The fault lies not in their stars. (Most likely it’s in their laws.)

To the average person, “venue” is the place where some organized event happens — a concert, a conference, or (particularly in March) a basketball game.

To a person who suffers a legal wrong or injury, it is the court where the law says a criminal or civil case must be filed.

The general rule on venue for civil lawsuits claiming personal injury or property damage is that a lawsuit is filed where the injury arose, or where the defendant resides.

And because of that general venue rule, Franklin Circuit Court has historically been the venue for most constitutional challenges because Frankfort is the seat of the Kentucky government.  And just as the federal District of Columbia Circuit has developed some familiarity with challenges involving constitutional issues by virtue of the frequency and number of cases, so too the Franklin Circuit Court judges have, in my 44 years of experience and observation, developed a particular familiarity with those sorts of challenges among their peers.

Under Kentucky law, a party sued in a particular circuit court may request that venue be changed, and if it can be shown that a fair and impartial civil trial cannot be had because of the nature of the claim, or because of other circumstances, then a change of venue will be granted. There are also rules requiring recusal of individual judges for bias, prejudice or conflicts of interest.

House Bill 804 lays bare the fact that the justification for the 2022 change, which was supposedly for the convenience of the plaintiff, was wholly about preventing one circuit court from hearing these constitutional cases.

There is an inherent and healthy tension among the branches of government. It is natural that the legislative branch doesn’t like legislative acts being questioned in court cases, and so have constrained the ability of the public to challenge the enactment of its laws. But some in the legislative branch particularly don’t like Franklin Circuit Court’s decisions upholding some of those challenges, even though those lower court decisions are most often affirmed by Kentucky’s higher courts.

And so, in recent years, there have been serial legislative efforts designed to move the venue for constitutional challenges to laws, to regulations and to state agency orders, out of Franklin Circuit Court.

Kentucky’s Constitution confers on the General Assembly the power to assign the venue for civil actions. Yet that power, and indeed all legislative power, is neither absolute nor without constitutional constraints when exercised arbitrarily.

In 2022, the venue for constitutional challenges to statutes, regulations and agency orders was changed by the General Assembly to the county in which the plaintiff resides, or for nonresidents, Franklin County. Eliminated, for only those types of cases, was the option to bring suit where the injury arose, or where the defendant legislature or agency resided. The argument in support of the change  was the convenience of the plaintiff.

Kentucky Supreme Court strikes down ‘random’ change of venue law

Dissatisfied that some constitutional challenges were still being brought in Franklin Circuit Court under those revised rules, the General Assembly passed Senate Bill 126 in 2023, providing an automatic right of any party to engage in a  “change of venue roulette.” By merely filing a motion and without any basis or reason, a party could force a change of venue to a circuit court somewhere else in the state that would be assigned randomly by the Supreme Court clerk.

Last year, the Kentucky Supreme Court struck that law as a violation of the separation of powers and an intrusion into the role of the circuit court to determine whether recusal or a change of venue was needed and justified.

House Bill 804, now pending in the Kentucky Senate, is this year’s entry in the “anywhere but Franklin Circuit Court” crusade. For civil actions challenging state laws, regulations and agency orders, the bill mandates that venue be moved on demand to an adjacent judicial circuit, without any reason or justification.

It delegates unchecked power to a party to a lawsuit to move a case to a new court and new judge, inviting forum shopping by a party without requiring any demonstration that the case cannot be fairly heard in the initial forum in which it was filed.

It singles out cases involving constitutional challenges, while still requiring for all other civil cases that there be a showing of undue influence, or inability to obtain a fair trial.

And it lays bare the fact that the justification for the 2022 change, which was supposedly for the convenience of the plaintiff, was wholly about preventing one circuit court from hearing these constitutional cases.

For under HB 804, a plaintiff filing a constitutional claim in the county of his or her residence under that 2022 law, can be forced to try the case in another forum upon a motion of any other party, with no showing that the court the plaintiff filed with cannot or will not fairly adjudicate the challenge. 

 HB 804 is all about assuring that those remaining constitutional claims that under the 2022 law are filed by nonresidents or by resident plaintiffs in Franklin Circuit Court can be moved on demand by any other party, such as the Attorney General, who typically defends the enactments of the General Assembly.  

Kentucky’s Constitution, adopted in 1891 and in force today, is clear in proclaiming that “absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.” Not even a supermajority.

It is past time for the General Assembly to end the crusade, and to recognize that perhaps, just perhaps, the “fault lies not in our stars.” The problem may really not be the particular judicial forum in which challenges to state laws, regulations and orders have been brought in the past, but instead the occasional lapse of restraint and respect for constitutional boundaries in the enactment of laws that fuels successful court challenges.