Kentucky’s new ‘random’ change of venue law challenged by game-machines industry

Published 12:16 pm Monday, April 10, 2023

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Kentucky Lantern

Plaintiffs challenging a new Kentucky law banning video game machines that pay cash prizes are asking a judge to halt another new Kentucky law that could send their lawsuit to a random circuit court across the state.

Pace-O-Matic — a large manufacturer of what the company and other proponents call “skill-based” game machines often seen in gas stations and convenience stores —  is one of several plaintiffs that sued in late March to stop the new state ban on such machines.

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The GOP-controlled Kentucky legislature enacted the ban and Democratic Gov. Andy Beshear signed it. Critics of such games have referred to them as “gray machines,” referring to their murky legal status, and characterize them as illegal gaming.

Using another new law passed during the just-ended session, Kentucky Attorney General Daniel Cameron, as a defendant in the lawsuit, is seeking to move the court case from Franklin Circuit Court to another randomly chosen court.

Franklin Circuit Judge Phillip Shepherd has set a hearing for Tuesday to hear oral arguments from Cameron and lawyers for the plaintiffs on whether the case should be moved.

Cameron requested the court case be moved to a new venue in a March 29 filing, pointing to new provisions enacted by SB 126, sponsored by Sen. Jason Howell, R-Murray. That bill became law the same day Cameron filed the request after the legislature easily overrode a veto of the bill by Beshear, who called the legislation an “unconstitutional power grab.” The bill had an emergency declaration, meaning it went into effect immediately after the veto was overridden.

Cameron, the state’s highest law enforcement officer, did not give reasoning for requesting the case be randomly moved, simply stating the provisions of the new law. Traditionally, and in other civil cases not involving challenges to state laws or decision, circuit court judges are allowed to approve or deny requests for a change of venue using their “sound discretion” after hearing arguments for and against such a request.

The new law allows plaintiffs, defendants and the Kentucky Attorney General, as an intervening defendant, to request a court case challenging a Kentucky law, regulation or executive order to be randomly moved to a new circuit court anywhere in the state. After such requests, the clerk of the Kentucky Supreme Court is charged by the new law with randomly selecting a circuit court where the case would be moved.

Republican lawmakers, including Howell, previously said SB 126 was needed to add on to legislation passed in 2021 that sought to diminish the influence of the Franklin Circuit Court in Frankfort, which has traditionally heard cases involving state government because Frankfort is also the seat of state government. The city is where most of the agencies, officials and lawyers involved in challenges to 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.

Lawyers representing the “skill-based” game machine manufacturers and operators are now arguing to Shepherd, the Franklin Circuit judge, not to transfer the case, saying the new law is unconstitutional and “simply ignores the rights of citizens.”

“The legislature cannot enact a venue statute that simply ignores the rights of citizens. It cannot enact a statute that deprives citizens of the right to be heard in a court bearing some logical relationship to their causes of action — such as where the parties reside or the cause of action arises — and instead, substitutes a court chosen by a lottery — a court so detached from traditional considerations that it arbitrarily denies due process and implicates forum non conveniens,” lawyers for plaintiffs said in a 43-page filing.

Forum non conveniens is a legal term referring to when a court case participant requests a case to be dismissed on the grounds that another courtroom is more convenient and appropriate to hear the case.

Lawyers for the plaintiffs also argued:

• The Kentucky Constitution prohibits laws that exercise power in an arbitrary way, saying there is no legitimate reason for Cameron to be able to request the case be moved to any of the other 120 counties;

• The law allows for “forum shopping” in which multiple random changes of venue could be requested in a case and send it hundreds of miles to a new courtroom;

• The law encroaches on the powers of the state’s judicial branch and violates the separation of powers between the government branches.

• Lawyers also said the law can’t be applied retroactively, stating that their lawsuit was filed on March 28, a day before SB 126 became law.

A spokesperson for Cameron’s office did not respond to emails requesting comment on why a change of venue was sought or to respond to arguments made by the plaintiffs.

Franklin Circuit Court Judge Phillip Shepherd has been a target of GOP criticism for court decisions, and an attorney, Joe Bilby, who was general counsel to Republican Agriculture Commissioner Ryan Quarles unsuccessfully ran last year against Shepherd.

Senate President Robert Stivers, R-Manchester, held a fundraiser for Bilby in what became a particularly expensive judicial race in which more than a combined $1 million was spent by the two candidates and political action committees supporting them.

Senate Majority Floor Leader Damon Thayer, speaking to reporters at the end of this year’s legislative session in late March, called the passage of SB 126 a “game changer” that could “get some of these cases out of Franklin Circuit Court.”

“It’ll be interesting to watch how these cases play themselves out due to the passage of Senator Howell’s venue bill,” Thayer said.

Thayer at that time said the “venue” legislation becoming law could hypothetically apply to other litigation, including lawsuits targeting the passage of SB 150, an omnibus anti-trans bill that, among other things, would ban gender-affirming care for transgender youth. The American Civil Liberties Union of Kentucky has signaled it would sue over that law.

“That’s going to be uncharted territory, and I’m excited to see where it goes,” he said.