Kentucky Governor Wants to Oust Judge in Pension Lawsuit

Republican Bevin requests new jurist, claiming current one is a biased Democrat.

Republican Kentucky Governor Matt Bevin is trying to toss out the judge hearing a lawsuit challenging his pension overhaul legislation, on the grounds that the Democratic jurist is prejudiced against him.

The governor has asked Kentucky’s chief justice to disqualify Judge Phillip Shepherd from overseeing the lawsuit filed by Attorney General Andy Beshear, a Democrat. 

The new pension law looks to shore up the public pension plan, which is struggling with a $40 billion shortfall, by cutting teacher benefits and shifting new hires into a 401(k)-style fund. Kentucky’s plan is 31% funded.

Beshear says the new pension law is illegal as it violates the state constitution, which he touts as protecting the plan’s beneficiaries and because their pensions are an inviolable contract. He also objects to the way the pension change was passed: The governor inserted the measure into a sewage bill late in the 2018 legislative session. The bill was then passed the next day without legislative review or public comment.

The governor’s lawyers called on Chief Justice John Minton for Judge Shepherd’s removal in a filing.  Governor Bevin requested a special judge replace Shepherd on the grounds that the judge is part of the state’s defined benefit pension.

Stephen Pitt, Bevin’s general counsel, argued that only a judge not covered by the DB plan replace Shepherd.  That means someone who joined the bench after January 1, 2014, when new Kentucky judges were put into a 401(k)-style plan, replacing the old DB set-up. Shepherd became a judge in 2006.

Bevin’s animosity toward Shepherd has some history, and he has criticized the judge since at least 2016. He called the judge an “incompetent hack” in an interview with 55KRC Radio last month.

“This guy’s a former Democrat operative. He used to be in a previous Democrat administration as an appointee. Now he happens to be a – quote, unquote – judge,” the Republican governor said on the air, claiming Shepherd does not “take the law seriously.”

In 2016, Bevin and other Republicans accused the judge of siding with the Democrats when Shepherd ruled against the governor’s reorganization of the University of Louisville’s board of trustees.

The picture is more nuanced, however, as Shepherd has sided with Republicans twice as much as he has with Democrats in the past decade, the Courier Journal reports.

Democrat Beshear called Bevin’s move “shameful” in a Facebook post that also accused the governor of preventing a hearing on the bill, which Bevin’s filing denies.

In opposing the call for his removal from the case, the judge last week said that stepping down would “stretch the concept of conflict of interest beyond any reasonable recognition.”

Shepherd’s arguments are scheduled for Thursday, but the hearing is delayed unless the chief justice rules on Bevin’s request before then.

Update:  Late Wednesday, Minton overruled the governor’s proposal. The chief justice issued an order that said Bevin “failed to demonstrate any disqualifying circumstance that would require the appointment of a special judge.”

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