In declaring the Republican pension overhaul unconstitutional, a judge this week struck an important blow against sewer politics in Kentucky. Let’s hope the state Supreme Court agrees.
Franklin Circuit Judge Phillip Shepherd’s ruling didn’t focus on the changes to public employee pensions, but on the underhanded way they were made.
As the General Assembly’s 2018 session was coming to an end, Republican lawmakers unveiled a secret pension overhaul plan, attached it to a bill about sewers and rammed it through the House and Senate within a few hours. And they did it as thousands of angry school teachers and other public employees loudly protested outside their chamber doors.
The bill had no required actuarial analysis, no fiscal statement, no Senate committee hearing, no real input from the people most affected by it and no public discussion. Few lawmakers had read the 291-page bill, which is one reason every Democrat and several Republicans voted against it.
There have been many tawdry moments in Kentucky legislative history, perpetrated by both Democrats and Republicans, but this may have been a new low.
Shepherd ruled that the bill violated Kentucky Constitution's in two ways. First, it wasn’t given three readings on three separate days in each chamber. Second, because the bill appropriated money, it needed the support of a majority of all House members. The bill was approved with only 49 votes, two short of a constitutional majority in the 100-member House.
A spokeswoman for Gov. Matt Bevin, who had called Shepherd an “incompetent hack” and tried without success to get him removed from the case, claimed many other bills could now be challenged because the General Assembly often does business this way.
That’s exactly the problem, Shepherd wrote in his 34-page opinion.
“The wholesale violation of Section 46 is a threat to the integrity of the legislative process, and it undermines respect for the rule of law," the judge wrote.
Shepherd quoted delegates to Kentucky's 1891 constitutional convention as saying the three-reading, three-day rule was added to ensure that the public had time to express opinions on legislation and lawmakers could read and study bills before voting on them. That’s exactly what didn’t happen with the sewer-pension bill, by Republican design.
In his ruling, Shepherd asked the Supreme Court to reconsider a previous decision that allowed the General Assembly to waive a requirement for an actuarial analysis or fiscal note on legislation. Those are required so legislators and the public have an idea of what laws will cost taxpayers. Without them, everyone is flying blind.
These are perilous times. Kentucky and our nation are in an era when representative democracy is threatened by huge amounts of special-interest money, one-party rule and chief executives who act like they were elected emperors. The rule of law, the independent judiciary and the free press are under attack. So is government transparency.
The pension case will end up in Kentucky’s Supreme Court, and the justices must understand we are at a crossroads. Will Kentucky have just and open representative democracy, or will we be governed by sewer politics?