Arkk Props. v. Cameron
| Docket Number | 2023-SC-0196-OA |
| Decision Date | 26 October 2023 |
| Parties | ARKK PROPERTIES, LLC; B.J. NOVELTY, INC.; THE CUE CLUB, LLC; HOME RUN, LLC; FEDERAL POST NO. 313, THE AMERICAN LEGION, DEPARTMENT OF KENTUCKY, INC.; MFPALMINVESTMENTS, LLC; VINCENT MILANO; TANYA MILANO; AND POM OF KENTUCKY, LLC PETITIONERS v. DANIEL J. CAMERON, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE COMMONWEALTH OF KENTUCKY; M. KATHERINE BING, IN HER OFFICIAL CAPACITY AS INTERIM CLERK OF THE SUPREME COURT OF KENTUCKY; KATHRYN MARSHALL, IN HER OFFICIAL CAPACITY AS FRANKLIN CIRCUIT COURT CLERK; AND PHILLIP J. SHEPHERD, IN HIS OFFICIAL CAPACITY AS JUDGE OF THE FRANKLIN CIRCUIT COURT RESPONDENTS |
| Court | United States State Supreme Court (Kentucky) |
ON SUPERVISORY WRIT ARISING FROM FRANKLIN CIRCUIT COURT CASE NO 23-CI-00282
COUNSEL FOR PETITIONERS: M. Evan Buckley R. Kenyon Meyer Dinsmore & Shohl, LLP Richard M. Guarnieri J. Guthrie True True Guarnieri Ayer, LLP
COUNSEL FOR RESPONDENT, DANIEL J. CAMERON, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL: Victor Bruce Maddox Deputy Attorney General Matthew Franklin Kuhn Solicitor General Heather L. Becker Executive Director Alexander Y. Magera Assistant Solicitor General RESPONDENTS: Kathryn Marshall Pro se Hon. Phillip J. Shepherd, Pro se M. Katherine Bing, Pro se
COUNSEL FOR AMICUS, AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, ET AL: Heather Lynn Gatnarek Corey M. Shapiro Julie A. Murray Matthew R. Segal American Civil Liberties Union
COUNSEL FOR AMICUS, DAVID OSBORNE, IN HIS OFFICIAL CAPACITY AS SPEAKER OF THE KENTUCKY HOUSE OF REPRESENTATIVES AND ROBERT STIVERS, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE KENTUCKY SENATE: D. Eric Lycan General Counsel Office of the Speaker of the House David E. Fleenor General Counsel Office of the Senate President
This original action comes before us on a Petition for Supervisory Writ under § 110(2)(a) of the Kentucky Constitution which confers upon this Court the power to issue all writs as may be required to exercise control of the Court of Justice. The Petition follows the Franklin Circuit Court directive temporarily staying its ruling on Defendants/Respondents'[1] motion for mandatory transfer of this case pursuant to Senate Bill ("S.B.")126,[2] pending further direction from this Court. In their Petition for Supervisory Writ, Plaintiffs/Petitioners[3] challenge the constitutionality of S.B. 126's amendment to KRS[4] 452.005, pursuant to which Respondents sought transfer of the case.[5] In essence, S.B. 126 grants a party or the intervening Attorney General in any action that challenges the constitutionality of a statute, executive order, administrative regulation, or administrative agency order, the unilateral authority, without a showing of cause, to transfer the case to another, arbitrarily-selected circuit court, thereby summarily divesting the circuit court in which the case was filed of any further jurisdiction over the case, including review of the propriety of the transfer request. The implementation of this transfer procedure mandates certain actions on the part of the Clerk of the Supreme Court and the Circuit Court Clerk.
Upon thorough review of the parties' arguments and applicable law, this Court grants the Petition for Supervisory Writ. The issues presented fall within this Court's exclusive authority and jurisdiction as S.B. 126 commands actions to be taken by the Clerk of this Court, and circuit court clerks, both of whom are under the supervision of the Chief Justice and the Supreme Court. For the reasons discussed below, this Court holds that S.B. 126 is unconstitutional and declines to extend comity.
