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Home > Blogs > Butler County News and Issues > Archives > 2009 > December > 08
Tuesday, December 8, 2009
Supreme Court justices skeptical of ‘honest services’ law
Here is an update from the LA Times on the U.S. Supreme Court’s review today, Dec. 8, of the “honest services” statute, which is at the heart of the federal corruption charges against former Butler County commissioner Michael Fox:
The Supreme Court justices gave a highly skeptical hearing today to government lawyers defending the key anti-corruption law that makes it a crime to deprive an agency or employer of their “honest services.”
The justices took turns suggesting the law is too vague and open-ended and fails to spell out what is a crime.
Justice Antonin Scalia called the law a “mush.” It is like, he said, a law that says, “Every bad act is a crime.”
It gives prosecutors and judges a free hand to decide what constitutes a crime but fails to warn ordinary citizens, he said.
During two hours of argument, most of the other justices sounded the same theme. Justices Stephen G. Breyer and Chief Justice John G. Roberts Jr. suggested several times the law might be unconstitutional because it is so vague.
“A citizen is supposed to be able to understand the law,” Breyer said, yet it is unclear what this law brands a crime.
In recent years, prosecutors have used the law against “honest services fraud” as their favorite weapon against public corruption and, sometimes, corporate fraud. It allows them to win convictions for allegedly corrupt schemes even when they cannot prove a public official stole money or took a bribe.
But the Supreme Court justices signaled today they are inclined to either sharply scale back the law or strike it down entirely. If so, the court’s decision could upset or complicate a whole series of corruption cases, including the pending prosecution of former Illinois Gov. Rod Blagojevich for allegedly attempting to sell the Senate seat vacated by President Obama.
Defending the law, Deputy Solicitor General Michael R. Dreeben said it is crucial for prosecuting officials who use their public positions to scheme for their personal benefit. It would “devastate a core area of public corruption” law if the measure were thrown out, he said.
Dreeben argued the law can be used fairly and properly to go after officials who take bribes and kickbacks or who profit from an “undisclosed conflict of interest.”
In one of two cases heard today, he urged the justices to uphold the pending prosecution of a former Alaska legislator who voted in favor of a tax bill that would have helped an oil services firm after he had sought work with the firm. Dreeben said this scheme, if proven, deprived the people of Alaska of the honest services of their legislators.
But a lawyer for Bruce Weyhrauch, the former legislator, said Alaska does not require its part-time lawmakers to disclose such dealings. Weyhrauch was leaving the Legislature and looking for future work, although he did not go to work for the oil services firm, said Washington lawyer Donald Ayer.
He insisted it was wrong and unfair to prosecute someone for breaching a duty of disclosure, since he had no such duty under Alaska law.
The other case involved the one-time newspaper magnate Conrad Black, who was convicted and jailed for scheming to take $5.5 million as personal fees while he was the chief executive of Hollinger Inc., whose papers included the Chicago Sun-Times.
But the justices largely ignored the facts of Black’s case. Instead, they devoted the hour to debating whether the law against “honest services fraud” should be struck down or narrowed in some way.
Miguel Estrada, the lawyer for Black, agreed with Scalia the law is a “morass… . This statute cannot be saved,” he added.
It may be some time before the high court decides how to proceed. Early next year, the justices will hear a third case testing the honest services fraud law brought by former Enron chief executive Jeff Skilling.
The justices hinted today they will postpone a ruling on the issue until they have considered Skilling’s case, since his lawyers argued most directly that the entire law should be thrown out as too vague.
Such a decision would send the matter back to Congress, where lawmakers could seek to craft a more precise statute.
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Sales tax hike could raise $10M — eventually
Butler County officials say an emergency quarter percent sales tax could raise $10 million — more than enough to fill a projected $6.6 million hole in the county’s recession battered budget.
But between logistics and politics, the concept has some problems.
For one, commissioners don’t like the idea. Two of three commissioners said last week they would consider it, but only as a last resort if budget cuts fall disastrously short.
It would take unanimous yeas to pass an emergency tax hike. But even in that case, it would take weeks to advertise and hold public hearings, and the resolution would have to be passed and sent to the tax commissioner 65 days prior to April 1.
“That would be almost next to impossible to do right now,” said county Finance Director Pete Landrum. “Not impossible, but nearly.”
If they missed that deadline, the soonest they could start collecting the tax would be July 1. “We wouldn’t see a dime of that until October,” Landrum said.
Commissioners or voters could then put the issue on the ballot, though the tax would be collected before the vote.
If only two commissioners voted for a tax hike — which, again, they said they don’t want to do — collection of the sales tax would be delayed until after the referendum, if there were one.
And voters don’t have much of an appetite for sales tax levies these days. Of the nine counties that went to voters with a sales tax levy in November, only two passed, according to an analysis by the County Commissioners Association of Ohio.
County commissioners can levy a sales tax of up to 1.5 percent, on top of the state’s 5.5 percent sales tax. Currently, Butler County collects only .75 percent.
With a combined sales tax of 6.25 percent, Butler County is one of four counties with the lowest sales tax rate in the state, according to the Ohio Department of Taxation.
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