Fletcher v. Graham

192 S.W.3d 350, 2006 Ky. LEXIS 123, 2006 WL 1358476

• Court: Kentucky Supreme Court
• Decided: May 18, 2006
• Docket: 2005-SC-1009-MR
• Status: Published

Opinions

Opinion of the Court by

Justice JOHNSTONE.

In an original action before the Court of Appeals, Appellant, Governor Ernie Fletcher, in his official capacity as Governor of the Commonwealth of Kentucky, sought a writ of mandamus directing the Franklin Circuit Court to issue supplemental instructions to a special grand jury. This special grand jury had been summoned by the Attorney General to investigate allegations of criminal violations of the state’s merit system hiring scheme. While the grand jury was in the process of investigating these allegations, and after several indictments had been issued against executive branch employees, Governor Fletcher issued an executive order pardoning all criminal conduct that was under investigation by that special grand jury. Following the issuance of the pardon, Governor Fletcher moved the Franklin Circuit Court to instruct the grand jury concerning the effect of the pardon — to wit, that the grand jury had no authority to issue further indictments for pardoned conduct. The Franklin Circuit Court declined to issue the supplemental instructions, prompting Governor Fletcher to seek a writ of mandamus in the Court of Appeals. The Court of Appeals denied the petition, determining that the pardon, though valid, did not compel the circuit court to issue supplemental instructions to the grand jury investigating the pardoned offenses. Governor Fletcher appealed to this Court as a matter of right. For the reasons set forth herein, we affirm in part and reverse in part.

Background

The investigation began in May 2005, when an employee of the Kentucky Transportation Cabinet contacted the Attorney General and presented evidence of alleged criminal violations of the state merit employee hiring system.¹ On May 25, 2005, upon motion of the Attorney General, the Franklin Circuit Court summoned a special grand jury. For several months, the grand jury proceeded to investigate the matter and eventually issued several indictments against executive branch employees alleging both misdemeanor violations of the merit system laws and felony violations concerning evidence and witness tampering. Some three months into the investigation, on August 29, 2005, Governor Fletcher issued Executive Order 2005-924, whereby he sought to pardon nine individuals indicted by the grand jury as well as “any and all persons who have committed, or may be accused of committing, any offense up to and including the date hereof, relating in any way to the current merit system investigation.”²

Notwithstanding the pardon, the grand jury continued its work and issued indictments for pardoned offenses. In response, Governor Fletcher moved the Franklin Circuit Court to supplement its instructions to the grand jury. Specifically, Governor Fletcher sought an instruction advising the grand jury that “pardoned conduct that preceded the pardon is no longer an indictable offense and therefore cannot constitutionally form the basis for an indictment.” Governor Fletcher further asked that the grand jury be instructed that pardoned persons may not be indicted “solely for the purposes of naming them in a report.” The Franklin Circuit Court denied the Governor’s motion, instead telling the grand jurors that the Governor’s pardon had no bearing on their work whatsoever. While recognizing the Governor’s constitutional authority to issue pardons, the trial court concluded that the requested instructions would impermissibly infringe upon the grand jury’s independence. Rather, the trial court determined that the grand jury could continue issuing indictments, even against pardoned persons, though such indictments would immediately be dismissed.

Governor Fletcher then petitioned the Court of Appeals for a writ of mandamus directing the Franklin Circuit Court to deliver the requested instructions. The Court of Appeals denied the petition, ultimately concluding that the Governor’s pardon, though valid, did not oblige the circuit court to instruct the grand jury concerning the effect of the pardon. Governor Fletcher now appeals to this Court as a matter of right.

Standard of Review

We first address our standard of review of a request for a writ of mandamus. A writ of mandamus is essentially a command from a higher court to “stop some action which is threatened by or is being proceeded with by an inferior court.”³ It has long been characterized as an “extraordinary remedy”⁴ that is granted conservatively and only in “exceptional situations.”⁵ Accordingly, a writ of this nature is granted for only two purposes: (1) when the lower court is acting beyond its jurisdiction, and (2) when the lower court is acting or is about to act erroneously, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.⁶ In reviewing the grant or denial of a writ of mandamus, the standard of our review depends on the nature of the writ and the circumstances of the case.⁷ Generally speaking, however, the basic standard of review of the grant or denial of a writ is abuse of discretion, while questions of law are reviewed de novo.⁸

Here, the Governor sought a writ of mandamus of the second category, and the Court of Appeals determined that the petition was properly before the court. Noting that Governor Fletcher sought to completely prohibit indictments for pardoned offenses rather than simply prevent erroneous indictments, the Court of Appeals agreed that no adequate remedy by appeal existed. The Court of Appeals further found that the potential “insult” to the Governor’s pardoning power fulfilled the “great and irreparable injury” requirement. The Attorney General now argues that the Court of Appeals erred in its holding that great and irreparable injury would potentially result from the denial of the requested writ.

