A lot of state government’s big legal cases in recent years have landed in front of Franklin Circuit Judge Phillip Shepherd. And they haven’t always gone the way the governor or General Assembly want.
A Senate bill filed Friday would let Gov. Matt Bevin or other state officials avoid going before Shepherd.
Senate President Robert Stivers, upset with Shepherd’s handling of the big pension case last year, sponsored the measure, filed as Senate Bill 2. The low number indicates it’s a top priority of the Senate Republican majority.
Stivers, a Manchester Republican, complained in a floor speech Friday that all big state government cases and constitutional challenges should not be heard by judges elected from a single county.
“It’s not appropriate. As I’ve termed it, it’s a super circuit judge,” Stivers said.
But Senate Minority Leader Morgan McGarvey, D-Louisville, responded that he’s uncomfortable with the legislature meddling with the courts because it is angry over the outcome of a particular case.
“Initially, I am very skeptical of any piece of legislation which is directed particularly at one judge and one court,” McGarvey said.
Stivers’ bill says claims against state officials and/or state agencies that now must go to Franklin Circuit can be redirected if a defendant requests a special judge. No reason for the request is required. And the chief justice of the Kentucky Supreme Court would be required to randomly appoint a special judge.
In an interview last fall, and again on the Senate floor on Friday, Stivers acknowledged that it is Shepherd’s handling of last year’s lawsuit against the pension bill that sparked his interest in in the issue.
Shepherd struck down the pension bill – Senate Bill 151 – last June for two procedural reasons. He said the rapid one-day passage of the bill violated part of the Kentucky Constitution that requires lawmakers have time to consider a bill. He also said the bill was an appropriations bill, which required at least 51 votes in the House to pass. (The House vote on the bill was 49-46.)
In December, the Kentucky Supreme Court affirmed Shepherd. In a 7-0 ruling, the high court agreed the rapid process violated the Kentucky Constitution, but it was silent on the question of whether the bill was an appropriations bill requiring 51 votes.
In his Friday floor speech, Stivers said his major issue with Shepherd is that he – and not Attorney General Andy Beshear and other plaintiffs in the case – first raised the issue of whether the pension bill was an appropriations bill requiring at least 51 votes in the House.
“When a judge … says, ‘You might want to amend your pleadings, and your pleadings should include this…’ That goes beyond the role of what a judge should do,” Stivers said.
Shepherd declined to comment when contacted Monday.
Chief Justice John D. Minton Jr., seemed open to the bill during a phone interview Monday.
“The process of state appeals being taken in the Franklin Circuit Court is a process that the General Assembly created by statute, and within the bounds of the constitution, they can alter that system as they see fit…” Minton said. “So we’ll just have to wait and see how the process works out.”
One veteran Louisville attorney who has represented both Republicans and Democrats in major state government cases, Sheryl Snyder, said Monday he believes the current system is preferable.
“I think choosing judges at random for those kinds of state government and state constitutional issues would be at the cost of the expertise that the Franklin Circuit judges build up over the years by handling those cases…” Snyder said. “Also, the decisions of those Franklin Circuit court judges are always appeal-able to the Court of Appeals and/or the Supreme Court.”
Snyder also said he believes Shepherd was acting within his proper discretion in raising the question of whether the pension bill was an appropriation bill.
“At one level judges are referees, but at another level they are there to do justice. And if they see a significant issue that they think could affect the outcome of a case, then they certainly have the authority to raise that issue,” Snyder said.
Robert Lawson, a retired professor at the University of Kentucky College of Law, said Franklin Circuit judges have always properly handled such state government cases and that it is “ridiculous” to make such a change because of disagreement with a particular judge.
“This whole criticism of Judge Shepherd is outrageous,” Lawson said. “He’s very fair-minded, very competent.”
During Friday’s Senate discussion Sen. Wil Schroder (R-Wilder) said that bills have been filed in many past sessions to accomplish the same goal as Senate Bill 2. “To act like it’s targeting one in particular judge, or one in particular decision, I would say is not the case,” Schroder said.
Shepherd has repeatedly been the target of attacks from Bevin on social media and talk radio after Shepherd ruled against him in some high-profile cases.
But in his floor remarks on Friday, McGarvey noted the Courier Journal has examined Shepherd’s rulings in big cases with political implications between 2007 and 2016 and found Shepherd more often ruled in favor of the Republican side than the Democratic side.
There are actually two circuit judges in Franklin County – Shepherd and Thomas Wingate. Cases filed in the court go alternatively to one, then the other. But this random process has given most of the high-profile cases involving the Bevin administration to Shepherd.
Written by Tom Loftus. Cross-posted from the
Courier-Journal via the Kentucky Press News Service.