Franklin Circuit Judge Phillip Shepherd | Photo by Joe Sonka
Franklin Circuit Judge Phillip Shepherd | Photo by Joe Sonka

Franklin Circuit Judge Phillip Shepherd on Friday ruled in favor of Attorney General Andy Beshear’s request for a temporary injunction on Gov. Matt Bevin’s executive orders abolishing and recreating the University of Louisville Board of Trustees.

Shepherd’s ruling stated that the attorney general’s request for an injunction was granted because he sufficiently demonstrated that Bevin’s executive orders created the probability of irreparable injury to the university and there was a substantial question as to whether the governor had the authority to issue such orders under Kentucky law.

“Most importantly, the Governor’s unilateral action raises profound issues regarding the statutes on governance of public universities and the separation of powers under the Kentucky Constitution,” wrote Shepherd.

The ruling essentially temporarily reinstates the old Board of Trustees that was abolished by Bevin’s executive orders, while Beshear’s original complaint challenging the legality of those orders continues in the court.

Though the merits of the larger case have not yet been officially ruled on by Judge Shepherd, his ruling on Friday expressed  skepticism of the arguments presented by Bevin’s attorneys, stating they have yet to present compelling evidence that the governor had sufficient authority to take such actions.

Beshear hailed the ruling in a statement released by his office Friday morning.

“Today’s court ruling is a win for Kentucky students, their families and our public universities,” said Beshear. “The governor does not have ‘absolute authority’ to ignore the Constitution and Kentucky law. I will continue my job of enforcing our Constitution’s separation of powers so that no one branch of government, regardless of who leads it, has absolute power.”

Bevin spokeswoman Amanda Stamper issued a statement expressing disagreement with Shepherd’s ruling, adding “We are very confident that this temporary injunction is just that – temporary – and will be reversed on appeal.”

“The circuit court ignored binding precedent from the Kentucky Court of Appeals, the plain language of the statute at issue, and a recent opinion from the Office of the Attorney General, that the Governor has authority to propose and temporarily implement the reorganization of the University of Louisville Board of Trustees,” said Stamper. “The Court’s abrupt altering of the status quo, just as the newly constituted University Board has begun to take constructive steps to put the University on a solid path forward, is neither in the best interest of the University nor the public.”

The newly created Board of Trustees came to a settlement agreement with UofL President James Ramsey on Wednesday in which he agreed to immediately resign from his position. Shepherd’s ruling states that it does not restrict that agreement, but “any party aggrieved by this ruling has the right to bring any such concerns before the Court by motion” — so Ramsey’s resignation remains in place for the time being.

In a press conference Friday afternoon, Beshear stated that with the Bevin administration’s appeal, the injunction will likely go to the Kentucky Supreme Court. He also said the ruling means Ramsey’s resignation settlement remains in effect, and he hopes the returning Board of Trustees — which were often at odds with each other over Ramsey’s performance — are able to put behind their differences and do their jobs.

Larry Benz — who was the chairman of the Board of Trustees that was abolished by Bevin, but is now at least temporarily back in power — told IL that he believes the trustees will meet early next week to ratify the previous board’s acceptance of Ramsey’s resignation.

“We respect Judge Shepherd’s ruling and also have a great deal of respect for Governor Bevin,” said Benz. “I believe our current Board of Trustees will move to immediately ratify all actions taken in the past week by Governor Bevin’s appointed Board of Trustees. I will be working with board members to schedule a meeting early next week. We will have further communication following that meeting.”

UofL spokeswoman Cindy Hess told IL via email that since the university was not a party in the lawsuit, “we are not planning to issue a statement or any interpretation of the ruling.”

Former and now apparently current trustee Jonathan Blue told IL that he interpreted Shepherd’s ruling as meaning he is now a trustee again for the time being. Blue and three other trustees were not just kicked off of that board by Bevin’s orders in June, but from their positions on the board of the UofL Foundation — which are reserved for four members of the Board of Trustees. Blue says he interprets Shepherd’s ruling as meaning he — as well as former trustees chairman Larry Benz, Brucie Moore and Bob Hughes — are back on the Foundation’s board, which will soon determine whether Ramsey stays on as president of the Foundation. Benz told IL that he agrees with Blue’s assessment about returning to the Foundation’s board.

