The Kentucky Supreme Court hears oral arguments in a case between the Jefferson County Public Schools board and the Attorney General's Office over possible special legislation, Aug. 14, 2024. (Kentucky Lantern photo by McKenna Horsley)

Kentucky Supreme Court Chief Justice-elect Debra Hembree Lambert has appointed Justice Robert B. Conley to serve as deputy chief justice starting in January.?

Lambert is the current deputy chief justice, but was elected by her fellow justices to succeed outgoing Chief Justice Laurance VanMeter last month. Lambert and Conley will assume their new roles on Jan. 6, 2025.

“Justice Conley is a man of exceptional character and good judgment,” Lambert said in a statement. “I know he will ably serve in this new role with integrity and will do all he can to advance the work of the Court of Justice.”

The deputy chief justice fills in when the chief justice is recused from a case or administrative matter,?

Conley was elected to the Supreme Court in November 2020. He represents the 7th Supreme Court District, which covers 32 counties in Eastern Kentucky.?

In 1994, then-Gov. Brereton Jones appointed Conley to fill a district judge vacancy in the 20th Judicial District of Greenup and Lewis counties; he was elected again to that seat for three terms. Conley was elected to the circuit bench in the two counties in 2006 and served there until joining the Supreme Court.??

EMW Women's Surgical Center in Louisville is now closed but before the abortion ban was one of two abortion providers in Kentucky. (Kentucky Lantern photo by Deborah Yetter)

FRANKFORT — Franklin Circuit Judge Phillip Shepherd said Friday he will make public nearly all of the records in a lawsuit stemming from former Attorney General Daniel Cameron’s attempt in June of 2023 to investigate two University of Louisville physicians who had performed abortions at EMW Women’s Surgical Center.

During a hearing on whether to unseal the case record, Shepherd said he will release an order early next week that will direct that documents in the case be released with the exception of one record filed with his office last year by Cameron. He also said names of the doctors would also remain confidential.

At issue is a sealed lawsuit brought by the doctors and an official of EMW to quash a subpoena issued by Cameron for payroll and personnel records of the doctors. Cameron sought the records in 2023, a year after almost all abortions had been outlawed in Kentucky and the state’s abortion clinics had closed.

A year ago Shepherd ruled in favor of the doctors, quashing the subpoena and ordering that most of the case file be unsealed. But Cameron blocked that order by immediately filing an appeal along with an emergency motion to keep the entire case a secret.

On Aug. 9 a three-judge panel of the Kentucky Court of Appeals unanimously affirmed Shepherd’s quashing of the subpoena. Its order said the subpoena amounted to a “fishing expedition” and that Cameron’s premise that tax dollars may have been illegally spent on abortions was not supported the facts of the case.

The appeals court ruling did not identify the physicians or U of L or EMW as their employers. Kentucky Lantern, based on information from knowledgeable sources and details in the appeals ruling, reported the case clearly involved the two U of L physicians and EMW, which was confirmed last week in a document filed by the parties in the case.

The case is now over. Current Attorney General Russell Coleman decided not to appeal the appeals court’s ruling.

But the appeals court referred back to Shepherd the matter of whether the file should remain sealed.

Shepherd scheduled Friday’s hearing to give the parties to the case – as well as the public and press – a chance to be heard on the matter. Kentucky Lantern and Louisville Public Media intervened in the case to argue for opening the file.

Near the end of the hearing Shepherd said he would issue an order early next week that largely conforms with the position jointly taken by all parties to the original case (the doctors and the Attorney General) that the file be unsealed except for the names of the doctors and a document filed by the Attorney General last year for Shepherd’s “in camera” review that dealt with the? subject of its investigation.

Tom Miller, a Lexington attorney who represented Kentucky Lantern and Louisville Public Media, argued Friday that this one document may be vital and should also be disclosed.? “All we’re asking is that the attorney general be required to disclose what it was that they thought they were investigating,” Miller said.

But Shepherd said that other documents that will be released will satisfy that concern. “I think that when you see the rest of the file that all of the questions that you’re identifying are going to be fully answered,” Shepherd said.

Lexington attorney Erin Izzo, left, and Court of Appeals Judge Pamela Goodwine are running for Kentucky Supreme Court. (Photos provided)

Two women are vying in Central Kentucky for a seat on the state Supreme Court after the chief justice chose not to seek another term.

The candidates are Pamela Goodwine, deputy chief Kentucky Court of Appeals judge, and Erin Izzo, a partner at Lexington law firm Landrum and Shouse. While judicial elections are nonpartisan in Kentucky, political partisans are lining up on opposite sides of this race.?

Last year, Chief Justice Laurance VanMeter announced he would not be seeking reelection in the 5th Supreme Court district, which includes Bourbon, Clark, Fayette, Franklin, Jessamine, Madison, Scott and Woodford counties. He will be succeeded as chief justice in January by Deputy Chief Justice Debra Hembree Lambert, who was chosen Monday by her colleagues.?

