong ethics laws like Kentucky did in the post-BOPTROT era, and help public officials and lobbyists avoid corruption.

John Schaaf is Executive Director of the Kentucky Legislative Ethics Commission.

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