UPDATE: Chief justice denies Beshear request to remove judge; Governor responds

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UPDATE, POSTED 2:15 P.M. JULY 23, 2020 AND AGAIN AT 4:45 P.M.

FRANKFORT, Ky. (WTVQ) – Kentucky Supreme Court Chief Justice John Minton Jr. signed an order Thursday denying Gov. Andy Beshear’s request to disqualify a Scott County judge from hearing a case brought by Agriculture Commissioner Dr. Ryan Quarles against the governor’s coronavirus order controlling gatherings.

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Beshear filed a motion July 14 asking Judge Brian Privett be removed from the case and another one appointed because Privett had at least a perception of a close and favorable relationship with Quarles and the two had been long-time friends in Scott County.

But in his 11-page order (read it here 26AScottCoBeshearQuarlesJuly2020 ) Thursday, Minton concluded by saying, “At bottom, Judge Privett’s Twitter post showing a picture of himself and Quarles and the Scott County Republican Party’s Instagram post showing the two together with others at a political event could not reasonably be interpreted as evidencing more than a mere acquaintanceship or, at most, Quarles’s unexceptional show of support for Judge Privett’s campaign. Especially considering the two social media posts occurred almost two years before the inception of the underlying case, without additional evidence of a closer relationship, they do not require Judge Privett’s disqualification or, by
extension, Judge Privett’s disclosure of those social media posts to the parties
or lawyers in the case under Rule 2.11. Accordingly, Judge Privett is not
disqualified from presiding over this case.”

Minton noted a previous court ruling in which the courts found, “There are countless factors which may cause some members of the community to think that a judge would be biased in favor of a litigant or counsel for a litigant, e.g., friendship, member of the same church or religious congregation, neighbors, former classmates or fraternity brothers. However, such allegations have been found legally insufficient when asserted in a motion for disqualification,” and “A judge’s acquaintance with a party, without some factual allegation of bias or prejudice, is not sufficient to warrant recusal.”

When asked about  the ruling during his briefing Thursday afternoon, Beshear said Minton had looked at all the discussion and determined “we can get a fair hearing…we accept that.”

Beshear explained he filed the original motion after learning of the social media posts. Since the original motion, Privett has said he and Quarles don’t have a personal relationship.

“”We believe we can get a fair hearing and we’ll move forward,” Beshear said.

Quarles and Evans Orchard and Cider Mill sued Beshear in Scott County Circuit Court in June, arguing his order limiting gatherings of up to 50 people was arbitrary and favored some groups over others. Privett agreed, issuing a temporary restraining order blocking enforcement, not just against the Evans’ business but also against the state’s 548 agritourism outlets which include everything from orchards and farm markets to county arenas and distilleries.

The Supreme Court has blocked that restraining order for now.

The request to remove Privett from hearing the merits of the Evans/Quarles lawsuit was a separate request.

ORIGINAL STORY POSTED JULY 14

FRANKFORT, Ky. (WTVQ) – Using a decision a state Supreme Court judge used involving him when he was state Attorney General, Gov. Andy Beshear has asked that a Scott County judge either disqualify himself or be disqualified from hearing the merits of a lawsuit challenging the governor’s restrictions on gatherings during the coronavirus shutdown.

The motion filed by Beshear’s attorneys also asks that Jeremy Mattox, the other judge in the Scott County circuit, also be disqualified. Both judges have strong allegiances to state Agriculture Commissioner Dr. Ryan Quarles, who is a party to the lawsuit, according to a story in the Lexington Herald-Leader.

Citing several examples from social media, the motions says the judges have “at least the appearance” of bias in handling the case brought by Quarles and Evans Orchard and Cider Mill challenging Beshear’s limits of gatherings of more than 50 people.

Privett issued a temporary restraining order blocking enforcement and made the order apply to all of the state’s almost 600 agritourism businesses. In addition, he set out specific rules Beshear must follow before declaring such orders.

Beshear has called the ruling ‘wrong” and is asking the Court of Appeals and ultimately the state Supreme Court to rule in his favor.

But he also must protect the case in Scott County, where the judge still at some point must consider the actual merits and law in the case.

Monday’s motion is part of that process.

In it, Beshear’s attorney included an order by Kentucky Supreme Court Chief Justice John D. Minton Jr., last September disqualifying a a Franklin County judge because of the appearance of conflict, the Herald-Leader reported.

That case involved Beshear, who was Attorney General at the time, and dealt with teacher sick-outs last year. The judge turned down a request by then-governor Matt Bevin for the judge to recuse himself simply because he “liked” a Facebook post that praised Beshear campaign volunteers, according to the newspaper article.

In his order to replace the judge, Minton stated he was certain the judge would handle the case “a completely fair, neutral and unbiased manner.” But according to the Herald-Leader, the order went on to say the state’s standard for disqualification doesn’t require proof of bias but rather “simply requires disqualification in circumstances where the judge’s impartiality might reasonably be questioned,” according to the newspaper.

Citing that order, Beshear’s attorneys argue in their motion in Scott County, “The presiding judge’s activity creates — at minimum — the appearance of partiality and favoritism. His failure to disclose this relationship with Commissioner Quarles further raises the specter of impropriety. Thus, disqualification is warranted,” the Herald-Leader reported.

Sean Southard, a spokesman for Quarles, told the newspaper, “The case is in Scott Circuit Court because the orchard is in Scott County. Period. The plaintiffs can file whatever motions they like and we will respond to this one and any others. It’s really simple: the conflict occurred in Scott County and that is where the suit was filed.”

Southward’s comments in part are in response to suggestions by the state Democratic Party that Quarles and state Attorney General Daniel Cameron have been “judge shopping,” looking for locations for cases where judges have strong Republican leanings.