ARKK Properties v. Cameron

Kentucky Senate Bill (S.B.) 126 applies to any case where a person “challenge[s] the constitutionality” of a state statute or similar law and seeks relief against a state defendant in state court. Where S.B. 126 applies, it gives any party to the covered lawsuit a unilateral right to require transfer of the case from the circuit court where it was properly filed to a randomly chosen circuit anywhere else in the state. That party need not demonstrate cause to justify the transfer, which can occur weeks—and in some cases months or years—after a case is filed. The Act’s transfer process lacks all the guardrails typically applicable to a change-of-venue action, including, for example, an evidentiary hearing to determine whether transfer is warranted or will unduly burden any party.

In these ways, SB 126 operates as a ready device for state officials to systematically punish Kentuckians who challenge unlawful state action, and to deprive these litigants—and only them—of traditional safeguards afforded to all other litigants.

Shortly after S.B. 126’s adoption, Kentucky’s Attorney General began filing notices to transfer cases pursuant to S.B. 126, moving them from Franklin County Circuit Court (where Frankfort, the state capital is) to other randomly selected counties in the state. ARKK Properties is one of these cases.

The plaintiffs in ARKK Properties sought to block the transfer and filed a petition asking the Kentucky Supreme Court to decide whether S.B. 126 violates the Kentucky Constitution, including provisions on separation of powers, due process, equal protection, and the right to petition.

The ACLU of Kentucky, the Kentucky Equal Justice Center, and the Kentucky Resources Council—with representation from attorneys at the ACLU of Kentucky and the ACLU’s State Supreme Court Initiative—filed an amicus brief in the Kentucky Supreme Court in support of the plaintiffs’ petition.

The amicus brief explains that the groups’ clients, who are often individual Kentuckians fighting for their constitutional rights, will be harmed by SB 126. It explains that S.B. 126 will invariably chill Kentuckians from vindicating their constitutional rights, discourage legal representation in constitutional challenges, and further burden courts already struggling to meet the needs of unrepresented parties. The brief also explains why S.B. 126 unconstitutionally burdens rights to free expression under the Kentucky Constitution, §§ 1(4) and 8, along with those rights addressed by petitioners.

The Kentucky Supreme Court has issued an order for further briefing and scheduled argument in August 2023. In October, SSCI received news that the Kentucky Supreme Court ruled in our favor and invalidated S.B. 126.