On Tuesday, May 23, 2023, the Commonwealth Journal reported that Daniel Cameron, a Republican Attorney General, is raising concerns about the fairness of Franklin Circuit Court Judge Phillip Shepherd, whose previous rulings have caused dissatisfaction among GOP members. Cameron is highlighting campaign donations made to the judge’s recent re-election campaign as evidence in an ongoing court case.

In response, Judge Shepherd took action by issuing an order that requested input from both parties regarding whether he should remove himself from the case. This step was taken to ensure a comprehensive and unbiased evaluation of Attorney General Cameron’s concerns.

The state’s biggest teachers union, the Kentucky Education Association, requested Judge Shepherd to temporarily halt a recently enacted state law that prevents the union from collecting dues through payroll deductions. Cameron, who is also a defendant in the lawsuit, used another new law to have the case transferred to a different circuit court chosen randomly.

KEA is objecting to the arbitrary relocation, asserting that it would cause a delay in reaching a decision on the temporary injunction against a law that is presently causing significant financial harm to the organization.

Attorney General Cameron has claimed that the Kentucky Education Association (KEA) criticized the random transfer of the case as “forum shopping” and cautioned them about making such criticisms. Cameron provided evidence, including campaign donation records, to support his argument. He pointed out that attorneys representing KEA and a partner at the law firm supporting KEA had donated a total of $3,430 to Judge Shepherd’s nonpartisan re-election campaign. Additionally, he mentioned that the KEA’s political action committee (PAC) had donated $100,000 to another PAC that supported Shepherd’s campaign through advertising.

Cameron also pointed out that Shepherd had shown a newspaper article from 2019 on his campaign website with pride; the article was about Shepherd challenging a decision by an official from Bevin’s administration that more than 1,000 teachers were violating the law during protests. It was one of 17 newspaper articles on Shepherd’s website that covered his court rulings on various topics.

Cameron said, “These facts, individually and together, could cause a reasonable observer to question the impartiality or bias of the presiding judge in a case involving the KEA, its PAC, or its counsel.”

Senate Bill 126 enables lawsuit participants to request a random change of venue if they perceive a judge to be biased. Republicans in the legislature and a deputy attorney general endorse it. Shepherd, who challenges its constitutionality in another case, said it could be “invoked in cases in which the motive is to avoid a fair and impartial judge, rather than to avoid a biased one.”

In a statement, Cubbage, who served as Democratic Gov. Andy Beshear’s general counsel before joining Tachau Meek law firm, said that Shepherd’s reelection campaign received support from numerous organizations, individuals, and a significant number of practicing lawyers, as well as from various judicial campaigns throughout the state last year.

Cubbage added, “The rules and procedures adopted by the Kentucky Supreme Court do not require all of those judges to recuse themselves or be disqualified whenever supporters or contributors appear before them,” and “As Attorney General Cameron’s brief demonstrates, his defense of the change of venue law seems to be based on his disagreement with the Supreme Court’s rules and procedures, but under Kentucky’s Constitution it is for the Court to decide those rules.”

Shepherd has faced criticism from the GOP due to his previous court decisions. During the last election, Joe Bilby, supported by Republicans including Senate President Robert Stivers, ran against Shepherd but was unsuccessful. The judicial race between Shepherd and Bilby was notably expensive, with over $1 million spent by both candidates and PACs supporting them, including Liberty & Justice for Kentucky.

Shepherd declined to comment on Cameron’s arguments and exhibits. However, in an order regarding the KEA case, Shepherd directly acknowledged Cameron’s footnote about campaign contributions. He stated that the information presented raises a legitimate question about his recusal under the Code of Judicial Conduct. Shepherd’s order highlights that while Cameron did not file a motion for recusal or formally raise these concerns, the court recognizes the need for a thorough examination. Both Cameron and KEA are given the opportunity to submit briefs on whether Shepherd should be recused from the case.

According to legal expert Leslie Abramson, the “random” change of venue law seems to circumvent the existing code of judicial conduct, which mandates recusal in cases involving conflicts of interest. Abramson suggests that the law avoids directly addressing potential conflicts by randomly transferring cases. This indicates dissatisfaction with how judges apply conflict of interest standards to themselves.

The Kentucky Code of Judicial Conduct requires judges to disqualify themselves from cases if their impartiality could reasonably be questioned, including cases where there is personal bias against a party involved.

Abramson further posited that a participant in a lawsuit can file a motion requesting a judge’s recusal due to bias. However, this puts the judge in a difficult position of deciding whether to recuse themselves. Abramson compared this process to a situation where a judge issues a search warrant but then has to rule on the admissibility of evidence obtained through that warrant.

Abramson further suggests a potential solution would be to assign the recusal decision to another judge, which is not currently required. If a judge denies the motion for disqualification, it could be appealed. Abramson proposes that if someone believes a judge is not impartial, Attorney General Cameron could directly appeal to the chief justice of the Supreme Court, who would then consider removing the judge from the case.

No response was received from Cameron’s office regarding why he opted for a random change of venue instead of filing a motion for recusal in this particular case.

Two retired Kentucky Judges, namely, Jefferson County Judge Thomas Knopf, and former Kentucky Supreme Court Justice Bill Cunningham, told the Lantern that campaign contributions alone do not automatically disqualify a judge from hearing a case. The decision depends on the context and whether a judge perceives an unworkable conflict of interest. Judges have heard cases involving attorneys who have made campaign contributions without bias.

Judge Shepherd will independently decide whether to recuse himself after reviewing any relevant filings from Cameron and the KEA.

 

Source: Commonwealth Journal