We agree with the Court of Appeals’ determination that the prerequisites for a writ of mandamus — ie., no adequate remedy by appeal, and great and irreparable harm — were met in this instance. Because the Governor specifically seeks to prevent the indictment of any pardoned person, it would not be an adequate remedy to simply dismiss any indictments as they were issued. As the Court of Appeals noted, “a post-indictment remedy ... would not protect the interests the Governor asserts.” We also concur with the Court of Appeals’ holding that, if his arguments are correct, the Governor faces great and irreparable injury. The Governor alleges a violation of the separation of powers, as well as misconstruction of his constitutional power to pardon; correction of this possible error is certainly “necessary and appropriate in the interest of orderly judicial administration.”⁹ Accordingly, the Court of Appeals did not abuse its discretion in concluding that the procedural prerequisites for a writ of mandamus were satisfied in this case.

Supplemental Instructions to the Grand Jury

Turning to the merits of the case, we must first determine the validity of the August 29 pardon, as the circuit court would be under no obligation to instruct the grand jury concerning a legally ineffectual document. The pardon, contained in Executive Order 2005-924 read, in pertinent part:

[B]y virtue of the authority vested in me by Section 77 and related provisions in the Constitution of the Commonwealth of Kentucky. I ERNIE FLETCHER, Governor of the Commonwealth of Kentucky, do hereby grant a full, complete, and unconditional pardon to James L. Adams, Darrell D. Brock, Jr., Danny G. Druen, Tim Hazlette, Charles W. Nighbert, Cory W. Meadows, Richard L. Murgatroyd, Basil W. Turbyfill, Robert W. Wilson, Jr., and any and all persons who have committed, or may be accused of committing, any offense up to and including the date hereof, relating in any way to the current merit system investigation being conducted by the special grand jury presently sitting in Franklin County, Kentucky and the Office of the Attorney General .... The provisions of this Order shall not apply to Ernie Fletcher, Governor of the Commonwealth of Kentucky.

The Attorney General challenges the scope of the Governor’s pardon on three grounds: (1) that Section 77 does not authorize general, or blanket, pardons; (2) that pardons may not be granted prior to indictment; and (3) that formal acts of acceptance are essential to a valid pardon. We first address the issue of the so-called “blanket” pardon.

The Attorney General maintains that the language of Section 77 does not expressly authorize blanket pardons, which are pardons issued to classes of persons rather than specified individuals. Here, though the Governor does pardon nine identified individuals, the pardon also included a class of persons: “any and all persons who have committed, or may be accused of committing, any offense up to and including the date hereof.” The Governor argues that nothing in the language of Section 77 prohibits this type of general or blanket pardon, and that the governor’s power to issue general pardons has long been recognized. We agree.

Section 77 provides: “[The Governor] shall have power to remit fines and forfeitures, commute sentences, grant reprieves and pardons, except in case of impeachment, and he shall file with each application therefor a statement of the reasons for this decision thereon, which application and statement shall always be open to public inspection.” When interpreting constitutional provisions, our focus rests on the express language of the provision, and words must be given their plain and usual meaning.¹⁰ This Court is “not at liberty to construe ... plain and definite language of the Constitution in such a manner as to thwart the deliberate purpose and intent of the framers of that instrument.”¹¹ In fact, our predecessor Court recognized as a “cardinal rule” of constitutional interpretation the principle that rules of construction may not be employed where the language of the provision is clear and unambiguous.¹² “It is to be presumed that in framing the constitution great care was exercised in the language used to convey its meaning and as little as possible left to implication ....”¹³

The language of Section 77 is clear, and its meaning unambiguous. The Governor is given authority to grant pardons. Aside from cases of impeachment, absolutely no restriction is placed on this delegation of authority. Nothing in the language of Section 77 infers that general pardons are prohibited, nor is there any indication that a governor may not pardon a class of persons. We are not at liberty to insert meaning where the language of the provision is clear. Instead, the language of Section 77 leads to only one reasonable interpretation: that the framers intended to give the Governor broad and unrestricted discretion to issue pardons to whomever.