In the underlying action in Franklin Circuit Court, Plaintiffs/Petitioners challenged the constitutionality of House Bill 594, which bans a certain form of electronic gaming machines. Act of Mar. 16, 2023, ch. 4, 2023 Ky. Acts 7. In response, the Attorney General, a named defendant, invoked the newly enacted provision of S.B. 126, seeking to transfer the case to another circuit court by way of a lottery selection conducted by the Clerk of the Kentucky Supreme Court. Plaintiffs/Petitioners objected, challenging the constitutionality of S.B. 126's mandatory transfer procedure, and amended their complaint to name the Clerk of the Kentucky Supreme Court and the Franklin Circuit Clerk, in their official capacities, as Defendants so as to place all necessary parties before the circuit court.
After full briefing by the parties, the Franklin Circuit Court held oral argument. In its order that followed, the circuit court expressed concern as to whether it was the appropriate judicial authority to rule on S.B. 126's new, mandatory prescription of duties imposed on the Clerk of the Supreme Court and the Franklin Circuit Clerk, since questions concerning the validity of the legislation involve fundamental issues of practices and procedures before the courts, and operation of the Supreme Court itself. See Ex Parte Farley, 570 S.W.2d 617 (Ky. 1978) (). Accordingly, the circuit court temporarily stayed its ruling on Defendants/Respondents' motion to transfer, pending further review from this Court, should this Court exercise its jurisdiction to consider the matter. Petitioners have now sought a supervisory writ from this Court to prohibit transfer of the underlying action and a declaration that S.B. 126 is unconstitutional.
Under § 110 of the Kentucky Constitution, the Supreme Court "shall have the power to issue all writs necessary in aid of its appellate jurisdiction, or the complete determination of any cause, or as may be required to exercise control of the Court of Justice." KY. CONST. § 110 (2)(a) (emphasis added). This section confers original jurisdiction upon this Court in limited circumstances, including the grant of a "supervisory" writ. See Seadler v. Int'l Bhd. of Elec. Workers, Loc. 369, 642 S.W.3d 712, 713-14 (Ky. 2022) () (citing Commonwealth v. Carman, 455 S.W.3d 916, 923 (Ky. 2015)).
Granting the extraordinary request of a supervisory writ should be carefully invoked "only in well-defined or compelling circumstances." Seadler, 642 S.W.3d at 714 (citing Abernathy v. Nicholson, 899 S.W.2d 85, 88 (Ky. 1995)); see also Ky. Jud. Conduct Comm'n v. Woods, 25 S.W.3d 470, 472 (Ky. 2000) (). An example of a compelling circumstance justifying the exercise of our original jurisdiction is "in cases where no other court has power to proceed." Carman, 455 S.W.3d at 923 (citing Abernathy, 899 S.W.2d at 88). This case presents such circumstances since this Court has exclusive jurisdiction over the agencies and personnel under its control. See Ex Parte Farley, 570 S.W.2d at 622 ().
The Attorney General argues that we should decline to exercise our power under Section 110 and address this issue by way of our normal appellate process. See, e.g., Fritsch v. Caudill, 146 S.W.3d 926, 929-30 (Ky. 2004) (). While we recognize some merit to this argument, we also note, as presented by the Attorney General, that he has filed Notice of Transfer in multiple cases.[6] Thus, we appropriately exercise our supervisory writ power. The Franklin Circuit Court was correct in recognizing the issues at hand and deferring to this Court for review.
S.B. 126 creates a new mechanism for automatic transfer of an action challenging the constitutionality of a statute, administrative regulation, or executive order, which, while originally filed in the proper venue, would be arbitrarily transferred without any showing of bias, or judicial review of the transfer request. When a party files a "Notice of Transfer" with the circuit clerk of the county in which the case was originally filed, S.B. 126 imposes a mandatory duty on the Clerk of this Court to - by lottery - re-assign a different court to hear the case and for the record of the case to be transferred by the circuit clerk. This process is constitutionally infirm, as violating the separation of powers doctrine of the Kentucky Constitution.
Kentucky Constitution §§ 27 and 28 set forth the separation of powers doctrine that is fundamental to the Commonwealth's tripartite system of government: no branch of government may encroach upon the inherent powers granted to any other branch. See Smothers v. Lewis, 672 S.W.2d 62, 64 (Ky. 1984) (). Commonwealth ex rel. Beshear v. Bevin, 575 S.W.3d 673, 683 (Ky. 2019) (quoting Fletcher v. Commonwealth, 163 S.W.3d 852, 863 (Ky. 2005)). Under this doctrine "the legislative function cannot be so...
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