Attorney General Daniel Cameron celebrates his nomination as the Republican nominee for governor with Michael Douglas of Lancaster during his election celebration May 16 in Louisville. (Kentucky Lantern photo by Austin Anthony)
Republican Attorney General Daniel Cameron is questioning the impartiality of a Kentucky judge — whose past court decisions have sparked GOP ire — in an ongoing court case by pointing to campaign contributions made to the judge’s recent reelection campaign.?
Franklin Circuit Court Judge Phillip Shepherd responded on Monday by issuing an order asking both sides to weigh in on whether he should recuse himself as part of “a full and fair examination” of Cameron’s concerns.
The Kentucky Education Association, the state’s largest teachers union, is asking Shepherd to temporarily block a new state law barring the union from collecting dues through payroll deductions. Cameron as a defendant in the case invoked another new state law?giving him the power to have the case moved to another circuit court chosen at random.?
KEA is opposing the random change of venue, saying it would delay a decision on a temporary injunction of a law that’s actively harming the organization’s finances.
In a May 12 filing, Cameron said the KEA has chastised the randomized courtroom move as “forum shopping.”?Cameron advised the KEA to criticize the move “with caution.”
In a footnote, Cameron pointed to several exhibits — in part referencing Kentucky Registry of Election Finance records — that showed one of the attorneys representing KEA, Amy Cubbage, and a partner at the law firm representing KEA, David Tachau, had donated a total of $3,430 to Shepherd’s nonpartisan judicial reelection campaign.?
Cameron cites another exhibit showing the KEA’s political action committee (PAC), which had endorsed Shepherd, donating $100,000 to another PAC, Liberty & Justice for Kentucky, that in part supported Shepherd’s campaign through advertising.?
Cameron also said Shepherd had “proudly” displayed a Louisville Courier-Journal newspaper clipping from 2019 on his campaign website; the story was about Shepherd questioning a decision by a Bevin administration official that more than 1,000 teachers were breaking the law during “sickout” protests.? It was one of 17 newspaper clippings on Shepherd’s website covering his court decisions on a variety of topics.
“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,” Cameron said, referring to Shepherd.?
Republicans in the legislature who enacted Senate Bill 126 and a deputy attorney general have argued that the new law is needed to allow lawsuit participants, in cases challenging state laws and decisions, to move a case at random if they believe a judge is biased against them.?
Shepherd, who in another case has asked the Kentucky Supreme Court to weigh in on the constitutionality of the random change of venue law 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.”
Cubbage, who served as general counsel for Democratic Gov. Andy Beshear before joining the law firm Tachau Meek, in a statement said many organizations, individuals and “scores of practicing lawyers” supported Shepherd’s reelection campaign along with other judicial campaigns across the state last year.
“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,” Cubbage said. “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 been a repeated target of GOP criticism for past court decisions. Joe Bilby, who was general counsel to Republican Agriculture Commissioner Ryan Quarles, unsuccessfully ran last year against Shepherd while backed by Republicans including Senate President Robert Stivers, who held a fundraiser for Bilby.?
Last year’s matchup became a particularly expensive judicial race in which more than a combined $1 million was spent by the two candidates and political action committees supporting them, including Liberty & Justice for Kentucky.
According to the Kentucky Registry of Election Finance, none of the attorneys representing Cameron’s office in the KEA case had donated to Shepherd’s campaign or Bilby’s campaign. The chief of staff for Cameron’s office, Carmine Iaccarino, donated $1,000 in August 2022 to Bilby’s campaign.?
Shepherd declined to comment to the Lantern on Cameron’s arguments and exhibits.
But in a Monday order in the KEA case, Shepherd directly addressed Cameron’s footnote about the campaign contributions. He said much of the information in the footnote was previously “unknown” to him.
“The Court, however, believes that the information cited by the Attorney General in this footnote raises a legitimate question as to whether the undersigned Judge should recuse from further action in this matter under the Code of Judicial Conduct,” Shepherd’s order states.?
“The Attorney General has not filed a motion to recuse. Nor has the Attorney General otherwise put the Court on notice of these concerns other than by obliquely inserting these issues into a footnote in a Response to a motion that deals with an unrelated issue. Nevertheless, the Court believes that the concerns raised by the information contained in this footnote require a full and fair examination by this Court.”
Shepherd’s order states both Cameron and the KEA have the opportunity to file briefs regarding if he should be recused from the case.?
One judicial ethics expert said he considers the “random” change of venue law a way to “bypass” the state’s existing code of judicial conduct which requires judges and justices to recuse themselves in situations involving conflicts of interest.?
University of Louisville School of Law Professor Leslie Abramson said the change of venue law appears to randomly move a case instead of having a judge directly address a potential conflict of interest.?
“We have standards to apply to allegations of conflict of interest,” said Abramson. “This law apparently doesn’t like the way judges are deciding the standards as to themselves.”
The Kentucky Code of Judicial Conduct states that a judge “shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned” including if a judge has a “personal bias” against a party in a case.?
Abramson said a lawsuit participant could file a motion to recuse a judge over concerns of bias. That judge would then have to consider whether to recuse from the case, he said, which can be problematic. Abramson likened the state’s recusal process to a situation in which a judge could issue a search warrant against a defendant who could try to have evidence from that search suppressed — only for the judge who originally issued the search warrant to rule on the evidence’s admissibility.
He said a solution could be to hand the recusal decision to another judge to consider, which is not now required. If a judge rules against the motion to disqualify, it could be appealed. “The easy way to deal with it is if somebody files a motion to disqualify … it’s got to be handed off to another judge,” he said.?
Abramson said Cameron could also directly appeal to the chief justice of the Supreme Court if a judge is believed to not be impartial and have the chief justice consider whether to remove said judge from a case.?
A spokesperson for Cameron’s office did not respond to questions about why Cameron has instead sought a random change of venue instead of filing a motion to recuse in the case.
Two retired Kentucky judges told the Lantern that campaign contributions don’t automatically disqualify an elected judge from hearing a case. They said that determination would depend on the context and whether a judge thinks there’s an unworkable conflict of interest.?
Thomas Knopf, who served as a circuit and district court judge for 27 years in Jefferson County, said that dozens of attorneys had donated to one of his judicial elections in the 1990s.?
“I think you have to decide whether or not you can be unbiased and make a decision based on the merits of the case,” Knopf said. “You don’t write those names down and keep them in a book and when they come before, ‘Oh, this guy gave me some money.’”?
Former Kentucky Supreme Court Justice Bill Cunningham said circuit court judges may often hear cases with lawyers with whom they have some kind of relationship, especially in rural areas, .
“I’ve never looked at my contribution list, and didn’t think it was a good idea,” Cunningham said. “But I’m sure if I did, I’d find some lawyers that contributed.”
“I would say it’s just not a cut and dried issue.”
Shepherd, in his Monday order, said he would make an “an independent determination” whether to recuse from the case after reviewing any filings on the issue from Cameron and the KEA.
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