Kentucky’s Republican governor and legislative leaders are angry that judges unanimously declared their sewer-pension bill unconstitutional. Now, they want to get even.
But before they go any further down that road, they should brush up on Kentucky history. The last time lawmakers and governors messed with judges who were holding them accountable to the law, things did not turn out well.
Senate President Robert Stivers, a lawyer from Manchester, last week introduced Senate Bill 2, which would let state officials avoid taking major cases to Franklin Circuit Court. Instead, they could ask the state’s chief justice to appoint “at random” a special judge, who may or may not have the kind of experience dealing with constitutional questions and other big issues that Judges Thomas Wingate and Phillip Shepherd have.
The target of this bill is Shepherd, who originally ruled against the GOP’s attempt to rush through in one day a major pension overhaul by attaching it to a wastewater treatment bill that had already cleared several constitutionally required hurdles of lawmaking.
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Shepherd is a widely respected judge, and all seven Supreme Court justices agreed with him in this case. A Courier Journal analysis of Shepherd’s rulings in major cases with political implications between 2007, when he joined the court, and 2016 showed that he more frequently sided with Republicans than Democrats.
But Shepherd has ruled several times against Gov. Matt Bevin’s expansive use of executive power, prompting Bevin to call him an “incompetent hack.”
Bevin also blasted the Supreme Court’s pension ruling as “an unprecedented power grab by activist judges.” Never mind that the court is made up of both Republicans and Democrats. Bevin attacks anyone who challenges him.
In 2017 remarks to the Federalist Society, a conservative lawyers’ group, Bevin suggested changing the state constitution so the governor would appoint judges and the attorney general, rather than them being elected. “We have a remarkable number of people who have no business being judges,” said Bevin, who has no legal training.
Senate Majority Leader Damon Thayer, a key player in the unconstitutional pension bill, reacted to the Supreme Court ruling by saying he wants to “rein in” judges. He added that he would be “looking at judicial reform in this state,” whatever that means. “My regards for the judiciary in Kentucky is at a low point,” said Thayer, a Georgetown Republican who also has no legal training. “Too many are liberal activists.”
In the 1820s, populist Kentucky legislators and governors attacked the state judiciary for being activist conservatives. Their attempt at “judicial reform” mired the state in legal chaos for years.
It all began with a financial panic in 1819 that left many Kentuckians unable to pay debts after an era of economic expansion and rampant land speculation. A Debt Relief Party was organized, and by 1820 its supporters held majorities in the House and Senate. They wreaked havoc with the state’s banking system — closing some banks, opening others — and passed laws that required creditors to accept rapidly depreciating bank notes or wait a year or two for repayment.
Creditors sued, and judges in Bourbon and Fayette counties ruled that the pro-debtor laws violated the state and federal constitutions. Both cases went to the Court of Appeals, then the state’s highest court. In 1823, it ruled the laws unconstitutional.
That prompted legislators to strike back. They tried unsuccessfully to remove most of the judges from office. By 1824, they mustered enough votes to abolish the Court of Appeals and create a new Court of Appeals with four pro-debtor justices.
While the previous two governors, Gabriel Slaughter and John Adair, had supported some debt-relief efforts, populist Gov. Joseph Desha became its greatest champion. (Desha is considered one of Kentucky’s worst governors, for this and two other issues: he slashed state support for higher education, and he stood up at his son’s sensational murder trial and pardoned him.)
The old court refused to recognize the new court, as did many officials and citizens. It also refused to turn over its records, prompting the new court clerk to break into the old court clerk’s office and steal what records he could find. Both courts continued meeting.
It was a complete fiasco until the last week of 1826, when old court supporters gained control of both the House and Senate and repealed the debt-relief law and court reorganization over Desha’s veto. It wasn’t until 1829 that all new court decisions were declared void — and until 1935 that they were formally struck from Kentucky common law.
What’s the moral to this history lesson? I see two: Sore losers shouldn’t rewrite the rules of any game. And there is no more important time to have the checks and balances of an independent judiciary than when one party controls the rest of government.