RENDERED: FEBRUARY 24, 2022 TO BE PUBLISHED
Supreme Court of Kentucky 2021-SC-0228-I
ANDY BESHEAR, IN HIS OFFICIAL APPELLANTS CAPACITY AS GOVERNOR OF THE COMMONWEALTH OF KENTUCKY; ERIC FRIEDLANDER, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE CABINET FOR HEALTH AND FAMILY SERVICES; AND STEVEN STACK, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE KENTUCKY DEPARTMENT FOR PUBLIC HEALTH
ON REVIEW FROM COURT OF APPEALS V. NO. 2021-CA-0702 BOONE CIRCUIT COURT NO. 20-CI-00678
RIDGEWAY PROPERTIES, LLC D/B/A APPELLEES BEANS CAFE & BAKERY AND COMMONWEALTH OF KENTUCKY EX REL. DANIEL CAMERON IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL
OPINION OF THE COURT BY JUSTICE HUGHES
REVERSING AND REMANDING
A plaintiff with standing is essential to a court’s exercise of jurisdiction.
Without a party with an actual or imminent injury caused by a defendant and
redressable by the court, the “justiciable cause” required by Section 112(5) of
the Kentucky Constitution does not exist. Despite the allegations in Plaintiff Ridgeway Properties, LLC d/b/a Beans Café & Bakery (Beans)’s Third Amended
Complaint filed March 11, 2021, Beans has no injury, actual or imminent,
caused by Defendants Governor Andy Beshear, Secretary of the Cabinet for
Health and Family Services Eric Friedlander or Commissioner of the Kentucky
Department for Public Health Steven Stack (collectively “the Governor”). In its
June 15, 2021 Amended Judgment and Order (Amended Judgment), the Boone
Circuit Court glossed over the issue of standing, simply stating “Plaintiff
presented evidence of the injury it is suffering” but the limited evidence referred
to all predates the passage of the 2021 COVID-19 Legislation by the Kentucky
General Assembly—the focus of the Third Amended Complaint. The injuries
Beans’ owner testified to at an injunction hearing were the result of executive
branch actions taken in 2020 pursuant to executive orders and emergency
regulations, all of which were found constitutional by this Court in a
unanimous opinion fifteen months ago, Beshear v. Acree, 615 S.W.3d 780 (Ky.
2020). The Boone Circuit Court implicitly recognized the staleness of that
proof and the tenuous nature of the injury when it stated that Beans’ owner
“testified that he fears enforcement actions may still be brought against him
even though as yet, that has not occurred following the passage of the Acts.”
In fact, Beans has operated under its own COVID-19 plan, choosing to comply
with the Centers for Disease Control and Prevention (CDC) guidance as allowed
by 2021 House Bill (H.B.) 1, without any actual or hinted interference from the
Governor or any member of the executive branch. Without any concrete actual
or imminent injury on the part of Beans, the Boone Circuit Court had no
2 jurisdiction to grant “relief” by opining on the constitutionality of the 2021
COVID-19 Legislation and enjoining the Governor from interfering with Beans’
business operations. More importantly, that court had no authority to use
Beans’ Third Amended Complaint as a stalking horse for issuing a statewide
injunction.1 To understand how this all happened, some discussion of the
evolution of the case is necessary.
RELEVANT FACTS AND PROCEDURAL BACKGROUND
Boone Circuit Court Action 20-CI-678, from which this appeal emanates,
began on June 16, 2020 when the Florence Speedway, Inc., filed suit against
the Northern Kentucky Independent Health District (NKIHD) seeking
declaratory and injunctive relief as to various executive branch COVID-19
orders and regulations. An amended class action complaint shortly thereafter
added Beans and Little Links Learning, LLC (Little Links) as Plaintiffs and
Governor Beshear, Secretary Friedlander and Commissioner Stack as
Defendants. The Boone Circuit Court allowed the Attorney General to
intervene as a Plaintiff on June 30, 2020 and held a hearing on the Plaintiffs’
motion for a restraining order the next day. The court’s July 2, 2020
injunction order granted relief to the Florence Speedway and Little Links but,
notably, not Beans. Following an evidentiary hearing on July 16, 2020, the
Boone Circuit Court issued a July 20, 2020 order that would have granted
Florence Speedway, Little Links and the Attorney General a temporary
1 As explained below, the Attorney General’s presence as an Intervening Plaintiff
does not remedy this jurisdictional defect.
