Welcome message from author
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
i
INTRODUCTION
This case asks whether the Governor’s unilateral issuance of executive orders
controlling broad aspects of Kentuckians’ lives conforms with Kentucky’s Constitution and
laws. For all the reasons set forth in this Brief, the Governor’s orders are unlawful.
ii
STATEMENT CONCERNING ORAL ARGUMENT
The Court has scheduled oral argument for September 17, 2020.
iii
STATEMENT OF POINTS AND AUTHORITIES
INTRODUCTION ............................................................................................................................ i
STATEMENT CONCERNING ORAL ARGUMENT ....................................................... ii
STATEMENT OF THE CASE .................................................................................................... 1
Wayman v. Southard, 23 U.S. 1 (1825) ............................................................................................. 1
Kentucky Department for Public health Covid statistics, available at
https://govstatus.egov.com/kycovid19 ....................................................................................... 2
WHAS11, More than half the deaths in Indiana and Kentucky are in long term care, available at
https://www.whas11.com/article/news/investigations/focus/covid-long-term-care-
death-coronavirus-kentucky-indiana-data-deep-dive/417-db19b27e-7ed7-4560-9eac-
ef371a952590 Covid-19 ................................................................................................................... 2
KY COVID-19 Daily Summary 8/27/2020, available at
https://chfs.ky.gov/agencies/dph/covid19/COVID19DailyReport.pdf .............................. 2
Tennessee Covid-19 Dashboard, available at
https://experience.arcgis.com/experience/885e479b688b4750837ba1d291b85aed ............ 3
COVID-19 in South Dakota, available at https://doh.sd.gov/news/coronavirus.aspx#SD
............................................................................................................................................................ 3
CDC COVID Data Tracker, available at https://www.cdc.gov/covid-data-tracker/#cases
............................................................................................................................................................ 4
KRS 39A.100 ............................................................................................................................... 5, 9
KRS 194A.025 ............................................................................................................................. 5, 8
KRS 214.020 .......................................................................................................................... 5, 8, 16
KRS 244.120 ..................................................................................................................................... 5
KRS 39A.990 .................................................................................................................................... 7
Roberts v. Neace, No. 2:20CV054-WOB, 2020 WL 2115358 (E.D. Ky. May 4, 2020)........... 12
Maryville Baptist Church v. Beshear, 957 F.3d 610 (6th Cir. 2020) ............................................... 13
Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020) ...................................................................... 14, 18
Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, No. 3:20-cv-33-GFVT, 2020 WL
2305307 (E.D. Ky. May 8, 2020) ................................................................................................. 18
Ramsek v. Beshear, No. 3:20-cv-00036-GFVT, 2020 WL 3446249 (E.D. Ky. June 24, 2020)
.......................................................................................................................................................... 18
Roberts v. Neace, No. 2:20CV054-WOB, 2020 WL 2115358 (E.D. Ky. May 4, 2020)........... 18
Florence Speedway, Inc. v. Beshear, No. 20-CI-678 (Boone Cir. Ct. July 20, 2020) ..................... 19
Quarles v. Beshear, No. 20-CI-376 (Scott Cir. Ct. July 6, 2020) ................................................. 19
ARGUMENT ................................................................................................................................... 22
iv
I. The Governor has exercised legislative power in violation of the Constitution’s
separation of powers................................................................................................................... 24
Gordon S. Wood, The Creation of the American Republic 1776–1787 (1969) ......................... 24
Ronald A. Cass, Delegation Reconsidered: A Delegation Doctrine for the Modern Administrative
State, 40 Harv. J.L. & Pub. Pol’y 147 (2017) .......................................................................... 25
Ky. Const., art. I § 2 (1792) ...................................................................................................... 25
Bd. of Trustees of Judicial Form Ret. Sys. v. Att’y Gen., 132 S.W.3d 770 (Ky. 2003) ................ 25
Sibert v. Garrett, 246 S.W. 455 (1922) ....................................................................................... 25
Commonwealth ex rel. Beshear v. Bevin, 575 S.W.3d 673 (Ky. 2019) ......................................... 25
Prater v. Commonwealth, 82 S.W.3d 898 (Ky. 2002) ................................................................. 26
A. The Governor is exercising the legislative authority to make laws. .................... 26
Commonwealth ex rel. Beshear v. Bevin, 575 S.W.3d 673 (Ky. 2019) ..................................... 26
Purnell v. Mann, 50 S.W. 264 (Ky. 1899) .............................................................................. 26
Dep’t of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43 (2015) ........................................... 27, 28
1 Commentaries at the Laws of England 44 (1765) .................................................................. 27
John Locke, Second Treatise of Government § 22 (C.B. Macpherson ed. 1980) .................. 27
The Federalist No. 78 (Alexander Hamilton) (Clinton Rossiter ed., 1961, reprinted
1999) ........................................................................................................................................ 27
Fletcher v. Peck, 10 U.S. 87 (1810) ......................................................................................... 27
Carter v. Lehi City, 269 P.3d 141 (Utah 2012) ..................................................................... 27
Gundy v. United States, __ U.S. __, 139 S. Ct. 2116 (2019) ................................................ 28
B. The Governor cannot exercise such legislative authority. ..................................... 28
1. The Constitution strictly prohibits executive branch officials from exercising
the legislative authority to make laws. .......................................................................... 29
Ky. Const. § 27 ................................................................................................................... 29
Ky. Const. § 28 ...................................................................................................... 29, 34, 37
Commonwealth v. Assoc. Indus. of Ky., 370 S.W.2d 584 (Ky. 1963) .................................. 29
KRS 12.028 ......................................................................................................................... 29
Westerfield v. Ward, 599 S.W.3d 738 (Ky. 2019) .............................................................. 30
Bevin v. Commonwealth ex rel. Beshear, 563 S.W.3d 74 (Ky. 2018) ................................... 30
Dep’t of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43 (2015)....................................... 31, 32
Philip Hamburger, Is Administrative Law Unlawful? (2014) ........................................... 31
David Hume, The History of England from the Invasion of Julius Caesar to the Revolution of
1688 (Indianapolis: Liberty Classics, 1983) ............................................................ 31, 32
v
Case of Proclamations, 12 Co. Rep. 74, Eng. Rep. 1352 (K.B. 1611) ............................. 32
The Federalist No. 47 (James Madison) (Clinton Rossiter ed., 1961, reprinted 1999)
.............................................................................................................................................. 33
The Federalist No. 48 (James Madison) (Clinton Rossiter ed., 1961, reprinted 1999)
.............................................................................................................................................. 33
Fletcher v. Commonwealth ex rel. Stumbo, 163 S.W.3d 852 (Ky. 2005) ............................. 33
Bloemer v Turner, 137 S.W.2d 387 (Ky. 1939) ........................................................... 34, 35
Kerr v. City of Louisville, 111 S.W.2d 1046 (Ky. 1937) ..................................................... 34
Preston v. Clements, 232 S.W.2d 85 (Ky. 1950) ................................................................. 35
Commonwealth ex rel. Meredith, 165 S.W.2d 820 (Ky. 1942) ............................................ 35
Sheryl G. Snyder & Robert M. Ireland, The Separation of Governmental Powers Under the
Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J.
165 (1984) ........................................................................................................................... 36
Butler v. United Cerebral Palsy of Northern Kentucky, 352 S.W.2d 203 (Ky. 1961) ... 36, 37
Commonwealth v. Associated Industries of Kentucky, 370 S.W.2d 584 (Ky. 1963) ...... 36, 37
Ky. Comm’n on Human Rights v. Fraser, 625 S.W.2d 852 (Ky. 1981) .............................. 36
KRS 39A.100 ...................................................................................................................... 37
KRS 39A.180 ...................................................................................................................... 37
Beshear v. Haydon Bridge Co., Inc., 304 S.W.3d 682 (Ky. 2010) ....................................... 37
2. Even if legislative power to make law can be delegated to the Governor, the
specific power at issue here has not been validly delegated. ................................. 38
Bd. of Trustees of Judicial Form Ret. Sys. v. Att’y Gen., 132 S.W.3d 770 (Ky. 2003) ........ 38
Diemer v. Commw., Transp. Cabinet, Dep’ of Highways, 786 S.W.2d 861 (Ky. 1990) ...... 38
Holsclaw v. Stephens, 507 S.W.2d 462 (Ky. 1974) ............................................................. 38
Commonwealth ex rel. Beshear v. Bevin, 575 S.W.3d 673 (Ky. 2019) .................... 38, 39, 40
KRS 12.028 ......................................................................................................................... 38
Miller v. Covington Dev. Auth., 539 S.W.2d 1 (Ky. 1976) ................................................ 38
Bloemer v Turner, 137 S.W.2d 387 (Ky. 1939) .................................................................. 39
KRS 39A.100 ...................................................................................................................... 40
KRS 39A.180 ...................................................................................................................... 40
Diemer v. Commw., Transp. Cabinet, Dep’ of Highways, 786 S.W.2d 861 (Ky. 1990) 40, 41
Ky. Const. § 80 ................................................................................................................... 41
Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, No. 3:20-cv-33-GFVT, 2020
WL 2305307 (E.D. Ky. May 8, 2020) ............................................................................. 42
vi
Wis. Legislature v. Palm, 942 N.W.2d 900 (Wis. 2020) .................................................... 42
Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602 (1989) ........................................... 42
Ex parte Milligan, 71 U.S. 2 (1866) ................................................................................... 42
II. Even if the General Assembly validly delegated legislative authority to the
Governor, his use of that authority has violated KRS Chapter 13A. ............................. 42
KRS 13A.010 .............................................................................................................................. 43
KRS 13A.100 .............................................................................................................................. 43
Bowling v. Department of Corrections, 301 S.W.3d 478 (Ky. 2009) ............................................ 43
Wis. Legislature v. Palm, 942 N.W.2d 900, 924 (Wis. 2020) ................................................... 44
KRS 13A.190 .............................................................................................................................. 44
KRS 13A.270 .............................................................................................................................. 44
III. The Governor’s actions taken under KRS Chapter 39A are void because his
authority under that chapter has never been properly invoked. .................................... 45
KRS 39A.100 .............................................................................................................................. 45
KRS 39A.010 ....................................................................................................................... 45, 46
KRS 39A.020 .......................................................................................................... 45, 47, 48, 49
KRS 39A.030 .............................................................................................................................. 45
Harilson v. Shepherd, 585 S.W.3d 748 (Ky. 2019) ..................................................................... 48
Lewis v. Jackson Energy Co-op. Corp., 189 S.W.3d 87 (Ky. 2005) ............................................ 48
OAG 19-021, 2019 WL 6445355 (Nov. 18, 2019) ................................................................ 48
Kentucky Emergency Operations Plan (Updated Aug. 2014), available at
https://kyem.ky.gov/sitecontacts/Documents/State%20EOP.pdf ................................. 48
KRS 39A.050 .............................................................................................................................. 48
IV. The Governor’s executive orders violate Sections 1 and 2 of the Kentucky
constitution. .................................................................................................................................. 49
Ky. Const. § 2 ............................................................................................................................. 50
1 Official Report of the Proceedings & Debates (1890) ...................................................... 50
Ky. Milk Mktg. & Antimonopoly Comm’n v. Kroger Co., 691 S.W.2d 893 (Ky. 1985) ............ 50
Sanitation Dist. No. 1 v. City of Louisville, 213 S.W.2d 995 (Ky. 1948)................................... 50
A. The Governor’s executive lawmaking violates Section 2 because it is not
tailored to fit the exigency. ............................................................................................... 50
Ky. Milk Mktg. & Antimonopoly Comm’n v. Kroger Co., 691 S.W.2d 893, 899 (Ky. 1985)
.................................................................................................................... 50, 51, 52, 53, 59
Sanitation Dist. No. 1 v. City of Louisville, 213 S.W.2d 995 (Ky. 1948) .......................... 51
vii
Boyle Cty. Stockyards Co. v. Commw., Dep’t of Agric., 570 S.W.2d 650 (Ky. App. 1978)
.............................................................................................................................................. 51
Wells v. Bd. of Educ. of Mercer Cty., 289 S.W.2d 492 (Ky. 1956) ..................................... 51
Ky. Const. § 1 ..................................................................................................................... 51
Ky. Const. § 26 ................................................................................................................... 51
Nebbia v. People of New York, 291 U.S. 502 (1935) .......................................................... 51
Gen. Elec. Co. v. Am. Buyers Coop., 316 S.W.2d 354 (Ky. 1958) .................................... 51
Ramsek v. Beshear, No. 3:20-cv-00036, 2020 WL 3446249 (E.D. Ky. June 24, 2020)
.............................................................................................................................................. 52
TriHealth, Inc. v. Bd. of Comm’rs, Hamilton Cty., Ohio, 430 F.3d 783 (6th Cir. 2005) ... 53
Adams, Inc. v. Louisville & Jefferson County Board of Health, 439 S.W.2d 586 (Ky. 1969)
.................................................................................................................... 53, 54, 56, 57, 58
Bond Bros. v. Louisville & Jefferson Cty. Met. Sewer Dist., 211 S.W.2d 867 (Ky. 1948) .. 54
City of Louisville v. Kuhn, 145 S.W.2d 851 (Ky. 1940) ..................................................... 55
City of Lebanon v. Goodin, 436 S.W.3d 505 (Ky. 2014 ..................................................... 55
Walters v. Binder, 435 S.W.2d 464 (Ky. 1968).................................................................. 55
Allison v. Cash, 137 S.W. 245 (Ky. 1911) .................................................................. 57, 58
B. The Governor’s executive lawmaking violates Section 2 because he has
failed to provide due process when depriving people of their rights ................... 60
Smith v. O’Dea, 939 S.W.2d 353 (Ky. App. 1997) .......................................................... 60
Trimble Fiscal Court v. Snyder, 866 S.W.2d 124 (Ky. App. 1993) ................................... 60
Ky. Milk Mktg. & Antimonopoly Comm’n v. Kroger Co., 691 S.W.2d 893 (Ky. 1985) .... 60
City of Louisville v. Kuhn, 145 S.W.2d 851 (Ky. 1940) ..................................................... 61
Ky. Alcoholic Beverage Control Bd. v. Jacobs, 269 S.W.2d 189 (Ky. 1954) ............ 61, 62, 63
Commonwealth v. Kentec Coal Co., 177 S.W.3d 718 (Ky. 2005) ........................................ 62
C. The Governor’s executive lawmaking violates Section 2 because it is an
exercise of absolute power. .............................................................................................. 63
Ky. Const. § 2 ..................................................................................................................... 63
KRS 39A.100 ...................................................................................................................... 63
KRS 39A.180 ...................................................................................................................... 63
V. The temporary injunction standard. ................................................................................. 64
Maupin v. Stansbury, 575 S.W.2d 695 (Ky. 1978) .................................................................... 64
Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566 (6th Cir. 2002) ...................... 64
CONCLUSION ....................................................................................................................... 65
viii
APPENDIX....................................................................................................................................... 65
1
STATEMENT OF THE CASE
The Governor has unilaterally imposed rules of “breathtaking scope and implication” on
the people of Kentucky. July 16, 2020 Boone Cir. Ct. Hrg. Tr. at 414 (emphasis added).1
Those are the words of Dr. Steven Stack, Kentucky’s Commissioner of Public Health. And
he is right. Since March 6, 2020, the Governor and his appointees have issued a series of wide-
ranging orders in the form of executive orders, administrative orders, administrative guidance,
and emergency regulations. Altogether, this body of executive-made law constitutes a
practically impenetrable thicket of rules micromanaging nearly every aspect of Kentuckians’
everyday lives.2
This is not how a republic is supposed to function. In a republic, “the legislature
makes, the executive executes, and the judiciary construes the law.” Wayman v. Southard, 23
U.S. 1, 46 (1825). Yet, for months on end, the Governor has been unilaterally making the law
in Kentucky. And not only has he been making law, but he has done so in an arbitrary fashion
that has destroyed the livelihoods of countless Kentuckians.
The Attorney General does not doubt that the Governor has acted in good faith and
with the best of intentions. But having good intentions is not enough. Like all other officials,
the Governor must follow the Constitution and the laws of the Commonwealth. He simply
does not have the authority to act as a one-man legislature in setting the rules that all
Kentuckians must live by. Pandemic or not, we have a Constitution and must adhere to it.
1 Unless otherwise noted, all references to “Hrg. Tr.” throughout this brief refer to the July 16 evidentiary hearing in Boone Circuit Court.
2 The Attorney General has attempted to compile these orders into a supplemental appendix for the Court’s convenience. It spans three volumes and more than 800 pages. See Supplemental Appendix (“Supp. App’x”) Volumes 1–3.
2
A. Covid-19.
By now, everyone is aware of the Covid-19 virus. It struck the United States in early
2020 and has led to major disruptions in most Americans’ lives. There is no doubt that it is a
serious and potentially deadly disease. That said, time has given a more complete picture of
its impact.
As summarized in the following chart created by the Kentucky Hospital Association
using data compiled by the Kentucky Department for Public Health, over 40,000 Kentuckians
have tested positive for Covid-19 at the time of filing of this Brief, and 830 of them have
tragically passed away, giving the Commonwealth a Covid-19 death rate of 2.01%.3 Over 90%
of Kentucky’s deaths have come from individuals age 60 and over, and roughly 75% of deaths
have come from individuals age 70 and over.4 It has been reported that more than half of the
Kentucky residents who have died of Covid-19 have been residents of nursing homes.5 And
roughly one-third of the Commonwealth’s Covid-19 cases have occurred in Jefferson and
Fayette Counties.6
3 See Kentucky Department for Public health Covid statistics, available at https://govstatus.egov.com/kycovid19 (last visited Aug. 28, 2020).
4 See id.
5 See WHAS11, More than half the deaths in Indiana and Kentucky are in long term care, available at https://www.whas11.com/article/news/investigations/focus/covid-long-term-care-death-coronavirus-kentucky-indiana-data-deep-dive/417-db19b27e-7ed7-4560-9eac-ef371a952590 Covid-19 (last visited Aug. 28, 2020).
6 See KY COVID-19 Daily Summary 8/27/2020, available at https://chfs.ky.gov/agencies/dph/covid19/COVID19DailyReport.pdf (last visited August 28, 2020).
3
Unfortunately, despite all the restrictions placed on Kentucky’s residents, the
Commonwealth’s Covid-related death statistics are not overwhelmingly positive in
comparison with other states. Tennessee, for instance, has experienced a death rate of
approximately 1.1%,7 roughly half of Kentucky’s rate. And the rate in South Dakota—which
never shut down and has few Covid-related restrictions—is around 1.4%.8 Moreover,
Kentucky’s Covid-related death rate per 100,000 residents is 19, while South Dakota’s rate is
7 Tennessee Covid-19 Dashboard, available at https://experience.arcgis.com/experience/885e479b688b4750837ba1d291b85aed (last visited August 28, 2020).