Democratic Gov. Andy Beshear is backing Goodwine saying she would be “a really great Supreme Court justice.” According to campaign finance reports, Goodwine’s donors also? include former Democratic Govs. Steve Beshear and Paul Patton, as well as Democratic state lawmakers. A political organization created this week and organized by the current governor’s top campaign adviser is supporting Goodwine.?

Meanwhile, Izzo has received GOP support — an endorsement from the Clark County Republican Party and donations from local Republican groups in Fayette and Madison counties.

Goodwine told the Kentucky Lantern that “it is critical for impartiality to be demonstrated and upheld in the role of judge and justice.” Judges have a role to fairly interpret the law while also maintaining ethics and integrity, she added.

Judicial watchdog criticizes Beshear’s involvement in Kentucky Supreme Court election

“I have been a registered independent since I became a judge and I am known for continually displaying a strong work ethic along with honesty and integrity to ensure justice for all,” Goodwine said. “My strong reputation for upholding these values along with my 25 years of dedicated service as a judge has earned me respect from all parties. I have staunch supporters from all parties and welcome and accept invitations from all parties to participate in their events.”?

Izzo said she too has attempted to go before a mix of groups that lean left and right or are neutral. She added it “would be dangerous for Kentucky” to open up judicial races to more partisanship in the future.?

“I think as a candidate, there’s not much I can do with my supporters in terms of who’s going to give endorsements and who’s not,” Izzo said. “It doesn’t surprise me, honestly, that Beshear came out and endorsed her given her political leanings. And it doesn’t surprise me that the Clark County Republicans came out and endorsed me because of their political leanings.”

Because of ethics guidelines, Kentucky judicial candidates must avoid indicating their decision in a particular case. Both Goodwine and Izzo discussed their legal philosophies and qualifications with the Kentucky Lantern.?

Justices serve eight-year terms. Both candidates said they intend to serve their full term on the court if elected.?

Goodwine promises ‘dedication to the rule of law and justice for all’

Goodwine said that her 25 years of judicial experience have “given me the vast array of experiences and responsibilities needed to best serve all Kentuckians on the Kentucky Supreme Court.” Goodwine was elected to the Kentucky Court of Appeals for the 5th Appellate District in 2018. Before that she served on the benches of Fayette County Circuit and District courts.?

Being part of the state appeals court prepared Goodwine to join the Supreme Court, she said in written responses to the Kentucky Lantern, as she interpreted complex legal issues and crafted opinions while managing a high caseload.?

“Upon election to the Kentucky Supreme Court, I will be the first woman and only the fifth person in history to serve at all levels of the judiciary in Kentucky,” Goodwine said. “And I pledge to bring to our state’s highest court not only the legal expertise, work ethic, preparedness and passion for the law that I have built my reputation as a judge, but also a commitment to approaching each case with a dedication to the rule of law and justice for all.”?

After moving to Lexington from her hometown of Youngstown, Ohio, in 1979, Goodwine began working as a court reporter before attending the University of Kentucky the following year. She graduated from the University of Kentucky in 1991 and UK College of Law in 1994. Early in life, Goodwine overcame challenges like the deaths of her parents by the age of 19 and and a life-threatening illness. She said those moments taught her to use “challenges as a springboard to grow and thrive” and accomplish her goals.?

Goodwine, 64, said she knew she wanted to be a judge as a teenager and that was later reaffirmed after her mother’s murder.?

“From the courtroom to community outreach, I’ve witnessed the real impact legal decisions have on people’s lives and that fuels my commitment to serving on the Kentucky Supreme Court,” Goodwine said.???

Goodwine said the Kentucky Supreme Court is “the ultimate interpreter of the Constitution, laws and rulings,” and handles lower court appeals and focuses typically on cases with “significant legal or constitutional decisions” and renders rulings with binding legal precedents.?

As an arbitrator, Izzo says, she does ‘a lot of the same things that judges do’

Izzo said her litigation experience across Kentucky makes her qualified for the state’s highest court. For 19 years, she’s worked on litigation, arbitration and mediations. She compared arbitration to working as a judge and said her philosophy is to interpret the law as it is written.?

“As an arbitrator, we do a lot of the same things that judges do,” Izzo said. “We look at cases. We have attorneys come before us. I hear arguments. I make decisions. I hear evidence. I preside over trials. It’s there. It’s just different that it’s here in a conference room, as opposed to the courthouse.”

Izzo, 46, completed her undergraduate degree at Dartmouth in 2000 and graduated from the University of Kentucky College of Law in 2005. Before joining Landrum and Shouse in 2011, Izzo’s career experience includes being an attorney at Fulkerson, Kinkel and Marrs in Lexington, working as an assistant Fayette County attorney and being a judicial staff attorney for the Family Division of the 50th Judicial Circuit. Before law school, she worked as a paralegal at New York City firm Seward and Kissel.?

Describing herself as a “constitutionalist” and not “an activist arbitrator” when it comes to applying law, Izzo said she looks at the intent behind how laws were written. She added that “if there’s something there that might be better socially, or might (be) something that I disagree with, it’s not my place to change.”?