3 injunction against the enforcement of the Governor’s COVID-19 orders but for
this Court’s July 17, 2020 stay order.2 When the matter came before this
Court via a writ, Beshear v. Acree, we reversed the Boone Circuit Court’s order
and the matter was “remanded to that court for further proceedings, if any,
consistent with this Opinion.” 615 S.W.3d at 830. So that is where the matter
stood as of November 12, 2020.
In its 2021 regular session, the Kentucky General Assembly passed three
bills pertinent to our discussion, all of which amended the Governor’s
emergency powers under Kentucky Revised Statute (KRS) Chapter 39A. The
most pertinent, H.B. 1, provided in part that a business could operate during
the then-current state of emergency pursuant to an operating plan that
“[m]eets or exceeds all guidance issued by the Centers for Disease Control and
Prevention or by the executive branch, whichever is least restrictive.” Senate
Bill (S.B.) 1 limited the effect of any of the Governor’s executive orders,
regulations or directives imposing restrictions on in-person meetings or private
businesses to “thirty (30) days unless an extension, modification, or
termination is approved by the General Assembly.” S.B. 2 directed the Cabinet
for Health and Family Services to promulgate any regulations regarding
infectious or contagious diseases pursuant to KRS Chapter 13A and provided
2 Pursuant to its authority under Section 110 of the Kentucky Constitution, on July 17, 2020 the Kentucky Supreme Court issued an order staying all orders of injunctive relief issued by lower courts in COVID-19 litigation pending further action of the Supreme Court. This Court expressly noted the need for a clear and consistent statewide public health policy in the midst of the COVID-19 pandemic.
4 that the regulations are in effect “no longer than thirty (30) days” if they place
restrictions on in-person gatherings or private businesses. All three bills (the
2021 Legislation or the New Legislation) contained an emergency clause, were
vetoed by the Governor and became effective February 2, 2021 when those
vetoes were overridden by the General Assembly.
As the Boone Circuit Court subsequently found, once the 2021
Legislation became effective Beans “opted to develop a compliance plan based
upon CDC guidance in lieu of the Governor’s mandates.” Although neither the
Governor nor any member of the executive branch sought to interfere with
Beans’ decision and its business operations pursuant to that plan, Beans used
Action No. 20-CI-6783 to press its continued disagreement with the Governor’s
COVID-19 measures, advocating the constitutionality of the 2021 Legislation
and seeking to enjoin the Governor from any action to the contrary. Beans’
Third Amended Complaint filed on March 11, 2021 once again sought
injunctive and declaratory relief. Following a May 17, 2021 evidentiary hearing
the Boone Circuit Court granted relief, first entering a June 8 order granting
relief to the named Plaintiff and then, upon request, issuing the June 15, 2021
Amended Judgment that is before us on this appeal. The Amended Judgment
declares the constitutionality of the 2021 COVID-19 Legislation, holds any
orders to the contrary imposed by the Governor unconstitutional and prohibits
3 Following the November 2020 remand, Florence Speedway and Little Links essentially withdrew from the case. They had no role in the Third Amended Complaint or subsequent proceedings.
5 the three named Defendants from enforcing any emergency order, decree or
regulation in conflict with the 2021 Legislation “against any person within this
Commonwealth.”