8 COVID-19 in South Dakota, available at https://doh.sd.gov/news/coronavirus.aspx#SD (last visited August 28, 2020).
4
18, Oregon’s is 9, Utah’s is 12, and Tennessee’s is slightly higher, but still comparable, at 22.9
In contrast, the rate in New Jersey—which has some of the most stringent Covid-related
restrictions—is 178.10
B. The Governor’s executive orders and other directives.
On March 6, 2020, in light of the perceived growing public health threat posed by
Covid-19, the Governor declared a state of emergency in the Commonwealth under KRS
Chapter 39A. See Exec. Order 2020-215, Supp. App’x 0001 (Vol. I). This declaration touched
off a dizzying cavalcade of orders, guidance memoranda, and regulations that impacted or
controlled nearly every aspect of Kentuckians’ lives. As best the Attorney General can discern,
the declaration of emergency was followed by nearly 150 orders, guidance documents, and
emergency regulations in the weeks and months after March 6. But that is just a rough estimate
because the documents are not easily accessible to the public, and they certainly cannot be
found together in a single location or publication.
Nearly all of the directives that are relevant to this case can be categorized as an order
affecting one of six subjects: (1) restaurants and bars; (2) other “public-facing” businesses; (3)
travel; (4) mass gatherings; (5) child care centers; and (6) healthcare. The orders affecting each
of these categories are summarized below. Admittedly, the summaries are dense, overlapping,
and somewhat exhausting to read. But this just underscores the problem: The Governor has
not so much issued valid executive orders as created his own legal code. And this one is
tedious to analyze.
9 CDC COVID Data Tracker, available at https://www.cdc.gov/covid-data-tracker/#cases (August 28, 2020).
10 Id.
5
1. Directives affecting restaurants and bars.
On March 16, 2020, the Secretary of the Cabinet for Health and Family Services, acting
as the Governor’s designee, issued an order prohibiting restaurants and bars from allowing
onsite consumption of food and beverages. See March 16, 2020 CHFS Order, Supp. App’x
0043–44 (Vol. I). The Secretary cited a number of statutory provisions in support of his
authority to issue such an order. First, he cited KRS 39A.100(f), (h), and (j). These provisions,
respectively, permit the Governor to “exclude all nonessential, unauthorized, disruptive, or
otherwise uncooperative personnel from the scene of the emergency,” “[t]o prohibit or limit
the sale or consumption of goods,” and “to perform and exercise other functions, powers,
and duties deemed necessary to promote and secure the safety and protection of the civilian
population.” Second, he cited KRS 194A.025, which simply describes the general power and
authority of the CHFS Secretary, such as the power to enter into contracts on behalf of the
Cabinet and the power to delegate his duties to employees of the Cabinet. Third, he cited
KRS 214.020, which authorizes the Cabinet to “adopt and enforce such rules and regulations
as it deems efficient in preventing the introduction or spread of infectious or contagious
disease,” and also allows the Cabinet to “establish and strictly maintain quarantine and
isolation at such places as it deems proper.” Fourth, he cited KRS 241.090, which simply
provides that state alcohol administrators and investigators have full law enforcement powers.
And, fifth, he cited KRS 244.120, which provides that licensed alcohol retailers cannot allow
their premises to be “disorderly,” KRS 244.120(1), and must maintain minimum “health, fire,
safety, or sanitary standards established by the state or local government,” KRS 244.120(2)(g).
Compared to most of the orders issued by the Governor or his designees, the March
16 CHFS Order was long-lived. It remained in place, un-amended, until May 22, when the
CHFS Secretary issued a new order permitting restaurants to reopen for onsite consumption.
6
As a condition for reopening, however, restaurants were required to comply with the “Healthy
at Work Minimum Requirements for All Entities” that CHFS issued on May 11, as well as the
“Healthy at Work Minimum Requirements for Restaurants” that CHFS issued
contemporaneously with its May 22 Order. See May 22, 2020 CHFS Order, Supp. App’x 0238–
0240 (Vol I.); May 11, 2020 CHFS Order, Supp. App’x 0204–0211 (Vol. I).
As its name indicates, the “Healthy at Work Minimum Requirements for All Entities”
is a list of mandates that apply to all entities in the Commonwealth. It imposes a variety of
obligations on employers, such as allowing employees to telework when possible, enforcing
social distancing and mask-wearing in the workplace, supplying hand sanitizer for employees
and customers, conducting daily health and temperature checks among employees, and
educating and training employees, contractors, vendors, and customers about the “Healthy at
Work” protocols. Supp. App’x 0206–0211 (Vol. I).
The May 22 “Healthy at Work Requirements for Restaurants,” which have since been
updated, was an even more detailed set of obligations specifically for the restaurant industry.
In more than five pages of single-spaced type, it imposed meticulous and wide-ranging—and
quite detailed—requirements on all restaurants in the Commonwealth. Trial Ex. 30. Among
other things, it prohibited parties of more than 10 people and prohibited persons who do not
live in the same household from sitting at the same table; it prohibited restaurants from seating
more than 33% of their maximum occupancy; it required updated floor plans; it prohibited
tablecloths and cloth napkins; and it required restaurants to encourage customers to use hand
sanitizer before and after meals. Some of the requirements seem practically unenforceable.
For example, it is not clear how restaurants could be expected to know which individuals live
in the same household. Nevertheless, the Order ominously warned that “[f]ailure to follow
the requirements provided in this Order and any other Executive Order and any Cabinet
7
Order . . . is a violation of the Orders issued under KRS Chapter 39A, and could subject
businesses to closure or additional penalties as authorized by law.” Those “additional
penalties” include criminal penalties. See KRS 39A.990.
Over a month later, on June 29, bars were allowed to reopen, and CHFS issued
updated “Healthy at Work Requirements for Restaurants and Bars.” Supp. App’x 0365–0369
(Vol. II). The new requirements allowed restaurants and bars to operate at up to 50% of their
maximum occupancy, but the previous list of requirements generally remained the same,
including prohibiting parties of more than 10 and prohibiting the seating of individuals from
different households at the same table. Id.
On July 28, the CHFS Secretary reversed course and ordered bars to close again. See
July 28, 2020 CHFS Order, Supp. App’x 0774–0776 (Vol. III). That Order remained in place
until August 11, when bars were allowed to reopen once again. See August 10, 2020 CHFS
Order, Supp. App’x 0789–0791 (Vol. III).
Finally, on August 18, CHFS issued another updated set of “Healthy at Work
Requirements for Restaurants and Bars.” Those updated requirements impose several new
obligations on dining establishments. Most notably, they are required to “[d]iscontinue bar
seating and bar service,” regardless of whether they can conduct such service consistent with
social-distancing guidelines. Supp. App’x 0807–0811 (Vol. III). They are also required to be
closed for dine-in service no later than 10:00 p.m. and to close no later than 11:00 p.m. for
drive-thru and carryout service. Id. at 0807. Of course, the document does not explain why
allowing dine-in service at 10:01 p.m. is more dangerous than allowing dine-service at 9:59
p.m. Likewise, it fails to explain why drive-thru and carryout service become so dangerous
after 11:00 p.m. that they must be strictly prohibited in all circumstances.
8
2. Directives affecting “public-facing” businesses.
On March 17, the day after the Governor’s administration first placed restrictions on
restaurants, the CHFS Secretary issued an Order requiring the closure by 5:00 p.m. on March
18 of all “public-facing businesses that encourage public congregation or, that by nature of the
service to the public, cannot comply with CDC guidelines concerning social distancing.”
March 17, 2020 CHFS Order, Supp. App’x 0046–0047 (Vol. I). The Order makes no attempt
to define what it means to “encourage public congregation.” However, the very next provision
in the Order states that the “public-facing businesses that must close include entertainment,
hospitality and recreational facilities, community and recreation centers, gyms and exercise
facilities, hair salons, nail salons, spas, concert venues, theaters, and sporting event facilities.”
Id. The Order is ambiguous as to whether those are the only businesses that are required to
close, or whether it is merely a non-exclusive list of examples. However, the Order also
provides a lengthy list of businesses that are exempt from having to close. Those businesses
include things like “retail,” “pet stores,” “industrial manufacturing,” and “businesses providing
food.” Id. The only statutes cited as support for the CHFS Secretary’s authority to issue the
Order are KRS 194A.025—the statute that describes the Secretary’s general authority—and
KRS 214.020, which, as explained above, authorizes CHFS to adopt rules and regulations
regarding infectious diseases, and also allows the establishment of quarantines.
Less than a week later, on March 22, the Governor issued Executive Order 2020-246.
Supp. App’x 0065–0068 (Vol. I). This Order altered the previous week’s Order from the
CHFS Secretary by requiring all “non-life-sustaining” retail businesses to close by 8:00 p.m.
on March 23. Id. at 0068. The Order defined life-sustaining retail businesses—i.e., those that
did not have to close—as “grocery stores, pharmacies, banks, hardware stores, and other
businesses that provide staple goods.” Id. Attached to the Order was a list of retail businesses
9
with some classified as life-sustaining and some classified as non-life-sustaining. Id. at 0068.
The rationale for some of the classifications is not readily apparent. For example, automobile
rental businesses were classified as life-sustaining, but automobile dealerships were not. Id.
And electronics stores and department stores were classified as non-life-sustaining, but
“[g]eneral merchandise stores”—which was defined to include warehouse clubs and
supercenters—were placed in the life-sustaining category. Id. The only authority the
Governor cited in support of his Order was the provision in KRS Chapter 39A that ostensibly
permits him “to exercise all other powers deemed necessary to promote and secure the safety
and protection of the civilian population.” Id. at 0065; see also KRS 39A.100(1)(j).
Just three days later, on March 25, the Governor issued an executive order requiring
all non-life-sustaining businesses—not just retail businesses—to close by 8:00 p.m. on March
26. See Exec. Order 2020-257, Supp. App’x 0079–0085 (Vol. I). The Order contained a
lengthy list of businesses that the Governor deemed to be life-sustaining, and therefore exempt
from the closure order. The list included several things that one would expect to be on a list
of life-sustaining businesses, like medical supply companies, food and beverage
manufacturing, and home-based care businesses. See id. at 008–83. But it also included
landscaping businesses. See id.
A couple of weeks later, on April 8, the Governor issued an Executive Order
prohibiting any life-sustaining retail business from allowing more than one adult shopper per
household to enter the business at a time. See Exec. Order 2020-275, Supp. App’x 0147–0148
(Vol. I). The Order also prohibited “all uninvited, in-person solicitation for any purpose
occurring at a residence or physical business location.” Id. at 0148.
On May 8, the Governor started permitting a select group of non-life-sustaining
businesses to reopen as of May 11, provided they could meet the CHFS Healthy at Work
10
Requirements. See Exec. Order 2020-323, Supp. App’x 0195, 0196 (Vol. I). These businesses
included car dealerships, horse racing tracks, and photography businesses, among other things.
See id. In addition to allowing some businesses to reopen, the May 8 Executive Order also
required businesses in several industries to adhere to industry-specific Healthy at Work
Requirements as well as the general Healthy at Work Requirements for all Entities. See id. at
0197. And the Order also suspended utility disconnections in the Commonwealth and
amended the March 25 Executive Order by providing that only evictions from residential
properties were suspended. See id. at 0198. Finally, the Order specified that violating it was
“punishable as provided in KRS Chapter 39A”—i.e., punishable as a criminal offense. Id.
The Governor issued an Executive Order allowing all retail businesses to reopen on
May 20, see Exec. Order 2020-398, Supp. App’x 0226–0228 (Vol. I), and, on June 3, the CHFS
Secretary entered an Order allowing another select group of businesses to reopen as of June
1, see June 3, 2020 CHFS Order, Supp. App’x 0272–0274 (Vol. II). That group included
businesses like auto racing tracks, fitness centers, and movie theaters. See id. at 0272. The
same order allowed miniature golf businesses to reopen as well, but not until June 3. See id. It
is unclear why horse racing tracks were able to reopen on May 11, but auto racing tracks had
to wait until June 1. Nor is it clear why miniature golf businesses had to wait until June 3 to
reopen when the other businesses listed in the Order were allowed to reopen on June 1. There
does not appear to be any reason to believe that miniature golf courses were particularly
dangerous locations during that two-day period.
On June 8, the CHFS Secretary issued an Order allowing still other businesses to
reopen, provided that they comply with the Healthy at Work Requirements. See June 8, 2020
CHFS Order, Supp. App’x 0305–0307 (Vol. II). Specifically allowed to reopen were “(1)
Educational and cultural activities (aquariums, distilleries, libraries, museums, wineries, and
11
limited outdoor attractions); (2) Horse shows; and (3) Some childcare (in-home programs).”
Id. at 0305. Once again, the Secretary’s Order contained the ominous warning about the
consequences of violating an order issued under KRS Chapter 39A. See id. at 0306.
A week later, on June 15, the CHFS Secretary issued another Order allowing other
childcare businesses, including childcare centers, to reopen, in addition to youth sports and
athletic activities. See June 15, 2020 CHFS Order, Supp. App’x 0325–0327 (Vol. II). Again,
the Secretary made sure to remind citizens that their failure to comply could subject them to
criminal penalties under KRS Chapter 39A. See id. at 0326.
Roughly a month later, the Governor issued an Executive Order allowing in-person
solicitations at businesses and residences to resume. See Exec. Order 2020-582, Supp. App’x
0440.
On top of all these executive orders are an ever-increasing number of Healthy at Work
Requirements. Altogether, the Governor has issued roughly four dozen of these documents,
which impose numerous obligations on businesses and often attempt to control even the most
granular details of their operations. Some of the requirements, like the Healthy at Work
Requirements for all Entities, apply to all businesses. Others apply only to specific industries
or sectors of the economy. Through the Healthy at Work Requirements, the Governor and
his political appointees are essentially micromanaging vast swaths of Kentucky’s economy.
3. Directives affecting travel.
Beginning on March 30, the Governor issued a series of Executive Orders prohibiting
travel into, and out of, the Commonwealth. The first order prohibited Kentuckians from
traveling out of state except for specific limited reasons. See Exec. Order 2020-258, Supp.
App’x 0086–0087 (Vol. I). Three days later, he enlarged the travel restrictions to not only
12
prohibit Kentuckians from leaving the state, but to also prohibit residents of other states from
entering the Commonwealth. See Exec. Order 2020-266, Supp. App’x 0132–0135 (Vol. I).
Notably, and despite Section 24 of the Kentucky Constitution providing that
“[e]migration from the State shall not be prohibited,” the Governor claimed authority under
KRS Chapter 39A to post the National Guard at Kentucky’s board to prevent people from
leaving the Commonwealth. (Alessandro v. Beshear, No. 3:20-cv-00023-GFVT, Doc. 30, Tr.
12:23-13:15 (E.D. Ky. Apr. 30, 2020)).
On May 6, after the United States District Court for the Eastern District of Kentucky
enjoined enforcement of the travel ban, see Roberts v. Neace, No. 2:20CV054-WOB, 2020 WL
2115358 (E.D. Ky. May 4, 2020), the Governor rescinded the previous travel restrictions and
entered a new executive order allowing interstate travel, see Exec. Order 2020-315, Supp. App’x
0184–0185 (Vol. I). However, his new Order “asked” that individuals entering the
Commonwealth self-quarantine for 14 days if they intended to stay and were not travelling for
a reason specified in the Order. See id. at 0184.
A little over two weeks later, on May 22, the Governor issued another executive order
rescinding all travel restrictions, just in time for Memorial Day weekend. See Exec. Order
2020-415, Supp. App’x 0263 (Vol. I).
4. Directives affecting mass gatherings.
On March 19, a little less than two weeks after the Governor initially declared a state
of emergency, the CHFS Secretary issued an Order prohibiting all “mass gatherings.” See
March 19, 2020 CHFS Order, Supp. App’x 0059–60 (Vol. I). While the initial language in the
Order broadly prohibited all mass gatherings, another provision later in the Order exempted
mass gatherings in a number of specific settings, and yet another provision set forth examples
of the types of mass gatherings that were prohibited. Id. at 0059. The Order specifically—
13
and inexplicably—prohibited mass gatherings at “faith-based” events while specifically
permitting mass gatherings at many other places, like libraries, shopping malls, and offices. Id.
A number of churches in Kentucky planned to have drive-in Easter services despite
the CHFS Order. The Governor sent State Troopers to the Maryville Baptist Church in Bullitt
County to record the license plate numbers of congregants and give them notices that their
attendance at the drive-in service was a criminal act. The church and its pastor believed that
the Governor was violating their free-exercise rights under the United States Constitution.
The United States Court of Appeals for the Sixth Circuit agreed and, on May 2, enjoined the
Governor from enforcing orders prohibiting drive-in church services. See Maryville Baptist
Church v. Beshear, 957 F.3d 610, 616 (6th Cir. 2020). Like many Kentuckians, the Sixth Circuit
noticed the Governor’s arbitrary treatment of churches. The court observed:
The [Governor’s] orders permit uninterrupted functioning of “typical office
environments,” which presumably includes business meetings. How are in-
person meetings with social distancing any different from drive-in church
services with social distancing? Kentucky permits the meetings and bans the
services, even though the open-air services would seem to present a lower
health risk. The orders likewise permit parking in parking lots with no limit
on the number of cars or the length of time they are there so long as they are
not listening to a church service. On the same Easter Sunday that police
officers informed congregants they were violating criminal laws by sitting in
their cars in a parking lot, hundreds of cars were parked in grocery store
parking lots less than a mile from the church. The orders permit big-lot
parking for secular purposes, just not for religious purposes.
Id. at 613 (citation omitted). And the court further noted:
Assuming all of the same precautions are taken, why is it safe to wait in a car
for a liquor store to open but dangerous to wait in a car to hear morning
prayers? Why can someone safely walk down a grocery store aisle but not a
pew? And why can someone safely interact with a brave deliverywoman but
not with a stoic minister? The Commonwealth has no good answers.
Id. at 615.
14
One week later, the Sixth Circuit enjoined the Governor from prohibiting in-person
church services as well. See Roberts v. Neace, 958 F.3d 409, 416 (6th Cir. 2020). The court noted
that it did not “doubt the Governor’s sincerity in trying to do his level best to lessen the spread
of the virus . . . .” Id. at 414. But it added that “restrictions inexplicably applied to one group
and exempted from another do little to further these goals and do much to burden religious
freedom.” Id. The court further found that the Governor’s actions would chill the free
exercise of religion and could not satisfy the test of strict scrutiny because the Governor clearly
had less restrictive means of achieving his goals. See id. at 415. In this regard, the court
observed:
There are plenty of less restrictive ways to address these public-health issues.
Why not insist that the congregants adhere to social-distancing and other
health requirements and leave it at that—just as the Governor has done for
comparable secular activities? Or perhaps cap the number of congregants
coming together at one time? If the Commonwealth trusts its people to
innovate around a crisis in their professional lives, surely it can trust the same
people to do the same things in the exercise of their faith. The orders permit
uninterrupted functioning of “typical office environments,” which presumably
includes business meetings. How are in-person meetings with social distancing
any different from in-person church services with social distancing?
