Judge asks Supreme Court to weigh in on Kentucky’s new right to ‘random’ change of venue

New law could be used to ‘avoid a fair and impartial judge, rather than to avoid a biased one,’ writes judge

By: - April 20, 2023 9:12 am

The clerk of the Supreme Court has a new duty under a recently enacted law: Decide changes of venue through random selection. (Kentucky Lantern photo by Liam Niemeyer)

A Kentucky judge has asked the state’s highest court to weigh in on the constitutionality of a new law that entitles lawsuit participants, in cases challenging state laws and decisions, to have the case moved to another circuit court chosen at random. 

In a 12-page order Monday, Franklin Circuit Court Judge Phillip Shepherd said Senate Bill 126 creates “a unilateral and unreviewable right” to have a court case moved to a new, random courtroom “with no judicial involvement, discretion or oversight by any judge or court.”

“The Kentucky Supreme Court has consistently rejected attempts by the legislature to invade the province of the judicial system and prescribe impractical, burdensome or unworkable rules for the conduct of litigation,” his order stated.

SB 126 creates a process whereby plaintiffs, defendants and the Kentucky Attorney General as an intervening defendant can have a court case  randomly moved to any other circuit court of Kentucky’s 120 counties. It charges the clerk of the Kentucky Supreme Court with picking a new random courtroom to move a case to, potentially sending a case hundreds of miles across Kentucky. 

The first to use the new venue-change law is Republican Attorney General Daniel Cameron as a defendant in a lawsuit challenging another new state law that bans so-called “skill-based” machines — commonly found in many gas stations and convenience stores across the state. Cameron’s office requested that the lawsuit challenging the ban be randomly moved the same day SB 126 became law. SB 126 went immediately into effect in late March after the Republican-controlled legislature overrode its veto by Democratic Gov. Andy Beshear. 

Shepherd is presiding over the lawsuit, and plaintiffs representing manufacturers and operators of the “skill-based” video game machines had asked Shepherd to stop the request for a random change of venue. 

Plaintiffs had argued last week that allowing for the random change of venue was unconstitutional because of the law’s arbitrary nature and that it encroached on the power of the judicial branch in determining the proper venue for a lawsuit. 

Deputy Attorney General Vic Maddox argued that SB 126 was enacted to ensure Kentuckians can move a case if they perceive a judge to be biased, and that the state legislature had the power to enact such a law. In defending the law, Maddox cited a section of the state Constitution regarding “(suits) against the Commonwealth.” 

In Shepherd’s Monday order, the judge directly refuted Maddox’s argument. He pointed to a U.S. Supreme Court case and other Kentucky Supreme Court decisions to say that the section of the state Constitution Maddox cited didn’t apply to the “skill-based” machines ban lawsuit.

“While the argument of the Attorney General has a superficial appeal, an examination of the case law demonstrates that it is simply wrong and ignores the well-established meaning of the term ‘Suits against the Commonwealth,’” Shepherd wrote. 

Shepherd also wrote it “has long been established” the decision to move a court case is in the discretion of a judge, and the new law “imposes by legislative fiat” the request to randomly move a court case. He also refuted the argument that SB 126 was enacted to allow Kentuckians to avoid biased judges. 

“(I)f the concern is ‘bias,’ there is no restriction on invoking this transfer procedure for other less benign reasons (discrimination, political influence or personal influence),” he stated. “(I)ndeed, the mandatory transfer procedure may be invoked in cases in which the motive is to avoid a fair and impartial judge, rather than to avoid a biased one.” 

Shepherd in his order temporarily delayed a decision on whether to block the request for a random change in venue, asking the Kentucky Supreme Court to intervene and weigh in on the new law. 

If the state’s highest court declines to review SB 126, he wrote, he would then issue a ruling on the request “as soon as practicable.”

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Liam Niemeyer
Liam Niemeyer

Liam covers government and policy in Kentucky and its impacts throughout the Commonwealth for the Kentucky Lantern. He most recently spent four years reporting award-winning stories for WKMS Public Radio in Murray.