The Governor appealed to the Court of Appeals, which recommended
transfer to this Court on June 21, 2021. Shortly thereafter, on July 8, the
Court of Appeals denied the Governor’s requested Kentucky Rule of Civil
Procedure (CR) 65.08 relief. On July 20, 2021, we accepted transfer of the
Boone Circuit Court case and set an expedited briefing schedule with
simultaneous initial briefs due August 11 and response briefs on September 1,
2021. No oral argument was scheduled.
Before turning to analysis of this case and the essential issue of
standing, another civil action filed on the effective date of the 2021 Legislation
bears mention. On February 2, 2021, Governor Beshear and Secretary
Friedlander filed suit in Franklin Circuit Court against Speaker of the House
David Osborne, Senate President Robert Stivers, the Legislative Research
Commission, and Attorney General Daniel Cameron seeking a declaration that
the 2021 Legislation was unconstitutional. The Franklin Circuit Court issued
a temporary injunction on March 3, amended on April 7, 2021, which
essentially left all of the Governor’s executive orders and administrative
regulations in place pending final judgment by that court. Following a CR
65.07 motion for emergency relief filed in the Court of Appeals, we accepted
transfer of the Franklin Circuit Court case, ordered briefing and heard oral
arguments in that case, Cameron v. Beshear, and a second COVID-19 case
6 from Scott Circuit Court, Beshear v. Goodwood Brewing Co., LLC, on June 10,
2021. Our opinions in those cases were issued on August 21, 2021. Cameron
v. Beshear, 628 S.W.3d 61 (Ky. 2021); Beshear v. Goodwood Brewing Co., LLC,
635 S.W.3d 788 (Ky. 2021).
ANALYSIS
Section 112(5) of the Kentucky Constitution provides in pertinent part:
“The Circuit Court shall have original jurisdiction of all justiciable causes not
vested in some other court.” As we explained in Commonwealth Cabinet for
Health & Family Services Department for Medicaid Services v. Sexton ex rel.
Appalachian Regional Healthcare, Inc., 566 S.W.3d 185 (Ky. 2018) (Sexton) and
reiterated in Cameron v. Beshear, constitutional standing—standing sufficient
to support a justiciable cause—has three elements (1) injury, (2) causation, and
(3) redressability.
A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief. A litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent . . . . The injury must be . . . distinct and palpable, and not abstract or conjectural or hypothetical. The injury must be fairly traceable to the challenged action, and relief from the injury must be likely to follow from a favorable decision.
Id. at 196 (internal quotations, citations and alteration omitted). Where “the
plaintiff does not have the requisite standing to sue, then the circuit court
cannot hear the case.” Id. Additionally, this Court cannot adjudicate a case on
appeal that a circuit court cannot adjudicate “because the exercise of appellate
7 jurisdiction necessarily assumes that proper original jurisdiction has been
established first.” Id.
With the Third Amended Complaint, Beans initiated a second phase of
this COVID-19 litigation, a phase focused solely on the aftermath of the 2021
Legislative session where the New Legislation was passed. As noted, that
Legislation became effective on February 2, 2021, over a month before the
Third Amended Complaint was filed. From the filing of that complaint through
the May 17, 2021 evidentiary hearing, the Governor took no action whatsoever
to interfere with Beans’ decision to operate its business pursuant to its own
plan, one the Boone Circuit Court described as “a compliance plan based upon
CDC guidance.” The circuit court made no specific finding as to Beans’
standing to pursue the new claims in its most recent complaint, and the
totality of its apparent conclusions was expressed in two paragraphs:
Richard Hayhoe, owner of Beans Café & Bakery, testified that as a result of the capacity restrictions ordered by the Governor, he lost two-thirds of his restaurant’s seating capacity. According to Hayhoe, the mandates have put his business in a precarious financial condition. Additionally, the Northern Kentucky Independent Health District cited Plaintiff for violating the Governor’s mask mandate, for which Hayhoe was later criminally charged. Hayhoe testified that he was not afforded any opportunity to defend against the allegations. He said that, had he been able to, he would have explained that the person not wearing a mask had a health exemption.
After passage of the New Legislation, Hayhoe’s business opted to develop a compliance plan based upon CDC guidance in lieu of the Governor’s mandates. The former, according to Hayhoe, are less restrictive. Hayhoe testified that he fears enforcement actions may still be brought against him even though as yet, that has not occurred following the passage of the Acts.