Permitting one but not the other hardly counts as no-more-than-necessary
lawmaking.
Id. (citation omitted).
That same day, May 9, the CHFS Secretary issued an Order specifying that in-person
services of faith-based organizations are no longer subject to the prohibition on mass
gatherings. See May 9, 2020 CHFS Order, Supp. App’x 0202–0203 (Vol. I). On May 20, the
CHFS Secretary reiterated that exemption, but required that funeral services adhere to
additional requirements. See May 20, 2020 CHFS Order, Supp. App’x 0223–0225 (Vol. I).
That Order also specified that, unless otherwise exempted, gatherings of 10 or more remained
prohibited. See id. at 0224. Curiously, however, it was not long after the issuance of that Order
15
that the Governor himself attended and participated in a large rally on the Capitol grounds.
The Governor even promoted his participation in the rally on his Twitter account:11
There definitely appear to have been more than 10 people at the rally, and they do not appear
to have engaged in social distancing. No evidence suggests that the Governor ordered State
Troopers to the rally, as he did with Maryville Baptist Church on Easter Sunday.
On June 29, the CHFS Secretary issued an Order allowing gatherings of up to 50
people. See June 29, 2020 CHFS Order, Supp. App’x 0352–0353 (Vol. II). But, on July 20,
the Secretary limited gatherings to no more than 10 people once again. See July 20, CHFS
Order, Supp. App’x 0742–0743 (Vol. III).
5. Directives affecting child care centers.
The Governor ordered child care centers to close as of March 20. Hrg. Tr. at 55–56,
96. In anticipation of their closure, CHFS issued an Interim Guidance document unilaterally
11 A copy of the Governor’s post on social media is available at https://twitter.com/GovAndyBeshear/status/1269064159234338816 (last visited August 28, 2020). This is a public record on the official Twitter account of the Governor of Kentucky.
16
creating a new category of childcare licensure on March 19—the “limited duration childcare”
center, known as “LDCs.” See March 19, 2020 CHFS Interim Guidance for Limited Duration
Child Care Programs, Supp. App’x 0053–0055 (Vol. I). LDCs were created for the purpose
of allowing health care facilities to partner with childcare centers to provide care for their
employees’ children. The only authorities cited for creating this new category of childcare
facility were KRS 214.020—the statute authorizing CHFS to establish quarantines and to
adopt rules and regulations limiting the spread of contagious diseases—and the Governor’s
initial executive order declaring a state of emergency. See id. at 0053. On that same day, the
CHFS Inspector General issued a Memorandum creating the operational requirements for
LDCs. See March 19, 2020 Memorandum from CHFS Inspector General, Supp. App’x 0054–
0056 (Vol. I).
Not everyone was given the opportunity to operate an LDC. CHFS gave the YMCA
a near monopoly on that opportunity. Under the CHFS Interim Guidance document, a
licensed childcare provider could partner with a health care facility to operate an LDC if, and
only if, a YMCA was unavailable in the health care facility’s area. See Supp. App’x at 0053.
Otherwise, the health care facility was required to partner with the YMCA. See id. It is unclear
why the YMCA was given a virtual monopoly on operating LDCs, particularly when licensed
child care centers were ready, willing, able, and desperate to remain in business. What is clear
is that when St. Elizabeth Healthcare asked Plaintiff Little Links to Learning, LLC to remain
open to care for its medical personnel, CHFS denied the request and directed Little Links “to
close by end of day tomorrow.” See Trial Ex. 1, 3.
Roughly three months later, on June 15, all childcare centers were allowed to reopen,
provided that they comply with the Healthy at Work Requirements for Childcare Programs
issued by CHFS. See June 15, 2020 CHFS Order, Supp. App’x 0325–0327 (Vol. II). Those
17
requirements are voluminous, and, in many instances, arbitrary. See Healthy at Work
Requirements for Childcare Programs, Supp. App’x 0308–0315 (Vol. II). For example, they
require children to stay in the same group of 10 children all day without being combined with
another classroom. Id. at 0309. This means that if multiple children from the same family are in
different classrooms, they cannot wait together in the same room to be picked up by a parent
at the end of the day, even though they will all be sitting next to each other in the same
automobile once they leave the childcare center. Dr. Stack testified that he did not “have a
reason” for such a rule and that “separating a family from itself is not likely – is not one of the
vehicles we were using to reduce risks.” Tr. 501:14-502:19. In addition, no more than 10
children at a time are allowed on a playground, no matter the size of the playground. See id. at
0310. In contrast, the number of children allowed on an LDC’s playground is limited only by
the amount of space available. See Supp. App’x at 0054–0056. Thus, for LDCs, larger
playgrounds are permitted to have larger numbers of children.
6. Directives affecting healthcare.
On March 23, the CHFS Secretary issued directives—retroactive to March 18—
banning elective medical practices and procedures in the Commonwealth. See March 23, 2020
CHFS Memorandum, Supp. App’x 0073–0074 (Vol. I). A little over a month later, on April
27, he issued another directive that permitted the resumption of all non-urgent and non-
emergent medical services, but not elective procedures. See April 27, 2020 CHFS
Memorandum, Supp. App’x 0175–0177 (Vol. I). Those directives also imposed a number of
operational obligations on health care providers, like eliminating waiting rooms. See id.
Less than a week later, on May 1, the CHFS Secretary directed that elective outpatient
procedures could resume on May 6. See May 1, 2020 CHFS Memorandum, Supp. App’x 0178–
18
0180 (Vol. I). The May 1 directive also placed requirements on surgical providers that were
similar to the requirements in the April 27 directive. See id.
Finally, on May 8, the CHFS Secretary allowed inpatient elective procedures to resume
as of May 13 at 50% of the pre-COVID shutdown volume, and 100% as of May 27. See May
8, 2020 CHFS Memorandum, Supp. App’x 0189–191 (Vol. I). As with the previous directives,
the May 8 memorandum also imposed a number of operational requirements on health care
providers. See id.
C. Courts repeatedly rule against the Governor in litigation over his executive orders.
The Governor’s various orders and directives have been challenged in court numerous
times. Tellingly, he has not won a single case.
Courts at the federal and state levels have ruled against him on numerous grounds. As
previously discussed, the Sixth Circuit has ruled against him twice with regard to his attempts
to shut down religious services. See Roberts, 958 F3d. 409 (attached as Tab 1); Maryville Baptist
Church, 957 F.3d 610 (attached Tab 2); see also Tabernacle Baptist Church, Inc. of Nicholasville v.
Beshear, No. 3:20-cv-33-GFVT, 2020 WL 2305307 (E.D. Ky. May 8, 2020) (attached as Tab 3)
(granting temporary restraining order to prohibit the Governor from enforcing the prohibition
on mass gatherings against in-person religious services). In addition the United States District
Court for the Eastern District of Kentucky has ruled against him with regard to enforcing his
ban on mass gatherings against citizens who are trying to protest against him, see Ramsek v.
Beshear, No. 3:20-cv-00036-GFVT, 2020 WL 3446249 (E.D. Ky. June 24, 2020) (attached as
Tab 4), and with regard to his travel ban, see Roberts v. Neace, No. 2:20CV054-WOB, 2020 WL
2115358 (E.D. Ky. May 4, 2020) (attached as Tab 5). And, as the Court is well aware, both
the Boone and Scott Circuit Courts have also issued injunctive relief against the Governor.
19
See Florence Speedway, Inc. v. Beshear, No. 20-CI-678 (Boone Cir. Ct. July 20, 2020); Quarles v.
Beshear, No. 20-CI-376 (Scott Cir. Ct. July 6, 2020).
D. The Boone County litigation.
A group of private plaintiffs initiated the present action against the Governor in Boone
Circuit Court. ROA 11. Shortly thereafter, the Commonwealth, by and through the Attorney
General, sought and received permission to intervene as a plaintiff. ROA 426, 499. The
Commonwealth’s Intervening Complaint challenged the Governor’s actions on various
grounds, including: (1) that he had not validly invoked his emergency powers under Rule 39A;
(2) that his orders violate Sections 1 and 2 of the Kentucky Constitution; (3) that, through his
orders, he has exercised legislative authority in violation of Sections 15, 27, and 28 of the
Kentucky Constitution; (4) and that his orders violate KRS Chapter 13A. ROA 375–422.
The Commonwealth and private plaintiffs alike sought a restraining order. Following
a hearing on July 1, the Boone Circuit Court entered a restraining order the next day against
the Governor, CHFS, the CHFS Secretary, and the Commissioner of Public Health. ROA
490–500.
Rather than wait for an appealable ruling on the plaintiffs’ and Commonwealth’s
temporary-injunction motions—which were awaiting a hearing on July 16—the Governor
rushed to file a petition for writs of mandamus and prohibition with the Court of Appeals on
July 6. The Governor simultaneously requested intermediate relief from the Court of Appeals
pursuant to CR 76.36(4). One week later, on July 13, a judge of the Court of Appeals denied
the request for intermediate relief and referred the writ petition to a three-judge panel.
The Governor responded to that ruling by rushing to this Court on July 14 and filing
another petition for a writ, this time asking for an order compelling the Court of Appeals judge
to grant the intermediate relief that he denied the day before. On July 17, this Court entered
20
an order staying all injunctions against the Governor and directing the Boone and Scott Circuit
Courts to proceed with the matters before them.
The day before that order, the Boone Circuit Court held the temporary injunction
hearing. The Court heard several hours of testimony from witnesses.
The first three witnesses—Christine Fairfield, Jennifer Washburn, and Bradley
Stevenson—testified about the impact of the Governor’s orders on Kentucky’s childcare
providers. Hrg. Tr. 51–91; 92–126; 127–64. Ms. Fairfield and Ms. Washburn each own
childcare centers. Id. at 51, 93. Ms. Fairfield is the owner of Little Links to Learning, LLC,
which is located in Fort Wright and is one of the plaintiffs in this matter. Id. at 51. She and
Ms. Washburn both testified as to the arbitrary nature of the mandatory closure of childcare
centers, as well as the arbitrary rules now imposed on them. And they both emotionally
explained the devastating financial losses they have personally incurred as a result of the
Governor’s orders. Ms. Fairfield testified that her business would be forced into bankruptcy
by the end of August if the Governor’s restrictions were not eased, id. at 77, 82–83, and Ms.
Washburn testified that her business would have to close no later than October, id. at 110–11.
Sadly, their situations are not unique. Bradley Stevenson, who is the head of the Childcare
Council of Kentucky, testified that 43% of Kentucky’s childcare providers will have to close
permanently by November 1 if the Governor’s rules remain in place. Id. at 140–41.
Greg Lee, a small business owner living in Kenton County, explained that the
Governor’s orders had halted his entertainment bookings for weddings and corporate events.
Hrg. Tr. 165-185. At the time of the hearing, Lee had not played an event in Kentucky since
February despite normally doing more than 200 per year. Hrg. Tr. 167-68. Lee testified that
his clients were cancelling events in Kentucky and moving them to Ohio due to the
Governor’s restrictions. Hrg. Tr. 168. Worst of all, Lee had not received any unemployment
21
payments despite more than 500 calls and across-the-state trips to Hopkinsville and
Prestonsburg to seek assistance. Hrg. Tr. 175-76.
Josh King—the owner of Plaintiff Florence Speedway—testified about the arbitrary
and burdensome nature of the restrictions that the Governor has placed on his business, Hrg.
Tr. at 222–42, and Richard Hayhoe—the owner of Plaintiff Bean’s Café—and John Ellison
both testified regarding the impact of the Governor’s orders on the restaurant industry, id. at
243–57, 258–83. Mr. King testified that the Governor’s orders preventing family members
from sitting together at the racetrack would force a significant portion of his customers to just
stay at home. Id. at 226, 233. Later in the day, Dr. Stack was unable to offer any rational basis
for such a restriction. Mr. Hayhoe and Mr. Ellison explained the arbitrary nature of many of
the orders, and Mr. Hayhoe testified that his business will be forced to close permanently by
November 1 if the Governor’s orders are left in place. Id. at 251–52. Mr. Ellison, part owner
of Northern Kentucky’s Hofbrauhaus and past Chair of the Kentucky Restaurant Association,
also explained the arbitrariness of the Governor’s orders and testified that 20% of Kentucky’s
restaurants will permanently close if those orders continue in force. Id. at 267.
Dr. John Garen, an economics professor at the University of Kentucky, testified that
the Commonwealth would suffer a $25.9 billion annualized loss in GDP as a result of the
Governor’s orders. Id. at 298. Dr. Garen also testified that the Governor’s orders have
precipitated the greatest increase in unemployment in Kentucky since the Great Depression.
Id. at 305.
Dr. Steven Stack, Kentucky’s Commissioner of Public Health, also testified at the
hearing. He explained that while he consults on the “breathtaking” rules the Governor has
imposed on Kentuckians, the final decisions are solely the Governor’s. Id. at 456, 467. He
22
also admitted that there is no real rationale for some of the restrictions imposed on childcare
centers, explaining that the process has “imperfections.” Id. at 401, 492, 495, 496.
At the end of the lengthy evidentiary hearing, the court heard arguments from counsel
and then orally informed the parties that it intended to grant a temporary injunction. Four
days later, on July 20, the Boone Circuit Court formally entered an order finding that a
temporary injunction was appropriate, but deferring a ruling in light of this Court’s July 17
Order. ROA 627–64. In its order, the Boone Circuit Court found that the private plaintiffs
and the Commonwealth would suffer irreparable harm in the absence of a temporary
injunction. Id. at 640–46. It also found that there were substantial questions on the merits as
to whether the Governor validly invoked his emergency powers under KRS Chapter 39A and
whether he had violated the Kentucky Constitution’s separation of powers. Id. at 657–64.
ARGUMENT
Americans instinctively know that the legislative and executive functions should never
be combined in a single branch of government, much less a single individual. It is a
fundamental part—indeed, the bedrock—of who we are as a nation and how we conceive of
civil society.
Despite these fundamental principles, Governor Beshear has since March exercised
wide-ranging control over nearly every aspect of Kentuckians’ lives through a series of
unilateral executive orders. In his view, a pandemic gives him virtually unlimited power to
make and suspend laws. While he may be well intentioned, his view is profoundly wrong. The
Constitution does not contain a pandemic exception, or any kind of emergency exception for
that matter. The rule of law is a constant in our Republic, and so the Constitution cannot be
set aside on the basis of an emergency—especially when the Governor determines when that
23
emergency exists and for how long. This Court now has an opportunity to restore the
constitutional guardrails that have seemingly been absent over the last few months.
For at least four reasons, all of which are further explained in the sections that follow,
the Boone Circuit Court correctly concluded that the Governor’s conduct should be enjoined.
First, the Governor has been exercising legislative authority in violation of Kentucky’s
constitutionally mandated separation of powers. He has effectively implemented his own legal
code—one with hundreds of pages of far-reaching requirements and prohibitions for
Kentucky’s citizens. This is nothing if not lawmaking. And the plain language of Section 28
of the Constitution strictly prohibits the Governor from exercising such authority. Despite
modern case law that permits the General Assembly to delegate some of its lawmaking
authority with restrictions, the Court should return to the original understanding of Section
28—which is that delegations of administrative discretion are acceptable, but delegations of
lawmaking authority are strictly prohibited. Regardless, even under the current case law—
including a decision rendered just last year—the Governor is still exercising unconstitutionally
delegated legislative power because there are no standards and safeguards guiding his use of
the power that he claims has been delegated to him.
Second, even if the Governor has been exercising validly delegated power—which he
has not—his voluminous orders and directives are still largely unlawful because he has not
implemented them through administrative regulations as required by KRS Chapter 13A.
Third, the Governor has relied on KRS Chapter 39A as the source of his authority for
nearly every action he has taken in response to Covid-19. However, he has never validly
invoked his authority under KRS Chapter 39A because a governor cannot exercise power to
address an “emergency” under KRS Chapter 39A unless and until local governments inform
him that they are incapable of handling the emergency themselves. Because nothing of the
24
sort has ever happened here, a necessary prerequisite to the Governor’s ability to exercise
authority under KRS Chapter 39A was never met.
Fourth, the Governor’s executive orders violate Sections 1 and 2 of the Kentucky
Constitution. Section 1 protects Kentuckians’ rights to earn a living, and Section 2 protects
Kentuckians from the accumulation and exercise of absolute and arbitrary government power.
The Governor’s various executive orders violate both of these provisions. He has shut down
entire swaths of the economy, thereby jeopardizing—if not already destroying—many citizens’
livelihoods. And he has done so in perhaps the most arbitrary manners imaginable. For
example, the Governor’s executive orders only permit childcare centers to have 10 children at
a time on their playgrounds, but his executive orders theoretically allow limited duration
childcare centers to have well over 1,000 children at a time on the same playgrounds. Similarly,
his orders allow spectators to gather at ballparks, but inexplicably place greater restrictions on
automobile racetracks; prohibits protests that he disagrees with, but takes no action against
protests with which he is sympathetic; and he prohibited in-person church services on the
ground that it was simply too dangerous to allow individuals to gather in churches, but all the
while he allowed citizens to congregate in large numbers at big-box retail stores and shopping
malls. And he did all of this without giving anyone due process. All of this is the very
definition of arbitrariness.
I. The Governor has exercised legislative power in violation of the Constitution’s separation of powers.
Hundreds of years of experience and experimentation with the English system of
government culminated during the American Founding era in the greatest governmental
innovation known to mankind—a three-branch system of republican government with a
formalized separation of powers. See Gordon S. Wood, The Creation of the American Republic
1776–1787 152 (1969). This was an earth-shattering development designed to protect liberty
25
and promote the rule of law. In fact, the formal separation of powers is “[t]he central feature
of the U.S. Constitution—what the Constitution’s framers thought provided the most
important bulwark of liberty.” Ronald A. Cass, Delegation Reconsidered: A Delegation Doctrine for
the Modern Administrative State, 40 Harv. J.L. & Pub. Pol’y 147, 198 (2017).
Kentucky’s founders felt even more strongly about the matter. They believed so
fervently in a formal separation of powers that they not only divided the Commonwealth’s
government into three branches, but also expressly provided in the Commonwealth’s first
Constitution that “[n]o person, or collection of persons, being of one of these departments,
shall exercise any power properly belonging to either of the others.” Ky. Const., art. I § 2
(1792). Thus, from the very beginning, Kentuckians have always been diligent in guarding
against the accumulation of power in a single branch of government. Indeed, our
Constitution’s unique, double-barreled, positive-negative approach to separation of powers
has long been heralded as producing perhaps the most robust separation of powers in the
nation. See, e.g., Bd. of Trustees of Judicial Form Ret. Sys. v. Att’y Gen., 132 S.W.3d 770, 782 (Ky.
