Kentucky Supreme Court Hears Arguments Over Governor’s Powers

Aug 18, 2017

Credit Ryland Barton

Justices on Kentucky’s Supreme Court heard arguments over whether Gov. Matt Bevin had the right to overhaul the University of Louisville board of trustees last year under a law that gives the governor power to reshape state boards while the legislature isn’t in session.

Attorney General Andy Beshear sued Bevin, arguing that the little-known law doesn’t apply to state universities and that the move put U of L’s accreditation at risk because it shows that the school’s governance is subject to political influence.

The state legislature has since created a new law that gives the governor broad power to abolish or tinker with state university boards if board members misbehave.

But questions still remain over whether Bevin could continue to use the original law going forward — allowing him to unilaterally remove university board members without cause.

“I guess that’s what my concern is, if you’re saying ‘well, you’ve got two alternative routes,’” Justice Lisabeth Hughes said while questioning the governor’s general counsel Steve Pitt.

After the hearing, Pitt told reporters that governors would have to use the new law, which requires an evidentiary hearing and review by the Council on Postsecondary Education before a university board member could be removed.

“Our position is that the new specific statute would be the one that either this governor or a future governor would use in the circumstances that a board member had to be removed or a board had to be reorganized,” Pitt said.

The governor’s office also argues that the case is moot because the legislature effectively replicated Bevin’s reorganization during this year’s legislative session.

But Beshear said that Bevin has ignored state laws before and will continue to do so if the court doesn’t step in.

“Here we have two parties that have been in court four times in various courts dealing with either university control or the reorganization powers,” Beshear said during the hearing. “It’s not just capable of repetition, it’s being repeated.”

The legal challenge is the fourth lawsuit Beshear has filed against Bevin and the third dealing with the governor’s use of the reorganization law.

Bevin abolished U of L’s governing board last year, severing the four-year terms of the 15 appointed members of the panel, which he called “dysfunctional.”

Bevin then created a new board and appointed new members. Beshear sued Bevin over the move.

A lower court ruled last year that Bevin didn’t have the power to abolish the U of L board because he had violated a state law that protects removal of university board members without cause.

The Southern Association of Colleges and Schools put U of L’s accreditation on probation late last year, citing the governor’s actions in dismissing board members.

Beshear told reporters after the hearing that if the court doesn’t rule against the governor, “then every single university, every single one in Kentucky has accreditation issues when they come up for that next accreditation.”

Pitt called that argument “poppycock.”

It’s unlikely that a ruling on the case would change the membership of U of L’s board of trustees, but could have implications for how much power the governor has to unilaterally reshape state boards.

The lawsuit is the second time Beshear and Bevin have squared off before the Supreme Court. Last year the court ruled that the governor didn’t have the authority to make mid-year budget cuts to state universities after the attorney general filed a lawsuit.