This week the Kentucky Supreme Court held oral arguments over a “venue change” bill that has put major legislation, including a law banning “gray” machines, on hold this summer.
Franklin Circuit Court Judge Philip Shepherd requested the state’s highest court hear arguments over Senate Bill 126 after the plaintiffs in the “gray” machines lawsuit questioned the constitutionality of the bill.
“Gray” machines are slot-style skill games, which are found in gas stations and bars, and are referred to as “gray” because of their murky legal status.
Shepherd’s court heard arguments over the law in April and issued an opinion that declined to move the case to a new court.
The issue started in April when Pace-o-Matic, and three other businesses, including Kenton County’s BJ Novelty, involved with either manufacturing skill games or selling the machines, sued over the law banning the machines.
The lawsuit was filed in Franklin Circuit Court, which is the home county of the state legislature, the governor, and the state’s highest court — Republican legislators have filed legislation throughout the years attempting to weaken the court, which hosts significant court cases because of its location to the Kentucky statehouse.
But, Attorney General Daniel Cameron’s office, citing SB126, requested the lawsuit move to another Kentucky county.
The attorney general’s office argued that the General Assembly is responsible for venue setting, but attorneys for skill games company ARKK Industries and Justice Kelly Thompson disagreed.
“Everyone agrees that setting venue is for the legislature,” said Kentucky Solicitor General Matthew Kuhn. “Senate Bill 126 is in the heartland of the legislature’s authority.”
But, Thompson rebutted to Kuhn that he didn’t agree that venue setting was up to the legislature — Kuhn clarified that the parties in the case, meaning the plaintiff and defendant agreed — and that the state legislature hasn’t worked the with Supreme Court to address any issue with Franklin Circuit Court.
“What instance has the legislature tried to work with us to formulate a rule to address this perceived problem that they have with the Franklin Circuit Court?” Jones asked. “We’re willing to work with them, but they haven’t talked to us about this — they just dropped it.”
Regarding the issues between the judicial and legislative branches, attorneys for the skill games industry have argued the bill is an overreach between the two bodies.
“Senate Bill 126 represents an intolerable violation of the separation of powers,” said attorney J. Guthrie True, who represents ARKK Industries, one of the plaintiffs in the case against the ban on gray machines. “Its infringement is clear, complete, and unmistakable.”
True also argued that the bill isn’t a “venue setting bill” but a “venue transfer” bill, and under the precedent set by the state’s supreme court, it is the judge that holds that power to deal with the transfer of court cases.
Under the new bill, plaintiffs and defendants in the case could potentially have to travel across the state for a court case — for example, if the skill games lawsuit were moved to Pike County, BJ Novelty, which is located in Kenton County would have to travel roughly three and a half hours away.
“We’re talking about access to justice, and you’re talking about concepts of leveling the playing field, fairness, and rooting out bias,” said Justice Michelle Keller. “So within all those lofty ideals that we all work for every day is included access to the courts and access to justice, and they’re just simply some people that will be precluded when they have to travel from one end of the commonwealth to the another.”
The court gave no indication when they would decide on the constitutionality of the venue change law.
The American Civil Liberties Union of Kentucky filed a brief asking the court to find the law unconstitutional. Senate President Robert Stivers (R-Manchester) and House Speaker David Osborne (R-Prospect) filed a brief to ask the court to find the law constitutional.
“We have other ways,” True said. “We already have other existing statutes to deal with transfer change of venue and bias. We have other rules that require recusal in the event of bias.”