2003) (quoting Sibert v. Garrett, 246 S.W. 455, 457 (1922)). Unfortunately, the enduring
strength of our separation of powers is now in jeopardy. While our separation of powers may
always exist on paper, the Governor’s actions during the Covid-19 pandemic threaten to
obliterate it in practice.
Any separation-of-powers issue essentially boils down to two questions. First, what
kind of authority is being exercised with regard to the actions at issue? And, second, is the
official or body exercising such authority constitutionally permitted to do so? See, e.g.,
Commonwealth ex rel. Beshear v. Bevin, 575 S.W.3d 673, 681–84 (Ky. 2019) (resolving a separation-
of-powers issue by identifying the type of authority in question and analyzing whether the
Governor was permitted to exercise that authority); see also Prater v. Commonwealth, 82 S.W.3d
26
898, 907 (Ky. 2002) (holding that a separation-of-powers violation occurs when one branch
exercises power that belongs to another branch). In this case, the answer to the first question
is that the Governor has exercised—and continues exercising—legislative authority by
unilaterally imposing certain laws of his own making upon the people of Kentucky.12 And the
second question—whether he is permitted to exercise such authority—can only be answered
in the negative.
A. The Governor is exercising the legislative authority to make laws.
There is no credible argument that the Governor’s issuance of wide-ranging executive
orders imposing various obligations and prohibitions on Kentuckians is anything but the
exercise of legislative power. As this Court has recently held, “[t]he legislative power we
understand to be the authority under the constitution to make the laws, and to alter and repeal
them[.]” Beshear, 575 S.W.3d at 682 (quoting Purnell v. Mann, 50 S.W. 264, 266 (Ky. 1899) (Du
Relle, J., dissenting)). And it is abundantly clear that the Governor has been making the laws
for months now. After all, his orders are written in mandatory language, they are styled as
orders rather than recommendations, and most of them ominously warn citizens that they will
be subject to punishment if they disobey.
Of course, for his part, the Governor contends that he is not actually making laws, but
merely exercising delegated emergency authority to protect the public. Thus, the ultimate
question boils down to what exactly it means to exercise the authority to make the laws.
This Court does not appear to have directly addressed that question, but it has been
abundantly—and uniformly—addressed elsewhere. And the answer to the question is this:
12 In fact, the Governor seems to have even attempted to interfere with judicial authority as well. See Exec. Order 2020-257, Supp. App’x 0083–0084 (Vol. I). Executive Order 2020-257 orders law enforcement officers in the Commonwealth not to enforce eviction orders. Id.; see In re Appointment of Clerk of Court of Appeals, 297 S.W.2d 764 (Ky. 1959).
27
American jurisprudence has always understood that legislative power, at its core, is the power
to adopt “generally applicable rules of private conduct.” Dep’t of Transp. v. Ass’n of Am. R.Rs.,
575 U.S. 43, 70 (2015) (Thomas, J., concurring in the judgment).
This understanding is a cornerstone of the American conceptualization of separation
of powers, and it is a cornerstone with a rich philosophical heritage. William Blackstone,
whose Commentaries on the Laws of England “profoundly influenced” the Founders’ views on
separation of powers, id. at 74, “defined a ‘law’ as a generally applicable ‘rule of civil conduct
prescribed by the supreme power in a state, commanding what is right and prohibiting what
is wrong,’” id. at 73 (quoting 1 Commentaries at the Laws of England 44 (1765)). John Locke, who
likewise heavily influenced the Founders, similarly referred to the legislative power in terms of
creating “a standing rule to live by, common to every one of that society.” John Locke, Second
Treatise of Government § 22, at 17 (C.B. Macpherson ed. 1980). Echoing these thoughts,
Alexander Hamilton explained in The Federalist No. 78 that the legislative power is the power
to “prescribe the rules by which the duties and rights of every citizen are to be regulated.” The
Federalist No. 78, at 433 (Alexander Hamilton) (Clinton Rossiter ed., 1961, reprinted 1999).
Naturally, this view took hold in the early American courts, with the United States
Supreme Court observing in Fletcher v. Peck that “[i]t is the peculiar province of the legislature
to prescribe general rules for the government of society.” 10 U.S. 87, 136 (1810). And courts
have continued to adhere to this view in the modern era. In Carter v. Lehi City, for example,
the Supreme Court of Utah identified legislative power as that which “(a) involves the
promulgation of laws of general applicability; and (b) is based on the weighing of broad,
competing policy considerations.” 269 P.3d 141, 151 (Utah 2012). Even more recently, Justice
Thomas explained in his concurrence in Department of Transportation v. Association of American
Railroads that “[u]nder the original understanding of the Constitution,” the formulation and
28
imposition of “generally applicable rules of private conduct” on the people “requires the
exercise of legislative power.” 575 U.S. at 70 (Thomas, J., concurring in the judgment). And
Justice Gorsuch noted last year that:
When it came to the legislative power, the framers understood it to mean the
power to adopt generally applicable rules of conduct governing future actions
by private persons—the power to “prescrib[e] the rules by which the duties
and rights of every citizen are to be regulated,” or the power to “prescribe
general rules for the government of society.”
Gundy v. United States, __ U.S. __, 139 S. Ct. 2116, 2133 (2019) (Gorsuch, J., dissenting).
In the present case, it is abundantly clear that the Governor has created generally
applicable rules of private conduct. In fact, he has essentially created his own legal code with
generally applicable rules governing a broad array of private conduct. As Dr. Steven Stack
testified at the temporary injunction hearing, the Governor truly has imposed rules of
“breathtaking scope and implication” on the people of Kentucky. Hrg. Tr. at 414 (emphasis added).
Among the innumerable requirements and prohibitions he has imposed on Kentuckians, he
has directed the types of menus that restaurants can use, the number of children who play on
a privately owned playground, the number of people who can congregate together, whether
utility companies can avail themselves of their contractual right to disconnect services for
customers who do not pay their bills, whether fitness centers can have “lost and found” bins,
and the number of people who can swim in privately owned swimming pools. This is just a
miniscule sampling of the rules that the Governor has unilaterally imposed on Kentuckians.
If his actions do not amount to the creation of generally applicable rules of private conduct,
then that phrase has no meaning.
B. The Governor cannot exercise such legislative authority.
Having established that the Governor has exercised—and continues exercising—
legislative authority, the question remains whether the Constitution permits him to do so. This
29
question can only be answered with an emphatic “no.” The plain language of the Kentucky
Constitution strictly prohibits the Governor—an executive branch official—from exercising
power belonging to the legislative branch of government. Nevertheless, even if it is
theoretically possible for legislative power to be delegated to the Governor, there has not been
a valid delegation in this instance.
1. The Constitution strictly prohibits executive branch officials from exercising the legislative authority to make laws.
The plain language of Kentucky’s Constitution is dispositive of whether the Governor
can exercise legislative power. Section 27 divides the sovereign power of the Commonwealth
into three distinct departments—legislative, executive, and judicial—and Section 28 provides,
in no uncertain terms, that “[n]o person or collection of persons, being of one of those
departments, shall exercise any power properly belonging to either of the others, except in the
instances hereinafter expressly directed or permitted.” This language plainly means that unless
there is another provision in the Constitution that expressly directs or permits the Governor
to exercise the legislative power to make laws, he is prohibited from doing so. Of course, no
such provision exists. As a result, the Governor is strictly prohibited from exercising the
legislative authority to make law.
The Commonwealth recognizes that Kentucky’s highest court long ago modified its
non-delegation doctrine to permit some delegations of legislative authority to the Governor and
his appointees. See, e.g., Commonwealth v. Assoc. Indus. of Ky., 370 S.W.2d 584, 589 (Ky. 1963).
And the Commonwealth also recognizes that this Court applied that doctrine in upholding
KRS 12.028 last year in Commonwealth ex rel. Beshear v. Bevin. However, none of the parties in
that case directly argued for a change in the non-delegation doctrine. Because the parties made
no such request, it was appropriate for the Court to apply the existing doctrine without
examining whether it should be revisited. But the Commonwealth specifically asks the Court
30
to revisit its non-delegation doctrine in this case. As it exists, the doctrine is inconsistent with
the plain language of the Constitution, which allows no delegation whatsoever of the authority
to make law. This Court has not hesitated in recent years to stop long-settled practices when
they are at odds with the plain language of the Constitution. See Westerfield v. Ward, 599 S.W.3d
738 (Ky. 2019); Bevin v. Commonwealth ex rel. Beshear, 563 S.W.3d 74 (Ky. 2018). It should do
the same in this case.
When Section 28 of the Constitution says that no person in one branch of government
“shall exercise any power properly belonging to either of the others,” it means exactly what it
says. There are no exceptions for convenience, nor are there even any exceptions for
pandemics or other emergencies. The plain language of Section 28 simply does not allow it.
To the extent that Kentucky’s existing non-delegation doctrine would allow the Governor to
exercise any quantum of legislative power to create law—even in the slightest manner—it
should be revisited. The plain language of the Constitution demands as much. See Westerfield,
599 S.W.3d at 747 (“When interpreting constitutional provisions, we look first and foremost
to the express language of the provision, and words must be given their plain meaning. . . . [I]t
is to be presumed that in framing the constitution great care was exercised in the language
used to convey its meaning and as little as possible left to implication.” (internal quotation
marks omitted)).
And so do the historical and philosophical underpinnings of the Constitution’s
separation-of-powers provision. Our constitutional separation of powers was not an
afterthought or minor element of the Founders’ constitutional design. Nor was it an accident.
Instead, it was a feature that the Founders deliberately made into the cornerstone of their
design based on philosophical understandings that had developed through hundreds of years
of experience with the English system of government.
31
The idea that the executive should not be able to exercise legislative power began
developing in England centuries before the America’s Founding era. See, e.g., Magna Carta.
“Even before a more formal separation of powers came about during the English Civil War,
it was generally thought that the King could not use his proclamation power to alter the rights
and duties of his subjects.” Assoc. of Am. R.Rs., 575 U.S. at 71 (Thomas, J., concurring in the
judgment) (citing Philip Hamburger, Is Administrative Law Unlawful? 33–34 (2014)).
In 1539, however, King Henry VIII prevailed upon Parliament to pass the Act of
Proclamations, which authorized the King to make law through proclamations. See
Hamburger, supra, at 35. But, Parliament was mindful of the potential harms of executive
lawmaking, and so it limited the power given to the King by including provisions in the Act
that prohibited the King from using his proclamation power to invalidate other laws or deprive
his subjects of life or property. See id. at 37–38. As one might imagine, the Proclamations Act
was quickly repealed, thus restoring the understanding that the English monarch could not
make law. See id. at 38. A subsequent commentator “scathingly observed that when Parliament
‘gave to the king’s proclamation the same force as to a statute enacted by parliament,’ it ‘made
by one act a total subversion of the English constitution.’” Id. at 39 (quoting David Hume,
The History of England from the Invasion of Julius Caesar to the Revolution of 1688, at 5: 266–67
(Indianapolis: Liberty Classics, 1983)).
Nevertheless, the push for executive lawmaking accelerated aggressively with the
Stuart monarchs and their infamous use of the Star Chamber. As in the present case, the
King’s lawyers relied on the argument of exigent circumstances in advocating for the King’s
ability to make legislation through royal prerogative and enforce it through the Star Chamber
court. See id. at 41. In other words, the King’s lawyers contended that he should be allowed
to make law “where necessity required prompt action” and the matter “could not wait for the
32
legislature.” Id. Naturally, this prospect of executive lawmaking “prompted fears for liberty”
among the English people. Id. at 43. Ultimately, Chief Justice Coke rejected the King’s
arguments. See Assoc. of Am. R.Rs., 575 U.S. at 72 (Thomas, J., concurring in the judgment)
(quoting Case of Proclamations, 12 Co. Rep. 74, 75, 77, Eng. Rep. 1352, 1353 (K.B. 1611)).
These events deeply influenced the philosophers whom our Founders most heavily
relied upon. In light of this history, John Locke conceived of “freedom of men under
government” as having “a standing rule to live by, common to every one of that society, and
made by the legislative power erected in it . . . and not to be subject to the inconstant,
uncertain, unknown, arbitrary will of another man.” Locke, supra, § 22 at 17. A natural
corollary to this, in Locke’s view, was the principle that the power to make the standing rules
of society had to be separate from the power to enforce those standing rules. See id § 143 at
75–76. This also meant, in Locke’s view, that “[t]he legislative cannot transfer the power of
making laws to any other hands.” Id. § 141 at 74–75. In other words, Locke did not view the
principle of separation of powers as a mere formality whose substance could be dispensed
with in practice. Instead, he viewed it as an essential safeguard of liberty that had to be
respected in both form and practice. And, in Locke’s view, respecting it in practice meant that
the legislative power actually had to be exercised by the legislature and could not be delegated.
See id.
Blackstone agreed with these sentiments. He “defined a tyrannical government as one
in which the ‘right both of making and of enforcing the laws, is vested in one and the same man,
or one and the same body of men,’ for ‘wherever these two powers are united together, there
can be no public liberty.’” Assoc. of Am. R.Rs., 575 U.S. at 73 (Thomas, J., concurring in the
judgment) (quoting 1 Commentaries 142).
33
Following this line of thinking, James Madison, quoting Montesquieu, explained in
The Federalist No. 47 that “[w]hen the legislative and executive powers are united in the same
person or body, . . . there can be no liberty.” The Federalist No. 47, at 271 (James Madison)
(Clinton Rossiter ed., 1961, reprinted 1999) (cleaned up). And, in No. 48, Madison observed
that in governments where the executive enjoys legislative prerogatives, “the executive
department is very justly regarded as the source of danger.” Id. No. 48 at 277.
Thus, formally dividing government into three distinct branches was an easy decision
for the Founders. But that alone was not enough for some in the Founding era. Thomas
Jefferson, for one, believed that it was necessary not just to divide the powers of government
into different branches, but to separate the powers in a way that “no one [branch] could
transcend their legal limits.” Wood, supra, at 453. Jefferson, in particular, had a heavy influence
on the establishment of Kentucky’s separation of powers. In fact, Jefferson himself is reputed
to have personally written what became Section 28 of Kentucky’s Constitution:
When Mr. Jefferson returned from France, the federal constitution had been adopted; . . . . John Breckinridge and George Nicholas paid him a visit [at Monticello], and informed him that Kentucky was about to frame a constitution for herself, and that Virginia was about to permit Kentucky to become a separate and independent state. He told them that there was danger in the federal constitution, because the clause defining the powers of the departments of government was not sufficiently guarded, and that the first thing to be provided for by the Kentucky constitution should be to confine the judiciary to its powers, and the legislative and executive to theirs. Mr. Jefferson drew the form of the provision, and gave it to Nicholas and Breckinridge; and it was taken by Nicholas to the convention which met at Danville, and there presented,—Breckinridge not being present at the convention. There was much discussion and dissent when the article was offered, but, when its author was made known, the respect of Kentucky for the great name of Jefferson carried it through, and it was at once adopted.
Fletcher v. Commonwealth ex rel. Stumbo, 163 S.W.3d 852, 861 (Ky. 2005) (citations omitted).
Accordingly, Kentucky’s Constitution, from the beginning, was expected and understood to
34
prohibit a person in one branch of government from exercising any power belonging to
another branch. In other words, it was understood that Section 28 means exactly what it says.
And Section 28 was interpreted that way for a long time. Bloemer v Turner, 137 S.W.2d
387 (Ky. 1939), illustrates this perfectly. Bloemer concerned whether a state agency had
authority to require dog food manufacturers to disclose the water content of their product on
its label. See id. at 388–89. The applicable statute contained specific labeling requirements,
but did not mention water content. See id. The statute also provided that the director of the
agency was “empowered to adopt standards for concentrated commercial feedings stuffs and
to make and enforce such rules and regulations as he may deem necessary to carry fully into
effect the true intent and meaning of this act.” Id. Dog food manufacturers contended that
the statute unconstitutionally delegated legislative authority to the extent that it authorized the
agency to require label contents other than those specified in the statute. See id. at 389. The
Court agreed that such a delegation would be unconstitutional.13
The Court observed that “[i]t is an accepted principle that ‘the legislative department
has no right to deputize to others the power to perform its governing functions.’” Id. at 391
(quoting Kerr v. City of Louisville, 111 S.W.2d 1046, 1052 (Ky. 1937)). But, it was also careful to
point out that delegations of administrative discretion are not prohibited. In that vein, the Court
noted that while “[t]he legislature cannot delegate its power to make a law,” “it can make a law
to delegate a power to determine some fact or state of things upon which the law makes, or
intends to make, its own action depend.” Id. However, the Court also added that a delegation
of administrative discretion must be accompanied by policies and standards laid down by the
legislature. Id. This makes sense because a delegation of discretion without any guiding
13 The Court ultimately avoided the constitutional question by concluding that the statute did not, in fact, delegate such authority to the agency. See Bloemer, 137 S.W.2d at 392.
35
policies or standards is, essentially, a delegation of authority to make the law up as one goes
along. Thus, as explained in Bloemer, the rule was that the legislature cannot delegate any power
to make the law, but can give the executive branch the authority to make discretionary
decisions in terms of how the law is to be administered. For example, under this rule, the
legislature could establish contingent certain legal requirements that spring into effect upon a
finding by the executive branch that a certain factual circumstance exists. But, the legislature
could not delegate to the executive branch the authority to define those legal requirements
themselves.
Ultimately, the Bloemer Court found that the power sought to be asserted by the agency
was legislative in nature, not administrative. The Court held that “[t]o construe the act as
appellees contend would be to hold that it was the intent of the General Assembly to delegate
an attribute of sovereignty to the individual director [of the agency] by authorizing him to alter
or amend a law at will.” Id. at 392. Significantly, in reaching this conclusion, the Court
distinguished other cases upholding delegations of authority by the legislature on the ground
that those cases dealt with delegations concerning the conduct of “public business” while the
issue in Bloemer dealt with “regulating legitimate private business.” Id. at 391. This obviously
channels the historical understanding that non-delegable lawmaking power involves the
creation of generally applicable rules governing private conduct.
For the next couple of decades, Kentucky courts continued to adhere to the rule that
the non-delegation doctrine prohibits delegation of discretion to say what the law shall be, but
not delegation of discretion in administering the law. See, e.g., Preston v. Clements, 232 S.W.2d
85, 88 (Ky. 1950); Johnson v. Commonwealth ex rel. Meredith, 165 S.W.2d 820, 825 (Ky. 1942). By
the early 1960’s, however, the actual non-delegation rule had essentially “been disavowed in
Kentucky.” Sheryl G. Snyder & Robert M. Ireland, The Separation of Governmental Powers Under
36
the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165, 223
(1984). In Butler v. United Cerebral Palsy of Northern Kentucky, 352 S.W.2d 203 (Ky. 1961), the
Court transformed the part of the rule applied in Bloemer that required delegations of
administrative discretion to be accompanied by policies or standards laid down by the
legislature. Instead of continuing to acknowledge that delegation of legislative discretion was
barred and that the provision of adequate policies or standards was the test for the validity of
a delegation of administrative discretion, the Court appears to have melded the two concepts
together and concluded that there is no invalid delegation of legislative authority when the
legislature provides sufficient standards to guide the exercise of the delegated authority. See
id. at 207–08.