Though not necessary because the language of Section 77 is clear, we note that our conclusion gives effect to the intent of the framers of Kentucky’s constitution. A review of the debates of the constitutional convention of 1890 confirms that the delegates considered general pardons. Included in these debates is frequent reference to Governor Bramlette who, following the end of the Civil War, asked the General Assembly to pardon all Confederate soldiers.¹⁴ The delegates also discussed the similarity of the provision to the corresponding federal provision, noting that Presidents Lincoln and Grant had wisely exercised the authority under the federal Constitution to pardon scores of former Confederate soldiers.¹⁵ At least two delegates referenced King James II, who suspended conviction for any religious offenses in an effort to permit his fellow Catholics to practice their faith openly in Protestant England.¹⁶ This delegate warned that an unrestricted pardoning power would permit a future governor to believe, as James II had, that “if he could pardon one individual before trial, he could pardon all individuals before trial ....”¹⁷ Without doubt, the framers of our constitution were cognizant that the pardoning power could potentially be used to issue general pardons to persons falling within a specified class, yet declined to expressly prohibit such discretion. In light of these debates, this Court can only conclude that, if the framers sought to prohibit general pardons, they would have so stated in the language of the provision.¹⁸

For largely similar reasons, we likewise agree with the Governor and the Court of Appeals that he is not prevented from issuing pardons prior to formal indictment for the pardoned offenses.¹⁹ Foremost, the language of Section 77 does not restrict the pardoning power to those offenses for which an indictment has been issued. Indeed, there is no language whatsoever in Section 77 identifying a particular stage in the criminal proceedings after which a pardon is permissible. For this reason, there is simply no support in the language of the section itself for the Attorney General’s proposition that pardons may only be issued for indicted offenses. And, though bearing little prece-dential value to our decision herein, we note that Governor Fletcher is not the first Kentucky governor attempting to issue a pardon prior to indictment, contrary to the representations of the Attorney General.²⁰

The Attorney General refers extensively to the constitutional debates in urging a prohibition on pre-indictment pardons, indicating that the delegates did not specifically address such a pardon. In his dissenting opinion, Justice Cooper likewise includes numerous references to the debates in support of his proposition that the framers neither intended a pre-indictment pardon, nor even contemplated it as a real possibility. While both are correct that the pre-indictment pardon was not particularly debated at length, it is simply disingenuous to report that the framers did not consider such a pardon.

One of the most contentious and lengthy debates concerning the gubernatorial pardon focused on the issue of a pre-conviction pardon.²¹ As enumerated at length in Justice Cooper’s dissenting opinion, numerous amendments were proposed that would have allowed a pardon only “after conviction” or “after judgment.”²² Those seeking to restrict the pardon to post-conviction offenses relied primarily on the principle that a pardon implies that there is guilt, and should only follow a democratic society’s formal indication of guilt — conviction. Such a delegation of power, it was argued, would derogate the autonomy of the judicial branch, as adequate safeguards existed within the judicial system to protect against false conviction and to protect the rights of the innocent, who need no pardon.²³ According to some, a pardon prior to conviction eroded the rights of the pardonee’s victim and the public, by denying “the right to come in and have a fair investigation ... and to let the facts be submitted to a candid world.”²⁴ Conversely, those delegates urging a broad, unrestricted pardon power argued that no distinction existed between a pre-conviction and post-conviction pardon, as the ultimate purpose of the pardon was to grant mercy in exceptional circumstances, rendering a formal conviction irrelevant: “It is not the time when the pardon is granted that is material ... [it is] that he may relieve the defendant from the penalty of the law.”²⁵ These delegates also indicated that circumstances often necessitate an expedient pardon, one rhetorically asking whether there was a “man in this House who regrets the exercise of the Executive clemency by Governor Bramlette before indictment, judgment or conviction?”²⁶

Through these extensive discussions wherein the delegates speculated as to the potential abuses of the gubernatorial pardon, it is evident that the framers considered a pre-indictment pardon as a valid possibility under a broadly drafted provision. This conclusion does not rest upon isolated statements of certain delegates, or upon proposed amendments that were ultimately rejected by the delegates. Rather, a genuine and comprehensive review of the entire debates makes clear that, with respect to the timing of a pardon, the primary interest of the delegates was whether a formal finding of guilt should precede a pardon. Naturally, little distinction would be drawn between a pardon prior to indictment versus a pardon prior to conviction, as both precede a legal determination of guilt. In fact, even beyond repeated reference to Governor Bramlette’s pre-in-dictment pardons, it was acknowledged that if pre-conviction pardons were allowed, a future governor might exercise his authority even prior to indictment. One delegate in favor of a pre-conviction pardon expressly advocated pardons prior to indictment, first reminding his colleagues that grand jury proceedings are ex parte and therefore inconsequential to a determination of guilt: “[Delegates] question the wisdom of allowing the power to pardon before conviction, and yet are willing to give the power to pardon after conviction. [They] say he shall not have the power to pardon a man from what? From a charge of crime. That is what he is pardoned from ....”²⁷ The delegates fully considered limiting pardons to post-conviction offenses, and as noted by Justice Cooper, several amendments to this effect were offered. Notwithstanding Justice Cooper’s faulty analysis and summary of these debates, and the above-referenced statements of Delegate Whitaker, our conclusion remains the same: regardless of whether the delegates intended that a pre-indictment pardon would actually occur, there is simply no doubt that they recognized such a pardon as a possibility. Ultimately, the delegates of the Constitutional Convention ultimately declined to adopt any limitation as to when pardons could be issued. It is contrary to logic to recognize that the framers considered and rejected multiple amendments limiting the pardon power, but conclude that the framers intended that such limitations be implied nonetheless. Where no express language in Section 77 supports the proposition that pre-indictment pardons are prohibited, and the debates indicate that none was intended, this Court is without authority to interpret the provision otherwise.²⁸

