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Nebraska Supreme Court hears oral arguments in Wilkinson appeal

 

Oral arguments in the appeal of the misdemeanor conviction and 30-day jail sentence for former Sidney Police Chief B.J. Wilkinson were made to the Nebraska Supreme Court early Thursday morning at the Creighton University School of Law in Omaha.

Wilkinson pleaded no contest to a charge of obstructing government operations in July last year. The charge related to pulling a citation that had been issued to Sidney's then-public services director John Henke.

After being ordered to serve 30 days in jail, Wilkinson appealed the conviction and sentence. In September, a district court judge upheld the ruling. A month later, Wilkinson appealed to the Nebraska Court of Appeals.

In February, the Nebraska Supreme Court ordered the case moved from the Court of Appeals to the Supreme Court docket.

Hearing arguments were Chief Justice Michael Heavican, Justice John Wright, Justice Lindsey Miller-Lerman, Justice William Connolly, Justice William Cassel and Justice Max Kelch. Justice Stephanie Stacy was out on a personal emergency and not present for oral arguments in the morning.

Oral arguments began at 8:30 a.m. with Wilkinson's attorney, Thomas Sonntag, making his argument to the court first. Sonntag said when Wilkinson pleaded no contest, he was told by the county judge that if the state furnished a "sufficient factual basis" following the offer of his plea, he would be found guilty "and dealt with accordingly."

He said while the special prosecutor did furnish a factual basis, it is their position that it is not sufficient to establish that the offense of obstructing government operations was committed.

"Chief Wilkinson did not interfere in any way with (the officer's) investigation," Sonntag said. "Chief Wilkinson did choose an alternative method of punishing Henke and protecting the victim, and prevented, for a time, (the officer's) report."

The court asked what the alternative method was. Sonntag said it was with administrative sanctions through the City of Sidney. The court then asked what happened to the citation against Henke.

"The citation was not destroyed," Sonntag said. "The citation and all of the investigative paperwork remained in the possession of the police department and Chief Wilkinson."

Justice Connelly asked Sonntag what the normal procedure is when a citation is issued, and if there was some intermediary between the police officer and the county attorney.

"Well, there's the chief of police," Sonntag said.

"What authority does the chief of police have?" asked Connelly. "Does he have the discretion to say, 'No, we're not going to charge this individual?'"

"That's what we're arguing," Sonntag replied. "That's our position, that he has to have that discretion if he's going to run the police department."

Justice Miller-Lerman asked what the foundation was for that proposition. Sonntag said "it just makes sense."

"The investigating officer has discretion on whether he's going to issue the citation or not, and the county attorney can decide not to prosecute, he's got discretion," Sonntag said. "If the man in the middle, the chief of police, doesn't have discretion, then it doesn't make any sense."

Sonntag said the logic of it was to make sure citations can not be used "to abuse citizens and hold it over their heads."

He said Wilkinson, who was Sidney's police chief for about a year, has a philosophy in police work "that you don't have to make a criminal out of everybody."

"There are alternative ways to solve problems when a criminal complaint is made," Sonntag said.

Chief Justice Heavican asked if Wilkinson had waived the argument against sufficient evidence when he pleaded no contest. Sonntag said he did not think he did.

"My understanding is that when a plea of no contest is entered, then you're agreeing not to contest any of the facts which the state offers to the court," Sonntag said. "And we're not arguing with any of their facts. Everything the special prosecutor told the court happened. It happened just like he said it did.

"Our claim is that, in the aggregate, those facts have to be sufficient to establish that the crime the accused is accused of is committed, and our position is, taking all of those facts, taking them all together, all they show is that we've got a chief of police who exercised his discretion."

The court asked what the state could have added to make it complete. Sonntag said they had to prove what his motivation was.

"If they'd have shown that he did this for profit or gain, that somehow he benefitted from this, that would have maybe established that he committed the crime," he said.

