Judge turns down Gov. Bevin’s request to step aside from KY teacher sick-out case
Franklin Circuit Judge Phillip Shepherd turned down Kentucky Gov. Matt Bevin’s request to remove himself Wednesday from overseeing a lawsuit filed by Attorney General Andy Beshear that deals with teacher sick-outs earlier this year.
Shepherd’s ruling came about 90 minutes after he held a six-minute hearing on Bevin’s motion to remove the judge from the case because he liked a Facebook post that praised volunteers on Beshear’s campaign for governor. Beshear, a Democrat, faces the Republican governor in the Nov. 5 general election.
After the six-minute hearing, Shepherd told attorneys for Bevin and Beshear that “I want to assure all counsel that I like every one of you.”
Shepherd’s decision can be appealed to Kentucky Supreme Court Chief Justice John D. Minton Jr.
Bevin spokeswoman Elizabeth Kuhn did not say whether there will be an appeal but she expressed disappointment in the judge’s decision.
Beshear said he looks forward to the case moving forward “and securing the due process these teachers deserve.”
In April, Beshear filed suit against the Bevin Administration after Kentucky Labor Cabinet Secretary David Dickerson issued subpoenas to 10 school districts to provide the names of all teachers who called in sick during teacher protests at the state Capitol during the legislative session earlier this year.
Bevin’s general counsel, Steve Pitt, filed a motion last week for Shepherd to withdraw from the case. He said Shepherd’s decision to like a Facebook post by Rep. Chris Harris, D-Pikeville, “raised significant questions about the Court’s impartiality.”
Pitt said the action meant Shepherd publicly supported Beshear’s campaign against Bevin.
“The integrity of Kentucky’s independent judiciary requires that judges disqualify themselves if reasonable questions about their impartiality exist,” Pitt wrote in his motion. “This court’s prohibited political activities give rise to exactly those kinds of questions.”
In his post, Harris shared a picture of himself with a campaign volunteer who knocked on his door in support of Beshear’s gubernatorial campaign. Harris then said “The Beshear/Coleman Campaign has some great local talent getting the word out for them. Honored to sign a pledge card to vote for the Beshear/Coleman ticket in November.”
Shepherd said in his three-page order Wednesday that he also “liked” posts that “celebrated Republicans promoting their cause (which includes the re-election of Governor Bevin) at the State Fair, the visit of President Trump to Louisville and a reception at the Frankfort Country Club honoring the Bevin-Alvarado ticket which featured the First Lady and Mrs. Alvarado.”
But the state’s motion for him to recuse and transfer the case to another judge made no mention of his “likes” for these supporters of the Bevin-Alvarado ticket, Shepherd said.
“The Court’s intent in ‘liking’ such posts is to encourage people to actively participate in our democracy. The ‘like’ is intended to support the messengers, not to endorse the messages.”
Shepherd said it is the duty of all public officials, including judges, to maintain friendships with citizens of all political persuasions, and to encourage all citizens to participate in the democratic process.
“It is not unusual for this Court to click the ‘like’ button for friends who are both Republicans and Democrats, especially for posts that arise out of their volunteer work in the political process to advance a cause or candidate they support.”
By clicking “Like” on on Harris’ post, Shepherd said, he in no way intended to endorse any candidate or slate of candidates.
“The Court believes any fair-minded person would understand this distinction, and that no reasonable person, viewing all the relevant facts in context, would believe that this Court has entered the political fray and endorsed a specific candidate,” he wrote.
Shepherd said he has been reminded that such posts on social media “lend themselves to misunderstanding and distortion” and he “will strive to refrain from responding to any political posts, Republican or Democratic, on social media in the future.”
The teacher sick-out suit will continue. The Labor Cabinet already collected the names of teachers from the Department of Education and conducted an investigation that said 1,074 teachers violated the law by engaging in an illegal work stoppage. No fines were given.
This isn’t the first time Bevin’s lawyers have combed through Shepherd’s Facebook page. The governor made a video last September criticizing Shepherd for indicating on Facebook that he was “interested” in a political rally in Frankfort to protest a bill that would have overhauled teacher pensions.
The governor has publicly called Shepherd an “incompetent hack.” Bevin’s chief of staff, Blake Brickman, continued the criticism last week, claiming the decision to like the post indicated bias.
Beshear has made several lawsuits he filed against Bevin a central talking point in his campaign for governor. Beshear has also criticized the way Bevin talks about judges.
This story was originally published September 4, 2019 at 11:43 AM.