Supreme Court considers exceptions to government employee immunity

Thursday - 11/3/2011, 8:37am EDT

Bill Bransford, partner, Shaw Bransford & Roth

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By Jolie Lee
Federal News Radio

The Supreme Court heard arguments this week on whether or not government officials are protected from civil lawsuits — even if their false grand jury testimony leads to an indictment.

The case centers on Georgia accountant Charles Rehberg, who in 2003 blew the whistle on alleged "unethical billing and accounting practices" at Phoebe Putney Hospital in Albany, Ga., according to Rehberg's Supreme Court brief. Rehberg sent anonymous faxes about his discovery to the hospital, community members and his Congressman.

In response to the faxes, the hospital launched an investigation, seeking help from the Dougherty County District Attorney and chief investigator James Paulk.

Investigators uncovered that Rehberg was behind the faxes. Paulk's grand jury testimony led to three indictments against Rehberg — including on charges of aggravated assault, burglary and harassing telephone calls.

All three indictments were dropped. Rehberg's lawyer claims Rehberg was under scrutiny because the hospital had political connections.

If what Rehberg claims to have happened is true, this case was "really a campaign to destroy him," said Bill Bransford, a partner at Shaw, Bransford and Roth, in an interview with the Federal Drive with Tom Temin and Amy Morris.

Witnesses are protected from civil lawsuits over what they say in trial testimony, but the question of that protection in a grand jury testimony is up for debate.

The federal appeals court in Atlanta ruled in favor of the prosecutors, saying the investigators were protected under absolute immunity because they were acting in their prosecutorial function.

But Rehberg's lawyer argues that the prosecutors should not qualify for absolute immunity but qualified immunity instead. Qualified immunity does not apply to a government employee if a victim can show the prosecutor did not act in good faith.

The law guiding qualified and absolute immunity is "pretty well-established" already, Bransford said. However, the Supreme Court may "round it out" and further develop the definition.

The court is expected to make a ruling in the spring.

In the meantime, "there's no recourse for the accountant to get damages until the Supreme Court makes a decision," Bransford said.

The Associated Press contributed to this story.