Lastly, the Attorney General claims that formal acts of acceptance are essential to the effectiveness of a gubernatorial pardon, and that the Governor lacks authority to assert a pardon that has not yet been formally accepted. No Kentucky court has squarely answered this question, although the Attorney General is correct that our predecessor court has acknowledged the widely accepted, general principle that delivery and acceptance are required for a valid pardon.²⁹ What satisfies this acceptance requirement, however, has not been specifically defined in Kentucky.

Other jurisdictions have addressed the acceptance requirement, and there seems to be general agreement that a pardon may be rejected or, in other words, not accepted. Where a person wishes to refuse to testify before a grand jury, claiming his Fifth Amendment privilege against self-incrimination, he may refuse to accept a presidential pardon, which would have had the unwanted effect of negating the privilege and compelling testimony.³⁰ Recognizing that the consequences flowing from the offense itself might sometimes be less harsh than those of a pardon, the Second Circuit has observed that the acceptance requirement is “a principle designed to protect the individual from unwanted consequences of a forced grant of ... a pardon.”³¹ This point becomes particularly salient in the case of a conditional pardon, where the pardonee may view the conditions of pardon more loathsome than punishment for the actual offense. Thus, a pardon may not be thrust upon an unwilling recipient; it may be refused, and therefore acceptance must be a logical pre-requisite to a fully effectual pardon.

However, acknowledging that a pardon may be refused does not answer the question of what constitutes acceptance, particularly in the case of a general pardon such as here, where the pardon potentially applies to numerous, unidentified individuals. Courts have determined that delivery of the pardon to the pardonee’s attorney suffices,³² or other person acting on the pardonee’s behalf.³³ These courts consider the concept of delivery and acceptance of a pardon analogous to that of a deed, so that delivery is complete when the grantor has parted with control of the document with the intention that it passes to the grantee.³⁴ Contrary to Justice Cooper’s assertion, other courts have extended this reasoning to conclude that acceptance of a pardon is assumed, once brought to the court’s attention, absent proof indicating otherwise. Over a century ago, the Supreme Court of Arkansas considered whether the testimony of a witness who had previously been pardoned should be admitted at another defendant’s criminal trial; the validity of the pardon was challenged.³⁵ Relying upon Alabama and Texas jurisprudence, the Arkansas court specifically held that “acceptance of [the pardon], we think, in the absence of any proof to the contrary, must be presumed.”³⁶

Upon thorough review of these cases, we agree that acceptance of a pardon need not be formal, but may be inferred by the circumstances. This position embodies the notion that a pardon may be rejected, but also the common-sense assumption that such rejection will be the rare exception. Where the circumstances of the case evidence the clear intent of the governor to issue the pardon, and there is no evidence or circumstances from which to infer that it was rejected, acceptance must be assumed. Here, the intent of the Governor to pardon any and all offenses falling within the grand jury’s investigation cannot be questioned. Moreover, there is no indication that any person within its ambit has rejected the pardon. We therefore conclude that the pardon has been validly accepted.

Having determined that Governor Fletcher’s pardon is valid, we now turn to the effect such pardon has on the grand jury proceedings in the Franklin Circuit Court. Governor Fletcher contends that a pardoned person cannot be validly indicted for a pardoned offense, and therefore the Franklin Circuit Court has a duty to inform the grand jury of the pardon. The Attorney General argues that, even if valid, the pardon cannot operate to halt the grand jury proceedings.

The parties agree that a pardon serves to relieve the pardonee of criminal prosecution. “A ‘pardon’ is ‘[t]he act or an instance of officially nullifying punishment or other legal consequences of a crime.’ ”³⁷ It operates to eviscerate prosecution of the pardoned offense, because the pardonee is regarded as innocent: “The pardoned man is relieved from all the consequences which the law has annexed to the commission of the public offense of which he has been pardoned, and attains new credit and capacity, as if he had never committed that public offense.”³⁸ However, the Governor and Attorney General disagree as to the full scope of the pardon or, more specifically, whether the pardon precludes an indictment for the pardoned offense.

