Can KY’s AG change venue in ‘gray machines’ case? Judge kicks question to supreme court
The merits of a lawsuit against a bill recently passed to ban slot-like “gray machines” from gas stations, bars and convenience stores across Kentucky are still in limbo.
But a judge had plenty to say about Attorney General Daniel Cameron’s efforts to change the court that would hear the case, which was filed against the state by some in the “gray machines” industry. Cameron’s office responded to the lawsuit by arguing that Senate Bill 126 should apply in this case. The bill was enacted to allow litigants to move their legal challenges related to state government or legislation to a randomly selected circuit court across the state.
Franklin Circuit Judge Phillip Shepherd, in an order, kicked the question of whether Cameron’s use of that Senate Bill 126 provision was allowed to the Kentucky Supreme Court.
Cameron’s office was named the defendant in Franklin Circuit Court in the lawsuit regarding gray machines. The suit alleges a ban on the machines is a violation of due process, free speech and equal protection rights.
The attorney general asked for a venue change to be initiated under the provisions of Senate Bill 126, which his office argued is a constitutional provision because the constitution states the legislature can direct where and in what manner “suits against the Commonwealth” are brought.
Shepherd presented evidence in his order that undermined Cameron’s argument.
“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,’” Franklin Circuit Judge Phillip Shepherd wrote in the order.
He added that the bill “creates a unilateral and unreviewable right for any party to such litigation to implement a transfer with no judicial involvement, discretion or oversight.” It directs the clerk of the Kentucky Supreme Court to implement the random lottery selection of a new circuit court, but Shepherd pointed out circuit courts ordinarily have no role in determining the validity of the clerk’s duties.
In court, Shepherd similarly challenged the use of Senate Bill 126, according to the Kentucky Lantern, comparing it to the Wheel of Fortune.
“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?”
Attorneys for Cameron argued in court there’s a “critical government interest” in providing litigants access to courts “without any concern of bias.”
Gov. Andy Beshear vetoed Senate Bill 126, but was overriden by the majority-GOP legislature. Beshear framed the bill as an attempt to circumvent Franklin Circuit Court, which has drawn the ire of Republicans in recent years. He called the bill “a legislative power grab to control Kentucky courts.”
In November, Shepherd defeated a GOP-backed challenger by 26 percentage points in a high-dollar and oftentimes contentious race.
Shepherd’s order to kick the decision up to the Kentucky Supreme Court has no effect on the merits of the case against the “gray machines” ban as of yet. If the Kentucky Supreme Court declines to intervene on the matter of Senate Bill 126’s validity, Franklin Circuit Court will issue a ruling.
