Bevin gets judge removed from teacher sick-out case over Facebook ‘like’

At the request of Kentucky Gov. Matt Bevin’s administration, Franklin Circuit Judge Phillip Shepherd has been disqualified from overseeing a lawsuit filed by Attorney General Andy Beshear dealing with teacher sick-outs earlier this year.

Supreme Court Chief Justice John D. Minton Jr. disqualified Shepherd from the case Friday morning and transferred it to Franklin Circuit Judge Thomas Wingate.

Earlier this month, Shepherd turned down a request by the Bevin administration to remove himself because the judge 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.

The Bevin administration appealed to Minton.

“This is another loss for Andy Beshear who fought to make sure that this purely political case would be decided by a judge who violated the rules of judicial conduct by supporting Andy’s campaign,” said Elizabeth Kuhn, communications director for Bevin.

Beshear said he will continue the lawsuit under the new judge.

“We will continue to keep fighting to protect our teachers from this governor’s bullying, investigations and threats,” Beshear said. “Moving forward we are going to make sure the 1,000 teachers Matt Bevin claimed broke the law before a final report was even complete get the due process they deserve.”

Shepherd had no comment on the chief justice’s decision.

In his nine-page decision Friday, Minton said that the incident should be “a cautionary tale” to all judges who use social media.

Minton noted in his decision that he is convinced Shepherd would preside over the case in “a completely fair, neutral and unbiased mannner.”

But, Minton said, the state’s standard for disqualification does not require actual proof or bias. “Rather, the standard simply requires disqualification in circumstances where the judge’s impartiality might reasonably be questioned,” he said.

He said this was one such circumstance.

He also said the state Judicial Ethics Commission “wisely admonished” in 2010 that use of social media is “fraught with peril” for judges and should be used with extreme caution.

“While judges are not ethically prohibited from using social media, their use is subject to the Code of Judicial Conduct in the same manner as other extrajudicial activities,” he wrote.

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 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 earlier this month 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.”

The teacher sick-out suit will continue, even though 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.

Kentucky teachers returned to Frankfort earlier this year to protest a legislative proposal that would change the makeup of the board that oversees the Kentucky Teachers’ Retirement System.

This wasn’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.”

Beshear has made several lawsuits he filed against Bevin a central talking point in his campaign for governor.

This story was originally published September 27, 2019 at 10:22 AM.