Two years later, the Court made explicit what was clearly implicit Butler. In
Commonwealth v. Associated Industries of Kentucky, the Court expressly acknowledged that it would
not stand in the way delegations of legislative authority. 370 S.W.2d 584, 588–89 (Ky. 1963).
In the wake of Butler and Associated Industries, it became clear that the focus of the non-
delegation doctrine had shifted away from prohibiting the delegation of legislative authority and
toward confining it. The doctrine was no longer concerned with outright prohibiting delegations
of legislative authority. Instead, it was concerned with prohibiting delegations of too much
legislative authority. Thus, the doctrine shifted away from focusing on the quality of the
delegated authority—i.e., legislative versus administrative—and instead focuses now on the
quantity of delegated authority—i.e., whether there are sufficient standards and safeguards in
place to prevent the executive branch from exercising too much legislative power. See Ky.
Comm’n on Human Rights v. Fraser, 625 S.W.2d 852, 854 (Ky. 1981) (“The general test for
delegation of powers to an administrative agency in Kentucky is that of safeguards, procedural
37
and otherwise, which prevent an abuse of discretion by the agency.” (citing Butler, 352 S.W.2d
203)).
Notably, this shift was not caused by any change in the text of the Constitution. To
the contrary, the language of Section 28 has remained the same since 1792. Compare Ky. Const.
§ 28 with Ky. Const., art. I § 2 (1792). Rather, the Court’s interpretation of the Constitution
changed because the Court believed that “[t]he delegation to administrative agencies of some
legislative power is necessary particularly in modern regulatory enactments in which the
legislature is incapable of defining the multitudinous details.” Assoc. Indus. of Ky., 370 S.W.2d
at 588 (citation omitted). In other words, the Court concluded that the Constitution had to
be reinterpreted because the complexity of modern administrative government requires the
ability to delegate legislative power. The Court should use this case to restore the original
meaning of the Constitution’s separation of powers. Under that meaning, the Governor
cannot exercise any legislative power whatsoever, no matter what kind of standards are set by
the legislature. But the Governor could still exercise delegated discretion that can properly be
characterized as administrative or executive if such discretion were validly delegated to him.
Accordingly, the portions of KRS Chapter 39A that permit the Governor and his appointees
to exercise legislative authority—most notable KRS 39A.100(1)(j) and KRS 39A.180(2)14—
should be declared unconstitutional.
14 KRS 39A.180(2) authorizes the Governor to suspend laws during emergency periods. It is true that Section 15 of the Constitution allows executive branch officials to suspend laws when authorized by the General Assembly to do so. See Beshear, 575 S.W.3d at 679–80. However, a suspension of a law is a temporary matter. See Beshear v. Haydon Bridge Co., Inc., 304 S.W.3d 682, 700 (Ky. 2010). If a so-called suspension is not temporary, then it cannot properly be considered a suspension, and instead must comply with all of the procedural requirements for revising or amending a statute, like those in Section 51 of the Constitution. See id. at 699–700. In the present case, the Governor purports to have suspended statutes on an open-ended basis. Unlike KRS 12.028, for example, there is no known time at which the suspensions will
38
2. Even if legislative power to make law can be delegated to the Governor, the specific power at issue here has not been validly delegated.
But even under the current formulation of the non-delegation doctrine, it is abundantly
clear that the authority ostensibly delegated to the Governor goes too far. The existing non-
delegation doctrine, while more permissive of legislative delegation than the original doctrine,
retains relatively tight restrictions on legislative delegation. “Indeed, in the area of
nondelegation, Kentucky may be unsurpassed by any state in the Union.” Bd. of Trustees, 132
S.W.3d at 782. In other words, the existing doctrine still has teeth—a lot of them, in fact.
Under the existing non-delegation doctrine, a delegation of discretion is permissible
“only ‘if sufficient standards controlling the exercise of that discretion are found in the act.’”
Diemer v. Commw., Transp. Cabinet, Dep’ of Highways, 786 S.W.2d 861, 865 (Ky. 1990) (quoting
Holsclaw v. Stephens, 507 S.W.2d 462, 471 (Ky. 1974)). Just last year, in upholding the
constitutionality of KRS 12.028, this Court elaborated on the kinds of standards and
safeguards that are necessary.
In Commonwealth ex rel. Beshear v. Bevin, the Court observed that KRS 12.028—the
statute permitting gubernatorial reorganizations of executive branch agencies—contains a
number of safeguards that protect against exercises of “uncontrolled discretionary power.”
Beshear, 575 S.W.3d at 683 (quoting Miller v. Covington Dev. Auth., 539 S.W.2d 1, 5 n.9 (Ky.
1976)). Among other things: (1) every reorganization effectuated under the statute “is
reviewed by members of the General Assembly both at the front and back ends;” (2) “changes
made by the temporary reorganization only survive until the General Assembly’s next regular
session;” (3) the reorganized portion of the executive branch “automatically reverts to the
terminate and the statutes will automatically come back into force. Thus, the Governor’s purported suspensions of statutes under KRS 39A.180(2) are not valid.
39
status existing before the Governor instituted it” unless the General Assembly ratifies it; (4)
the ultimate fate of any reorganization—and of the entire reorganization mechanism, for that
matter—rests with the General Assembly; and (5) not all executive branch agencies are eligible
for reorganization. Beshear, 575 S.W.3d at 683–84.
No such safeguards exist in this case. The General Assembly does not review the
Governor’s emergency declarations, or any of his other executive orders. Nor is there any
time limit on the Governor’s actions. No one has been able to offer even the slightest hint as
to when most of the Governor’s orders will terminate or expire. Unlike the reorganization
statute, KRS Chapter 39A contains no provisions that would automatically terminate the
Governor’s orders by operation of law. Instead, the duration of the Governor’s orders is open
ended. It is also significant that an executive branch reorganization only affects the
administration of public agencies—no private rights are at stake. See Bloemer, 137 S.W.2d at
391 (distinguishing for non-delegation purposes between delegations that only involve public
business and those that affect private rights).
Perhaps most important, the Governor has never been able to offer any limiting
principle as to what subjects are beyond his control or outside the bounds of a proper
emergency declaration. His position has consistently been that the emergency is whatever he
says it is, and his power extends to whatever he says. Under the terms of the statute, he might
be correct. But that just means that the statute is an unconstitutional delegation of legislative
authority. If it is not, the potential for future mischief is dizzying. For example, could a future
governor declare climate change to be a public health emergency and issue an executive order
prohibiting the burning of fossil fuels in response? Under Governor Beshear’s theory, the
answer is clearly “yes.” Could a future governor declare that a pension system on the brink of
collapse poses a threat to the public’s economic safety and thereby reduce pension payments
40
to retirees? Under Governor Beshear’s theory, the answer, once again, is “yes.” More
importantly, the answers to these questions must be “yes” because KRS 39A.100(1)(j) and
KRS 39A.180(2) leave the door wide open for governors to do as they wish.
In last year’s Beshear decision, this Court explained that the existing non-delegation
doctrine would plainly be contravened by a hypothetical statute providing that “The Governor
shall have the power to change all laws of this Commonwealth between sessions of the General
Assembly.” Beshear, 575 S.W.3d at 682. This case essentially involves that hypothetical statute.
KRS 39A.100(1)(j) and KRS 39A.180(2) give the Governor such broad authority and contain
so few standards and safeguards that they are, more or less, the very statute that this Court
was talking about last year. KRS 39A.100(1)(j) gives the Governor the authority “to perform
and exercise other functions, powers, and duties deemed necessary to promote and secure the
safety and protection of the civilian population,” and KRS 39A.180(2) provides that if anything
he does under KRS 39A.100(j) is inconsistent with any existing law, that law “shall be
suspended during the period of time and to the extent the conflict exists.” This is essentially
just another way of giving the Governor “the power to change all laws of this
Commonwealth.” Thus, the only possible conclusion is that those provisions violate the non-
delegation doctrine, and the orders issued under them provisions must be void. There is no
way around this. This case is the hypothetical case that the Court discussed last year in Beshear.
Diemer v. Department of Highways also demonstrates that the non-delegation doctrine is
violated here. That case involved a state law that prohibited billboards within 660 feet of an
interstate highway outside of an “urban area.” Diemer, 786 S.W.2d at 862. The statute did not
define “urban area” except to say that it could be defined by an executive order issued by the
Secretary of Transportation in “his sound discretion.” Id. Billboard owners claimed that the
legislature had unconstitutionally delegated the authority to define the term “urban area.” This
41
Court agreed. It found that “the General Assembly has abdicated its legislative power by
causing the entire prohibitive power of the statute to be dependent upon the ‘sound discretion’
of the Secretary of Transportation.” Id. at 866. The same is true here. By allowing the
Governor to take whatever actions he “deem[s] necessary to promote and secure the safety
and protection of the civilian population,” KRS 39A.100(1)(j); see also KRS 39A.180(2), the
General Assembly has abdicated its legislative power and given the Governor a blank check
to essentially create whatever laws he unilaterally and subjectively deems to be necessary. The
provisions of KRS Chapter 39A that permit this—i.e., KRS 39A.100(1)(j) and KRS
39A.180(2)—must therefore be unconstitutional.
One final point: It is irrelevant that KRS Chapter 39A deals with emergency powers.
That is to say, there is no “emergency exception” to the separation-of-powers doctrine, or to
the Constitution more generally. Nowhere does our Constitution contain a provision that
suspends, or even relaxes, its protections during an emergency. This is not to say that the
drafters of our Constitution did not foresee that emergencies would arise. On the contrary,
they expected that the Commonwealth would confront emergencies, yet they included no
“emergency exception” in our charter. In this regard, Section 80 of the Constitution is
significant. It allows the Governor to convene a special session of the General Assembly at a
“different place” than the seat of government “if that should have become dangerous from
an enemy or from contagious diseases.” Ky. Const. § 80 (emphasis added). Section 80 plainly
envisions that the Governor will not go it alone during a crisis, but instead will work hand in
hand with the People’s representatives within the Constitution’s limits. This provision
underscores that, even during times of crisis, the Commonwealth’s separation of powers
stands inviolate.
42
In fact, our separation of powers is most needed during such times. It, of course,
“would be easy to put [constitutional protections] on the shelf in times like this, to be pulled
down and dusted off when more convenient. But that is not our tradition.” See Tabernacle
Baptist Church, 2020 WL 2305307, at *6. “[I]t is in the midst of emergencies that constraints
on government are most important.” Wis. Legislature v. Palm, 942 N.W.2d 900, 924 (Wis. 2020)
(Rebecca Grassl Bradley, J., concurring). “History teaches that grave threats to liberty often
come in times of urgency, when constitutional rights seem too extravagant to endure . . . .
[W]hen we allow fundamental freedoms to be sacrificed in the name of real or perceived
exigency, we invariably come to regret it.” Id. at 925 (Rebecca Grassl Bradley, J., concurring)
(quoting Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 635 (1989) (Marshall, J.,
dissenting)). It is a pillar of our constitutional structure—in Kentucky and in our nation—
that constitutional protections persist no matter the time and no matter the circumstances. A
contrary rule goes against all we are. Ex parte Milligan, 71 U.S. 2, 121 (1866) (“No doctrine,
involving more pernicious consequences, was ever invented by the wit of man than that any
of its provisions can be suspended during any of the great exigencies of government. Such a
doctrine leads directly to anarchy or despotism . . . .”). This Court should affirm that our
separation of powers matters even—indeed, especially—during times of crisis.
II. Even if the General Assembly validly delegated legislative authority to the Governor, his use of that authority has violated KRS Chapter 13A.
If the emergency powers being exercised by the Governor have been validly delegated
to him, his use of those powers is still largely unlawful because KRS Chapter 13A requires
many of the measures he is taking to be promulgated via administrative regulation rather than
decreed through executive order. The General Assembly has expressly required that any
statement of law by any state officer that generally applies to the Commonwealth’s citizens
43
must be adopted as an administrative regulation. See KRS 13A.010(1), (2); KRS 13A.100.
According to KRS 13A.100, “any administrative body that is empowered to promulgate
administrative regulations shall, by administrative regulation, prescribe, consistent with
applicable statutes . . . [e]ach statement of general applicability, policy, procedure,
memorandum, or other form of action that implements; interprets; prescribes law or policy
. . . or affects private rights or procedures available to the public.”
The Governor’s executive orders—which broadly apply to nearly every citizen of the
Commonwealth and every activity of its citizens—are “statement[s] of general applicability,
policy, procedures . . . or other form of action that implements [or] prescribes law or
policy . . . [and] affects private rights or procedures available to the public.” KRS 13A.100(1).
This cannot be reasonably disputed. Therefore, the orders must be promulgated under the
provisions of KRS Chapter 13A.15
Bowling v. Department of Corrections, 301 S.W.3d 478 (Ky. 2009), compels this conclusion.
Bowling addressed whether the Commonwealth’s lethal injection protocol must be promulgated
as an administrative regulation, or whether it was merely a matter of “internal management”
such that it did not have to be promulgated as a regulation. See id. at 487. Noting that the
protocol “invariably affected” the “private rights” of individuals being executed in the
Commonwealth, the Court held that the protocol must be promulgated as a regulation. Id. at
488. The same is true here. The Governor’s orders and directives invariably affect the private
rights of Kentuckians. He is controlling how, when, and even where Kentuckians can conduct
business and pursue a livelihood. Supp. App’x 0043–44, 0046–0047, 0053–55, 0054–56, 0065–
15 The fact that the Governor has recently begun issuing emergency regulations indicates that he knows this is correct. More importantly, it shows that he has the tools necessary to respond to Covid-19 without resorting to a labyrinth of executive orders.
44
68, 0073–0074, 0079–0085, 0086–87, 0132–0135, 0147–0148, 0175–0177, 0178–0180, 0184–
0185, 0189–0189, 0195–0198, 0204–0211, 0223–0225, 0226–0028, 0238–0240, 0263 (Vol. I);
0272–0274, 0305–0307, 0308–0315; 0325–0327, 0365–0369; (Vol. II); 0774–0776 (Vol. III).
He is also controlling how Kentuckians socialize and congregate together. Id. at 0059–0060,
0202–0203, 0223–0225 (Vol. I); id. at 0352–0353, 0513–0519 (Vol. II); 0742–0743, 0784–0787
(Vol III). It is truly difficult to imagine a scenario where he would more directly affect the
private rights of the citizens of this Commonwealth. Accordingly, Bowling mandates that the
Governor’s orders and directives be promulgated as administrative regulations. And, because
they have not been, they are invalid.
The Wisconsin Supreme Court recently relied on similar reasoning in invalidating a
Covid-related stay-at-home order issued by Wisconsin’s Secretary-designee of the Department
of Health Services. See Wis. Legislature, 942 N.W.2d 900. As in Bowling, the Palm court noted
that the order was one of general applicability, and therefore must be promulgated as a
regulation. Id. at 918. The Palm court also noted that the Secretary-designee’s order was not
guaranteed to expire at any particular point, id. at 911, and it was made unilaterally without the
procedural “standards that hinder arbitrary or oppressive conduct by an agency,” id. at 913.
The same is true here. If the Governor were to implement his orders and directives through
emergency regulations instead of executive orders, those regulations would have an expiration
date. See KRS 13A.190(3). And, because the administrative process involves public notice
and comment, see KRS 13A.270, the public would gain greater awareness of the rules that are
being imposed and would be given an opportunity to improve the final product by providing
valuable input and perspectives. Without going through the formal rulemaking process, the
Governor’s orders are simply the product of one person’s subjective whims. And, while those
whims might be well intentioned, they may not govern the entire Commonwealth.
45
Finally, the KRS Chapter 13A process for adopting administrative regulations does
not merely place form over substance. That process provides readily available public notice
of the content of any proposed regulations and allows for public comment, yet it also provides
flexibility and speed through the availability of emergency regulations when needed to address
fast-evolving challenges. The opportunity for notice and comment also provides a measure
of due process protection to the public, who are expected to follow the Governor’s orders on
pain of criminal sanctions for noncompliance. In addition, Kentuckians can easily locate
administrative regulations, which the Legislative Research Commission keeps available online,
in one easy-to-locate place with which the public is familiar.
III. The Governor’s actions taken under KRS Chapter 39A are void because his authority under that chapter has never been properly invoked.
The Governor’s emergency powers under KRS 39A.100 are only invoked when he
issues a valid declaration that a state of emergency exists. See KRS 39A.100(1). So when does
a valid declaration of emergency occur? KRS 39A.100 allows for such declarations in three
instances: “[i]n the event of the occurrence or threatened or impending occurrence of any of
the situations or events contemplated by KRS 39A.010, 39A.020, or 39A.030.” KRS
39A.100(1). None of these three potential prerequisites was satisfied here. Accordingly, the
Governor’s emergency powers have never been properly invoked.
In KRS 39A.010, the General Assembly has stated its intent to “support a statewide
comprehensive emergency management program for the Commonwealth,” and to “provide
for adequate assessment and mitigation of, preparation for, response to, and recovery from,
the threats to public safety and the harmful effects or destruction resulting from all major
hazards,” including but not limited to major weather-related events, natural hazards, fire,
enemy attack, riot and civil disorder, infrastructure failures, “other . . . biological [or] etiological
46
. . . hazards; or other disaster or emergency occurrences; or catastrophe; or other causes.”
KRS 39A.010.
KRS 39A.020 defines certain terms used throughout KRS Chapter 39A. It defines
“disaster” to mean “any incident or situation declared as such by executive order of the
Governor, or the President of the United States, pursuant to federal law.” KRS 39A.020(9).
“Catastrophe” is defined as “a disaster or series of concurrent disasters which adversely affect
the entire Commonwealth of Kentucky or a major geographical portion thereof.” KRS
39A.020(2). Finally, “emergency” means “any incident or situation which poses a major threat
to public safety so as to cause, or threaten to cause, loss of life, serious injury, significant
damage to property, or major harm to public health or the environment and which a local
emergency response agency determines is beyond its capabilities.” KRS 39A.020(12)
(emphasis added).
KRS 39A.030 states the General Assembly’s rationale and purpose for enacting a
comprehensive emergency management program. The rationale for such a program “has
evolved from a program for response to threats to national security, enemy attack, and other
national defense needs, to a program for response to all hazards, but primarily, domestic
hazards and threats including natural, man-made, technological, industrial, or environmental
emergencies or disasters, for which civil government is primarily responsible.” KRS 39A.030.