8 Trial Court’s Amended Judgment and Order at 12-13 (June 15, 2021) (internal
citation to video record omitted).
As the Governor aptly notes, the testimony about seating capacity
restrictions and mask mandates relates to events that predated the 2021
Legislation, events that occurred during 2020, before and immediately after
this Court’s Beshear v. Acree decision upholding the Governor’s authority to
issue the challenged executive orders and regulations. In the circuit court’s
words, “the landscape . . . changed” after the adoption of the New Legislation
and Beans filed the Third Amended Complaint in that new legal landscape to
assert the constitutionality of the legislation. To sustain standing after
February 2, 2021, the effective date of that New Legislation, Beans had to have
a “concrete and particularized injury that [was] either actual or imminent.”
Sexton, 566 S.W.3d at 196. Beans plainly had no such actual or imminent
injury post-February 2, 2021 and the Boone Circuit Court never found one
because Beans experienced no interference whatsoever with its choice to
develop a CDC-compliant plan and operate accordingly. So no actual injury
occurred.
To the extent Beans alleged a “fear” of enforcement, that speculative
concern is not legally sufficient. “It is well-settled that ‘[a]llegations of possible
future injury do not satisfy the requirements of [standing].’ ‘A threatened
injury must be ‘certainly impending’ to constitute injury in fact.’”
Commonwealth v. Bredhold, 599 S.W.3d 409, 417 (Ky. 2020) (internal citations
omitted). Without a doubt, no injury was certainly impending against Beans.
9 Not only does the record contain no evidence of impending action by the
Governor or any member of the executive branch, the record is all to the
contrary. On May 14, 2021, three days before the Boone Circuit Court
conducted the evidentiary hearing in this case, the Governor announced the
upcoming lifting of the restrictions on restaurants about which Beans
complained (and with which he was not complying or being asked to comply
after the New Legislation). Despite this clear signal, the circuit court proceeded
and entered its initial Judgment effective at 5:00 p.m. on June 10, 2021, seven
hours before the June 11 date on which all restrictions were in fact lifted.
Even more perplexing, the Boone Circuit Court proceeded to amend its
Judgment, finally entering the Amended Judgment on June 15, 2021, when no
restrictions remained. Beans’ “fear” was legally insufficient to establish
standing from the beginning, but any hint or whiff of potential injury
disappeared altogether even before evidence could be heard much less an order
entered.4
Where “the plaintiff does not have the requisite standing to sue, then the
circuit court cannot hear the case.” Sexton, 566 S.W.3d at 196. Here despite
Beans’ best efforts, it had no actual or imminent “concrete and particularized”
4 Aside from the lifting of the relevant restrictions, the Governor’s decision to file
suit immediately on February 2, 2021, in Franklin Circuit Court reflected a consistent position that, while he questioned the constitutionality of the New Legislation, he recognized that issue had to be decided by the courts, ultimately the Kentucky Supreme Court. This fact also undercuts any possible suggestion of an imminent injury to Beans.
10 injury, id., to establish its standing, and the circuit court should have
recognized as much and dismissed accordingly.
The Attorney General’s presence in Action 20-CI-678 does nothing to fill
the void. The Attorney General was allowed the status of Intervening Plaintiff
in the first phase of the case by an order entered July 2, 2020. Notably,
Florence Speedway, Little Links and Beans had actual standing in that first
phase because all were operating under restrictions from the Governor’s
COVID-19 executive orders and emergency regulations, mandates which they
deemed unconstitutional and destructive to their businesses. The Attorney
General was allowed to intervene to join in the three businesses’ attacks on the
constitutionality of the Governor’s various COVID-19 related orders and
regulations and that controversy ended with our decision in Beshear v. Acree,
615 S.W.3d at 780. In that first phase, the Boone Circuit Court was
unquestionably presented with a justiciable cause, but that case concluded,
and the Third Amended Complaint presented a new, different phase of
pandemic litigation.
