Bevin called this judge an ‘incompetent hack.’ This bill lets him bypass that judge.
Over objections by Kentucky Supreme Court Chief Justice John D. Minton Jr., the Senate Judiciary Committee approved a bill Monday that would allow the governor, legislature or state agency being sued to demand a special judge to hear the case against them.
Senate President Robert Stivers sponsored Senate Bill 2 after criticizing how Franklin Circuit Judge Phillip Shepherd handled a lawsuit last year challenging a controversial public pension bill the Republican-led legislature adopted and Gov. Matt Bevin signed into law. Shepherd ruled against it and the Kentucky Supreme Court later unanimously upheld his ruling.
Minton, who rarely testifies on bills other than the courts system’s budget and his judiciary concerns, said SB 2 would have “a ruinous effect on the court of justice.”
“I’m here because we have conjured up a hurricane to extinguish a match,” he said.
Stivers, a Manchester Republican and attorney, said judges in one county should not hear all lawsuits against state government and challenges to the Kentucky Constitution.
He called Franklin Circuit Court, which has two judges, a “super circuit.”
SB 2 says lawsuits against state officials and agencies that now are filed in Franklin Circuit Court can be sent to a special judge if a defendant requests it within 20 days. No reason for the transfer would have to be given.
The original bill said the chief justice of the state Supreme Court would be required to select a judge randomly to hear the case.
Stivers’ presented a substitute version of the bill Monday that the committee approved by voice vote. It would require the circuit court clerk in the county in which the action was originally filed to conduct a lottery drawing in the presence of the parties or their counsel within three days after the removal request was filed to select another Kentucky county to hear the case.
The committee substitute said the special judge would be encouraged but not required to hold court hearings in the county in which the action was originally filed.
Stivers told the committee that his bill was not introduced at the request of anyone in the executive branch. “I’ve really not had any discussions with them in awhile,” he said. “This is something based on events that has taken place over many, many years.”
Bevin has been critical of Shepherd, calling him “an incompetent hack.”
Minton said the bill is too broad, noting that it covers “everything on the civil side.” That could include administrative regulations and even divorces of state employees, he said.
“It has huge ramifications,” Minton added. “Don’t do this to the system.”
He also said he has constitutional concerns with the bill but he would not talk about them, presumably because he might someday be asked to determine the bill’s constitutionality if it becomes law and is challenged in court.
Stivers said the intent of the bill was not to deal with divorces.
Tom FitzGerald, with the Kentucky Resources Council, said he has practiced regulatory and constitutional law for about 38 years in Franklin Circuit Court and he thinks that court has a familiarity with state government cases.
He also said he has seen no political partisanship in Franklin Circuit Court decisions.
The chairman of the Senate committee, Sen. Whitney Westerfiled, R-Hopkinsville, said he thinks any circuit judge is qualified to hear state government cases.
Sen. Gerald Neal, D-Louisville, asked Stivers if he would put off a committee vote on the bill until he addressed the concerns presented to the panel.
Stivers said he would work on “clarifying language” for the bill but that time is fleeting in this year’s legislative session. Monday was the 18th day of the 30-workday session.
Late Monday night Stivers filed two amendments to the bill that he said he hopes addresses Minton’s concerns.
Stivers also said he expects a legal challenge to his bill if it becomes law.
All Republicans on the committee voted for the bill. Neal, the only Democrat present for the meeting, passed.
This story was originally published February 25, 2019 at 2:57 PM.