Taken together, KRS 39A.010, 39A.020, and 39A.030 distinguish between several
different kinds of “situations or events,” KRS 39A.100(1), for which the Governor may
declare a state of emergency, including the occurrence of “disaster[s],” “emergenc[ies],” and
“catastrophe[s].” The Governor’s executive order first declaring that a state of emergency
exists in the Commonwealth due to Covid-19, stated as its basis that “the planning and
preparedness of all state and local agencies for a COVID-19 public health emergency in the
47
Commonwealth is a concern to all Kentuckians.” Exec. Order 2020-215, Supp. App’x at 0001.
The executive order further “declare[d] that a State of Emergency exists in the Commonwealth
of Kentucky,” referring to “the novel coronavirus (COVID-19) emergency in the
Commonwealth.” Id. at 0002. The executive order refers in several subsequent paragraphs to
“the COVID-19 emergency” and “this emergency.” Id. at 0002–0003. Therefore, the
Governor’s executive order declaring the state of emergency, upon which all subsequent
executive orders relating to the Commonwealth’s Covid-19 response is based, refers to the
existence of an “emergency,” and not to a “disaster” or “catastrophe,” which are terms defined
separately in KRS 39A.020, and therefore are not synonymous.
Under KRS 39A.020(12), there can be no declared emergency unless two
preconditions are satisfied. First, the definition requires that there must be an “incident or
situation which poses a major threat to public safety so as to cause, or threaten to cause, loss
of life, serious injury, significant damage to property, or major harm to public health or the
environment.” The Commonwealth does not dispute that the Covid-19 pandemic is a
situation that may threaten to cause “major harm to public health.”
However, the definition of “emergency” also includes a second precondition: a local
emergency response agency must first “determine[]” that the situation “is beyond its
capabilities.” To date, including at the July 16, 2020 hearing on the motions for temporary
injunctions in this action, the Governor has not produced any information or evidence that
any local emergency response agency—much less every local emergency response agency in the
Commonwealth—has made a determination that the Covid-19 situation is “beyond its
capabilities.” To the contrary, Dr. Stack testified at the July 16 hearing that no local emergency
management agency has made such a determination. Hrg. Tr. at 425, 507–08. By definition,
without such a local determination, there is no “emergency” pursuant to which the Governor
48
can exercise his authority under KRS Chapter 39A, which means that all of his actions taken
under KRS Chapter 39A are void.
The Governor’s cavalier gloss on KRS Chapter 39A does violence to its text. “All
parts of the statute must be given equal effect so that no part of the statute will become
meaningless or ineffectual.” Harilson v. Shepherd, 585 S.W.3d 748, 753 (Ky. 2019) (quoting
Lewis v. Jackson Energy Co-op. Corp., 189 S.W.3d 87, 92 (Ky. 2005)). Though no Kentucky
appellate court has yet construed the definition of “emergency” in KRS 39A.020(12), guidance
from the Office of the Attorney General has construed the statute to require that a situation
be beyond the capabilities of a local emergency management agency before it qualifies as an
“emergency.” In an opinion issued just last year, then-Attorney General Andy Beshear
considered whether a county judge/executive could invoke the emergency powers of KRS
Chapters 39A–39F to fill the position of County Road Supervisor. Relying upon the definition
of “emergency” in KRS 39A.020(12), the Attorney General determined that, even if the
vacancy posed a major threat to public safety, it was “not a circumstance that a local emergency
response agency would determine to be beyond its capabilities.” OAG 19-021, 2019 WL
6445355 (Nov. 18, 2019). This Court should not read the “beyond its capabilities”
precondition out of the statute.
The analysis in OAG 19-021 also is consistent with the way in which the
Commonwealth has planned for years to undertake emergency operations under KRS Chapter
39A. For example, the Kentucky Emergency Operations Plan (“KYEOP”)16 assumes that
16 Kentucky Emergency Operations Plan (Updated Aug. 2014), available at https://kyem.ky.gov/sitecontacts/Documents/State%20EOP.pdf (last visited August 28, 2020). The KYEOP “is the all-hazards plan as described and required in Kentucky Revised Statute (KRS) 39A.” KYEOP at 32; see KRS 39A.050(2)(c) (KYEOP “shall establish the organizational structure to be utilized by state government for managing disaster and emergency response, and set forth the policies, procedures, and guidelines for the coordination and execution of all disaster and emergency response for an emergency, declared emergency,
49
“Local agencies will contact the [Department of Public Health] or the [Kentucky Emergency
Management] if state-level public health and medical support is required.” KYEOP at 173.
Local agencies, such as local health departments, are to coordinate with local emergency
response agencies “to request public health and medical assistance from [Kentucky Emergency
Management] and/or [Department of Public Health].” KYEOP at 211. “Local governments,
in coordination with their appointed emergency managers and to the maximum extent
possible, assume the responsibility for managing the processes necessary for preparing for,
responding to, and recovering from a major incident within their communities.” KYEOP at
58. Both the Opinion of the Attorney General and the Kentucky Emergency Operations Plan
envision an emergency response system that starts at the local level, with the state government
getting involved when, as stated in KRS 39A.020(12), a local emergency response agency
determines the situation is beyond its capabilities.
No post hoc rationalizations by the Defendants change the fact that, as Dr. Stack
admitted, not a single local emergency management agency has determined that it cannot
respond to the localized effects of the Covid-19 pandemic. Hrg. Tr. at 425; 507–08. In issuing
EO 2020-215, the Governor expressly relied upon the “emergency” posed by Covid-19. It is
plain that there is no legal basis for the declaration unless and until one or more local
emergency management agencies weigh in on the situation and determine that they cannot
handle it. And that did not happen here. Thus, the Governor never properly invoked his
emergency powers under KRS Chapter 39A.
IV. The Governor’s executive orders violate Sections 1 and 2 of the Kentucky constitution.
disaster, or catastrophe in the Commonwealth”). The current KYEOP was approved by Governor Steven L. Beshear on August 14, 2014, in Executive Order 2014-692.
50
No arm of government can exercise absolute or arbitrary power in Kentucky. See Ky.
Const. § 2. The Constitution forbids it “in unequivocal language.” 1 Official Report of the
Proceedings & Debates 829 (1890) (commentary from Delegate Bronston). It is the “very
first and most important reservation for a man to make when he delegates [power] to the
government.” Id. Or, as this Court has said, the prohibition against arbitrary power is the
“bulwark of individual liberty” that protects all people, in all parts of the state, from the
government’s raw exercise of “political power.” Ky. Milk Mktg. & Antimonopoly Comm’n v.
Kroger Co., 691 S.W.2d 893, 899 (Ky. 1985) (citing Sanitation Dist. No. 1 v. City of Louisville, 213
S.W.2d 995 (Ky. 1948)). “It is a thing that is dear and close to every Kentuckian who loves
freedom and loves to live in a Republican government, to say to the government, ‘Whilst we
delegate certain powers, we do claim that not even the largest majority can exercise absolute
or arbitrary power over our lives or property.’” 1 Official Report of the Proceedings &
Debates 829 (1890) (commentary from Delegate Bronston).
Even if Chapter 39A lawfully delegates legislative power to the Governor, his use of
executive orders to write and rewrite laws governing the daily lives of Kentuckians violates
this cornerstone of the Constitution. His orders have invaded the fundamental rights of
individuals across the state—the right to worship, the right to assemble, the right to travel, the
right to own and accumulate property. And he has done so without any of the procedural
protections that the Constitution mandates. In short, Governor Beshear’s actions run afoul
of virtually every dimension of Section 2.
A. The Governor’s executive lawmaking violates Section 2 because it is not tailored to fit the exigency.
Section 2 forbids “whatever is essentially unjust and unequal or exceeds the reasonable
and legitimate interests of the people.” Ky. Milk Mktg., 691 S.W.2d at 899 (citing Sanitation
51
Dist. No. 1, 213 S.W.2d 995). There is some play in the joints of this broad prohibition. “The
question of reasonableness is one of degree and must be based on the facts of a particular
case.” Id. (citing Boyle Cty. Stockyards Co. v. Commw., Dep’t of Agric., 570 S.W.2d 650 (Ky. App.
1978)). But when the “consequences” of government action “are so unjust as to work a
hardship, judicial power may be interposed to protect the rights of persons adversely affected.”
Id. (citing Wells v. Bd. of Educ. of Mercer Cty., 289 S.W.2d 492, 494 (Ky. 1956)).
1. Kentucky’s Constitution enumerates an expansive set of “inherent and inalienable
rights.” Ky. Const. § 1; accord Ky. Const. §§ 3–26. Among those liberties that the government
cannot invade are the people’s “[r]ight of enjoying and defending their lives and liberties” and
“[t]he right of acquiring and protecting property.” Ky. Const. § 1. These rights, as all others
in Kentucky’s Bill of Rights, are “excepted out of the general powers of government, and shall
forever remain inviolate; and all laws contrary thereto, or contrary to this Constitution, shall
be void.” Ky. Const. § 26.
Kentucky’s Constitution recognizes stronger protections for economic rights than
those found in the federal constitution. Compare Ky. Milk Mktg., 691 S.W.2d at 901 (striking
down a price-fixing statute for milk), with Nebbia v. People of New York, 291 U.S. 502, 539 (1935)
(upholding a price-fixing statute for milk in a federal challenge). As this Court explained more
than three decades ago, “the constitutional guaranty of the right of property” prevents the
government from “depriving the owner of any of its essential attributes” or preventing its
“common necessary or profitable use.” Ky. Milk Mktg., 691 S.W.2d at 900 (quoting Gen. Elec.
Co. v. Am. Buyers Coop., 316 S.W.2d 354, 360 (Ky. 1958)).
So, when Section 2 proscribes arbitrary power, it does so with these kinds of property
rights in mind. See Ky. Milk Mktg., 691 S.W.2d at 899–900. Kentuckians are guaranteed the
right to earn a living and, in doing so, to reap the economic benefits of their labor and property.
52
And the corollary to that is the government cannot interfere with “the free flow of commerce”
when doing so deprives individuals of this basic right. Id. at 900. Such action “is not
justified . . . by the police power of the state.” Id.
2. The Governor has claimed that his use of executive orders during this pandemic to
write and rewrite laws governing commerce is subject to only rational-basis review. He is
wrong. Because the Governor is curtailing the economic livelihood of individuals through
executive lawmaking, his orders must be tailored to fit the exigency at hand. That conclusion
follows from several precedents of this Court and the nature of the Governor’s unilateral
action. It also follows from the United States District Court for the Eastern District of
Kentucky’s opinion after Governor Beshear banned people from protesting his shutdown of
the economy on the Capitol grounds:
Trust us. That is the position the Governor takes in this case. Trust us, as policy makers, to make the best decisions for the citizens of the Commonwealth in responding to a pandemic. In large measure the Governor is right. The political branches, the policy makers, are far better provisioned than judges to gather the information needed to make informed decisions. But in one respect the Governor is wrong. His power is not absolute. When it comes to restrictions on our liberty, courts must not accept as sufficient whatever explanation is offered. In exercising its constitutional function, it is not enough to simply “trust” the conclusion of the political process that a restriction is necessary or right. The teaching of the cases is clear. Even in times of crisis, the Constitution puts limits on governmental action. As explained below, a blanket prohibition on gathering in large groups to express constitutionally protected speech is unconstitutional. When liberty is at stake, policy makers must be more precise.
Ramsek v. Beshear, No. 3:20-cv-00036, 2020 WL 3446249, at *1 (E.D. Ky. June 24, 2020)
(attached as Tab 4).
In Kentucky Milk Marketing, this Court invalidated a narrowly drawn law intended to
prevent the accumulation of monopoly power in the milk industry. The Court held that the
state’s attempt at regulating the profit margin for milk sellers violated Section 2. See Ky. Milk
53
Mktg., 691 S.W.2d at 900. The Court held that the price-fixing nature of the statute constituted
a “clearly arbitrary interference with ‘the right of the owner to fix the price at which his
property shall be sold.’” Id. (quoting Gen. Elec. Co., 316 S.W.2d at 360). It reached that
conclusion after a searching inquiry as to both the purpose and effect of the statute. And in
doing so, it rejected the General Assembly’s proffered explanation as to why the statute was
necessary. Id. at 899–900 (“[The statutory purpose of the law is to prevent monopolies and
unfair practices in the sale of milk and milk products. As we have also said, the law is in reality
and in practice not an anti-monopoly statute, but is rather a minimum mark-up law.”).
This kind of analysis is inconsistent with the rational-basis approach that Governor
Beshear advocates for. Under rational basis review, courts are not permitted to second-guess
the reasons for a law—even when the reasons are post hoc and obviously pretextual. See, e.g.,
TriHealth, Inc. v. Bd. of Comm’rs, Hamilton Cty., Ohio, 430 F.3d 783, 790 (6th Cir. 2005). Yet, that
is precisely what this Court did in Kentucky Milk Marketing. It flatly rejected the state’s
justification for the law, and it did so because the plenary control over the “free flow of
commerce” demands heightened scrutiny. Ky. Milk Mktg., 691 S.W.2d 900.
Long before Kentucky Milk Marketing, Kentucky’s highest court applied exactly the kind
of searching analysis that is appropriate here. In Adams, Inc. v. Louisville & Jefferson County Board
of Health, 439 S.W.2d 586 (Ky. 1969), the Court considered the constitutionality of several
public-health regulations governing swimming pools. Among other things, the regulations
required a certain number of pool attendants at every pool and mandated separate entrances
and exits for males and females. Id. at 592–93. The Court began its analysis by affirming that
the government has a legitimate interest in addressing the public-health concerns that arise
with any pool—whether deemed “public” or “private”—in which a “substantial number of
people” gather. Id. at 589. The Court explained: “There is perhaps no broader field of police
54
power than that of public health. The fact that its exercise impinges upon private interests
does not restrict reasonable regulation.” Id. at 589–90.
Nevertheless, the Court invalidated the statute because it was not narrowly tailored to
the public-health issues it sought to address. Even in the context of regulating public health—
perhaps the strongest justification for the police power—the government cannot act unless
there is a “substantial basis” for its actions. Id. at 591 (quoting Bond Bros. v. Louisville & Jefferson
Cty. Met. Sewer Dist., 211 S.W.2d 867, 872 (Ky. 1948)). To this end, the Court took issue with
the one-size-fits-all approach to regulation. The municipality imposed costly requirements on
every swimming pool without taking into account the disparate characteristics that each pool
might have. A small pool with only sparse visitors, for example, might not need retain a full
time lifeguard. Id. at 592. This did not pass constitutional muster:
As applied to all pools, the burden of this regulation greatly outweighs the reasonably necessary safety objective sought. The threat of required compliance might well eliminate a substantial number of these recreational areas, which have a significant social value, because the regulations imposes an unrealistic and unnecessarily burdensome requirement on a substantial number of private property owners. We think the sweep of this lifeguard regulation is so broad that the single classification of all pools does not bear a reasonable relationship to its avowed purpose. We therefore conclude that the regulation is invalid.
Id. (internal citations omitted).
Again, regulating the health and safety of public pools unquestionably falls within the
state’s police power. And yet, Kentucky’s highest court did not apply a deferential, rational-
basis standard of review. It took a hard look at whether the regulations were tailored to the
goal and balanced the state’s interest against the loss of “significant social value” from
regulating private enterprises out of business. The Court found the state’s overbroad use of
its police power constitutionally infirm.
55
This Court’s precedent leaves no doubt that the government must be subjected to a
searching inquiry when it exercises its police power to control not just the marginal boundaries
of commerce, but the right to engage in commerce itself. Yet, there are even more compelling
reasons to require the Governor, in circumstances such as this case, to narrowly tailor his use
of executive power.
Unlike the many cases in which this Court and its predecessor have considered the
scope of the state’s police power, this case does not involve a legislative body making legislative
policy choices. See City of Louisville v. Kuhn, 145 S.W.2d 851, 853 (Ky. 1940) (“[T]he Police
Power possessed by legislative bodies authorizes them in proper instances to enact laws
relating to almost if not all professions . . . .”); City of Lebanon v. Goodin, 436 S.W.3d 505, 518
(Ky. 2014) (“The lower courts erred by not giving proper deference to a legislative act
performed in compliance with a constitutional grant of authority.”). That distinction matters.
When courts have declined to question the “wisdom or expediency” of a state’s policy
decisions—decisions on how best to exercise the police power—they do so in the context of
legislation. See Walters v. Binder, 435 S.W.2d 464, 467 (Ky. 1968). The reason for this is simple:
The “voice of the people” is “expressed through the legislative department of government.”
Id. And so legislative acts, having gone through the bicameral process, reflect the sovereign
will of the people. The executive merely administers those choices.
Thus, even as the courts have given deference to the policy choices the General
Assembly has made pursuant to the police power, they have never done so in the context of
heretofore unheard of “executive lawmaking.” The Governor’s decision to regulate and close
down entire businesses across the state is not subject to the bicameral process. It requires no
democratic buy-in from other public officials. It is the result of his judgment and his judgment
alone. No authority from this Court or elsewhere suggests that the Governor possesses this
56
kind of absolute police power—or any police power, for that matter. And in fact, the
Constitution expressly forbids such a conclusion. See Ky. Const. § 2 (prohibiting arbitrary and
absolute exercises of power); see also, supra, Part I.
That makes this case unusual in a way that demands heightened scrutiny from this
Court. If the General Assembly’s delegation of unbridled power in Chapter 39A is
constitutional (it is not, see, supra, Part I), the Constitution at least requires a searching inquiry
into the breadth and scope of the Governor’s executive lawmaking. The Court cannot defer
to the Governor’s policy choices as if he were a legislature.
3. The Governor’s executive lawmaking cannot survive such an inquiry. Since
declaring a state of emergency, the Governor alone has regulated the economy, providing
meticulous (and often contradictory) rules governing precisely how every industry may
operate. But even describing the Governor’s executive orders as merely “regulating” the
economy puts too light a touch on what he has done: He has shuttered entire businesses and
made it impossible for others to operate profitably. In doing so, he has left hundreds of
thousands of Kentuckians unemployed with no plan for dealing with the economic
consequences. Hrg. Tr. at 194 (explaining that by the end of June there were still 73,000
pending unemployment claims that had yet to be resolved); id. at 305 (testifying that the
unemployment rate in Kentucky is greater than it has been since the Great Depression). These
decisions, as the evidence below has shown, have been the definition of arbitrary.
First, Governor Beshear’s executive lawmaking has been exactly the kind of one-size-
fits-all approach that Kentucky’s highest court rejected in Adams. Consider, for example, his
mandatory closure of businesses across the Commonwealth in March. Supp. App’x 0043–44,
0046–47, 0059–0060, 0065–0068, 0079–0085. Since the first day of this pandemic, Governor
Beshear’s orders have applied indiscriminately across every county of the Commonwealth.
