GOP’s preferred candidate for a key judge seat gets boost from Ky. Senate President
The Kentucky Senate’s most powerful man is helping host a fundraiser for a judicial candidate that, if successful, would oversee many cases dealing with challenges to legislation as well as other state government matters.
Senate President Robert Stivers, R-Manchester, and Franklin Circuit Court judicial candidate Joe Bilby confirmed to the Herald-Leader that Stivers and his wife Regina are hosting a fundraiser for Bilby on Thursday at the Frankfort Country Club.
Stivers did not mince words in praising Bilby – a Marine Corps veteran and avowed “constitutional conservative” who currently serves as General Counsel for Republican Agriculture Commissioner Ryan Quarles – over current Franklin Circuit chief judge Phillip Shepherd in the nonpartisan race.
Franklin Circuit has become an unwelcome venue for Republicans, Stivers said.
“I don’t like walking into a court which we have said for years has been automatically slanted and tainted towards the other side of the legislature,” Stivers said. “I’m not looking for preference or anything else – I’m looking just for fairness, a level field.”
An invitation for the event invites attendees to donate anywhere from $200 to $2,000, the individual limit, to Bilby’s effort.
Shepherd’s campaign chair, Bill Graham, called the event an example of how the race has been made improperly partisan.
Stivers and others in the Republican-dominated legislature have often cried foul at Shepherd’s rulings and indicated that his rulings favor Democrats, most recently and notably in the judge’s injunction on laws that limit Gov. Andy Beshear’s powers. Shepherd’s ruling was later overturned unanimously by the Kentucky Supreme Court.
Bilby’s campaign said that Shepherd’s ruling getting overturned was an example of the judge’s failure to “follow the law, without fear or favor,” as the judicial hopeful would. Last year, Shepherd also blocked a Republican-backed “school choice” bill; the Kentucky Supreme Court has agreed to take up the case.
In 2016, the state Republican Party tweeted an anti-Shepherd message by asking when, if ever, he ruled in favor of a Republican.
“Remember the time Phil Shepard (sic) ruled in favor of a Republican? #nope,” the post read.
Shepherd drew the ire of former Republican Gov. Matt Bevin more than once. In 2016, Bevin called the judge a “political hack” and in 2018 the former governor said Shepherd was an “incompetent hack” after he denied Bevin’s legal team a procedural motion during a pension law case.
Once, Shepherd’s activity on social media drew Bevin’s criticism. The former governor argued that Shepherd should have been removed from a case concerning the 2019 “teacher sickout” because he “liked” a Facebook post showing a photo of a Democratic lawmaker with a Beshear campaign volunteer.
“Phil Shepherd openly & publicly supports (then-Attorney General) Andy Beshear at the exact same time that he’s the judge ruling on lawsuits brought to his courtroom by Beshear,” Bevin tweeted. “Shepherd’s clear conflict of interest & his refusal to recuse himself, undermines the confidence of Kentuckians in our courts.”
Shepherd defended himself at the time that he had “liked” several other posts celebrating Republican politicians.
At least three Kentucky Republican legislators – including Senate Majority Leader Damon Thayer, R-Georgetown – count themselves among 120 people who contributed to Bilby’s campaign as of Jan. 4 in a report to the Kentucky Registry of Election Finance (KREF). Bilby touted over $94,000 in contributions, including a $2,000 boost from Kentucky Sen. Mitch McConnell’s Bluegrass Committee political action committee (PAC).
Shepherd’s campaign has reported only 19 itemized contributions for just under $27,000 in total thus far.
Graham, who was a judge in Franklin Circuit Court for 24 years, told the Herald-Leader that Shepherd has a fundraiser scheduled in two weeks with more than 50 people already pledged to donate there.
Neither of the candidates’ reported donors thus far are majority-Franklin County. Only 32 of Bilby’s 120-person donor list report a Frankfort address. That goes for five of Shepherd’s 19 donors as of Jan. 4.
Graham called Stivers’ assertion that Shepherd rules in a partisan manner “simply wrong,” and said that Shepherd was highly respected among the state’s judges.
“The idea that they’re calling him partisan is just silly and very wrong,” Graham said. “I know this because I was a circuit judge for 24 years and handled many cases over many administrations. Any time that you decide against any branch of government in some case, they think that it’s partisan.”
Ethical question?
Through campaign spokesperson Jodi Whitaker – who previously served as a spokeswoman for the Republican majority caucus under Stivers – Bilby did not say whether he saw any ethical issues with someone as influential in the legislative branch as Stivers co-hosting a fundraiser for him.
“I believe a judge should always follow the law, and that’s what I’ll do in every single case,” Bilby wrote in response to a question about the ethics of holding such an event.
Stivers answered directly: there’s no ethical issue.
“There is no ethical problem in that. I’m also a practicing attorney, so that would mean that practicing attorneys can never contribute to a judge’s race, which we all know they can,” Stivers said.
Stivers also said that he was more of a “guest speaker” at the event than the host.
Bill Fortune, a retired longtime professor of legal ethics law at the University of Kentucky College of Law, concluded that, politics aside, there’s no ethical issue in Stivers playing a part in hosting a fundraiser for Bilby. He added, though, that he wasn’t aware of a similarly powerful Kentucky legislator being this involved in a judicial post.
The bar for recusal is quite high per a 2009 U.S. Supreme Court ruling.
The U.S. Supreme Court issued a 5-4 ruling in Caperton v. Massey that requires a judge with a “serious risk of actual bias,” to recuse themselves from a case when someone with a “personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”
The Kentucky Supreme Court features a unique opinion on the matter, with a former justice John Roach recusing himself from a case where a respondent in a suit and his counsel hosted a fundraiser for his campaign.
Roach wrote the order in the first-person, and noted that his decision to recuse himself was motivated by his receipt of “numerous campaign contributions” from members of the powerful law firm Frost Brown Todd as well as the fact that the party moving for his recusal would be actually harmed by the move because a four-justice vote would still be required.
As applied to the circumstances of Stivers and his wife hosting a fundraiser for Bilby, Fortune said that the question of Bilby’s recusal if Stivers-backed legislation went before him in Franklin Circuit could be a political issue but isn’t likely an ethical one.
“When there’s an issue raised about the propriety of the judge sitting on a matter that an individual is interested in, it has to be pretty darn severe before a judge would be required to recuse himself. It’s even more tangential, if you will, when the interest of the contributor in this case status isn’t personal, it’s political,” Fortune said.
Fortune echoed an argument of Stivers’ by adding that there is nothing barring attorneys who often present in front of judges from contributing to judicial campaigns.
Graham takes more of an issue with Bilby’s support from the Republican legislature.
“We should never forget that the circuit judges and all the judges are nonpartisan races,” Graham said. “It seems to me to be a very bad approach to a campaign for judicial office to build it on a partisan basis. I think when you’re having the Senate President hand out these flyers for a (Bilby) campaign fundraiser – it’s not what the judiciary is about. The judiciary shouldn’t be beholden to another branch of government.”
Kentucky’s Judicial Conduct Commission, Judicial Ethics Committee and the Kentucky Supreme Court did not offer comment on the matter.
This story was originally published March 2, 2022 at 10:11 AM.
