NEWS

Andy Beshear livid after bill introduced to strip attorney general's powers

Deborah Yetter

@d_yetter

FRANKFORT, Ky. — A surprise proposal by Senate Republicans would strip power from the attorney general to file civil lawsuits or handle appeals on behalf of Kentuckians, instead awarding broad power to the governor to handle such matters.

The measure follows several high-profile legal clashes between Attorney General Andy Beshear, a Democrat, and Republican Gov. Matt Bevin — most notably Beshear's successful legal challenge blocking Bevin's attempt to abolish the entire University of Louisville board by executive order and replace it with members of his choosing.

Beshear also filed suit to successfully challenge Bevin's effort to cut funds to public universities under a previously enacted budget.

The Senate proposal, produced in the final days of the current legislative session, drew immediate outrage from Beshear, who called it "dangerous."

"I believe this is an unprecedented power grab and one of the worst constitutional overreaches since the adoption of our (state) constitution," Beshear said, speaking before a legislative committee where the changes were announced Wednesday.

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Beshear said it would concentrate enormous power in the hands of the governor, allowing the governor to shield himself from legal challenges to his actions. It would "create a get out of jail free card for the governor," he said.

But Senate President Robert Stivers, a Manchester Republican who presented the proposed legislation to the committee, rejected Beshear's objections and said it wasn't tied to any recent clashes between Bevin and Beshear. Rather, he said, it is to "clarify" the role of the attorney general, a concern of his for many years.

"This is not from the governor’s office," Stivers said. "We’ve had these discussions on the Senate floor for years on what is the role of the attorney general."

Bevin's office did not immediately respond to a request for comment.

Stivers noted the bill still allows the attorney general to file suit in cases such as Medicaid fraud, utility rate disputes or consumer protection.

But Beshear said it would strip his office of essential oversight authority.

"The constitution makes the attorney general an independent constitutional officer so he can preserve your rights and your liberties," Beshear said.

The measure, presented at an 8 a.m. special meeting Wednesday of the committee, came as a last-minute addition to House Bill 281, a bill involving contracts awarded by the attorney general's office. The committee took no vote on the bill but expects to take it up next week, said Chairman Whitney Westerfield, a Hopkinsville Republican.

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HB 281, sponsored by Rep. Jason Nemes, a Louisville Republican, would require more transparency on outside contracts awarded by the attorney general and would cap fees collected by outside lawyers hired to handle litigation.

Beshear said he also opposes the provisions of Nemes' original bill as unnecessary, saying his office already provides full transparency of contracts on its website. Limiting fees of outside lawyers would hamper Kentucky from hiring firms in major consumer-fraud cases such as gasoline-price gouging and claims against pharmaceutical companies that have resulted in multimillion-dollar settlements for Kentucky, he said.

But the provisions of the original bill were eclipsed by the discussion of Wednesday's changes.

Nemes presented his original bill to the committee but said he wasn’t familiar with the details of the changes by Senate Republicans and deferred to them to explain them.

Stivers said the changes are simply to codify who speaks for Kentucky in matters that involve litigation.

"Someone has to have the designation of who represents and voices the opinion of the state, and that should be the governor," Stivers said.

But Beshear fired back that the Kentucky Constitution already defines that. It states that the attorney general is to be independent and act as the state's top lawyer, Beshear said, adding he believes the changes would be found unconstitutional.

"The framers of the constitution wanted this office to be independent," he said, "Not under the control of the governor, not under control of the legislature."

Stivers said it's up to the legislature to set limits on the power of Kentucky's elected attorney generals.

"We do get to define what they can and cannot do," Stivers said.

Stivers listed as among his concerns the refusal of former Attorney General Jack Conway to handle the federal appeal of Kentucky's ban on same-sex marriage and Beshear's comments this year that he would not attempt to defend a new law limiting abortions after the 20th week of pregnancy — should a challenge be filed — because such laws already have been struck down in other jurisdictions.

Stivers said he also is concerned about what he believes is Beshear's weak defense of the other abortion law passed this year by the legislature that requires doctors performing abortions to first conduct an ultrasound of the fetus and attempt to show it and describe it to the patient. That law is under challenge in federal court by the American Civil Liberties Union of Kentucky on behalf of the state's only abortion provider, the EMW Women's Surgical Center in Louisville.

Two Democrats on the committee, Sen. Ray Jones of Pikeville, and Robin Webb of Grayson, both lawyers, raised concerns about the changes outlined by Stivers.

Jones noted that Beshear lost his lawsuit in Franklin Circuit Court challenging Bevin's right to cut university budgets but won it on appeal, a decision affirmed by the state Supreme Court.

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Under the powers provided in the proposal, Bevin could have refused to appeal after he won at the circuit court level, shielding himself from an adverse verdict, Jones said.

"This really is a major shift in public policy," he said. "This is a radical departure from our system of government."

Webb questioned the timing of the changes, noting they come on the "20th something day of the short session."

"I would like more input on constitutional issues," she said.

Beshear, too, said he would like more time to consider the proposal, saying he only received it 12 hours before Wednesday's early morning committee meeting.

"This was brought forth without any real debate," he said.

Contact reporter Deborah Yetter at 502-582-4228 or dyetter@courier-journal.com.