Gov. Bevin and Attorney General Beshear back before Supreme Court in U of L reorganization case

08/18/2017 04:50 PM

FRANKFORT – Gov. Matt Bevin’s administration and Attorney General Andy Beshear appeared before the Kentucky Supreme Court for the second time since they took office on Friday, arguing on whether Bevin had the authority to reorganize the University of Louisville’s board of trustees last year.

A lower court ruled in September that Bevin overstepped his power in abolishing and reconstituting the U of L board after Beshear sued, and the General Assembly passed a pair of bills in this year’s legislative session that largely followed the governor’s executive order establishing the new board makeup and setting guidelines to remove individual trustees and overhauling boards for all state universities.

Steve Pitt, Bevin’s general counsel, argued Friday that the legislature’s actions rendered Beshear’s lawsuit moot while Beshear countered that the Supreme Court should determine whether a governor can rely on the more general reorganization law in overhauling university boards.

During the hearing, Chief Justice John Minton Jr. and Deputy Chief Justice Lisbeth Hughes said the court must contend with a new legal landscape in light of the laws passed by the General Assembly this year, with Hughes calling Pitt’s argument for mootness “compelling.”

But Hughes also voiced some skepticism that the new law and the original reorganization law would give governors “two alternative routes” in handling university boards.

Pitt said that’s not the case, saying the new law would supersede the original in those instances.

“Our position is that new specific statute would be the one that either this governor or a future governor would use if the circumstances came about that a board member had to be removed or a board had to be reorganized,” Pitt told reporters after the hearing.

But Beshear questioned the sincerity of that statement.

“None of their briefs state that. All of them argue that he can still use that power, so I think the governor’s a little bit confused at the moment about what his position is,” Beshear said after the hearing. “But let me say either a decision by the Supreme Court finding that universities fall outside of the reorganization power or a governor’s concession that he can’t use that reorganization power to universities would get us to the same place.”

The justices’ lines of questioning had Pitt optimistic they would rule in Bevin’s favor and dismiss Beshear’s lawsuit as moot.

The two sides disagreed on what would happen if the Supreme Court renders the case moot, with Pitt saying the ruling by Franklin Circuit Judge Phillip Shepherd would be vacated while Beshear said that decision would be the final say in the matter.

They also differed on the lawsuit’s accreditation implications.

Beshear called Bevin’s U of L reorganization “detrimental” to the school and could open other universities to accreditation issues. The Southern Association of Colleges and Schools placed the school on accreditation probation in light of Bevin’s reorganization and expanded issues at the school to include U of L’s relationship with the U of L Foundation, financial stability and control of finances.

“As we know SACS stated that the majority of their accreditation issue stems directly from the governor using the reorganization power to wipe out the board,” Beshear said. “If the Supreme Court says the governor never had that power, then that ought to satisfy SACS that this wasn’t the university’s fault and that it still meets those guidelines.”

Pitt dismissed Beshear’s accreditation argument as “poppycock.”

“There was a May letter this year from SACS stating several other reasons why the University of Louisville is on probation now relating to improper governance by the former board, and I think that’s the answer to the attorney general’s political argument that he made during the oral argument here today,” Pitt said.

This case marks the second lawsuit between Beshear and Bevin that will be decided by the Supreme Court. The high court ruled in September that the governor could not cut current-year budgets for postsecondary institutions unless there’s a budget shortfall.


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