57
Even as he tracked specific hotspots and provided county-by-county data to the public,
Governor Beshear imposed exactly the same restrictions in Harlan County as he did Jefferson
County. All restaurants were forced to close their dining rooms. Id. at 0043–44. All daycares
were closed and then allowed to reopen with only 10 students allowed per room. Id. at 308–
315. Many retail establishments were forced to close. Id. at 0079–85. All churches were told
to shut their doors. Id. at 0059–0060. The orders depriving people of their businesses, their
property, and their livelihoods lacked any kind of careful tailoring that Section 2 requires.
Perhaps the starkest example of this irrationality is Robertson County. Governor
Beshear declared a state of emergency on March 6 and within only a couple of weeks shut
down most public-facing businesses in the state. Id. at 0079–85. Yet Robertson County did
not report a single case of Covid-19 until June 29—nearly four months after the emergency
began. ROA 342. For those four months, not one person in Robertson County tested positive
for Covid-19. And, yet, its residents were forced to close their businesses and pray that their
customer goodwill did not disappear for good.
Robertson County is not an outlier. For months the coronavirus only crept through
the state, geographically speaking. Id. at 342–43. It spiked in some counties but was non-
existent in others. But, as the days and weeks went on, Governor Beshear made no
modifications to his one-size-fits-all approach even though he updated county-by-county
information every day.
The Adams Court held that this kind overbroad regulation of the economy is
unconstitutional, and nothing about the spread of a contagious disease allows such a ham-
fisted disregard of Kentuckians’ constitutional rights. In fact, the Commonwealth has dealt
with outbreaks of disease before without resorting to unbound assertions of executive
authority. In Allison v. Cash, 137 S.W. 245 (Ky. 1911), the Court considered a challenge to the
58
government’s response to a smallpox outbreak in Kuttawa, a city in Lyon County. The Court
estimated that up to 90 percent of the city’s residents had been exposed. See id. at 246. But
the government did not respond to the outbreak by shutting down the economy of the entire
state. Instead, the local health department employed a graduated response over time, tailoring
its actions to the risks and reality on the ground. That response included vaccinations, isolating
specific individuals who had been exposed, local travel restrictions, and targeted closures of
specific businesses and areas affected by the outbreak. But it did not include the decision to
deprive all persons, in all counties, of their constitutional rights.
The one-size-fits-all approach response to the Covid-19 pandemic has wreaked
economic devastation across this state. It has no justification, and is not allowed under Section
2. See Adams, 439 S.W.2d at 589–90.
Second, even if Governor Beshear had geographically tailored his response to the
pandemic, his decisions have been arbitrary. From childcare centers to houses of worship,
Governor Beshear has used the stroke of his pen to close organizations without any rhyme or
reason. This too runs afoul of Section 2.
Take the childcare industry. Governor Beshear closed every daycare in the state on
March 20, 2020, regardless of whether they could comply with CDC guidelines.17 Hrg. Tr. at
55–56, 96–97. As explained above, he then allowed some childcare centers (but mostly just
YMCAs) to reopen as “LDCs to help provide childcare for frontline workers during the
17 Jennifer Washburn, owner and operator iKids Childhood Enrichment Center, was asked during the evidentiary hearing if she was “capable of meeting all [the] CDC recommendations” on the day Governor Beshear shut her business down. “Absolutely,” she said. Hrg. Tr. at 97. “I had actually gone and secured all those thermometers that I needed. I had already made the spreadsheet to be able to write own those temperatures every two to two and a half hours as recommended, not mandated, because that was important. And so, we were ready to go, and actually had started [one week earlier] doing the temperature check procedure as well.” Id. at 97–98.
59
pandemic. Supp. App’x 0053–55. Despite closing daycare centers that could comply with the
CDC’s hygiene requirements, the LDCs have been permitted to operate without having to
comply with any additional safety precautions. Hrg. Tr. at 100–01.
That decision alone cannot survive any test of reasonableness—but it gets worse.
Governor Beshear has now allowed ordinary daycares to resume operations, but his executive
orders impose strict capacity limits making it economically infeasible to operate profitably. Id.
at 72–73; 82–83; 111. Yet, LDCs face no similar restrictions. Id. at 102 (“So as an LDC, they
did not have a cap on the number of children.”).
The arbitrary effects of this are jarring. Jennifer Washburn, the owner and operator
of iKids Childhood Enrichment Center, testified about how the capacity limits affect her
business. Ms. Washburn’s childcare center has a playground set on an acre of green space, or
about 43,500 square feet. Hrg. Tr. at 102–03. Under the current guidelines, Ms. Washburn is
only permitted to allow 10 children on that 43,500 square foot playground at a time. Id. That
limit requires a social-distancing space of about 4,000 square foot per child—a limit untethered
to science or reality. But, Ms. Washburn explained, the capacity limit on her playground would
not apply if her one-acre green space was a swimming pool. As she explained, “if I changed
my playground to a swimming pool, I could see [lots] of kiddos. But I can only have ten in
[the playground].” Id. And, if she were operating as an LDC, she would be allowed to have
one child per 30 square feet, meaning she could theoretically have well over 1,000 children on
her playground at a time. Supp. App’x 0054
These inconsistent decisions are not marginal. They are not disagreements about how
often a surface should be sanitized or the safest way to store food in a commercial kitchen.
These decisions go to the very ability of businesses to operate; the ability of individuals to
extract a “profitable use” from their property. Ky. Milk Mktg., 691 S.W.2d at 900; Hrg. Tr. at
60
111.18 The Governor’s executive lawmaking is arbitrary in a way that tramples on the
economic rights of Kentuckians.
Not even Dr. Stack could defend the rationality of the Governor’s executive orders.
At the evidentiary hearing, Dr. Stack was asked about an executive order that restricted
attendance at motor raceways like the plaintiff in this case, Florence Speedway. Hrg. Tr. at
492. The order imposed a 50% capacity reduction and required individuals to maintain six
feet of space between each other, including family members who live in the same household.
Id. When asked whether there was a rational basis for such a restriction, Dr. Stack said, “I
don’t have an explanation.” Id. He then conceded that “there’s no medical or public health
safety reason not to let a family that lives in the same household together not to sit together
at an event space.” Id. at 495–96. He shrugged off issues like this, explaining that the
Governor’s orders contain “imperfections.” Id. at 492. But, when the Governor is denying
citizens their constitutional rights to earn a living, there is no room for “imperfections.”
B. The Governor’s executive lawmaking violates Section 2 because he has failed to provide due process when depriving people of their rights.
Kentucky’s prohibition on arbitrary power in Section 2 “is generally understood as a
due process provision whereby Kentucky citizens may be assured of fundamentally fair and
unbiased procedures.” Smith v. O’Dea, 939 S.W.2d 353, 357 (Ky. App. 1997) (citing Trimble
Fiscal Court v. Snyder, 866 S.W.2d 124 (Ky. App. 1993)). Due process is “flexible” and largely
depends on “the interests at stake and the costs of safeguarding the accuracy” of government
action. Id. (citations omitted). But “flexible” does not mean illusory. See Ky. Milk Mktg., 691
S.W.2d at 899 (“Whatever is contrary to democratic ideals, customs and maxims is arbitrary.”).
18 Another witness at the evidentiary hearing testified that the Governor’s restrictions threatened to cause 43% of all Kentucky daycares to permanently close by November 1, 2020. Hrg. Tr. at 141.
61
Before invading the constitutional rights of an individual, the government must
provide procedural due process. See City of Louisville v. Kuhn, 145 S.W.2d 851, 853 (Ky. 1940)
(holding that the Commonwealth’s police power has constitutional limitations including the
“inviolate right that the citizen’s property and personal rights may not be taken away from him
without due process of law”). And that means “a hearing, the taking and weighing of evidence,
if such is offered, a finding of fact based upon consideration of the evidence, the making of
an order supported by substantial evidence, and, where the party’s constitutional rights are
involved, a judicial review of the administrative action.” Ky. Alcoholic Beverage Control Bd. v.
Jacobs, 269 S.W.2d 189, 192 (Ky. 1954). Even if Chapter 39A grants the Governor broad,
unchecked legislative power, it cannot delegate the power to suspend due process. Yet,
Governor Beshear has closed thousands of businesses, and otherwise deprived individuals
across the state of their livelihoods, all without any opportunity to be heard.19
This is not the first time Kentucky’s highest court has considered executive action
shuttering businesses without due process. In Jacobs, this court’s predecessor considered the
constitutionality of a state law that delegated the power to “close a place of business” to a state
agency. See 269 S.W.2d at 190. The statute at issue provided the Alcoholic Beverage Control
Board the power to “close, lock and bar . . . any premises in or upon which” there has been a
violation of one of several health and safety laws. Id. at 19120 Despite acknowledging that the
right to control and prevent a public nuisance is “among the most important duties of
government,” id. at 191, the Court nevertheless declared the statute unconstitutional. That’s
19 The undisputed evidence is that the government has not offered due process to any person whose rights have been affected by the Governor’s orders. Hrg. Tr. at 56:3-7; 228:7-15; 266:10-16; 460:14-20.
20 Notably, the statute in Jacobs—unlike Chapter 39A—tightly limited the time period in which the agency could close an offending liquor store. Any closure was limited “not to extend beyond the following June 30.” See Jacobs, 269 S.W.2d at 191.
62
because the statute allowed an executive agency to unilaterally close down a business without
any of the protections required by Section 2:
[T]his statute not only gives the Board authority to stop the sale of whisky on the premises; it also confers upon the Board authority to prevent the premises from being used for any other purpose. This amounts, in effect, to a taking of private property and it is elementary that private property cannot be taken, even by the state, without due process of law.
Id. at 192 (citations omitted). The specific procedural defect in Jacobs was the fact that the
statute did not require the agency to make an actual finding of nuisance, thus depriving the
affected individuals of the ordinary protections of due process.21
There are two key points to draw out of Jacobs. First, the Court unequivocally
recognized that the executive branch cannot close down economic activity without satisfying
Section 2. That means the executive agency must make the requisite findings to justify closure
after providing procedural due process to the affected individuals. Second, no delegation of
power to the executive branch can avoid the requirements of procedural due process. The
Court in Jacobs held that the General Assembly lawfully delegated its police power to the
agency, but nevertheless failed to provide procedural protections to those affected by the
agency’s action. Id. at 192–93. The delegation of power, in other words, cannot bypass the
procedural requirements of Section 2. See Commonwealth v. Kentec Coal Co., 177 S.W.3d 718, 727
(Ky. 2005) (holding that a statutory scheme providing a hearing only if a permittee could pay
a fine in advance of an administrative hearing violated due process under Section 2).
Applying those lessons here leaves no doubt that the Governor’s micromanaging of
Kentucky’s economy violates Section 2. Even if KRS Chapter 39A is a lawful delegation of
power, any use of executive authority that prevents individuals from using their property in
21 The statute also failed to provide for a hearing, but the Court implied such a right into the statute to save it from constitutional defect. See id. at 192.
63
the “free flow of commerce” must come coupled with basic procedural due process. Ky. Milk
Mktg., 691 S.W.2d at 900. That requires a hearing in which the affected individual can present
evidence on their own behalf. Jacobs, 269 S.W.2d at 192. And it requires written findings
supporting the decision to shut down the individual’s livelihood. Id.
Jacobs has been the law for almost 70 years. It requires basic due process before the
executive branch closes down a business. Chapter 39A provides no such procedures, and the
Governor has not provided them to the individuals who have lost their economic livelihood
from his arbitrary decisions. At a minimum, this Court must require that individuals be given
basic due process when the Governor exercises plenary control over their constitutional rights.
C. The Governor’s executive lawmaking violates Section 2 because it is an exercise of absolute power.
Absolute power is forbidden under the Kentucky Constitution. See Ky. Const. § 2.
That statement should be uncontroversial—and for most of the Commonwealth’s history,
perhaps it was. The people of Kentucky should take comfort in knowing that this Court has
never addressed the precise meaning of Section 2’s prohibition on absolute power. Until
recently, it seems, no government official has attempted to exercise the kind of absolute power
that Governor Beshear has wielded for nearly six months.
KRS 39A.100(1) grants the Governor the unilateral power to decide when an
emergency exists and what its scope is. KRS 39A.100(1)(j) provides that the Governor can
take any action he believes is necessary to respond to the emergency that he defined and
declared. But KRS 39A.180(2) provides that the Governor can suspend any statute that is in
conflict with his executive actions taken pursuant to KRS 39A.100(1) in response to the
emergency that he defined and declared. This is the Governor’s position in this case: The
General Assembly granted him the absolute power to take whatever action he believes is
64
necessary to combat an emergency he defines for as long as he chooses. Whether the actual
statute confers such breathtaking authority is immaterial: the Constitution forbids it.
V. The temporary injunction standard.
Mindful of the procedural posture of this case, the Commonwealth would be remiss
if it did not point out that all of the temporary-injunction factors support the Boone Circuit
Court’s ruling. Under Kentucky law, a temporary injunction is appropriate when: (1) the
plaintiff faces irreparable injury; (2) the equities weigh in favor of an injunction; and (3) the
plaintiff has presented a substantial question on the merits. See Maupin v. Stansbury, 575 S.W.2d
695, 699 (Ky. 1978).
Here, the evidence abundantly demonstrates the prospect of irreparable injury in the
absence of injunctive relief. The private plaintiffs face the permanent closure of their
businesses without an injunction. If that happens, they will irretrievably lose the goodwill that
those businesses have built up with their customers and communities over years of hard work.
See Hrg Tr. at 77, 82–83, 110–11, 140–41, 251–52, & 267. Moreover, the Attorney General,
acting on behalf of the people of Kentucky, is acting to protect them from having their
constitutional rights violated and to guarantee that the Constitution’s guarantee of separation
of powers is safeguarded. Because violations of the Constitution amount to irreparable harm,
see Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002), the Attorney
General is also seeking to avoid irreparable injury.
The equities also favor a temporary injunction here. The constitutional rights of the
citizens of Kentucky have been impaired and unreasonably burdened by the Governor and
his appointees. Thus, an injunction would clearly serve the public interest. On the other hand,
what harm will the Governor suffer? None. The Governor will likely claim that he must have
the authority to enforce his orders or the public health might suffer. But when challenged in
INDEX TO APPENDIX
Tab Description Location in Record
1 Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020) Not applicable
2 Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020) Not applicable
3 Tabernacle Baptist Church, Inc. v. Beshear, No. 3:20-cv-00033, 2020 WL 2305307 (E.D. Ky. May 8, 2020)
Not applicable
4 Ramsek v. Beshear, No. 3:20-cv-00036, 2020 WL 3446249 (E.D. Ky. June 24, 2020)
Not applicable
5 Roberts v. Neace, 2:20-cv-054, 2020 WL 2115358 (E.D. Ky. May 4, 2004)
Not applicable
TAB 1
Roberts v. Neace, 958 F.3d 409 (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag - Negative Treatment Declined to Follow by Elim Romanian Pentecostal Church v. Pritzker, 7th
Cir.(Ill.), June 16, 2020
958 F.3d 409United States Court of Appeals, Sixth Circuit.
Theodore Joseph ROBERTS, RandallDaniel, and Sally O’Boyle, on behalf
of themselves and all others similarlysituated, Plaintiffs-Appellants,
v.Robert D. NEACE, in his capacity asBoone County Attorney, Andrew G.Beshear, in his official capacity as
Governor of the Commonwealth ofKentucky, Eric Friedlander, in his
official capacity as Acting Secretaryof the Cabinet for Health and Family
Services, Defendants-Appellees.
No. 20-5465|
Decided and Filed: May 9, 2020*
SynopsisBackground: Church congregants who wanted to attend in-person worship services brought action against Kentucky'sGovernor, the Acting Secretary of Kentucky's Cabinetfor Health and Family Services, and county attorney,challenging, as violating congregants' constitutional rightsto free exercise of religion and to travel interstate, ordersissued during COVID-19 pandemic prohibiting faith-basedmass gatherings, requiring the closing of organizationsthat were not life-sustaining, and prohibiting interstatetravel. The United States District Court for the EasternDistrict of Kentucky, William O. Bertelsman, Senior DistrictJudge, 2020 WL 2115358, granted preliminary injunction tocongregants with respect to prohibition of interstate travel.Congregants filed interlocutory appeal and filed motion forinjunction pending appeal with respect to free exercise claim.
Holdings: The Court of Appeals held that:
[1] congregants were likely to succeed on merits of freeexercise claim;
[2] congregants demonstrated irreparable harm;
[3] balance of harms weighed in favor of injunction; and
[4] public interest was factor favoring injunction.
Motion granted.
West Headnotes (11)
[1] Federal Courts Injunction and temporaryrestraining order cases
In deciding whether to grant an injunctionpending appeal, the Court of Appeals considers:(1) whether the applicant is likely to succeedon the merits; (2) whether the applicant willbe irreparably injured absent an injunction; (3)whether an injunction will injure the otherparties; and (4) whether the public interest favorsan injunction.
3 Cases that cite this headnote
[2] Constitutional Law Strict scrutiny; compelling interest
A law that discriminates against religiouspractices usually will be invalidated under theFree Exercise Clause, because it is the rare lawthat can be justified by a compelling interest andthat is narrowly tailored to advance that interest.U.S. Const. Amend. 1.
[3] Constitutional Law Neutrality; generalapplicability
Faith-based discrimination in violation of theFree Exercise Clause can come in many forms,including a law that is motivated by animustoward people of faith in general or one faith inparticular, a law that singles out religious activityalone for regulation, or a law that appears to begenerally applicable on the surface but is not
Roberts v. Neace, 958 F.3d 409 (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 2
generally applicable in practice due to exceptionsfor comparable secular activities. U.S. Const.Amend. 1.
[4] Federal Courts Injunction and temporaryrestraining order cases
Church congregants who wanted to attend in-person worship services were likely to succeedon merits, as factor favoring injunction pendinginterlocutory appeal from denial of preliminaryinjunction, of claim that Kentucky Governor'sorder, prohibiting faith-based mass gatheringsduring COVID-19 pandemic, violated FreeExercise Clause based on discrimination againstreligious practices, where the order containedfour pages of exceptions for comparable secularactivities, so that strict scrutiny was warranted,order burdened sincere faith practices, and itwas not the least restrictive means of furtheringCommonwealth's goals of lessening the spreadof the virus and protecting Commonwealth'scitizens. U.S. Const. Amend. 1.
3 Cases that cite this headnote
[5] Constitutional Law Neutrality; generalapplicability
As a rule of thumb, the more exceptions toa governmental prohibition that encompassesreligious activities, the less likely it will countas a generally applicable, non-discriminatorylaw if it is challenged under the Free ExerciseClause, because at some point, an exception-ridden prohibition takes on the appearance andreality of a system of individualized exemptions,which is the antithesis of a neutral and generallyapplicable policy and just the kind of state actionthat must run the gauntlet of strict scrutiny. U.S.Const. Amend. 1.
