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Despite opposition, measure allowing state officials to avoid Franklin Circuit Court clears committee

By Tom Latek
Kentucky Today

Despite strong opposition from Kentucky’s chief justice, a bill that could remove civil lawsuits involving state government from Franklin Circuit Court easily cleared a Senate committee on Monday.

Under the proposed bill, sponsored by Senate President Robert Stivers, R-Manchester, any action that includes a claim for declaratory judgement, injunctive relief, or other form of equitable or other relief, or challenges the constitutionality of a law or administrative regulation, brought against any state official or agency can be removed if a notice of removal is filed with the circuit court clerk, where the action was filed, within 20 days after the action is filed.

Kentucky Chief Justice John Minton, left, is with Senate President Robert Stivers during a committee meeting on Monday. (Photo by Tom Latek, Kentucky Today)

The clerk would then draw, at random, the name of the county where the case would then be heard. Alternatively, the case could be heard in the county where the case was filed, with an outside judge.

Most of these types of cases have historically been heard at Franklin Circuit Court, where one of the judges, Phillip Shepherd, has been referred to as “an incompetent hack” by Gov. Matt Bevin, on several occasions, when rulings go against him.

Stivers told the Senate judiciary committee that he has been asked by reporters if Gov. Bevin requested the bill, to which he responded: “That’s the furthest from the truth, as I haven’t had any discussions with the Governor in some time.”

After Stivers introduced the bill last month, he told reporters, “It has become pretty well known that Judge Shepherd wants to practice the case. How do you change that, unless you change the way cases are assigned? Judges shouldn’t do that. Actually, there probably should have been a reprimand of Judge Shepherd, because that’s not the role of a court.”

He asked the reporters: “Would you want a judge to stand up in litigation where you’re a plaintiff or a defendant and look at the other side and have that judge tell you or tell your opponent that this is the way you need to practice your case? This is what you need to have in your pleadings? Is that what a court is for? No.”

Shepherd’s handling of the pension bill last year provided motivation for Stivers to push the bill. Shepherd knocked down the pension bill because of how it was quickly passed. The Kentucky Supreme Court affirmed the decision unanimously in December.

Chief Justice John D. Minton, Jr., who normally only appears before a legislative committee to present the Judicial Branch Budget, or deliver the State of the Judiciary address, testified in opposition to the bill.

“It does have a ruinous effect on the Court of Justice,” Minton told lawmakers. “Both for the operation of the branch as a whole, and for the fiscal impact it would have.”

Minton heard the comments made about Shepherd at the time and testified Monday. “It had to do with specifically one circuit, and perhaps one judge in one circuit. But this affects all judges in districts and circuits all across the commonwealth.”

The chief justice also said the proposed legislation is overly broad, as nothing is exempted from its coverage, including state employees.

“Everybody who works for the state of Kentucky in either the Executive or Legislative Branches,” Minton said. “This is so broad, that it would give the right for a person who is sued for divorce in Christian County to engage in the litigation lottery this bill envisions.”

In addition, Minton feared it would be a huge change for the judges, both in the county where the lawsuit is filed, as well as the judge coming in to hear a case from another part of the state, who would have to drop his or her docket to hear the other case.

“We have conjured up a hurricane to extinguish a match,” Minton said. “That’s why I have taken the unusual step of coming here to talk to you all about this, and implore you, don’t do this to the system, don’t do this to the system.”

Despite Minton’s testimony, the committee passed the bill without dissent, and it now heads to the Senate floor.

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