The Attorney General argues that the pardon may bar punishment for the pardoned offenses, but it does not erase the fact that an offense occurred, so that the grand jury may continue to investigate and return indictments. Indeed, this Court has recognized limitations on the scope of a pardon. A pardon does not prevent any and all consequences of the pardoned offense: collateral consequences of the offense may still follow. For example, an attorney who has been pardoned for the offense of forgery may not be punished for that crime, but may be disbarred as a result of that offense.³⁹ Our predecessor court also recognized that a gubernatorial pardon does not restore the character of the witness/pardonee, so that he or she could still be impeached as a felon.⁴⁰ Thus, while a pardon will foreclose punishment of the offense itself, it does not erase the fact that the offense occurred, and that fact may later be used to the pardonee’s detriment.

However, the Attorney General’s reliance on the theoretical underpinnings of these cases is misplaced, as they address the collateral consequences of the pardoned offense. There are no legal or semantic gymnastics by which an indictment may be characterized as a collateral consequence of an offense. It is axiomatic that grand jury investigations and indictments are stages in the criminal prosecution of the offense itself. The law is clear and well-established: “the pardon is itself an absolute exemption from any further legal proceedings ....”⁴¹ There is no room for equivocation on this point. When a pardon has been issued, the court is without jurisdiction or constitutional authority to continue legal proceedings against the pardonee: “[w]hen a pardon ... is brought to the attention of the court, it is the duty of the court to discharge the defendant and dismiss the proceedings against him ....”⁴²

We now turn to the Franklin Circuit Court’s responsibility with respect to the grand jury. The grand jury has competing, but balanced, functions: on the one hand, its purpose is to investigate allegations of criminal conduct and determine if there is probable cause to believe that a crime has been committed; on the other, the grand jury serves to protect the public against unfounded criminal prosecutions where probable cause is lacking⁴³ The grand jury is unique in our criminal justice system, because it operates independent of the court and the prosecutor: “[t]he hallmark of the grand jury is its independence from outside influence.”⁴⁴ The Attorney General relies on the inherent independence of the grand jury to assert that the Franklin Circuit Court is without authority to instruct the jury concerning the Governor’s pardon and its effect.

This position overstates the independence of the grand jury. A grand jury’s authority to investigate is not without limits; for example, a grand jury may not compel a person to appear before it and testify against himself for the purpose of bringing an indictment against that person.⁴⁵ Furthermore, there are instances where judicial supervision of the grand jury’s action is necessary and proper: “[a] Grand Jury is a part of the court, and under judicial control.”⁴⁶ This Court has previously granted a writ of mandamus directing the circuit court to strike portions of a grand jury report that were improperly included.⁴⁷ And, more directly related to the present matter, the court is under a duty to instruct the grand jury concerning “any other matter affecting their rights and duties as grand jurors which the court believes will assist them in the conduct of their business.”⁴⁸

We can think of no matter that would more affect the duties of a grand jury, or would more assist it in the conduct of its business, than an instruction informing it that the very offenses which it is investigating have been pardoned, and could never be criminally prosecuted. The court must instruct a grand jury accurately of the relevant and material legal issues. An instruction informing the grand jury of the pardon’s effect would in no way be encroaching on the grand jury’s prerogative, simply because the grand jury no longer holds any legal prerogative to indict pardoned persons. Moreover, any person falling within the class specified by the Governor’s pardon now holds a right, by virtue of the constitutional force of the pardon, to be free of any further legal proceedings. “In their proceedings the grand jurors cannot deprive a citizen of any substantial right assured by the constitution.”⁴⁹ Finally, we cannot ignore certain practical concerns of the grand jurors themselves, who have sacrificed significant amounts of time in service to the public. Common sense and courtesy dictate that, where the subjects of a grand jury investigation have been pardoned and no criminal prosecution of the alleged offenses could ever result, the jurors should be so informed.

Accordingly, the Franklin Circuit Court must inform the grand jury of the legal effects of a gubernatorial pardon, and the effects it necessarily has on the present grand jury investigation. For the reasons explained herein, the grand jury must be advised that it has no authority to issue indictments against persons named in the pardon or persons falling within the class specified in the pardon. Because the Governor has conceded at oral argument that it is the prerogative of the grand jury to issue a general report of its investigation, so long as pardoned or unindicted individuals are not specifically identified, we need not address the issue. Furthermore, we note that neither this opinion, nor Governor Fletcher’s pardon, has any affect whatsoever on the grand jury’s investigation of post-pardon allegations of criminal conduct or an investigation of the Governor himself, who specifically and expressly excluded himself from the pardon.

