(Kentucky Lantern photo by Liam Niemeyer)
FRANKFORT — A Kentucky judge is considering whether to follow along or block a new state law that allows the attorney general and lawsuit participants, in cases challenging state laws and decisions, to move a case to a random circuit court across the state.
Pace-O-Matic and other plaintiffs representing manufacturers and operators of what they call “skill-based” game machines, found commonly in gas stations and convenience stores across Kentucky, sued in late March to stop the implementation of a new law banning such machines.
The lawsuit was filed in Franklin Circuit Court and landed in the courtroom of Circuit Court Judge Phillip Shepherd, and plaintiffs are now asking Shepherd to stop a request from Kentucky Attorney General Daniel Cameron to move the lawsuit to a new courtroom in any of the state’s 120 counties.
Cameron in his request cited provisions of Senate Bill 126 — passed by the GOP-controlled legislature overriding a veto from Democratic Gov. Andy Beshear — that charges the clerk of the Kentucky Supreme Court to choose, at random, a new courtroom to move the case.
Deputy Attorney General Vic Maddox, in a Tuesday morning hearing, asked Shepherd to allow the request, emphasizing arguments made in an earlier written filing that SB 126 was constitutional because it was ensuring Kentuckians have their cases heard in courtrooms free from bias.
“The party who is concerned for bias is reluctant, except in the most extreme circumstances, to actually take that concern to the court,” Maddox said. “I think it’s a rational proposition for the legislature to say where there is a concern for bias, that concern ought not to be brought to the judge whose bias is in question.”
Maddox pointed to language of the new law that states it is “a critical government interest to provide litigants access to courts of this Commonwealth without any concern of bias.”
Guthrie True, an attorney representing the plaintiffs, challenged that argument by posing a question to Shepherd.
“How can a statute that requires no showing of bias protect the citizens of the Commonwealth against the bias of a court?” True said. “How can that be a rational basis?”
Plaintiffs have argued SB 126 is unconstitutional for a number of reasons, including that it encroaches on the power of the judicial branch and violates the separation of powers between government branches.
Maddox told Shepherd that the new law had to be presumed constitutional because it was an act of the state legislature and an expression of the public through its representatives. The burden, he said, should instead be on the plaintiffs to prove the law is unconstitutional.
Shepherd, in a series of questions to Maddox, raised concerns about the new law, including aspects of it that he didn’t understand.
“He can spin the Wheel of Fortune and go to a different jurisdiction,” Shepherd said, referring to a hypothetical plaintiff in a case. “Why is the plaintiff allowed to change the jurisdiction that he originally chose other than to allow the plaintiff an opportunity to forum shop?” Shepherd said.
Shepherd said the law, from his perspective, appeared to give lawsuit litigants the “absolute right” to shop for a new judge without any judicial review or involvement, something he thought was “a little bit dangerous.”
Maddox responded that the lack of judicial review in the law aligns with the state Constitution, citing a section that states the legislature may “direct in what manner and in what courts suits may be brought against the Commonwealth.”
Shepherd also referenced a 2021 law that was enacted by the legislature that sought to lessen the influence of the Franklin Circuit Court, which has normally heard cases involving state government because the court is located in Frankfort, the seat of state government where most of the lawyers, officials and agencies involved with state decisions are employed.
The 2021 law allowed for lawsuit plaintiffs challenging Kentucky laws, executive orders or regulations to take such cases to their local circuit court instead of Franklin Circuit Court.
“There had been a concern that all these cases will be brought to Franklin County. Well, if that was the concern…the legislature made it clear that you can bring those in any county,” he said. “We now have a new twist on the venue statute involving constitutional cases.”
Shepherd himself has faced GOP criticism for court decisions, and the Republican leader of the Kentucky Senate raised funds for a Republican-aligned lawyer who unsuccessfully ran against the judge last year in a very expensive judicial election.
Shepherd said the Kentucky Supreme Court should ultimately decide whether SB 126 is unconstitutional and that it was in the public’s best interest to have the decision expedited to the state’s highest court.
True, the attorney for the plaintiffs, asked Shepherd to make a ruling on the law that could most likely then be appealed to the state Supreme Court.
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