The former Nebraska Supreme Court judge who resigned after a career dotted with sexual comments has a new gig — and will receive taxpayer money for it.
Max Kelch, who abruptly resigned in January rather than face an ethics investigation, has been hired by Sarpy County Attorney Lee Polikov to handle the defense of a lawsuit against the county.
Kelch, 60, will not be on Polikov’s staff but will work with his civil attorneys. He stands to be paid $32,500 in taxpayer money to defend against a developer’s contention that the county is hostile toward developers of low-income housing.
Polikov said he had no qualms about hiring Kelch, despite his history of making sexual comments — a history The World-Herald reported in February.
Details behind Kelch’s sudden resignation from the high court have been shrouded in secrecy. Kelch and Chief Justice Mike Heavican have declined to disclose or even characterize Kelch’s comments.
Two sources have told The World-Herald that Kelch’s resignation was in line with the #MeToo movement of calling out sexual misbehavior, a movement that has led to the downfall of actors, politicians, TV personalities and movie producers, among others.
Sources say Kelch — a Sarpy County judge for 10 years before becoming a Supreme Court judge — was known for making sexual comments to others. In a courthouse hallway, he once questioned how a court reporter could have sex with her bodybuilder boyfriend, speculating that the boyfriend “would break you in half.” He questioned a boss’s sexuality in front of the boss. When an attorney suggested that it was time for a woman to become a judge, he told her, “Oh believe me, everyone knows you’re a woman.”
Polikov said he has no concerns about bringing Kelch back to the courthouse where he made two of the above comments.
Polikov said he thinks he knows what happened in the case that prompted Kelch’s resignation and is satisfied that his behavior was “nowhere near” the kind of predatory behavior that led to resignations by Hollywood producer Harvey Weinstein or former “Today” show host Matt Lauer.
Asked repeatedly what Kelch did, Polikov declined to disclose the behavior. But the Sarpy County attorney said he thinks Kelch didn’t need to resign over his behavior.
“He made a decision he just didn’t want to fight, and that’s up to him,” Polikov said. “By doing what he did, he didn’t allow himself to defend himself. ... Imagination is always worse than fact.”
State Sen. Ernie Chambers of Omaha expressed outrage that Kelch is practicing law and now receiving taxpayer money to do it. A longtime watchdog of the judiciary, Chambers said it’s shameful that Gov. Pete Ricketts and Heavican allowed Kelch to resign without discipline for his behavior or even a public accounting of it.
Ricketts has said he had received no complaints or warnings about Kelch prior to his resignation. Heavican has said Kelch made “the right decision” by resigning.
“The expression is, ‘Crime doesn’t pay,’ ” Chambers said. “Well, judicial misbehavior does pay in Nebraska.
“There are people with guilty knowledge, and they are protecting a scoundrel — and making it possible for the taxpayers of Sarpy County to be stiffed.”
Chambers blanched at Polikov’s characterization of Kelch’s behavior. Chambers said a “hostile work environment can be created by words, by improper comments, by innuendo.”
Chambers said he has had a “high level of esteem” for Polikov.
“This that is being done disappoints me greatly,” Chambers said.
Polikov said critics, including Chambers, need to realize that Kelch wasn’t convicted of anything and that his legal license is in good standing.
Polikov said his primary concern is finding expert legal representation. He noted Kelch’s tenure as a judge and as the Otoe County attorney, plus his reputation for research and legal analysis.
Polikov said the county’s three civil attorneys handle cases through much of the court process and then turn over more time-consuming and involved cases to a private attorney.
In the case Kelch is handling, a developer of low-income housing has sued Sarpy County, saying the county has inflated the taxable value of its apartment complex buildings. The developer also alleges that the county has not allowed enough low-income housing developments.
The county’s legal defense work is covered by insurance through the Nebraska Intergovernmental Risk Management Association. The county must pay a $25,000 deductible and then up to $7,500 of the next $50,000 in legal fees. That means Kelch stands to receive $32,500 in taxpayer money. He could receive additional money from the insurance pool.
“I’m comfortable with his capabilities and his qualifications, and I’m comfortable with him representing the county in this case,” Polikov said.
Kelch has declined to comment. Omaha attorney Steve Lefler has allowed Kelch to share an office with him. Lefler said he vetted the accusations against Kelch and has zero concern about him working around female staffers. Lefler declined to disclose details of the complaint against Kelch.
“If I was worried the slightest bit, I wouldn’t have hired him,” Lefler said. “Someone would be foolish to not take advantage of the incredible wealth of knowledge and experience that he has.
“I think that the citizens of Sarpy County should be thrilled that Mr. Polikov decided to enlist Mr. Kelch.”
Chambers said his fight isn’t over. Chambers called on anyone who feels they were subjected to inappropriate behavior by Kelch to meet in confidence with the senator. Chambers said he will review any accounts and then file a challenge with the Nebraska Supreme Court’s counsel for discipline.
The counsel for discipline rejected Chambers’ previous request to investigate Kelch. One of the reasons given: Chambers had cited a World-Herald story detailing Kelch’s behavior but had not identified any “complainants who have officially made factual reports.”
Chambers said he will work to introduce legislation to lift the veil on judicial complaints. Such complaints aren’t made public until a Judicial Qualifications Committee determines whether they have merit. The secrecy surrounding complaints, he said, is the product of a bygone era.
Chambers said the public can decide which complaints are frivolous and which are legitimate.
“As another judge once said, ‘Sunshine is the best disinfectant,’ ” Chambers said.