We would be remiss if we failed to acknowledge the persuasive and substantial public policy concerns permeating the Attorney General’s arguments herein, which would tend to favor a continued investigation by the grand jury. It has been argued that the Governor’s blanket pardon of anyone committing violations of the state’s merit system prior to investigation is repugnant to citizens of this Commonwealth who expect transparency in government, that it is patently offensive to those who seek open review of allegedly corrupt governmental actions, and that it erodes public confidence not only in the Governor but also the entire criminal justice system. Indeed, the framers of our constitution recognized the detrimental consequences of a pardon in certain instances: “[y]ou cannot better destroy the confidence of the people of the State in the laws and institutions of our country than to take from their midst a man who has been accused of [a] ... crime, and without a hearing so far as they are concerned, and without their knowledge, pardon him, and he goes back a free man without any investigation.”⁵⁰

In response, we must reiterate, as we have often done, the proper function of this Court. It is the duty of this Court to interpret, uphold, and apply the Constitution and laws of the Commonwealth. In this case, our sole concern must be the constitutionality — not the prudence — of the Governor’s actions.⁵¹ Where, as in Kentucky, the Governor is vested with a broad and virtually unfettered discretion to pardon, this Court is without constitutional authority to pass on the wisdom of the action, as such would be a brazen violation of the separation of powers: “[T]he courts have declined always to interfere with the executive in the exercise of the discretion vested in him by the Constitution, and a mere error of judgment, or even the grossest abuse in the exercise of his lawful authority, is not reviewable by the courts.”⁵² Moreover, the wisdom of Section 77 should not be questioned, simply because some may disagree with the Governor’s decision. As eloquently explained by one delegate to our 1890 Constitutional Convention:

[W]e all know, that individual isolated cases cannot determine the right or wrong of a Constitutional provision or a statutory law. I care not if the Governor made a mistake; I care not if he deliberately did a wrong; I care not if the Executives of this State, any one of them, for four consecutive years violated their oaths and committed a wrong in every act of this sort; that does not affect the right or wrong of a great Constitutional principle.

For the reasons set forth herein, we hold that the Franklin Circuit Court abused its discretion in declining to issue supplemental instructions to the grand jury. By virtue of the broad discretion afforded by Section 77 of the Kentucky Constitution, the Governor may extend general, pre-indictment pardons, and he validly did so by Executive Order 2005-924. A gubernatorial pardon operates to cease any further legal proceeding concerning the pardoned conduct, including indictments. When a grand jury is investigating alleged criminal conduct that is subsequently pardoned, it is the duty of the supervising court to instruct the grand jury of the legal effect of that pardon, as such information is relevant and material to the business of the grand jury. Accordingly, the opinion of the Court of Appeals is affirmed in part and reversed in part. Further, this matter is remanded to the Court of Appeals for entry of a writ of prohibition in conformity with this opinion.

Appointment of Special Justices

Finally, we must address an earlier ruling relating to this case, which resulted in an Order of this Court dated March 16, 2006. Following the recusal of Chief Justice Joseph E. Lambert and Justice John C. Roach from this matter, Governor Fletcher exercised his power pursuant to Kentucky Constitution § 110(3) and appointed Special Justices Jeffrey Burdette and Ronald Green to fill the vacancies. After Special Justices Burdette and Green were sworn in, the Attorney General moved to disqualify both Special Justices. In separate written opinions, Special Justice Burdette granted the motion and re-cused himself from the case, while Special Justice Green denied the motion and remained on the Court. Subsequently, Governor Fletcher appointed Special Justice John Knox Mills to fill the vacancy created by Special Justice Burdette’s recusal. The Attorney General thereafter filed an objection to the appointment. Following a hearing, we issued an order sustaining the Commonwealth’s objection and holding the appointment of Mills null and void.

Pursuant to § 110(3), when “as many as two Justices decline or are unable to sit in the trial of any cause,” the Constitution requires the Governor to appoint “a sufficient number of Justices to constitute a full court ....” As we have previously explained, “a gubernatorial appointment under this section arises from the necessity to appoint two or more special justices, the number of vacancies of two or more being the determinative factor for appointment.” ⁵³ Nonetheless, the Governor maintains that his constitutional obligation to appoint “a sufficient number of justices to constitute a full court” continues until all vacancies created by the recusal of the two regular justices are filled. Citing Black’s Law Dictionary,⁵⁴ the Governor argues that a full court necessarily means seven justices. Thus, it is his position that he retains the power to appoint special justices until all vacancies are filled.