“I look at how things are, what the intention of the founding fathers were with our Constitution, and that kind of carries over to what legislative intent was when a law was adopted,” Izzo said. “Because I think if you really want to understand what the legislature intended with the law, you want to know how things were when it was adopted, what was in effect, what was going on at the time, and so that can have an impact on what a statute means outside of the Constitution.”

Izzo was born in Tennessee and raised in a Portland, Oregon, suburb until the age of 7when her family moved to Louisville.?

Election Day is Tuesday, Nov. 5. In-person no-excuse early voting begins Thursday, Oct. 31.?

Shawn "Mickey" Stines has resigned as Letcher County sheriff and faces a murder charge. (Leslie County Detention Center)

Letcher County Sheriff Shawn “Mickey” Stines, charged with murdering a judge in his chambers last week, will face arraignment Wednesday morning in Carter County.

Stines is jailed in the Leslie County Detention Center.

And he’s still sheriff of Letcher County.

“He still is the sheriff until he would actually resign or be removed,”? said Jerry Wagner, executive director of the Kentucky Sheriffs’ Association. “Once you’re elected, you are elected through an election cycle.”?

Wagner said the situation facing Letcher County is unlike any he’s seen.

County sheriffs in Kentucky have wide-ranging powers to enforce the laws of the state along with carrying out a number of lesser-known but important duties, including tax collection, vehicle inspections and providing security for local court proceedings.?

Wagner, who served as Fleming County sheriff for nearly 20 years, said it was customary for a chief deputy to take over his duties when he was unable to perform them.

WHJL in Johnson City, Tennessee, reported a sign on the door of the Letcher County sheriff’s office said it would be closed until Oct. 1. The police chief for the county seat of Whitesburg told the TV station local law enforcement and Kentucky State Police were taking calls and responding to emergencies.

The Letcher County clerk’s office is open. The courts are set to reopen Monday, Sept. 30, with all court proceedings being rescheduled.?

Kentucky State Police Trooper Matt Gayheart, public affairs officer for KSP Post 13 which serves Letcher County, told the Lantern it’s his understanding the Letcher County Sheriff’s Office is planning to install an interim head, though he didn’t know if an interim leader has been named. Attempts by the Lantern to reach the Letcher County Sheriff’s Office were unsuccessful.?

Asked what power Stines has as sheriff while in custody, Gayheart said it’s a hard question to answer. “His involvement with the actual office itself, I don’t know how much control or the influence he would have on them,” Gayheart said.

Stines, 43, will be arraigned remotely Wednesday.

He is charged with firing multiple shots and killing Letcher County District Court Judge Kevin Mullins, 54, after an argument at the Letcher County Courthouse on Sept. 19. Stines surrendered without incident at the courthouse. The Mountain Eagle of Whitesburg has reported the shooting was recorded on video in the judge’s office.

Chief Regional Judge Rupert Wilhoit of Grayson was appointed as a special judge in the case by Supreme Court Chief Justice Laurance VanMeter. Wilhoit’s court is more than 100 miles north of Whitesburg.

Under Kentucky law, Gov. Andy Beshear has the power to remove a peace officer for “neglect of duty.” Alternatively, the Kentucky legislature has the power to impeach and convict elected officials to remove an official from office, which lawmakers did in 2023 with a former commonwealth’s attorney.?

Days before the alleged shooting, Stines gave an eight-hour deposition in a federal court case alleging a former Letcher County deputy forced a woman to have sex in lieu of paying court fees the woman couldn’t afford. Stines is a defendant in the suit for allegedly failing to properly supervise the deputy. It has been stayed in light of the criminal charge against Stines.?

Kentucky Supreme Court (front, from left) incoming Chief JuDebra Hembree Lambert, outgoing Chief Justice Laurance VanMeter, Michelle Keller. (Back row, from left) Christopher Shea Nickell, Kelly Thompson, Robert Conley, Angela McCormick Bisig. (AOC photo/Brian Bohannon)

State Supreme Court Deputy Chief Justice Debra Hembree Lambert will become the first woman to be Kentucky’s chief justice starting next year.?

Justices on the court selected Lambert to serve as the next chief justice on Monday. She will serve a four-year term starting Jan. 6, 2025, according to an announcement from the Administrative Office of the Courts.?

Lambert represents the 3rd Supreme Court District and was elected to the court in 2018. In a statement, she said she was “humbled and honored to have been elected by my colleagues” to serve as chief justice.?

“I know it is certainly no small task to lead the Judicial Branch of government,” Lambert said. “Our judges, clerks and administrative employees handle large dockets and special programs with great efficiency. While it may be notable that I will be the first woman to serve as chief justice in Kentucky, I am most proud to be a small-town kid from the mountains of Eastern Kentucky who has had a lot of support and encouragement along the way.”??

Lambert is a native of Bell County and now lives in Pulaski County with her husband, Joseph Sharpe. Lambert earned her degrees from Eastern Kentucky University and the University of Kentucky College of Law. She previously was married to former Chief Justice Joseph Lambert, who left the Kentucky Supreme Court in 2008.