The Governor maintains that the Attorney General’s July 2020
intervention does not continue to apply to the Third Amended Complaint, an
entirely new set of claims based on the New Legislation and, moreover, by
participating in the second phase of the case the Attorney General is simply
collaterally attacking the Franklin Circuit Court order in Cameron v. Beshear.
We need not address either of those specific arguments because in the end our
11 “concurrent jurisdiction” doctrine precludes the Attorney General from having
a “justiciable cause” to present to the Boone Circuit Court.
The “concurrent jurisdiction,” or more aptly “exclusive concurrent
jurisdiction,” doctrine essentially prevents the same parties from litigating the
same issues in two courts by giving priority to the court that first properly
acquired jurisdiction over the parties and their dispute. In Akers v.
Stephenson, 469 S.W.2d 704, 705 (Ky. 1970), the Commonwealth’s highest
Court addressed a writ sought against a Floyd Circuit Court judge who had
presided over a case regarding the construction of a new high school in Floyd
County. After Floyd Circuit Court ruled against the petitioners, allowing the
construction to proceed, they filed a second suit on the same issues in Franklin
Circuit Court. Id. When the Floyd Circuit Court entered an order purporting
to control the petitioners’ ability to pursue that second suit, they sought a writ
to prohibit the Floyd Circuit judge from interfering with the case they had filed
in Franklin Circuit Court. Id. at 706. In denying the writ, the Court of Appeals
stated:
There appears no question but that petitioners are representatives of the same class involved in the original suit over which respondent had jurisdiction. It is also apparent that, though a different type of question is raised, the subject matter of the two pending suits is essentially the same. It is a well settled rule that where the parties and the subject matter are the same, once a court of concurrent jurisdiction has begun the exercise of that jurisdiction over a case, its authority to deal with the action is exclusive and no other court of concurrent jurisdiction may interfere with the pending proceedings. 20 Am. Jur. 2d, Courts, s 128, page 481. In Delaney v. Alcorn, 301 Ky. 802, 193 S.W.2d 404 (1946), we held the court first obtaining jurisdiction of the divorce proceeding could not only enjoin the
12 defendant from proceeding in another jurisdiction but could also enjoin the sheriff of the latter jurisdiction from executing any writs issued by the latter court. See also Hawes v. Orr, 73 Ky. (10 Bush) 431 (1874).
Id. (emphasis added). The Court of Appeals recognized that Floyd Circuit
Court, having first acquired jurisdiction, had the exclusive authority to decide
the parties’ dispute and thus did not act erroneously in directing the
petitioners to dismiss their Franklin Circuit Court action.5 Id.
The exclusive concurrent jurisdiction doctrine is not unique to Kentucky.
See, e.g., State ex rel. Judson v. Spahr, 515 N.E.2d 911, 913 (Ohio 1987) (“As
between courts of concurrent jurisdiction, the tribunal whose power is first
invoked by the institution of proper proceedings acquires jurisdiction, to the
exclusion of all other tribunals . . . .”); People ex rel. Garamendi v. Am.
Autoplan, Inc., 25 Cal. Rptr. 2d 192 (Cal. Ct. App. 1993) (rule of exclusive
concurrent jurisdiction provides that where two superior courts have
concurrent jurisdiction over the subject matter and parties, the first to assume
has exclusive and continuing jurisdiction). See also Texas Liquor Control Bd. v.
Canyon Creek Land Corp., 456 S.W.2d 891, 895 (Tex. 1970) (“As a general rule,
an action for declaratory judgment will not be entertained if there is pending, at
the time it is filed, another action or proceeding between the same parties and
in which may be adjudicated the issues involved in the declaratory action.”).
The exclusive concurrent jurisdiction doctrine avoids contradictory decisions
5 We note that the Akers Court, without further discussion, referred to the
second Franklin Circuit Court action as a “collateral attack.” 469 S.W.2d at 706.
13 regarding the same controversy and the drain on judicial resources posed by a
multiplicity of suits. Garamendi, 25 Cal. Rptr. 2d at 197.