Asked for comment on Shepherd’s ruling and Benz’s intentions for the original Board of Trustees to meet next week, Bob Hughes — a strong defender of Ramsey and critic of the former president’s detractors on the board — told IL that “whichever board is determined to be legal will hopefully be done quickly to end the uncertainty. Stability is paramount.”

Friday afternoon, the Bevin administration released another statement on the matter, this time attacking the character of Beshear. Stamper stated that Beshear “ignores the law” when it comes to “protecting the legacy” of his father — former Gov. Steve Beshear — and that “No matter how many times Attorney General Beshear repeats his claim that ‘it’s not politics,’ the fact of the matter is that for him, it’s all politics all the time.”

Shepherd’s ruling questions legal authority cited by Bevin, precident, and potential harm to UofL

In his ruling for the injunction, Shepherd stated the potential risk to UofL’s accreditation created by Bevin’s orders, noting that his administration did not consult ahead of time with university officials who deal with the Southern Association of Colleges and Schools accrediting agency. He added that Bevin’s heavy hand in the matter could put UofL’s political independence in question with SACS, in particular the governor’s consultation with Ramsey ahead of that order, which brought forth the president’s stated intention to resign.

“The power of appointment and removal of the President is vested by statute in the Board of Trustees,” wrote Shepherd. “For a Governor to directly inject himself into the negotiations of the resignation of a university president, without the participation of the board of trustees, raises profound questions about the governance of the university and the university’s compliance with SACS requirements for an independent board. If an embattled university president can bypass the board of trustees and negotiate the removal of the entire board with the Governor (with no due process), then the authority and independence of the board of trustees would seem to be greatly undermined.”

He added that there is no legal precedent of a governor abolishing and recreating an entire board of trustees of a public university, an action that “would seem to destroy the statutory requirements for boards such as tenure of office, staggered terms, and institutional continuity. Those concepts are bedrock principles of public administration, enshrined in KRS 63.080(2) and KRS 164.821. No Governor can unilaterally vitiate those requirements through the exercise of executive power.”

Shepherd also questioned whether the KRS 12.028 statute cited by Bevin in his order even applies to public universities, as they are not clearly listed as administrative organizations of the executive branch that governors can reorganize, and have not been included in the organizational structure of state government in that statute since 1952. He went on to state that if Bevin’s interpretation of this statute is correct, “the Governor could, unilaterally, by executive order, merge the University of Kentucky with the University of Louisville. Or, the Governor could merge all public universities into one institution with a board of trustees appointed entirely by himself.”

Shepherd went on to state that while Bevin’s motives may have been laudable in this case, he could have taken other corrective action with regards to the Board of Trustees that the governor characterized as “dysfunctional.” However, if a governor is allowed to take such unilateral action, “there is no guarantee that others would not wield such unilateral and unchecked power for improper motives, political advancement, or private economic benefit. Such a possibility is particularly concerning given that public universities are institutions that are entrusted with billions of dollars of funds that should be administered as a public trust.”

He also noted that Bevin’s claims in his order that the board was “dysfunctional” are “serious allegations of malfeasance and misconduct” and charges that the trustees were not given due process to defend themselves from. Shepherd added that just because trustees vocally disagree with each other does not necessarily make them any more dysfunctional than a board that blindly rubber stamps the wishes of a president.

“Here, the governor’s charges of dysfunction were not tested before the Governor acted,” wrote Shepherd. “The fact that there is disagreement among board members is not necessarily a sign of dysfunction. To the contrary, a board that always is in agreement and acts as a rubber stamp may be dysfunctional.”

Shepherd’s ruling can be read below; this story will be updated.

Judge Shepherd’s ruling for temporary injunction on UofL Board of Trustees by insiderlouisville on Scribd

[dc_ad size="9"] [dc_ad size="10"]
Joe Sonka
Joe Sonka is a staff writer at Insider Louisville focusing on government, politics, education and public safety. He is a former news editor and staff writer at LEO Weekly and has also freelanced for The Nation and ThinkProgress. He has won first place awards from the Louisville Metro chapter of the Society of Professional Journalists in the categories of Health Reporting, Enterprise Reporting, Government/Politics, Minority/Women’s Affairs Reporting, Continuing Coverage and Best Blog. Email him at [email protected]