Last year, Chief Justice Laurance VanMeter announced he would not be seeking reelection in the 5th Supreme Court district.?

“Chief Justice-elect Lambert is a hard-working, dedicated and experienced member of the Kentucky Court of Justice, having served as Family Court Judge, Court of Appeals Judge and Justice on the Kentucky Supreme Court. Altogether, she has served as a judge or justice for more than 17 years,” VanMeter said. “I am confident that Chief Justice-elect Lambert will lead the Judicial Branch with integrity and ensure the efficient and fair administration of justice for this great commonwealth.”

Before joining the Supreme Court, Lambert was on the Kentucky Court of Appeals and was appointed as a family court circuit judge in the 28th Judicial Circuit by former Gov. Paul Patton in 1999. She practiced law in Mount Vernon as an assistant commonwealth’s attorney and city attorney.?

Lambert also leads the Kentucky Judicial Commission on Mental Health and volunteers as a certified suicide prevention trainer.

The Kentucky Supreme Court hears oral arguments in a case between the Jefferson County Public Schools board and the Attorney General's Office over possible special legislation, Aug. 14, 2024. (Kentucky Lantern photo by McKenna Horsley)

FRANKFORT —?Kentucky Supreme Court Justices heard oral arguments Wednesday morning in a case that could determine if the board of the state’s largest school district is subject to a law aimed at curbing the board’s powers.?

The 2022 legislation at the center of the case is aimed at changing the relationship of the Jefferson County Public Schools board and its superintendent. Senate Bill 1, backed by Republican lawmakers, had a host of administrative and academic changes, including provisions directed at the management of JCPS.?

While JCPS is not named in the legislation, an appellate court last year found that the law would only apply “in a county school district with a consolidated local government,” and cited Section 59 of the state Constitution. “The only school district which meets this description is that of Jefferson County,” the opinion stated.

During Wednesday’s hearing, Matthew Kuhn, solicitor general in the Kentucky Attorney General’s Office, argued that because the law focuses on a class of counties with a “consolidated local government,” the law was not special legislation, as that class can change as local governments evolve and can then be subject to the law. However, David Tachau, an attorney representing the board, countered that the law at present applies to a particular school district — JCPS — and is a violation of the state’s constitution.?

Justice Kelly Thompson, who represents the 2nd Supreme Court District, said while questioning Tachau: “This is not just a ‘locale,’ which I believe it violates 59, but … this is direct legislative interference, directly to the school,” referring to the section of the Kentucky Constitution that says the General Assembly “shall not pass local or special acts,” including related to the management of public schools.?

Thompson added that agencies like the Department of Education can also provide due process to school boards and give powers before he asked for examples of other statutes that direct boards to give superintendents more powers. Tachau said he was not aware of any such other statutes.?

Parts of the law affect all Kentucky schools

The JCPS board immediately challenged the law after the General Assembly passed it. In October, the Kentucky Court of Appeals ruled that the law was unconstitutional, saying it singled out JCPS for special treatment. At the time, the Attorney General’s Office, then led by Republican Daniel Cameron, said it planned to appeal the decision.?

In front of the Supreme Court, Kuhn said that while only Jefferson County fits into the class of localities with a consolidated local government, the class is not closed to just that county in the future.?

“Senate Bill 1 does not apply to a particular locality, but to an open class of localities,” Kuhn said.

Parts of the law that would affect JCPS included limiting meetings of the board to once every four weeks, assigning broader power to the superintendent, requiring a two-thirds vote of the board to overrule any action of the superintendent and requiring the board to let the superintendent authorize purchases up to $250,000.

However, some sections of the law would affect curriculum in all Kentucky schools. The law established guidelines on addressing controversial topics related to public policy or social affairs. It also required schools to teach about 24 historical documents, many of which were already taught, like the Declaration of Independence and the U.S. Constitution, but added what some considered more political documents such as former Republican President Ronald Reagan’s 1964 speech, “A Time for Choosing,” which elevated his future in the GOP and is widely considered to have re-energized the Republican Party.?

Justices also asked several questions about the legal standing of the parties in the case. In lower courts, the Attorney General’s Office argued that the board did not have standing in the case because the superintendent, Marty Polio, was not named as a party in the case, but Kentucky’s education commissioner was.?

Thompson asked Tachau if the court “kick(s) the can down the road,” would the case come back to it. Tachau said some members of the board would likely still be interested in challenging the case.?

Attorney General Russell Coleman said in a statement after oral arguments that the “General Assembly took strong action to advance these goals, and our Office has defended this law all the way to the Commonwealth’s highest court.”

“Every Kentucky student – from the largest school system to the most rural – deserves a quality education. Hardworking teachers also deserve the support of an administration empowered to lead a large and complex organization,” he said.

Republicans in Frankfort have been looking to increase oversight of the management of JCPS. This interim session, a legislative task force has meetings scheduled to examine the school district’s governance and is made of politicians and citizen members. Any recommendations from the group must be submitted to the Legislative Research Commission by Dec. 1, ahead of the 2025 legislative session.?

