Andy Beshear, in His Official Capacity as Governor of the Commonwealth of Kentucky v. Ridgeway Properties, LLC D/B/A Beans Cafe & Bakery

                                               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


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