Tired of so much winning: Bevin and the Courts

May 2, 2018 at 10:29 am

Gov. Matt Bevin lost another court battle last Tuesday, failing to convince the Franklin Circuit Court that Attorney General Andy Beshear had violated legal ethics.

The claim was flimsy.

Beshear, who has a statutory obligation to advise the legislature, had warned the legislators that a pension bill they were considering was unconstitutional. When they passed it anyway, Beshear filed a declaration of rights petition to request that the courts rule on the constitutionality of law. Bevin’s lawyer tried to characterize this as a conflict of interest in a cynical attempt to get Beshear removed from the case. The court saw beyond this and dismissed the motion.

It was only the latest of several setbacks in the courts for Bevin, many of them self-inflicted.

The same day, President Trump’s lawyers were battling a porn star in federal court and defending Trump’s revised travel ban in the Supreme Court. The governor’s lawyer, Steve Pitts, is no Michael Cohen but in analyzing how Bevin interacts with the constitutional and legal systems, a comparison with Trump is unavoidable.

Both men cultivate a populist image, scorn the press and use alternative channels like social media to get out their message. And both rose to power telling the electorate that as successful businessmen they could get things done in ways professional politicians couldn’t.

While Bevin and Trump are businessmen, neither were chief-executives of publicly traded companies; instead they headed privately-owned family businesses. Neither had to navigate a complex institution subject to corporate norms and answering to shareholders, consumers and government regulators.

Trump and Bevin see government not as a pluralist system tied together with legal rules but as a small shop with a boss and his minions. Legal restraints are just red tape to get around, and lawyers are there to get it done.

Democratic governments aren’t businesses. They are political structures designed on the theory that political power is corrupting and liberty is best protected by dividing that corrupting power up into as tiny pieces possible. And the drafters of the Kentucky constitution were so committed to the separation of powers between the executive, legislative and judicial branches that they wrote two sections (27 and 28) to make that clear.

Their constitution created a weak chief executive, the governor, and further divided the executive power by creating elective offices such as (drumroll) the attorney-general. While Trump fumes about his attorney general, Jeff Sessions, he at least picked him from his own supporters. Bevin, on the other hand, faces Democrat Andy Beshear.

Bevin’s trouble with pesky laws and constitutions began with the start of his administration. Within months of taking office he was tangling in court with Planned Parenthood and the ACLU over abortion clinics in Lexington and Louisville, first over shady procedures his administration used to try to close the clinics and later in defense of abortion laws that Bevin signed.

Failing to grasp the limits of the executive power has been a problem for Bevin. Even though state revenues were meeting levels necessary to fund the 2016-18 budget passed by the legislature, Bevin decided to impose 4.5-percent cuts on executive agencies and require 2-percent givebacks by the state universities. House Speaker Greg Stumbo argued that the state Constitution gave the legislature the sole power to appropriate. The courts agreed. In late 2016, the Kentucky Supreme Court affirmed the Franklin Circuit Court’s earlier ruling that the university cuts unconstitutionally intruded into the legislature’s appropriation power.

From the beginning, Bevin made liberal use of his reorganization power. He abolished several boards and replaced them with boards filled with his handpicked candidates. When a member of the pension board objected to his removal, Bevin sent in state troopers to keep him from the meeting.

In June 2016, Bevin abolished the UofL Board of Trustees and created a new one with his appointees, citing an agency reorganization law never used to reorganize university boards and ignoring more specific statutes governing university governance. The Franklin Circuit Court blocked the ruling briefly and, in December 2016, UofL’s accrediting agency decided the unilateral action violated academic independence and placed UofL on probation.

As the Kentucky Supreme Court prepared to rule on the case in 2017, Senate President Bob Stivers worked with parties to draft a bill that superseded Bevin’s order, creating an orderly process for removing boards deemed to be dysfunctional. That satisfied accreditors, while still preserving Bevin’s ego (and handpicked board).

Stivers’ skillful legislative drafting saved UofL’s accreditation and mooted the case in the Supreme Court, but no one should forget that Bevin was heading for a disaster that could have seen him losing again in court and UofL losing accreditation. Unfortunately, he was oblivious to this and walked away emboldened.

The governor’s insensitivity to the legal norms of his adopted state punctuated his efforts to “reform” the state pension system. Rather than merely funding it better, the governor hired outside consultants to create a plan in profound conflict with the Kentucky inviolable-contract law that protected pensioners. The 2018 legislature ultimately rejected Bevin’s plan and wrote its own, leaving only a few provisions vulnerable to legal challenge.

Bevin’s legal team — that seems as funny to hear as “Trump’s legal team” — works for a boss who has little respect for constitutional and legal norms. But so long as they cast their client’s questionable opinions into legal briefs, it’s hard to respect them either. •

Kurt X. Metzmeier, is the author of “Writing the Legal Record: Law Reporters in Nineteenth-Century Kentucky” (University Press of Kentucky, 2016). Although he is a UofL law librarian, the opinions expressed in this article are his own and do not represent those of the university or any of its institutions.