Created by a House resolution, the group must review school districts with enrollment above 75,000 students. JCPS is the only one in the state that meets that criteria with an enrollment of almost 94,000 students.?

Chief Justice Laurance VanMeter said the court will render an opinion in the case as soon as possible.?

The pool at the University of Kentucky's Lancaster Aquatic Center. (Kentucky Lantern photo by Jamie Lucke)

This story was updated Aug. 12 to include a statement from the plaintiffs attorney.

One week after University of Kentucky President Eli Capilouto issued a statement saying allegations of sexual abuse by a former swimming coach were “deeply distressing to all of us,” the university sought to distance itself from the case against Lars Jorgensen Friday by filing a motion to dismiss four of the six counts in which it was implicated in a lawsuit brought by former UK swimmers and coaches.

UK’s attorneys argue the university is “immune” from the claims of plaintiffs Briggs Alexander and Jane Doe based on the U.S. Supreme Court ruling the 11thAmendment “bars a damages action against a state in Federal Court,” absent a waiver from the state or a valid congressional override. Additionally, UK says it bears no “vicarious liability” for Jorgensen’s alleged misdeeds, contrary to two counts in the complaint. The motion to dismiss was made late Friday afternoon in U.S. District Court in Lexington.

For legal precedent, UK’s attorneys cited a 2000 case in which the Roman Catholic Diocese of Owensboro was not held liable for the adulterous affair between a priest and the wife of a parishioner he was counseling. In that case, the court ruled, the priest “was not advancing any cause of the diocese or engaging in behavior appropriate to the normal scope of his employment.”

In short, UK is in sympathy with its swimmers who may have suffered during Jorgensen’s tenure, but is unwilling to pay for any pain he inflicted.

UK athletic director Mitch Barnhart, whom Capilouto praised last week for “more than two decades of exemplary leadership and students-first approach,” echoed the university’s response in a joint filing submitted Friday. The lawsuit accused Barnhart of intentionally concealing allegations against Jorgensen.

Former UK swimming coach Gary Conelly, who hired Jorgensen and was subsequently succeeded by him, also filed a motion to dismiss the counts against him, asserting he was immune from the suit as a university employee; that he was not indifferent to allegations against Jorgensen, contrary to the complaint, but investigated them at the time of his hiring; and that he could hardly be held responsible for conduct that occurred more than a decade after he left the university.

“The motions to dismiss filed by the University of Kentucky, Mitch Barnhart and Gary Conelly bear no weight on the merits of the lawsuit?we filed in April,” plaintiffs attorney Megan Bonnani said in a prepared statement. “This is standard legal procedure?and?another way for the defendants to avoid accountability. We remain?steadfast in our pursuit of justice on behalf of the brave plaintiffs who came forward about the sexual abuse and toxic environment they were forced to endure.”

In the lawsuit, Briggs Alexander, a former UK team captain and assistant coach, claims to have been raped four times by Jorgensen between 2009 and 2013. Alexander was then known as Bridgette Alexander. Jane Doe, another former UK swimmer and coach who has chosen anonymity, says Jorgensen was guilty of sexually abusing her. A third UK swimmer, identified in the complaint as Jane Doe 2, also claims to have been raped by Jorgensen but is not party to the lawsuit.

Though Jorgensen told The Athletic “none of that is true” when confronted with the allegations, docket records available online show Jorgensen has yet to submit a response to the amended complaint filed June 25. Nor is there a record of Jorgensen seeking an extension to his initial response deadline of July 26. A call seeking clarification from Judge Karen Caldwell’s office was not immediately returned.

When the original complaint was filed on April 12, UK spokeswoman Kristi Willett said university police were “in the process of assessing” information received. Asked Friday about the possibility of criminal charges, Willett said, “We have no additional information with respect to that at this time.”

In his statement last week, Capilouto said the most serious allegations against Jorgensen “were only known to us” once the lawsuit was filed, though Barnhart and Conelly received email warnings about Jorgensen’s conduct with women when he was first hired in 2012. According to the lawsuit, UK’s Title IX office received warnings about Jorgensen as early as 2015 or 2016 and was alerted to two complaints against him in August, 2019. Alexander said she contacted UK’s Title IX office about Jorgensen’s alleged abuses in May, 2023.

“I thought I could trust them,” Alexander said during a Zoom press conference in April. “I disclosed my abuse and thought it was being taken care of. And months went by and I never heard anything back. So I reached out. I was just repeatedly discouraged and vigorously discouraged to not come forward and not publish this reporting. That’s what’s hurting me the most at this moment.

“Title IX offices are there to protect student-athletes. When our coaches aren’t protecting us in the situation (Jorgensen) wasn’t, we should have been able to trust the Title IX office and none of us could.”

Reforms planned at UK

Capilouto acknowledged the need to do better in his statement last week, announcing numerous reforms and underscoring the athletics administration’s responsibility to report allegations as soon as they become aware of them. Among the university’s new initiatives are the hiring of additional personnel to investigate allegations of sexual harassment or misconduct and an emphasis on better caseload and records management to help ensure sexual harassment and misconduct cases are investigated and resolved more swiftly.