Sonntag said there is "no suggestion in the record" that Wilkinson was motivated, in any way, by any self-serving or bad motives.

Sonntag reserved the final two minutes of his time for rebuttal of the state.

Kimberly Klein, assistant attorney general for the state of Nebraska, opened her argument telling the court that an email reply from Wilkinson to the investigating officer who issued the citation "adequately and completely shows his motivation."

Klein read the email, which she said stated he became actively involved in the citation for a number of reasons.

"The most significant of these are political, and perhaps my least favorite issues to become entangled with," Klein said the email stated. "There's no clear solution that will keep everyone happy and satisfy all of the interests in play."

Klein said Wilkinson states in the email that Henke was "a key player in the administration of this city" and "his presence and ability will be critical to what we are about to undertake, and many projects will be compromised if he were out of action."

Klien also said after the investigation was launched, Wilkinson characterized the entire situation in an interview with a Nebraska State Patrol sergeant as "a chicken (expletive) misdemeanor disturbing the peace ticket that I helped from becoming exposed from someone who is after them."

"That's why Chief Wilkinson pulled the ticket," Klein said. "He was essentially protecting John Henke from prosecution because John Henke could be useful to the police department. That's not in the chief's discretion."

Justice Miller-Lerman asked Klein who, in her understanding, was after Henke. Klein said she did not know.

"Because opposing council is suggesting that the defendant is doing something laudable by intervening in the course of the prosecution," Miller-Lerman said.

"Oh yes, he's painting himself as being ready, willing and able to take one for the team," Klein said. "But that's really not what's happening."

Justice Connolly asked if the chief of police has any discretion, giving the example of a homeless person cited for shoplifting food from a grocery store.

"Would (the police chief) have any discretion to say, 'Hey, pull that and let him go?'" Connolly asked.

Klein said Nebraska Revised Statute 29-424 was "quite clear" that once the citation has been issued, then it "shall be delivered to the prosecuting attorney."

"But in the real world, doesn't that happen?" Connelly asked. "The chief of police will tell an underling, 'This is going nowhere. Don't do it.'"

"If it does, it's improper," Klein replied. "Once the citation is issued, discretion is no longer a going concern. At least, police discretion is no longer a going concern. It becomes the discretion of the prosecuting attorney."

Klein said by pulling the citation, Wilkinson prevented the prosecutor from not only engaging in his statutorily required discretion, but from him even knowing about it.

Chief Justice Heavican asked Klein if the court sided with the state, would that cause panic around Nebraska's law enforcement community.

"I don't know why it would," Klein said. "It shouldn't. I think what we're arguing is simply what the statutes require of that. There is officer discretion to be had, there's no question about that, but once the citation is issued, that discretion comes to an end."

Justice Wright asked Klein if she was arguing that Wilkinson's no contests plea waives any claim of insufficiency in the statement given to support the charge. Klein said she was.

Closing her argument, Klein asked the court affirm the judgement of the district and county courts in all respects.

In his rebuttal, Sonntag again told the court he was not arguing any of the facts of the case, but what the Attorney General's office is saying was motivation.

"The factual basis recites that what Chief Wilkinson did, he did for the benefit, and he thought he was in the best interest of the city and to save a man's career," Sonntag said. "There is nothing in the factual basis that says he was acting in his own self interest or in any way acting in a self-serving manner."

The court asked about Wilkinson's use of the word "political" in his email and whether that was a proper motivation.

"Well, the political comes from the fact that there was a city councilman that was probably out to get John Henke, and if this matter came to the light of the newspaper, that's what was probably going to happen," Sonntag said. "So that's the politics of it."

The court asked if criminal intent was an element of the charge. Sonntag said he did not know that the statute says it, but he thinks the motivation is something that needs to be considered.

"There's got to be some room for mercy in the system," he said.

Oral arguments in the Wilkinson appeal concluded shortly before 9 a.m. According to the Nebraska Attorney General's office, there is no timeline by which the court is required to issue an opinion.

 

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