The flaw in the Governor’s position is that one justice’s recusal simply does not trigger § 110(3). Had one justice recused from this matter, there would have been no provision to appoint a special justice and this Court would have proceeded with six members sitting. In fact, Supreme Court Rule 1.020(l)(a) specifies how matters shall proceed in such cases: “[I]n appealed cases if one member is disqualified or does not sit and the court is equally divided, the order or judgment appealed from shall stand affirmed.” Moreover, “[t]he Kentucky Constitution intentionally leaves the decision as to what should be done if only one justice disqualifies to the rule-making power of this Court.”⁵⁵ While the Governor urges that this case is of such importance as to require a decision of seven justices, we would point out that we adjudicate death penalty cases with only six justices in the event of one recu-sal.⁵⁶ Thus, we are of the opinion that six justices constitute “a full court for the trial of the cause.”⁵⁷

We further find the Governor’s reliance on Commonwealth ex rel Revenue Cabinet v. Smith misplaced.⁵⁸ In Smith, Governor Brereton Jones appointed three special justices to the Court. Thereafter, a motion to recuse the special justices was filed, which contained a separate argument that one of the special justices had individual grounds to recuse. By letter to Governor Jones, that special justice declined the appointment, prior to being sworn in, and the Governor subsequently appointed another special justice to fill the vacancy. (Executive Order 94-176, February 15, 1994). Here, however, Special Justices Burdette and Green accepted the appointments and were sworn in as special justices. Accordingly, we were a “full court” and § 110(3) was satisfied.

Therefore, we conclude that when Chief Justice Lambert and Justice Roach re-cused, Kentucky Constitution § 110 was properly implicated, and the Governor possessed the power to appoint two special justices. Once the appointments were made and the special justices were sworn in, § 110(3) was satisfied. The subsequent recusal of one justice simply did not trigger the Governor’s power to appoint a new special justice. To permit another gubernatorial appointment would impermissibly expand the Governor’s appointment power, while eroding this Court’s authority to prescribe its own policies and procedures in •the administration of the judicial branch.

GRAVES, J., concurs by separate opinion. COOPER, J., concurs only as to that portion of the majority opinion entitled “Appointment of Special Justices,” and dissents by separate opinion in which WINTERSHEIMER, J., joins. SCOTT, J., concurs, but dissents as to that portion of the majority opinion entitled “Appointment of Special Justices,” by separate concurring in part, dissenting in part opinion. WINTERSHEIMER, J., concurs only as to that portion of the majority opinion entitled “Appointment of Special Justices,” and dissents by separate opinion in which COOPER, J., joins. GREEN, S.J., concurs by separate opinion in which GRAVES, J., joins, but dissents as to that portion of the majority opinion entitled “Appointment of Special Justices,” by separate opinion, in which SCOTT, J., joins. LAMBERT, C.J.; and ROACH, J., not sitting.

1 . See KRS Chapter 18A.

2 . Reference to any persons indicted during the pendency of this appeal are inappropriate, as such matters have not been made a part of the record before us.

3 . Stafford v. Bailey, 301 Ky. 155, 191 S.W.2d 218, 219 (1945).

4 . Clark v. Jones, 258 S.W.2d 902 (Ky.1953).

5 . Haight v. Williamson, 833 S.W.2d 821, 823 (Ky.1992).

6 . Newell Enterprises, Inc. v. Bowling, 158 S.W.3d 750, 754 (Ky.2005).

7 . Grange Mutual Insurance Co. v. Trude, 151 S.W.3d 803, 810 (Ky.2004). ("Thus, it is apparent that the proper standard [of appellate review] actually depends on the class, or category, of writ case.”)

8 . Newell, 158 S.W.3d at 754.

9 . Grange, 151 S.W.3d at 808.

10 . City of Louisville Mun. Hous. Comm’n v. Pub. Hous. Admin., 261 S.W.2d 286, 287 (Ky.1953).

11 . Harrod v. Hatcher, 281 Ky. 712, 137 S.W.2d 405, 408 (1940).

12 . Grantz v. Grauman, 302 S.W.2d 364, 366 (Ky.1957).

13 . City of Louisville v. German, 286 Ky. 477, 150 S.W.2d 931, 935 (1940).

14 . Debates, Ky. Constitutional Convention of 1890, Vol. I, p. 1116.

15 . Id. at 1105.

16 . Id. at 1271.

17 .Id. at 1272.

18 . Pardue v. Miller, 306 Ky. 110, 206 S.W.2d 75, 78 (1947) (declining to interpret the phrase “public officer” as to include employees of state universities or other state employees, the Court noted that if the framers had sought to include such employees, "nothing would have been simpler than to so phrase the section as to exclude implication or speculation”) (internal citations omitted).

