Judge refuses to step aside from teacher ‘sickout’ case

FRANKFORT, Ky. (AP) — A Kentucky judge whose impartiality was questioned by Gov. Matt Bevin’s legal team due to his social media interactions refused to step aside Wednesday from hearing a lawsuit brought by the governor’s political nemesis over an investigation of teacher protests.

Franklin County Circuit Judge Phillip Shepherd denied a motion from Bevin administration lawyers asking that he disqualify himself from the case.

The case revolves around a lawsuit filed by Attorney General Andy Beshear. It challenges the Labor Cabinet’s authority when it demanded that several school districts turn over the names of teachers who called in sick during statehouse protests during this year’s legislative session.

Beshear, a Democrat, is challenging the Republican governor’s reelection bid this year.

Bevin’s legal team asked Shepherd to step aside from the case because he “liked” a Facebook post that showed a photo of a Democratic lawmaker with a Beshear campaign volunteer.

In his order issued Wednesday, Shepherd said he also has “liked” posts that “celebrated Republicans promoting their cause (which includes the reelection of Governor Bevin) at the State Fair, the visit of President Trump to Louisville” and a reception honoring Bevin’s ticket.

“The court’s intent in ‘liking’ such posts is to encourage people to actively participate in our democracy,” Shepherd wrote. “The ‘like’ is intended to support the messengers, not to endorse the messages.”

Bevin’s general counsel, Steve Pitt, said in his motion asking Shepherd to withdraw from the case that the judge’s decision to “like” the Democratic lawmaker’s post raised “significant questions” about the judge’s impartiality.

Shepherd said in his three-page order that by “liking” the post, he “in no way” intended to endorse any candidate.

“It is an extreme and unwarranted stretch to hold that such an isolated ‘like’ on Facebook for any post involving a political campaign, must be held to require per se disqualification from all cases that may be affected by that campaign,” the judge wrote.

Bevin’s office expressed disappointment with Shepherd’s refusal to step aside but didn’t immediately indicate whether an appeal will be filed.

“Our disappointment is underscored by the judge’s own concession (in his order) that social media interactions by judges ‘lend themselves to misunderstanding,'” Bevin spokeswoman Elizabeth Kuhn said in a statement.

Shepherd has drawn Bevin’s ire for rulings in other cases, including last year’s decision that struck down a public pension law backed by the governor. The state Supreme Court upheld his ruling. Even before that ruling, Bevin called Shepherd an “incompetent hack” on talk radio.

In the latest case, Shepherd wrote Wednesday that he’ll “strive to refrain from responding to any political posts, Republican or Democratic, on social media in the future.”

Kuhn said the judge’s commitment “does not solve the clear appearance of impropriety in the current case.”

Beshear said in a statement that the effort to have Shepherd step aside from the case was another example of Bevin “trying to bully and attack those he disagrees with.”

“I look forward to the case moving forward and securing the due process these teachers deserve,” Beshear said Wednesday.

Last month, Bevin’s labor secretary, David Dickerson, announced that the Labor Cabinet investigation into teacher rallies found more than 1,000 educators violated state law by participating in protests at the state Capitol that shut down some schools.

No penalties were assessed, but Dickerson warned that “the grace extended in this instance” won’t be applied if future work stoppages occur. The agency could have assessed civil penalties up to $1,000 per person for each day away from work. Bevin has criticized the teacher absences that were so widespread in several school districts that some schools had to close.

The Kentucky Education Association, which represents tens of thousands of educators, has said the warning of future punishment amounted to a “scare tactic” to try to intimidate teachers and their allies from “having their voices heard.”

This year’s statehouse protests over several education bills in Kentucky were part of a wave of teacher activism that began last year in West Virginia and spread to other states, including Oklahoma and Arizona. The Kentucky measures included a proposal to change who manages the teachers’ pension fund as well as legislation that would have indirectly supported private schools with tax credits for scholarship funds.

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