Kentucky Supreme Court Strikes Down Law Meant to Steer Cases Away from ‘Liberal’ Judges

The Kentucky Supreme Court last week struck down an unusual law that permitted litigants to transfer certain constitutional challenges to a different court, even if the lawsuit was originally filed in the proper venue.

In ARKK Properties v. Cameron, the high court found that the venue-changing law, Senate Bill 126, violated separation of powers under the Kentucky Constitution. The law was passed earlier this year on a party-line vote by the Republican-controlled legislature over the veto of the state’s Democratic governor. It represents the culmination of a multi-year effort by Republican elected officials to steer state constitutional cases away from judges sitting in the state’s capital. For years, Republicans have publicly attacked such judges as being too liberal. These criticisms have been accompanied by legislative assaults on judicial independence, including two previous venue-changing laws.

S.B. 126, which applied to constitutional challenges seeking declaratory or injunctive relief against a statute, executive order, or administrative regulation, allowed any party to file a notice seeking a change of venue within 30 days of the lawsuit being served on the defendant. Upon receiving this notice, the clerk of the state supreme court was required to transfer the case to another randomly selected circuit court in the state. No showing of judicial bias or other cause was required. The law also permitted Kentucky’s attorney general to file a change of venue notice within 30 days of intervening as a defendant in such cases.

This case arose from a challenge to another law related to gambling. The attorney general filed a notice of transfer under S.B. 126. The plaintiffs sought a supervisory writ from the Kentucky Supreme Court to prohibit transfer of the underlying action and a declaration that S.B. 126 is unconstitutional. 

The supreme court agreed that S.B. 126 violated the Kentucky Constitution because it interfered with inherent judicial powers. Although the legislature characterized the measure as “an act related to venue,” the court concluded that the law was designed to circumvent the court’s existing judicial recusal processes. The court further held that the law divested circuit courts of their inherent authority to decide if a case should be transferred or a judge recused, as well as appellate courts of their authority to review such decisions.

In addition to the law’s impact on recusal, the court ruled that by authorizing parties to file a “notice of transfer,” the law unconstitutionally invaded the court’s rule-making authority. And it concluded that by requiring the clerk of the supreme court to randomly transfer cases upon receipt of a notice of transfer, the law interfered with the court’s own constitutional authority over the clerk.

The 6–1 majority drew a lone dissent. The dissent agreed the law violated separation of powers principles by conferring power upon the supreme court’s clerk, a constitutional officer subject to only the court’s authority. But the dissent would have granted comity to the legislature and declined to strike down the law. (Under principles of comity, the court may choose to adopt an unconstitutional statute out of deference to the legislature as a co-equal branch of government.)

Kentucky legislators are not alone in seeking to change venue rules to put a thumb on the scale in favor of the legislature in constitutional challenges to state laws. This year North Carolina’s budget authorized the creation of 10 new special superior court judges to be appointed by the legislature. It accompanied this court-packing with a separate provision requiring that facial constitutional challenges to state law and all redistricting cases be heard by a three-judge panel hand-picked by the state’s conservative chief justice.

To similar ends, this year Texas created a new statewide court of appeals with exclusive intermediate appellate jurisdiction over certain constitutional challenges brought against the state. The effect of this law will be to reroute cases from judges elected by voters in the state’s capital — who are mostly Democrats — to judges whom the legislature believes are more politically aligned with the legislature, which has a Republican majority.

As states continue to seek more sophisticated ways to acquire a partisan advantage in court, the Kentucky ruling highlights some of the state constitutional separation of powers issues that may be implicated by such laws. It is a striking example of a court protecting its powers and procedures from being appropriated or misused by political actors.

Michael Milov-Cordoba is a counsel at the Brennan Center for Justice.