Other changes include more robust pre-employment screening, and those found responsible for significant violations will be ruled “not eligible for rehire” in personnel files. In addition,? all university employment contracts will now include language laying out the consequences for failure to report sexual harassment or misconduct.

“Mitch and I are sickened by allegations that members of the UK community suffered harm because of the actions of someone entrusted to protect and empower our student athletes and staff,” Capilouto said. “We will not tolerate abuse, and neither should anyone who is a member of our community.”

Franklin County Court House (Kentucky Lantern photo by Sarah Ladd)

Franklin Circuit Court Judge Thomas Wingate has dismissed a lawsuit challenging the constitutionality of a 2024 law banning the sale of some vaping products.?

In doing so, Wingate sided with the lawsuit’s defendants — Allyson Taylor, commissioner of the Kentucky Department of Alcoholic Beverage Control, and Secretary of State Michael Adams — who filed a motion to dismiss.?

Greg Troutman, a lawyer for the Kentucky Smoke Free Association, which represents vape retailers, had argued that the law was too broad and arbitrary to pass constitutional muster because it is titled “AN ACT relating to nicotine products” but also discusses “other substances.” The state constitution says a law cannot relate to more than one subject.?

In his opinion, Wingate said the law doesn’t violate the state constitution.?

The law’s title “more than furnishes a clue to its contents and provides a general idea of the bill’s contents,” he wrote.?

The law’s “reference to ‘other substances’ is not used in a manner outside of the context of the bill, but rather to logically indicate what is unauthorized,” Wingate wrote.?

The lawsuit centers around House Bill 11, which passed during the 2024 legislative session and goes into effect Jan. 1. Backers of the legislation said it’s a way to curb underage vaping by limiting sales to “authorized products” or those that have “a safe harbor certification” based on their status with the U.S. Food and Drug Administration (FDA).?

Opponents have said it will hurt small businesses, lead to a monopoly for big retailers and could drive youth to traditional cigarettes.?

Altria, the parent company of tobacco giant Phillip Morris, lobbied for the Kentucky bill, according to Legislative Ethics Commission records. Based in Richmond, Virginia, the company is pushing similar bills in other states. Altria, which has moved aggressively into e-cigarette sales, markets multiple vaping products that have FDA approval.

“The sale of nicotine and vapor products are highly regulated in every state, and the court will not question the specific reasons for the General Assembly’s decision to regulate and limit the sale of? nicotine and vapor products to only products approved by the FDA or granted a safe-harbor certification by the FDA,” Wingate wrote in a Monday opinion. “The regulation of these products directly relates to the health and safety of the Commonwealth’s citizens, the power of which is vested by the Kentucky? Constitution in the General Assembly.”??

Kentucky Attorney General Russell Coleman, as well as Taylor and Adams, praised the ruling in their favor.

Coleman said the ruling “underscores” that the “General Assembly is empowered to make laws protecting Kentuckians’ health and charting our course for a bright future.”

“The Department of Alcoholic Beverage Control appreciated the clarity gained from the Courts that this law is constitutional,” Taylor, the commissioner, said in a statement. “ABC will continue with its implementation efforts and will be prepared to enforce the law when it takes effect in January.”

Rep. Rebecca Raymer, R-Morgantown, who sponsored the bill, said she’s “pleased to see the Court rule in favor of our efforts to ensure the health and safety of Kentuckians. As a lawmaker, mother and health care provider, I believe we owe it to the people of this state, particularly our children, to ensure that the products they are using are safe.”

“If a product can’t get authorized or doesn’t fall under the FDA’s safe harbor rules, we don’t know if the ingredients are safe, where they’re from, or what impact they will have on a user’s health,” Raymer said in a statement.

Sen. Brandon Storm, R-London, who carried the bill in the Senate, echoed Raymer.

“Judge Wingate made the correct ruling and did well in articulating that HB 11 and other bills focused on oversight of products to safeguard the health and safety of Kentucky residents is a constitutional responsibility entrusted to the Kentucky General Assembly,” he said. “As lawmakers, we have a great responsibility to steer public policy in a direction that better protects the public, especially when it involves negative health consequences for Kentucky children. I’m pleased HB 11 will stand and look forward to working with my colleagues further to protect the health and well-being of our constituents.”

House Majority Whip Jason Nemes, R-Middletown, questions officials from the Administrative Office of the Courts about the VINE (Victim Information and Notification Everyday) system during a meeting of the Interim Joint Committee on Judiciary, July 18, 2024 in Frankfort. (LRC Public Information)

A House Republican leader on Thursday criticized the Administrative Office of the Courts (AOC) for a three-year lapse in automatic notifications to Kentucky crime victims about their court cases.?

Rep. Jason Nemes, R-Middletown, the House majority whip, said the AOC should have requested the hundreds of thousands of dollars needed to relaunch these notifications through Victim Information and Notification Everyday, commonly called VINE, during this year’s session of the General Assembly.