Turning to this matter, the first circuit court to acquire jurisdiction over
the dispute between the Attorney General and the Governor regarding the
constitutionality of the New Legislation was the Franklin Circuit Court on
February 2, 2021. The Third Amended Complaint filed by Beans on March 11,
2021 raised the same constitutionality issues (even though as noted above
Beans had no standing) and to the extent the Attorney General’s Intervening
Plaintiff status still existed it was for purposes of those claims raised in that
Third Amended Complaint. As between the two circuit courts, Franklin Circuit
Court plainly was the first to acquire jurisdiction of the dispute between the
Attorney General and Governor over the New Legislation and thus had the
authority to decide the issues. Simply put, the Attorney General could not fill
the void in Boone Circuit Court’s jurisdiction created by Beans’ lack of
standing because the Attorney General’s justiciable cause against the Governor
regarding the New Legislation was already pending in Franklin Circuit Court.
We are aware, of course, that the Attorney General is the
Commonwealth’s “chief law officer,” Beshear v. Bevin, 498 S.W.3d 355, 366
(Ky. 2016), and is “entitled to be heard” whenever the constitutionality of a
statute is at issue.6 KRS 418.075. See also CR 24.03 (requiring notification of
6 We note that KRS 418.075(1) gives the Attorney General the right “to be heard” but does not direct that he or she be allowed to participate as a party to the action.
14 the Attorney General when “constitutionality of an act of the General Assembly
affecting the public interest is drawn into question”). Despite the Attorney
General’s inability to participate as an Intervening Plaintiff given he was
litigating the same issues against the same Defendants in another court, he
could still “be heard” in the Boone Circuit Court as to his position on the
constitutionality of the 2021 Legislation. As we read KRS 418.075, the
Attorney General was entitled to file a document with that court setting forth
his analysis of the constitutional issues raised, either a legal memorandum or
even copies of the documents he had filed on those issues in Franklin Circuit
Court. This right to be heard did not, however, equate with a justiciable cause
in Boone Circuit Court nor did it undercut application of the exclusive
concurrent jurisdiction doctrine, which applies to all litigants.
In closing, standing is not an abstract concept to be glossed over but
rather a fundamental element of a justiciable cause, the prerequisite for a
Kentucky circuit court exercising jurisdiction. Ky. Const. § 112(5). As to the
Third Amended Complaint, Beans plainly had no standing and consequently
the Boone Circuit Court had no jurisdiction. Furthermore, even if the Attorney
General’s status as an Intervening Plaintiff in 2020 still existed, his
participation in the first-filed Franklin Circuit Court action that culminated in
Cameron v. Beshear precluded him from presenting a justiciable cause in his
own right. With both Beans and the Attorney General lacking a justiciable
cause, the Boone Circuit Court had no jurisdiction and should have dismissed
the case.
15 For the foregoing reasons, we reverse the Boone Circuit Court and
remand this matter for dismissal of the action in its entirety.
All sitting. All concur. Minton, C.J., also concurs by separate opinion,
in which Keller and VanMeter, JJ., join.
MINTON, C.J., CONCURRING: I fully concur with the majority opinion
but write separately to offer guidance on the application of the exclusive
concurrent jurisdiction rule and to emphasize the limited application of that
rule in this case.
While there is a paucity of Kentucky case law applying the exclusive
concurrent jurisdiction rule, other courts have discussed similar doctrines in
detail. The Sixth Circuit Court of Appeals, for example, has described its “first-
to-file” rule—the equivalent of the exclusive concurrent jurisdiction rule among
federal district courts—as a “prudential doctrine that grows out of the need to
manage overlapping litigation across multiple districts.”7 Under that rule,
“when actions involving nearly identical parties and issues have been filed in
two different district courts, ‘the court in which the first suit was filed should
