Let’s assume — for argument’s sake — that Senate Bill 2 has nothing to do with the grudge held by some prominent Kentucky Republicans against a certain Franklin Circuit judge.
Let’s pretend that Senate President Robert Stivers’ sole motive for sponsoring SB 2 is to strengthen Kentuckians’ trust in the courts by creating a more level playing field for lawsuits involving state government.
It’s still a stinkeroo.
SB 2 would transform Kentucky’s chief justice into the governor’s and legislature’s personal judge-shopper.
Lawsuits challenging the executive branch or legislature begin in Franklin Circuit Court, in the capital, where the challenged law was enacted or the challenged action originated. Franklin Circuit Court has two judges who hear lawsuits involving state government. Many of these cases are destined to be reviewed by higher courts.
Kentucky judges are elected in nonpartisan races. But because most Franklin County voters are Democrats, Republicans fear the judges there are biased against them.
Under Stivers’ bill, the governor, legislature or state agency being sued could demand that a special judge be appointed to hear the case against them. SB 2 dictates that the chief justice of the Supreme Court would “immediately designate a regular or retired justice or judge ... selected at random” to hear the suit.
When a jury is being selected, both sides have a say in the process. But only one side — the governor, the legislature, the state agency — would be entitled to this new right and have a role in selecting a judge if Stivers’ bill becomes law.
The plaintiffs — those challenging the constitutionality of a law or an action by state government — would have no say in who would hear their case. Such inequality seems inherently unfair and destroys any pretense of leveling the playing field.
The one-page bill does not specify what “random” process the chief justice should use to select the special judge demanded by the governor or legislature. But there’s no question that the Supreme Court would be asked to overturn high-profile rulings by judges selected by the chief justice. The appearance created by this awkward situation would serve only to undermine public confidence in the case’s outcome and in the judiciary.
When an earlier Senate president, Republican David Williams, wanted to move lawsuits out of Franklin Circuit and allow them to be heard in the plaintiff’s hometown, his avowed reason was to make it more convenient for those suing state government. Stivers’ bill would seem to create a new disadvantage for Kentuckians challenging decisions by the state.
As if all that isn’t bad enough, SB 2 cannot be separated from the demagogic and boorish attacks by Gov. Matt Bevin, Stivers and some other Kentucky Republicans on the judiciary.
Their most venomous criticism has been reserved for Franklin Circuit Judge Phillip Shepherd, who has ruled against the Bevin administration several times, including finding that the legislature acted unconstitutionally last year when it whisked through an overhaul of public pensions without proper notice and in a single day. The Supreme Court unanimously upheld Shepherd’s decision, a cue to reasonable people that Shepherd’s ruling was solid.
Nonetheless, after the Supreme Court ruling Senate Majority Leader Damon Thayer all but vowed to get even through what he called “judicial reform.” Bevin has called Shepherd a “hack” and suggested that the governor not voters should choose judges.
The attacks on the courts by Bevin & Co. go beyond the pale, as former Justice Daniel J. Venters recently wrote. If successful, such attacks undermine the balance of power that keeps tyrants in check and democracies viable.
Bevin and his allies have created a climate in which SB 2, in its current form, can only be viewed as petty, ill conceived and a threat to public trust.