“We would have funded it,” he said during a meeting of the Interim Joint Committee on Judiciary. “This is something very important to us. I think we’ve made that pretty clear last year.” Kentucky currently enjoys a record general fund surplus.?

The situation, Nemes said, is “extremely frustrating” as he criticized “the courts’ recalcitrance.”?

Katie Comstock, the executive director of the Administrative Office of the Courts, told Nemes that “we only have so much bandwidth and so much requests” during the budget cycle.?

She pointed to the budget priorities that were funded in the new two-year state budget — maintenance for rundown courthouses, pay increases and mental health courts.?

“I would love to say that I have unlimited budget requests when I come to you all and have priorities,” she said. “I don’t.”?

Fixing the expensive problem

VINE was created largely in response to the killing of Kentuckian Mary Byron on her 21st birthday in 1993 by a former boyfriend. She thought he was still in jail on charges of raping, assaulting and stalking her. Her family had asked to be notified of his release but was not.

VINE launched in 1996, allowing victims and others to sign up to be alerted when an offender is being released from custody and when protective orders are served or expire. Victims receive notifications via automated text, email or calls.

VINE is still providing notifications when offenders are released from custody. But in 2021 it stopped sending notifications of court dates when the AOC stopped sharing that information because of security concerns. AOC officials had begun “to have concerns about the potential monetization and protection of our court data,” Comstock testified. She later said “we have no evidence that that was happening.”?

At that time AOC stopped sharing victim data with Appriss, which operates VINE. The system is registration-based, meaning to get notifications one needs to sign up for them, said Alexis Williams, the branch manager at the Department of Corrections’ Victim Services Branch.?

Prosecutors currently inform crime victims of court updates, be it by email, letters or phone calls. VINE? still sends notifications when an offender is being released from incarceration.?

‘We ought to fix:’ Kentucky crime victims aren’t getting automatic court notifications?

“VINE relies on comprehensive data from the state to provide timely and accurate notifications,” said Jarrod Carnahan, the vice president of Government and Victim Services at Appriss. “Data elements often include case numbers, court dates, event types, courtroom notifications, and defendant identification information.”??

“I want to emphatically reiterate that our organization does not retain search history or engage in any unauthorized use of registered or victim information,” Carnahan said. “The only use of registered data is in the instance we are legally required to provide it or if it is within the provisions of the VINE service.”?

Since appearing before a legislative committee last September and being scolded for the delay in notifications by lawmakers, the parties came back to the table to discuss solutions, Comstock said.?

Appriss “has proposed a solution that addressed those data concerns” from 2021, Comstock said, but it will cost.?

“They now want us to finance the cost of the notification platform to the tune of $500,000 for a one time implementation fee and $360,000 for a service fee for the first 12 months with annual service fees increasing after that,” she told lawmakers. “That proposed cost far exceeds any cost we currently undertake for comparable services.”?

And, she said: “we don’t have the funds appropriated in our base budget to pay for the service.”?

Another potential solution is to revamp the existing court text notification system for this purpose, which would cost money but not as much. Another hurdle: the court system would need to collect victims’ contact information for the notifications to work.?

“Currently, we don’t have victim emails and phone numbers to send them notifications and collecting victim information hasn’t thus far been a function of the court system,” Comstock said.??

Meg Savage, the chief legal officer of ZeroV (formerly known as the Kentucky Coalition Against Domestic Violence), said she hopes lawmakers can find a solution “soon” to make “notifications effective, efficient and reliable.”?

“At a point in survivors’ lives when so much is already uncertain and overwhelming, removing the stress of uncertainty about when they need to be in court will be a great benefit, reducing unneeded trips to the courthouse or multiple calls to and from prosecutors’ offices,” Savage said. “A well-functioning notification system will hopefully make an already stress-filled process just a little bit easier for all victims of crime in the Commonwealth.”??

‘Not acceptable’?

“At the end of the day, this is now three years the court system has decided to stop notifying our people,” Nemes said. “It’s their responsibility to do it and they’re not doing it.”?

Carnahan with Appriss said the notifications could be up and running within 45 days if they were to get access to the needed data immediately.?

AOC could not meet its end of it within that time frame, Comstock with AOC said, because they would need to make changes to their system.?

Nemes suggested the committee bring back the court system for updates every two months until the issue is resolved. The next meeting is Aug. 23.?

“I want to be very clear that it’s not acceptable,” Nemes said. “It hasn’t been acceptable for a long time and it needs to be resolved.”??

Kentucky Supreme Court Kentucky Lantern photo by Liam Niemeyer

The Kentucky Supreme Court has agreed to hear oral arguments in a case that could clarify how the state’s open records law covers public officials’ text messages.?

The court will review a Court of Appeals decision in a lawsuit between Kentucky Department of Fish and Wildlife Resources Commission and nonprofit Kentucky Open Government Coalition. Last October, the appellate court ruled that messages on personal cell phones are public records when they are created or used by government officials for government business.

