Meet The Judge Deciding The Scope Of Matt Bevin’s Power

Sep 6, 2016

Judge Phillip Shepherd presides over his courtroom in Franklin Circuit Court.
Credit Ryland Barton | wfpl.org

Franklin Circuit Court Judge Phillip Shepherd has been in the news a lot lately. He’s the judge who will decide a handful of lawsuits that deal with the scope of the governor’s powers.


His effect on public policy is undeniable, and his rulings regarding the administration of Gov. Matt Bevin have already drawn unusually strong praise and rebuttal.

But many Kentuckians probably don’t know Shepherd, who’s elected only by voters in Franklin County, which includes Frankfort.

Shepherd’s biography stretches back into state government history.

In 1991, state Sen. Greg Higdon thought he was being vetted to be the next secretary of the Natural Resources and Environmental Protection cabinet under newly elected Gov. Brereton Jones, a Democrat. Then Jones’s chief of staff asked Higdon if he’d consider taking a lower position, that of deputy secretary.

“I said no, I’m not interested,” said Higdon, now president and CEO of the Kentucky Association of Manufacturers.

Higdon said Diana Taylor, Jones’ chief of staff, asked him to wait and reconsider. “And she said, ‘Have you ever heard of Phil Shepherd?’”

Higdon had. He remembered a Senate Agriculture Committee hearing, which he chaired. It was late in the legislative session, and environmental and industry interests bickered, all but ensuring a bill’s failure.

But then.

“A guy raises his hand in the back of the room and it was Phil Shepherd,” Higdon said. “And when he asked to come up and he said, ‘I think we all from the environmental community agree on it,’ I just wrote in the sideline, ‘Phil Shepherd seems to be reasonable.’”

Jones tapped Shepherd to be the secretary and Higdon agreed to be deputy and special assistant to the governor. They both had the same salary and shared management of the cabinet.

At the time, the arrangement was lampooned as a “marriage made in hell” in one editorial. The late Associated Press reporter Mark Chellgren called them the “odd couple” because Higdon usually supported industry on environmental issues and Shepherd was, as Chellgren put it in a story, a “card-carrying tree hugger.”

Working together, the two navigated thorny issues such as implementing waste management laws for landfills and allowing wastewater from Jamestown’s sewage plant to be piped into Lake Cumberland.

Accusations Fly

First elected to the bench in 2006, Shepherd has presided over a bevy of lawsuits against the state, with a mixed record of ruling for and against former Democratic Gov. Steve Beshear’s administration and that of former Republican Gov. Ernie Fletcher.

Kentucky law requires lawsuits against the state to be tried in Franklin County. They can then be appealed to the Kentucky Court of Appeals and, finally, the state Supreme Court.

Shepherd is currently presiding over several lawsuits challenging the governor’s overhaul of state boards.

The lawsuits are dripping with politics; most have been brought by Bevin’s rival, Democratic Attorney General Andy Beshear. But they also deal with important questions about how far the governor’s executive powers extend.

So far, Shepherd has temporarily blocked Bevin’s overhaul of the University of Louisville’s Board of Trustees, as well as a reorganization of the board that nominates judges who oversee workers compensation cases.

He’s also allowed the governor to remake one of the state’s pension boards while a lawsuit over that move is pending, but he prevented the governor from removing the former chair of that board, Tommy Elliott.

It’s widely expected that all of these cases will end up before the state Supreme Court.

Shepherd’s rulings against the Bevin administration have drawn scorn from its allies, and the governor himself has suggested ignoring one such rulinginvolving U of L. Some Republicans have accused Shepherd of being sympathetic to Democratic causes.

Louisville Republican Rep. Jerry Miller, a critic of Shepherd, said it’s unfair that questions of state government go through Franklin Circuit Court, where judges are elected by people in Franklin County, who are mostly Democrats.

Miller recently wrote a scathing op-ed in The Courier-Journal accusing Shepherd of acting politically from the bench.

“Whenever he’s going in to make a decision, he’s got to think, ‘Oh, what are the people back home [going to] think?’” Miller said. “Because oh by the way, they’re in the backyard, because a large number of them either work for, are retired from or have a family member work for state government.”

Higdon said that criticism is unfair.

“I can promise you this, he’ll think it through. I also have the utmost respect for the governor of the commonwealth,” Higdon said.

Tom Fitzgerald, director of the Kentucky Resources Council, has won and lost cases before Shepherd but doesn’t attribute the latter to politics.

“And at the end of the day, I thought that I had compelling legal arguments and they simply didn’t agree,” Fitzgerald said. “You don’t then accuse them of partisanship because you don’t get your way,”

Guion Johnstone, a former clerk of Shepherd’s, said the judge leaves politics at the door.

“He might be ruling against a particular official or particular political party at times, but I don’t think that has anything to do with his own personal beliefs,” Johnstone said. “He’s setting his personal beliefs aside and ruling according to what he believes is the best call.”