Lawyers for Governor Matt Bevin renewed their effort Tuesday to get a judge the governor has called an "incompetent hack" removed from a case challenging Kentucky's new pension law, potentially delaying oral arguments in the case.
In a filing with the Kentucky Supreme Court, Bevin's lawyers asked Chief Justice John Minton to remove Franklin Circuit Court Judge Philip Shepherd and appoint a special judge to hear Attorney General Andy Beshear's legal challenge to the pension law, citing the fact that Shepherd is eligible to one day receive a judicial pension.
"The problem with Judge Shepherd deciding the terms and scope of public employees' inviolable contracts is that his pension is likewise protected by an inviolable contract," wrote Stephen Pitt, Bevin's general counsel. "... In sum, a win for the plaintiff's on the inviolable contract is a win for Judge Shepherd on his own inviolable contract."
All judges would not have that conflict, Pitt has argued. Unlike Shepherd, judges who took office after Jan. 1, 2014, don't have a traditional defined-benefits pension and thus aren't affected by the outcome of the lawsuit, Pitt said. He asked Minton, who himself is eligible to receive a judicial pension, to appoint a special judge who took the bench after Jan. 1, 2014.
The request comes days after Bevin's lawyers hand-delivered a letter asking Shepherd to disqualify himself from the case, which Shepherd promptly denied.
"It would stretch the concept of conflict of interest beyond any reasonable recognition to hold that a court cannot preside over a case involving interpretation of any legal rule that could at some unknown future date be applied by the legislature to members of the judiciary," Shepherd said in response to the letter.
The governor's office did not respond to a request for comment late Tuesday.
Shepherd is set to hear arguments on the lawsuit Thursday. That hearing will now be delayed unless Minton makes a ruling on Bevin's request before Thursday.
On Facebook, Beshear said Bevin was attempting to prevent a hearing on the bill.
"It’s shameful that the governor would use these tactics when over 200,000 Kentucky public servants and their families are anxiously awaiting a ruling," Beshear said. "I will continue to fight for the constitutional rights of Kentucky’s teachers, police officers, firefighters, social workers and public employees."
In its filing, the governor's office denied that it is attempting to delay the case.
"To correct the attorney general’s public statements about the recusal issue, Governor Bevin’s request for your Honor’s recusal is not intended to delay this matter, but to ensure beyond a shadow of a doubt that Senate Bill 151 receives a full and fair hearing," Pitt wrote.
Blake Brickman, who is Bevin's chief of staff and an attorney, wrote in an affidavit that he thinks Shepherd has prejudged the constitutionality of the pension law.
"It is my belief that Judge Shepherd has a personal bias or prejudice concerning the parties and has expressed an opinion concerning the merits of the proceeding without the benefit of formal briefing or a hearing," Brickman wrote.
The governor has not hid his hostility to Shepherd. In a radio interview in May, he called Shepherd an "incompetent hack" after Shepherd ruled that Bevin's lawyers could not depose representatives of Beshear's office, the Kentucky Education Association or the Kentucky Fraternal Order of Police. Shepherd said he wanted to get to the legal arguments first.
Beshear has asked Shepherd to judge the constitutionality of the law, which places teachers hired after Jan. 1, 2019, in a hybrid cash-balance plan rather than a traditional defined-benefits pension and requires those teachers to work longer before becoming eligible for retirement. It also requires state employees hired between 2003 and 2008 to pay 1 percent more for health care in retirement.
The lawsuit claims the law, approved in the final days of this year's legislative session, violated the inviolable contract the state made with public employees to provide them with promised pension benefits.
The arguments in this case will likely only serve as a warmup before either Bevin or Beshear appeals the ruling to the Kentucky Supreme Court.