In 2021, the coalition requested emails and text messages from current and former members of the commission. However, the commission did not furnish the records, prompting the coalition to file a complaint in Franklin County Circuit Court. There, a judge ruled that the “emails concerning business of the Commission sent to or received via the Commission members’ private email accounts” were public records but “text messages concerning Commission business sent to or received on the Commission members’ private cell phones were not subject to disclosure.”?

Amye Bensenhaver, a co-founder of the Kentucky Open Government Coalition, said the public has a right to know how public servants conduct business — no matter if they are employees, volunteers or one of Kentucky’s highest ranking officials.?

“We have a right to know,” she said. “These are our records.”?

Bensenhaver added that she doesn’t “think there’s any question that legally we are on absolutely solid footing.” As it is now, the Kentucky Open Records Act covers records in physically different formats, whether that be a written document or an electronic one.?

“By and large, our courts have been very, very, very, very strong on open government and the rights invested in the public under the open records law, but we have new players on the court,” she said.”?

The Kentucky Open Records Act was created in 1976 and established the right to access public records. Public agencies subject to the law include a range of organizations and individuals, like small local government boards and large public universities.

The lawsuit against Fish and Wildlife also inspired legislation that ultimately failed in the General Assembly this year. Open government advocates, including the Open Government Coalition, warned that House Bill 509 would add loopholes to the open records law for public officials to avoid disclosing public records on personal devices, such as text messages.?

The primary sponsor, Rep. John Hodgson, R-Fisherville, said the Court of Appeals decision prompted his bill and it was an attempt to modernize Kentucky’s open records laws.?

The bill gained passage in the House, but died in the Senate during the final days of this year’s legislative session because it was not brought to the floor for a vote. Republican Senate President Robert Stivers told reporters at the time he had “no doubt” discussion about open records would come up during the interim session.?

Democratic Gov. Andy Beshear also expressed support for the bill. He argued that it would have allowed more records to be disclosed by requiring that public officials have an agency email account that could be easily searched.

Bensenhaver said the portions of the bill that would have prevented an agency from searching private accounts or devices and solely relying on agency-owned email accounts were problematic. It also does not matter how a record is created — like an email or a text — but the contents of the record that involve public business.?

“We don’t need to change our law,” she said. “Our law works until it’s misrepresented and lied about.”?

A spokesperson for the Fish and Wildlife department did not immediately return a request for comment.?

Oral arguments have yet to be scheduled as of Friday.

Bernheim Forest encompasses 16,000 acres in Jefferson and Bullitt counties. (Bernheim Forest)

The Bernheim Forest and Arboretum is asking Kentucky’s highest court to take up a legal battle over condemnation of some of its land to build a gas pipeline.

In April, the Kentucky Court of Appeals affirmed a ruling last year from the Bullitt Circuit Court that said Louisville Gas and Electric and Kentucky Utilities (LG&E and KU) can exercise eminent domain to acquire land that is protected by conservation easements to build a natural gas pipeline.

Now, an attorney working on behalf of the research forest in a Monday filing is asking the Kentucky Supreme Court to reverse the appeals court decision. It’s the latest development in a years-long legal battle over LG&E and KU’s push to build a gas pipeline through a 494-acre wildlife corridor originally put into conservation through state-purchased easements that restrict development and require the property to be used as habitat for wildlife.

Environmental advocates have argued the ecological impacts haven’t been considered in developing the pipeline, while LG&E and KU representatives have argued the pipeline is needed for natural gas reliability. Louisville Public Media previously reported internal documents from the utility showed the gas pipeline would primarily benefit the Jim Beam distillery, though the chief operating officer for the utility has denied that.

In the Monday filing, an attorney for Bernheim Forest argued one of the reasons justices should take up the case is that the appeals court interpretation of the law could “extinguish” the existence of state-owned conservation easements. The Kentucky Land Heritage Conservation Fund, a state board that invests funding across Kentucky toward preserving land, originally helped purchase the property for the wildlife corridor.

Randal Strobo wrote in his filing that eminent domain use was limited to privately-owned lands and that publicly-owned conservation easements can’t “simply disappear when a party wishes to condemn the encumbered property without violating several constitutional limits on legislative acts.”

Only a small minority of requests made to the state Supreme Court to take up a case, known as a motion for discretionary review, are granted by justices.

In the April appeals court ruling, Judge Christopher McNeil wrote that some of the arguments made by research forest attorneys were previously rejected by the appeals court in a different case brought forward by the Kentucky Heritage Land Conservation Fund. McNeil wrote LG&E and KU can seize the land because Kentucky law doesn’t prevent land protected by conservation easements from being taken through eminent domain.

An LG&E and KU spokesperson in a statement last week said the utility was pleased with the appeals court decision that reinforces the utility’s plans “to enhance reliable natural gas service for customers and support continued growth and economic development within the region.”

A statement from Bernheim Forest in April said the nonprofit’s leaders were “obviously disappointed” with the appeals court decision. The more than 16,000-acre privately-owned research forest founded in the 20th century features an arboretum, educational programs and more than 40 miles of hiking trails.