A publication of the Kentucky Center for Public Service Journalism

Judge Shepherd denies Gov. Bevin’s request to vacate ruling on process enacting pension reform

By Tom Latek
Kentucky Today

Franklin Circuit Judge Phillip Shepherd this week denied a motion by Gov. Matt Bevin’s legal team to alter, amend or vacate his original ruling that declared the process used to enact pension reform legislation unconstitutional.
 
During oral arguments, Steve Pitt, Bevin’s general counsel, sought to have the judge rule on the constitutionality of the bill itself, specifically if it violated the so-called “inviolable contract” between the state and public employees as well as the contracts clause of the state constitution and not just the process used by the 2018 General Assembly to pass it.


Shepherd’s original decision focused on Senate Bill 151, which had been a sewage bill passed by the Senate and had two of the three required readings in the House.  The bill did not have the required three readings in each chamber, since it had substantially been changed to pension reform and that it was an appropriations bill that didn’t receive the constitutional number of votes in the House, which is 51.  The bill passed on a 49-46 vote.


In his order, delivered shortly after the hearing, Shepherd ruled he would not provide an advisory opinion on the validity of the bill’s substance.

Shepherd, in the 11-page ruling, said, “because the bill was never properly enacted, the legal issues regarding the inviolable contract are not ripe for review.”


“The Court is bound by this state’s longstanding prohibition against issuing advisory opinions,” he said. “For example, the Kentucky Supreme Court has repeatedly held that ‘[o]ur courts do not ‘function to give advisory opinions, even on important public issues, unless there is an actual case or controversy.’”


Regarding the argument that it was not an appropriations bill, Shepherd stated in part, “The many provisions of SB 151 that directly specify the amount of state tax dollars that must be set aside to fund the retirement system, in the form of employer contributions, are central to the bill. So too with the bill’s specific allocation of tax dollars to fund health insurance for retired employees.”


Shepherd also ruled that the unconstitutional parts of the bill cannot be severed from the rest of it, and quoted state law in the issue.  “If the unconstitutionally-enacted appropriations provisions are severed, ‘the remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the General Assembly would not have enacted the remaining parts without the unconstitutional part.’”


Attorney General Andy Beshear, who argued the case before Judge Shepherd, reacted to the ruling.


“The Franklin Circuit Court just denied Gov. Bevin’s latest attempt to delay the pension bill lawsuit. This action makes the courts order voiding SB 151 final, pending any appeal,” he said.


Woody Maglinger, deputy communications director for Bevin, said: “The Governor’s legal team had barely returned from today’s hearing when they received the Court’s pre-written 11-page order.  It is disappointing that Judge Shepherd refused to take any time to seriously consider the issues raised during substantial oral arguments.”


Pitt said Bevin most likely would ask the Kentucky Supreme Court to rule on the inviolable contract. He said Bevin and the legislature want to know if they are not following the inviolable contract. Both sides have said the case will be appealed to the state Supreme Court.
 

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One Comment

  1. Marv Dunn says:

    The Governor hasn’t done well in court when he has gone up against the AG. What’s his record; I’ve lost count, something like 0 and 8. Oh well; he will rant and rave, send out a couple of twitters and make another video to post on his Facebook. Finally he will take it out on the poor people. Does that sound like some other prominent office holder we know?

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