generally proceed to judgment.’”8 Courts in the Sixth Circuit generally evaluate
three factors when determining how to apply the first-to-file rule: “(1) the
7 Baatz v. Columbia Gas Transmission, LLC, 814 F.3d 785, 789 (6th Cir. 2016). 8 Id.
16 chronology of events, (2) the similarity of the parties involved, and (3) the
similarity of the issues or claims at stake.”9
However, the Sixth Circuit’s first-to-file doctrine simply provides district
courts the discretionary authority to dismiss a case10—it does not mandate
dismissal or require that the district court stay a duplicative matter because it
lacks jurisdiction. But our doctrine, as described in Akers, provides that the
first court to acquire jurisdiction over a particular matter does so to the
exclusion of all other courts of equal rank.11 And the cases cited by the
majority show that other courts also construe their exclusive concurrent
jurisdiction doctrines as conferring exclusive jurisdiction to the court that first
acquired jurisdiction over a particular matter.12
This case does not present the opportunity to define the parameters of
the exclusive concurrent jurisdiction rule or the criteria under which a circuit
court should determine whether that rule applies. Instead, the application of
9 Id. Applying precedent from the Ninth Circuit Court of Appeals, the Supreme Court of Nevada recently adopted a similar test for determining whether the first-to-file rule applies. See Mesi v. Mesi, 478 P.3d 366, 370–71 (Nev. 2020). 10 The Sixth Circuit’s first-to-file doctrine also provides district courts with “discretion to stay the suit before it, to allow both suits to proceed, or in some circumstances, to enjoin the parties from proceeding in the other suit.” Smith v. S.E.C., 129 F.3d 356, 361 (6th Cir. 1997). 11 Akers v. Stephenson, 469 S.W.2d 704, 706 (Ky. 1970) (“[W]here the parties and the subject matter are the same, once a court of concurrent jurisdiction has begun the exercise of that jurisdiction over a case, its authority to deal with the action is exclusive . . . .” (emphasis added)). 12 See, e.g., State ex rel. Judson v. Spahr, 515 N.E.2d 911, 913 (Ohio 1987); People ex rel. Garamendi v. Am. Autoplan, Inc., 25 Cal. Rptr. 2d 192, 197–98 (Cal. Ct. App. 1993); and Texas Liquor Control Bd. v. Canyon Creek Land Corp., 456 S.W.2d 891, 895 (Tex. 1970).
17 the doctrine in this case is unique and limited: because the Attorney General
and the Governor were litigating the constitutionality of the 2021 Legislation in
Franklin Circuit Court at the time Beans filed its Third Amended Complaint in
Boone Circuit Court, the Attorney General’s participation in the Boone Circuit
Court action to defend the constitutionality of the 2021 Legislation could not
independently supply the Boone Circuit Court with a justiciable controversy
when Beans’s claims lacked an injury in fact. Because the Franklin Circuit
Court had acquired exclusive jurisdiction over that controversy and that matter
remained pending, the Boone Circuit Court could not have proceeded to
judgment.
Keller and VanMeter, JJ., join.
18 COUNSEL FOR APPELLANTS:
Amy Denise Cubbage Kentucky Public Service Commission
Wesley Warden Duke Kentucky Cabinet for Health and Family Services Office of Legal Services
Steve Travis Mayo Chief Deputy General Counsel
Marc Griffin Farris David Thomas Lovely Taylor Allen Payne Laura Crittenden Tipton Deputy General Counsel Office of the Governor
COUNSEL FOR APPELLEE, RIDGEWAY PROPERTIES, LLC D/B/A BEANS CAFÉ & BAKERY:
Thomas Bearnard Bruns Bruns Connell Vollmar & Arms, LLC
Zachary Gottesman Gottesman & Associates
Christopher David Wiest
COUNSEL FOR APPELLEE, COMMONWEALTH OF KENTUCKY EX REL. DANIEL CAMERON IN HIS CAPACITY OF ATTORNEY GENERAL:
Heather Lynn Becker Brian Lee Dunn Matthew Franklin Kuhn Marc Edwin Manley Stephen Chad Meredith Brett Robert Nolan Aaron John Silletto Assistant Attorneys General Office of the Attorney General