19 . We reject the Attorney General’s assertion that the pardon, by its own terms, only applies to indicted individuals. The class specified in the pardon is "any and all persons who have committed, or may be accused of committing, any offense up to and including the date hereof, relating in any way to the current merit system investigation.” We find no indication that the pardon was intended only for indicted, or “accused,” persons. The Governor’s use of the word “or” clearly intends to establish two subsets of the class of pardoned persons: those who have committed an offense, and those who may be accused of committing an offense. "[A] pardon is to be taken most beneficially for the recipient and most strongly against the authority by which it is granted, wherever its meaning is in doubt.” Ex parte Paquette, 112 Vt. 441, 27 A.2d 129, 131 (1942).

20 . Adkins v. Commonwealth, 232 Ky. 312, 23 S.W.2d 277 (1929). ("Before an indictment was returned against him, on December 12, 1927, the day before his term of office expired, Governor William J. Fields issued an unconditional pardon to Adkins for this crime.”)

21 . See Debates, Vol. I, pp. 1096-1123, 1251-72.

22 . Id. at 1123.

23 . Id., at 1113.

24 . Id. at 1120-21.

25 . Id. at 1099.

26 . Id. at 1099 (emphasis added).

27 . Id. at 1104 (emphasis added).

28 . Harrod, 137 S.W.2d at 408.

29 . Adkins, 23 S.W.2d at 280-81.

30 . Burdick v. United States, 236 U.S. 79, 35 S.Ct. 267, 59 L.Ed. 476 (1915).

31 . Marino v. INS, 537 F.2d 686, 693 (2nd Cir.1976).

32 . Ex parte Williams, 149 N.C. 436, 63 S.E. 108 (1908).

33 . Ex parte Crump, 10 Okla.Crim. 133, 135 P. 428, 431 (1913).

34 . Williams, 63 S.E. at 109.

35 . Redd v. State, 65 Ark. 475, 47 S.W. 119 (Ar.1898).

36 .Id., 47 S.W. at 122. See also Territory v. Richardson, 9 Okla. 579, 60 P. 244, 247 (1900); Hannicutt v. State, 18 Tex.App. 489 (Tex.Ct.App.1885). ("We are of opinion that the circumstances show a delivery by the Governor and such assent on the part of the witness as amounts to a delivery and acceptance of law.”) (Emphasis added). Even upon consideration of Justice Cooper’s discussion of this authority, we still firmly adhere to our interpretation of these cases and our holding herein.

37 . Anderson v. Commonwealth, 107 S.W.3d 193, 196 (Ky.2003) (quoting Black’s Law Dictionary, 7th ed.1999).

38 . Nelson v. Commonwealth, 128 Ky. 779, 109 S.W. 337, 338 (1908).

39 . Id.

40 . Parson v. Commonwealth, 112 S.W. 617 (Ky.1908).

41 . Jackson v. Rose, 3 S.W.2d 641, 643 (Ky.1928). See also Nelson, 109 S.W. at 339. ("[T|he pardon obliterates the offense against the public ... [and] relieves the offender from the punishment affixed to it by that law ....”)

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43 . Bowling v. Sinnette, 666 S.W.2d 743, 745 (Ky.1984).

44 . Democratic Party of Ky. v. Graham, 976 S.W.2d 423, 426 (Ky.1998).

45 . Taylor v. Commonwealth, 274 Ky. 51, 118 S.W.2d 140, 143 (1938).

46 . Bowling, 666 S.W.2d at 745.

47 . Id. See also Matthews v. Pound, 403 S.W.2d 7 (Ky.1966).

48 . RCr 5.02.

49 . Taylor, 118 S.W.2d at 143.

50 . Debates, Vol I, p. 1110 (emphasis added).

51 . Likewise, we are not concerned with the opinion of "dead kings of England,” as is Justice Cooper. Dissenting op. at 49. These dead kings very well might turn in their graves in reaction to our opinion herein. Conversely, medieval kings would likely also be alarmed to learn that Kentucky law permits women to vote and own property, outlaws slavery, and abolishes discrimination on the basis of wealth and race. Fortunately, this Court’s allegiance lies foremost with the Kentucky constitution and principles of separation of powers, not Anglo-Saxon legal tradition.

52 .Adkins, 23 S.W.2d at 279.

53 . Commonwealth ex rel Revenue Cabinet v. Smith, 875 S.W.2d 873, 878 (Ky.1994).

54 . (8th ed.2004).

55 . Kentucky Utilities Co. v. South East Coal Co., 836 S.W.2d 407, 409 (Ky.1992), cert. dismissed, 506 U.S. 1090, 113 S.Ct. 1147, 122 L.Ed.2d 498 (1993).

56 . Hodge v. Commonwealth, 17 S.W.3d 824 (Ky.1999).

57 . Ky. Const. § 110(3).

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