Supreme Court to hear Rehberg case

WASHINGTON — A fight that began in 2003 between a local surgeon, a medical practice administrator and Dougherty County’s not-for-profit hospital will begin anew Tuesday in the chambers of the U.S. Supreme Court in what could set a precedent about how far a court official’s immunity really goes.

Charles Rehberg and Dr. John Bagnato sent a series of anonymous faxes critical of the way Phoebe Putney Memorial Hospital was doing business in Dougherty County back in 2003.

While Bagnato is no longer party to this particular piece of litigation, Rehberg is continuing a fight against special prosecutor Kelly Burke and investigator James Paulk, who he contends maliciously prosecuted him in the subsequent investigation into what became known as the “Phoebe Factoids.”

Former District Attorney Ken Hodges, who initially was a party in the case along with Burke and Paulk, was declared by the courts to have immunity from the suit.

At issue is whether Paulk — who Rehberg contends lied to a grand jury called by Burke, who was investigating Rehberg and Bagnato — is protected by absolute witness immunity even if he gave perjured testimony.

While Paulk has never been charged and has disputed Rehberg’s perjury allegations, because of court procedure, the court must view the allegations as being true when considering immunity.

Tuesday’s hearing before the U.S. Supreme Court comes after the 11th U.S. Circuit Court of Appeals ruled in favor of Burke and Paulk, saying that Paulk was absolutely immune from any claims that Rehberg was lodging.

According to Sheldon Nahmod, distinguished professor of law and co-director of the Institute for Law and the Humanities at the Illinois Institute of Technology’s Chicago-Kent College of Law, the Supreme Court is using Rehberg v. Paulk to test two previous court opinions that appeared to narrow the immunity of “complaining witnesses,” which, under the law, is what Paulk was when he testified before the grand jury.

In Briscoe v. LaHue, the U.S. Supreme Court held that law enforcement officials have absolute immunity from civil liability even for perjured testimony they provide at trial.

But in a similar case, Malley v. Briggs, the court ruled that law enforcement officials aren’t entitled to absolute immunity when they act as complaining witnesses.

“The question presented in this case is: Whether a government official who acts as a ‘complaining witness’ by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages,” Nahmod writes in his legal blog. “The Court probably granted certiorari (the petition to hear the case) because of a circuit split on this issue, with the Third, Fourth and Eleventh Circuits relying on Briscoe to confer absolute immunity, while the District of Columbia, Second, Fifth, Sixth, Seventh, Ninth and Tenth Circuits relied on Malley to deny absolute immunity protection.”

Nahmod said that the high court will likely have to weigh a variety of factors in rendering its decision, including how the decision may impact the confidentiality of grand jury proceedings and to what effect a decision will have on other “malicious prosecution” complaints currently lodged in courts across the country.

“The Court will have to decide how to apply its functional approach here. On the one hand, the chief investigator in Rehberg functioned as a complaining witness, as acknowledged by the Eleventh Circuit itself. On the other, the chief investigator also functioned as a witness in a grand jury proceeding, and such a proceeding is ‘intimately associated with the judicial phase of the criminal process,’ to borrow the words of Van De Kamp v. Goldstein,” he writes.