High court considers suit over false testimony

By Mark Sherman
Associated Press

WASHINGTON (AP) — The Supreme Court wrestled this week with whether government officials are protected from civil lawsuits, even if they tell lies that lead a grand jury to vote for an indictment.

The justices heard arguments in an appeal from Charles Rehberg, an accountant who was indicted three times involving charges that he harassed doctors affiliated with a south Georgia hospital system.

After the third indictment was dismissed even before a trial, Rehberg sued local prosecutors and their investigator, James Paulk.

Rehberg argues that he was placed under investigation because of the hospital’s political connections and that Paulk’s false grand jury testimony led to the indictments.
At issue in the high court is whether grand jury testimony could make a person liable in a civil lawsuit.

A key question is whether the justices consider such testimony to be more like an affidavit or a trial. Witnesses are protected from civil lawsuits over what they say in trial testimony.

Paulk argues that the grand jury is part of the judicial process, and testimony there should be afforded the same protection it gets at trial.

One justice skeptical of that argument was Ruth Bader Ginsburg, who pointed out that grand juries lack a presiding judge and cross examination of witnesses by the other side,

“So why should it rank as a judicial proceeding?” Ginsburg asked.

A secondary issue involves Paulk’s relationship to the prosecutors, who generally are immune from civil lawsuits for anything that relates to a trial.

“The oddest thing about your case is the notion of being able to sue the investigator when you can’t sue the prosecutor for whom he works,” Justice Elena Kagan told Rehberg’s lawyer, Andrew Pincus.

The dispute arose in 2003 when anonymous faxes critical of the company’s flagship hospital, Phoebe Putney Memorial Hospital in Albany, Ga., began landing in the inboxes of Albany leaders.

Hospital leaders soon launched an investigation into the sources of the faxes, which divulged information on Phoebe’s executive salaries, political connections and financial holdings.

The investigation eventually traced the faxes to Rehberg and Dr. John Bagnato, a prominent surgeon. Bagnato and his partners wanted to open a facility that the hospital opposed.

Rehberg claims that the Dougherty County District Attorney launched a criminal investigation and obtained indictments as a favor to the hospital company’s executives.

The federal appeals court in Atlanta threw out claims against the prosecutors, former Dougherty County District Attorney Ken Hodges and Kelly Burke, and Paulk. Hodges unsuccessfully ran for Georgia Attorney General in 2010.

A decision is expected by spring.

The case is Rehberg v. Paulk, 10-788.