Republicans want to keep major cases from judge who struck pension law

by Tom Loftus, Louisville Courier Journal –

FRANKFORT – Franklin Circuit Judge Phillip Shepherd’s order striking down the new Republican-backed pension law led to a lot of criticism from majority-party leaders, including from the governor himself.

Now, some of those leaders are looking at ways to keep all the important state government cases from going to Franklin Circuit Court.

“You basically have a super circuit judge, or judges, because the venue for so many cases are exclusively here. And that shouldn’t be,” Senate President Robert Stivers, R-Manchester, said in an interview.

Stivers made the point on Friday as part of a panel discussion at the Health Care Leadership Conference of the Kentucky Hospital Association.

House Speaker Pro Tem David Osborne, R-Prospect, said during the discussion he sees support for the idea. “You’ll see some continued discussion and talk about this…But there are a lot of details that have to be worked out that haven’t been, so it’s a little bit tough to say where it’s going.”

State Sen. Morgan McGarvey, a Louisville Democrat who – like Stivers – is an attorney, said he believes any such move “would be blatantly political and an abuse of legislative power.”

Shepherd, who has served as a Franklin circuit judge since 2006, declined to comment on the matter.

Shepherd has been the target of repeated attacks by Republican Gov. Matt Bevin in radio interviews as being biased and political after Shepherd has ruled against him in some high-profile cases.

However, an examination published in the Courier Journal of Shepherd’s rulings in major cases with political implications between 2007 and 2016 showed he more often ruled in favor of the Republican side than the Democratic side.

Most appeals of administrative actions of state agencies must be filed in Franklin Circuit Court. And historically most legal challenges of actions of the General Assembly or executive orders of the governor are filed there.

Franklin Circuit Court has two judges, Shepherd and Thomas Wingate. Cases filed there alternately go to one judge, then the other. But more of the high profile cases involving the Bevin administration have ended up before Shepherd.

Stivers said the current process means Shepherd and Wingate are “super judges.”

“We’ve heard it for years, something happens in Harlan County and you’ve got to come all the way to Frankfort to defend it and you’re going to get a Franklin County judge. And when all the challenges to the constitution are made, it goes to Franklin Circuit Court,” Stivers said.

But it was the pension ruling by Shepherd that he said triggered his interest in doing something about it in the legislative session that begins in January.

In June, Shepherd struck down the Republican legislature’s 2018 attempt at pension reform — Senate Bill 151.

Shepherd did not rule on the claim by Attorney General Andy Beshear and other plaintiffs, who said the law violated a contractual promise to preserve pension benefits promised to public employees at the time they were hired.

He said it was unnecessary to rule on that issue because the pension law was invalid for procedural reasons. Shepherd said the rapid process of revealing the bill and zipping it through the entire legislative process in a matter of hours violated a requirement in the Kentucky Constitution intended to assure that legislators and the public have time to read a bill before it becomes law.

He also said the bill’s provisions dealing with future funding of pensions create a debt and constitute an appropriation of money — a type of bill that requires at least 51 votes to pass in the 100-member Kentucky House. Because the bill passed the House on a 49-46 vote, Shepherd said it did not get enough votes to pass the House.

The case is before the Kentucky Supreme Court, which is expected to issue a final ruling before the end of the year.

Stivers disagreed with several of Shepherd’s actions in the case, particularly that Shepherd first raised the issue of whether the pension bill was a debt-creation and appropriations bill — an issue not initially raised by Beshear and other plaintiffs in the case.

Stivers is echoing complaints made by Bevin and his attorneys about Shepherd’s handling of the pension case.

“The one that really bothered me — and this is the first time I’ve really spoken up about this — is in the pension lawsuit when the judge pops up and said, ‘This is an appropriations bill.’ Wait a minute. Judge, you’re supposed to listen to the case and decide the case, not practice the case,” Stivers said.

But McGarvey said it was not improper for Shepherd to raise the issue. “If judges see an important constitutional issue, it is well within their sound discretion to raise it,” McGarvey said.

Beshear released a statement Monday that said the comments show that Republicans in control of the executive and legislative branches think they are above the law.

“Now that they have been caught violating the constitution, by turning an 11-page sewer bill into a 291-page pension bill, they want to change judges so they can continue their illegal behavior,” Beshear’s statement said in part.

Stivers said that he has not worked out details of how such cases would be assigned to other judges. He said he’s inclined to keep Franklin County as the venue, but create a pool of judges – perhaps the seven chief circuit judges in each Kentucky Supreme Court District – to alternately be assigned such cases.

“There are a couple of different ways, and I’m looking at the process,” Stivers said. “I’m looking at some rotating group  or some other way of defining a fair pool and not have a super circuit judge.”

McGarvey said he has a “great and healthy respect” for Stivers, but that the timing of the comments – from someone who has served more than 20 years in the Senate with most of those years as chair of the judiciary committee and the last six years as Senate president – reveals a political motivation.

“It jeopardizes the independence of the judiciary to try something like this because you don’t agree with a particular ruling,” McGarvey said.

“Our government passes legislation in Franklin County so the appropriate court of justice is Franklin Circuit Court,” McGarvey said. “And there is no such thing as a super judge…because if Franklin Circuit, or any circuit, gets something wrong, it is appealable to the court of appeals and the Supreme Court, which can correct it.”

Osborne, who is not an attorney, said the issue has been discussed for several years – particularly two years ago after the Republicans first won majority control of both the House and Senate.

“Several of the House and Senate attorneys got together then and tried to figure out what could be done that would be reasonable and equitable, and nobody could quite build a consensus…,” Osborne said. “If we can build some consensus between and around the legal community, then I’d think there’d be considerable support for it. But I think we’re still a long away” from that consensus.

Tom Loftus: [email protected]; Twitter: @TomLoftus_CJ. Support strong local journalism by subscribing today.