The Chief Justice of the Kentucky Supreme Court denied a request Wednesday by lawyers for Governor Matt Bevin to remove a judge the governor called an "incompetent hack" from presiding over a lawsuit challenging Kentucky's new pension law.
Bevin's attorneys "failed to demonstrate any disqualifying circumstance that would require the appointment of a special judge under Kentucky Revised Statutes..." Chief Justice John Minton wrote in a letter Wednesday afternoon.
His decision came a day after Bevin's attorney's asked him to remove Franklin Circuit Court Judge Philip Shepherd from Attorney General Andy Beshear's legal challenge to the pension law, citing the fact that Shepherd is eligible to receive a judicial pension.
Minton's denial enables Shepherd to hear oral arguments on the case Thursday, as was originally scheduled.
"We are disappointed with Chief Justice Minton’s ruling but look forward to tomorrow’s hearing on the merits of the case," said Steven Pitt, Bevin's general counsel.
Beshear had accused Bevin of deliberately trying to delay Thursday's hearing.
"I look forward to tomorrow’s hearing where I will fight for the constitutional rights of Kentucky’s teachers, police officers, firefighters, social workers & other public servants," Beshear posted on Facebook Wednesday afternoon.
Bevin asked Minton to appoint a new judge after Shepherd refused an earlier request to step aside. In a radio interview last month, Bevin called Shepherd an "incompetent hack" after the judge declined to let Bevin's attorneys depose the plaintiffs, which include Beshear, the Kentucky Education Association and the Fraternal Order of Police.
Pitt wrote to Minton Tuesday saying Shepherd has a pension that is protected by an inviolable contract, so any ruling he makes in the case would affect Shepherd's pension benefits.
"In sum, a win for the plaintiff's on the inviolable contract is a win for Judge Shepherd on his own inviolable contract," Pitt wrote.
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.
Minton, though, said the previous case law cited by Pitt didn't apply to the pension lawsuit. He said the two cases, one in Kentucky and one in Arizona, both involved a clear "financial interest" in the outcome of the case. In the Kentucky case, which was decided in 1941, the judges who recused themselves were parties to the underlying litigation. In Arizona, the judges were members of the class who brought the underlying lawsuit.
"Accordingly, the Chief Justice rejects the argument that (those cases) stand for the broad proposition that 'a judge with a public pension cannot sit in judgment of legislation that could affect that pension,'" Minton wrote.
Minton and all other judges on the Kentucky Supreme Court also were elected before 2014, so had Minton granted Pitt's request and removed Shepherd, the entire Supreme Court might have had to step aside if the case is appealed to them, as expected. In that case, Bevin would appoint justices to hear the case..
Earlier Wednesday, Beshear said such a scenario would violate the separation of powers in Kentucky's constitution.
"I think their argument is based on a theory that would allow this governor to ultimately appoint the Supreme Court that would hear his argument, which would break down our entire form of Democracy where we have separate branches of government," Beshear said.
In his argument, Pitt called for a special judge who took office after 2014 or one who had already retired. Lawyers for Bevin said there are about 22 circuit court judges who were appointed after 2014.
Beshear has made several arguments against the pension 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.
Among other things, Beshear argues the pension law violates the inviolable contract the state made with public employees to provide them with promised pension benefits.