Federal judge soon will rule on former education board members' injunction request

FRANKFORT, Ky. (WDRB) -- A federal judge will soon decide whether to restore former members of the Kentucky Board of Education members to their seats as their challenge of Gov. Andy Beshear's reorganization moves through court.

U.S. District Judge Gregory Van Tatenhove said Tuesday that he expected to render a ruling on the former members' request for an emergency injunction by early next week, if not late this week.

Covington-based attorney Steven Megerle, representing seven of the 11 former board members, argued that Beshear's executive order removing them from the Kentucky Board of Education violated their due process rights because they could only be removed for cause under state law.

However, Beshear's attorneys argued that a previous Kentucky Supreme Court ruling explicitly determined that gubernatorial reorganization powers extend to the Kentucky Board of Education.

The high court's ruling was a point that Van Tatenhove raised multiple times during Tuesday's hearing. In one exchange, the judge asked why a federal court should "second guess" the Kentucky Supreme Court on a state constitutional issue.

"This feels like politics to me," Van Tatenhove said.

Megerle said the circumstances in this case are different than those brought before the Kentucky Supreme Court. While former Gov. Matt Bevin's executive orders that were affirmed by the high court added non-voting members to the Kentucky Board of Education, Beshear's action essentially deprived his clients of their rights to due process since they could only be removed for cause in state law.

He told reporters after Tuesday's hearing that he hoped to challenge gubernatorial reorganizations generally rather than a particular executive action, like the one that kicked his clients off the Kentucky Board of Education before their terms expired, through the lawsuit.

"We're challenging the entire scheme that this governor feels that he can unilaterally abolish boards and commissions, and the state law says that these folks can only be removed for cause," Megerle said.

Marc Farris, Beshear's deputy general counsel, said that the separation of powers issue had already been litigated by the Kentucky Supreme Court in its June ruling.

Beshear became the first governor to completely reorganize the Kentucky Board of Education on Dec. 10, fulfilling a campaign pledge on his first day in office.

The new board negotiated the resignation of former Education Commissioner Wayne Lewis two days after Beshear's reorganization and announced a national search for his replacement. The board is still seeking proposals from prospective search firms after a subpar response initially.

That was one point Megerle brought up when Van Tatenhove asked what sort of irreparable harm the newly constituted board had caused.

But the judge said the old board, if returned to power, could simply rehire Lewis, who since has taken a job with Belmont University to lead its education program.

Gary Houchens, a former board member, told reporters that the board's independence would be irreparably harmed if Beshear's executive order was allowed to stand.

"That's in direct contradiction to what the Kentucky Education Reform Act imagined," Houchens told reporters.

Beshear's attorneys have filed motions seeking the lawsuit's dismissal for failure to state a claim for which relief can be given.

A previous lawsuit filed in Franklin Circuit Court by 10 of the 11 former Kentucky Board of Education members was voluntarily withdrawn as most of them pursued action in federal court with Megerle, a new attorney.

The request for an emergency injunction in that case was denied in circuit court, and appeals of that decision were rejected by the Kentucky Court of Appeals and Kentucky Supreme Court.