1 Cases that cite this headnote
[6] Constitutional Law Neutrality; generalapplicability
The constitutional benchmark under the FreeExercise Clause is government neutrality, not
governmental avoidance of bigotry. U.S. Const.Amend. 1.
1 Cases that cite this headnote
[7] Constitutional Law Neutrality; generalapplicability
A law that is challenged under the Free ExerciseClause is not neutral and generally applicableunless there is neutrality between religion andnon-religion. U.S. Const. Amend. 1.
1 Cases that cite this headnote
[8] Constitutional Law Neutrality; generalapplicability
A law that is challenged under the FreeExercise Clause can reveal a lack of neutralityby protecting secular activities more thancomparable religious ones. U.S. Const. Amend.1.
1 Cases that cite this headnote
[9] Federal Courts Injunction and temporaryrestraining order cases
Irreparable harm, to church congregants whowanted to attend in-person worship services,was a factor favoring injunction pendinginterlocutory appeal by congregants fromdenial of preliminary injunction in their actionchallenging under Free Exercise Clause an orderof Kentucky's Governor prohibiting faith-basedmass gatherings during COVID-19 pandemic;order prohibited congregants from worshiping asthey wished. U.S. Const. Amend. 1.
4 Cases that cite this headnote
[10] Federal Courts Injunction and temporaryrestraining order cases
Balance of harms was a factor favoringinjunction pending interlocutory appeal bychurch congregants, who wanted to attendin-person worship services, from denial ofpreliminary injunction in their action challengingunder Free Exercise Clause an order ofKentucky's Governor prohibiting faith-based
Roberts v. Neace, 958 F.3d 409 (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 3
mass gatherings during COVID-19 pandemic; aninjunction could appropriately permit religiousservices with same risk-minimizing precautionsas similar secular activities, while permittingGovernor to enforce social-distancing rules inboth settings. U.S. Const. Amend. 1.
5 Cases that cite this headnote
[11] Federal Courts Injunction and temporaryrestraining order cases
Public interest was a factor favoringinjunction pending interlocutory appeal bychurch congregants, who wanted to attendin-person worship services, from denial ofpreliminary injunction in their action challengingunder Free Exercise Clause an order ofKentucky's Governor prohibiting faith-basedmass gatherings during COVID-19 pandemic;treatment of similarly situated entities incomparable ways served public health interestsat the same time it preserved bedrock free-exercise guarantees. U.S. Const. Amend. 1.
4 Cases that cite this headnote
*411 Appeal from the United States District Court forthe Eastern District of Kentucky at Covington. No. 2:20-cv-00054—William O. Bertelsman, District Judge.
Attorneys and Law Firms
COUNSEL ON BRIEFS: Christopher Wiest, CHRIS WIEST,ATTORNEY AT LAW, PLLC, Crestview Hills, Kentucky, forAppellants; Barry L. Dunn, OFFICE OF THE KENTUCKYATTORNEY GENERAL, Frankfort, Kentucky for AmicusCuriae in support of Appellants. Jeffrey C. Mando,ADAMS, STEPNER, WOLTERMANN & DUSING, PLLC,Covington, Kentucky, for Appellee Neace. S. Travis Mayo,Taylor Payne, OFFICE OF THE GOVERNOR, Frankfort,Kentucky, Wesley W. Duke, CABINET FOR HEALTH ANDFAMILY SERVICES, Frankfort, Kentucky, for AppelleesBeshear and Friedlander.
Before: SUTTON, McKEAGUE, and NALBANDIAN,Circuit Judges.
ORDER
PER CURIAM.
Three congregants of Maryville Baptist Church wish to attendin-person worship services this Sunday, May 10. By orderof the Kentucky Governor, however, they may not attend“faith-based” “mass gatherings” through May 20. Claimingthat this limitation on corporate worship violates the free-exercise protections of the First and Fourteenth Amendmentsto the United States Constitution, the congregants seekemergency relief barring the Governor and other officialsfrom enforcing the ban against them. The Attorney General ofthe Commonwealth supports their motion as amicus curiae.The Governor and other officials oppose the motion.
Governor Beshear has issued two pertinent orders arisingfrom the COVID-19 pandemic. The first order, issued onMarch 19, prohibits “[a]ll mass gatherings,” “including, butnot limited to, community, civic, public, leisure, faith-based,or sporting events.” R. 1-4 at 1. It excepts “normal operationsat airports, bus and train stations, ... shopping malls andcenters,” and “typical office environments, factories, or retailor grocery stores where large numbers of people are present,but maintain appropriate social distancing.” Id.
The second order, issued on March 25, requires organizationsthat are not “life-sustaining” to close. R. 1-7 at 2. Theorder lists 19 broad categories of life-sustaining organizationsand over a hundred sub-categories spanning four pages.Among the many exempt entities are laundromats, accountingservices, law firms, hardware *412 stores, airlines, miningoperations, funeral homes, landscaping businesses, andgrocery stores. Religious organizations do not count as “life-sustaining,” except when they provide “food, shelter, andsocial services.” Id. at 3.
On April 12, Maryville Baptist Church held an Easter service.Some congregants went into the church. Others parked theircars in the church’s parking lot and listened to the service overa loudspeaker. Kentucky State Police arrived in the parkinglot and issued notices to the congregants that their attendance,whether in the church or outdoors, amounted to a criminalact. The officers recorded congregants’ license plate numbersand sent letters to vehicle owners requiring them to self-quarantine for 14 days or be subject to further sanction.
Roberts v. Neace, 958 F.3d 409 (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 4
Theodore Joseph Roberts, Randall Daniel, and Sally O’Boyleall attended this Easter service, and they all complied withthe State’s social-distancing and hygiene requirements duringit. At some point during the service, the state police placedattendance-is-criminal notices on their cars. In response,the three congregants sued Governor Beshear, another stateofficial, and a county official, claiming that the orders andtheir enforcement actions violate their free-exercise andinterstate-travel rights under the U.S. Constitution.
The district court denied relief on the free-exercise claim andpreliminarily enjoined Kentucky from enforcing its ban oninterstate travel. The congregants appealed. They asked thedistrict court to grant an injunction pending appeal on the free-exercise claim, but the court refused. The congregants nowseek an injunction pending appeal from our court based ontheir free-exercise claim.
Two other cases, challenging the same ban, have been makingtheir way through the federal district courts of Kentucky.In contrast to the district court in this case, they bothpreliminarily granted relief to the claimants based on thefederal free-exercise claim. On May 8, a district court fromthe Western District of Kentucky issued an order preliminarilyenjoining the Governor from enforcing the orders’ ban onin-person worship with respect to the same church at issuein our case. Maryville Baptist Church, Inc. v. Beshear, No.3:20-cv-278-DJH-RSE (W.D. Ky. May 8, 2020). That sameday, a district court from the Eastern District of Kentuckyreached the same conclusion in an action involving a differentchurch. Tabernacle Baptist Church, Inc. of Nicholasville,Kentucky v. Beshear, N. 3:20-cv-00033-GFVT, 2020 WL2111316 (E.D. Ky. May 8, 2020). In doing so, it observed that“the constitutionality of these governmental actions will beresolved at the appellate level, at which point the Sixth Circuitwill have the benefit of the careful analysis of the variousdistrict courts, even if we disagree.” Id. at 5.
This is not our first look at the issues. Last week, we grantedrelief in the case from the Western District of Kentucky withrespect to drive-in services and urged the district court andparties to prioritize resolution of the more difficult in-personaspects of the case. Maryville Baptist Church, Inc. v. Beshear,957 F.3d 610 (6th Cir. May 2, 2020). We are grateful for theirinput. In assessing today’s motion for emergency relief, weincorporate some of the reasoning (and language) from ourearlier decision.
We have jurisdiction over this appeal. “Interlocutory ordersof the district courts of the United States ... granting,continuing, modifying, refusing or dissolving injunctions”are immediately appealable. 28 U.S.C. § 1292(a)(1). Underthe circumstances, this order operates as the denial of aninjunction. And no one can fairly doubt that this appealwill “further the *413 statutory purpose of permit[ting]litigants to effectually challenge interlocutory orders ofserious, perhaps irreparable, consequence.” Carson v. Am.Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 67 L.Ed.2d 59(1981). At least four more worship services are scheduledon the Sundays and Wednesdays between today and May 20,when the Governor has agreed to permit places of worship toreopen. Lost time means lost rights.
[1] We ask four questions in evaluating whether to grant astay pending appeal: Is the applicant likely to succeed on themerits? Will the applicant be irreparably injured absent a stay?Will a stay injure the other parties? Does the public interestfavor a stay? Nken v. Holder, 556 U.S. 418, 434, 129 S.Ct.1749, 173 L.Ed.2d 550 (2009).
[2] Likelihood of success. The Governor’s restriction on in-person worship services likely “prohibits the free exercise”of “religion” in violation of the First and FourteenthAmendments. U.S. Const. amends. I, XIV; Cantwell v.Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213(1940). On one side of the line, a generally applicable lawthat incidentally burdens religious practices usually will beupheld. See Emp’t Div., Dep’t of Human Res. of Or. v. Smith,494 U.S. 872, 878–79, 110 S.Ct. 1595, 108 L.Ed.2d 876(1990). On the other side of the line, a law that discriminatesagainst religious practices usually will be invalidated becauseit is the rare law that can be “justified by a compelling interestand is narrowly tailored to advance that interest.” Church ofthe Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,553, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993).
[3] These orders likely fall on the prohibited side of theline. Faith-based discrimination can come in many forms. Alaw might be motivated by animus toward people of faith ingeneral or one faith in particular. Id. A law might single outreligious activity alone for regulation. Hartmann v. Stone, 68F.3d 973, 979 (6th Cir. 1995). Or a law might appear to begenerally applicable on the surface but not be so in practicedue to exceptions for comparable secular activities. See Wardv. Polite, 667 F.3d 727, 738 (6th Cir. 2012); see also FraternalOrder of Police Newark Lodge No. 12 v. City of Newark, 170F.3d 359, 365–67 (3d Cir. 1999).
Roberts v. Neace, 958 F.3d 409 (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 5
Were the Governor’s orders motivated by animus towardpeople of faith? We don’t think so. The initial enforcementof the orders at Maryville Baptist Church no doubt seemeddiscriminatory to the congregants. But we don’t think it’s fairat this point and on this record to say that the orders or theirmanner of enforcement turned on faith-based animus.
Do the orders single out faith-based practices for specialtreatment? We don’t think so. It’s true that they prohibit “faith-based” mass gatherings by name. R. 1-4 at 1. But this does notsuffice by itself to show that the Governor singled out faithgroups for disparate treatment. The order lists many othergroup activities, and we accept the Governor’s submissionthat he needed to mention worship services by name becausethere are many of them, they meet regularly, and their ubiquityposes material risks of contagion.
[4] [5] Do the four pages of exceptions in the orders, and thekinds of group activities allowed, remove them from the safeharbor for generally applicable laws? We think so. As a rule ofthumb, the more exceptions to a prohibition, the less likely itwill count as a generally applicable, non-discriminatory law.Ward, 667 F.3d at 738. “At some point, an exception-riddenpolicy takes on the appearance and reality of a system ofindividualized exemptions, the *414 antithesis of a neutraland generally applicable policy and just the kind of stateaction that must run the gauntlet of strict scrutiny.” Id. at 740.
The Governor insists at the outset that there are “noexceptions.” ROA (20-5427) 13-1 at 25. But that is wordplay. The orders allow “life-sustaining” operations and don’tinclude worship services in the definition. And many ofthe serial exemptions for secular activities pose comparablepublic health risks to worship services. For example: Theexception for “life-sustaining” businesses allows law firms,laundromats, liquor stores, gun shops, airlines, miningoperations, funeral homes, and landscaping businesses tocontinue to operate so long as they follow social-distancingand other health-related precautions. R. 1-7 at 2–6. But theorders do not permit soul-sustaining group services of faithorganizations, even if the groups adhere to all the publichealth guidelines required of the other services.
Keep in mind that the Church and its congregants just wantto be treated equally. They don’t seek to insulate themselvesfrom the Commonwealth’s general public health guidelines.They simply wish to incorporate them into their worshipservices. They are willing to practice social distancing. They
are willing to follow any hygiene requirements. They do notask to share a chalice. The Governor has offered no goodreason for refusing to trust the congregants who promise touse care in worship in just the same way it trusts accountants,lawyers, and laundromat workers to do the same.
Come to think of it, aren’t the two groups of people often thesame people—going to work on one day and going to worshipon another? How can the same person be trusted to complywith social-distancing and other health guidelines in secularsettings but not be trusted to do the same in religious settings?The distinction defies explanation, or at least the Governorhas not provided one.
Some groups in some settings, we appreciate, may fail tocomply with social-distancing rules. If so, the Governor isfree to enforce the social-distancing rules against them forthat reason and in that setting, whether a worship setting ornot. What he can’t do is assume the worst when people go toworship but assume the best when people go to work or goabout the rest of their daily lives in permitted social settings.We have plenty of company in ruling that at some pointa proliferation of unexplained exceptions turns a generallyapplicable law into a discriminatory one. See, e.g., TenaflyEruv Ass’n v. Borough of Tenafly, 309 F.3d 144, 165–70 (3dCir. 2002); Fraternal Order of Police, 170 F.3d at 365; seealso Cent. Rabbinical Cong. of U.S. & Can. v. N.Y.C. Dep’tof Health & Mental Hygiene, 763 F.3d 183, 196–98 (2d Cir.2014).
We don’t doubt the Governor’s sincerity in trying to do hislevel best to lessen the spread of the virus or his authorityto protect the Commonwealth’s citizens. See Jacobson v.Massachusetts, 197 U.S. 11, 27, 25 S.Ct. 358, 49 L.Ed. 643(1905). And we agree that no one, whether a person of faith ornot, has a right “to expose the community ... to communicabledisease.” Prince v. Massachusetts, 321 U.S. 158, 166–67, 64S.Ct. 438, 88 L.Ed. 645 (1944). But restrictions inexplicablyapplied to one group and exempted from another do littleto further these goals and do much to burden religiousfreedom. Assuming all of the same precautions are taken,why can someone safely walk down a grocery store aislebut not a pew? And why can someone safely interact witha brave deliverywoman but not with a stoic minister? TheCommonwealth has no good answers. While the *415 lawmay take periodic naps during a pandemic, we will not let itsleep through one.
Roberts v. Neace, 958 F.3d 409 (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 6
[6] [7] [8] Nor does it make a difference that faith-based bigotry did not motivate the orders. The constitutionalbenchmark is “government neutrality,” not “governmentalavoidance of bigotry.” See Colo. Christian Univ. v. Weaver,534 F.3d 1245, 1260 (10th Cir. 2008). A law is not neutraland generally applicable unless there is “neutrality betweenreligion and non-religion.” Hartmann, 68 F.3d at 978. Anda law can reveal a lack of neutrality by protecting secularactivities more than comparable religious ones. See id. at 979;Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214,1233–35, 1234 n.16 (11th Cir. 2004); see also Shrum v. Cityof Coweta, 449 F.3d 1132, 1145 (10th Cir. 2006) (“[T]he FreeExercise Clause is not confined to actions based on animus.”).
All of this requires the orders to satisfy the strictures ofstrict scrutiny. They cannot. No one contests that the ordersburden sincere faith practices. Faith plainly motivates theworship services. And no one disputes the Church’s sincerity.Orders prohibiting religious gatherings, enforced by policeofficers telling congregants they violated a criminal law andby officers taking down license plate numbers, will chillworship gatherings.
At the same time, no one contests that the Governor has acompelling interest in preventing the spread of a novel, highlycontagious, sometimes fatal virus. The Governor has plentyof reasons to try to limit this contagion, and we have littledoubt he is trying to do just that.
The question is whether the orders amount to “the leastrestrictive means” of serving these laudable goals. That’s adifficult hill to climb, and it was never meant to be anythingless. See Lukumi, 508 U.S. at 546, 113 S.Ct. 2217. Thereare plenty of less restrictive ways to address these public-health issues. Why not insist that the congregants adhere tosocial-distancing and other health requirements and leave itat that—just as the Governor has done for comparable secularactivities? Or perhaps cap the number of congregants comingtogether at one time? If the Commonwealth trusts its peopleto innovate around a crisis in their professional lives, surely itcan trust the same people to do the same things in the exerciseof their faith. The orders permit uninterrupted functioning of“typical office environments,” R. 1-4 at 1, which presumablyincludes business meetings. How are in-person meetings withsocial distancing any different from in-person church serviceswith social distancing? Permitting one but not the other hardlycounts as no-more-than-necessary lawmaking.
Sure, the Church might use Zoom services or the like, asso many places of worship have decided to do over the lasttwo months. But who is to say that every member of thecongregation has access to the necessary technology to makethat work? Or to say that every member of the congregationmust see it as an adequate substitute for what it means when“two or three gather in my Name,” Matthew 18:20, or whatit means when “not forsaking the assembling of ourselvestogether,” Hebrews 10:25; see also On Fire Christian Ctr.,Inc. v. Fischer, No. 3:20-CV-264-JRW, ––– F.Supp.3d ––––,–––– – ––––, 2020 WL 1820249, at *7–8 (W.D. Ky. Apr. 11,2020).
As individuals, we have some sympathy for GovernorDeWine’s approach—to allow places of worship in Ohio tohold services but then to admonish all of them (we assume)that it’s “not Christian” to hold in-person services during apandemic. Doral Chenoweth III, Video: Dewine says it’s “notChristian” to hold church during coronavirus, ColumbusDispatch, (Apr. 1, *416 2020). But the Free Exercise Clausedoes not protect sympathetic religious practices alone. Andthat’s exactly what the federal courts are not to judge—howindividuals comply with their own faith as they see it. Smith,494 U.S. at 886–87, 110 S.Ct. 1595.
The Governor suggests that the explanation for these groupsof people to be in the same area—intentional worship—creates greater risks of contagion than groups of people, say,in an office setting or an airport. But the reason a groupof people go to one place has nothing to do with it. Risksof contagion turn on social interaction in close quarters; thevirus does not care why they are there. So long as that is thecase, why do the orders permit people who practice socialdistancing and good hygiene in one place but not another forsimilar lengths of time? It’s not as if law firm office meetingsand gatherings at airport terminals always take less time thanworship services. If the problem is numbers, and risks thatgrow with greater numbers, there is a straightforward remedy:limit the number of people who can attend a service at onetime. All in all, the Governor did not customize his orders tothe least restrictive way of dealing with the problem at hand.
[9] [10] [11] Other factors. Preliminary injunctions inconstitutional cases often turn on likelihood of success onthe merits, usually making it unnecessary to dwell on theremaining three factors. City of Pontiac Retired Emps. Ass’nv. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc)(per curiam). Just so here. The prohibition on attending anyworship service through May 20 assuredly inflicts irreparable
Roberts v. Neace, 958 F.3d 409 (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 7
harm by prohibiting them from worshiping how they wish.See Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001).As for harm to others, an injunction appropriately permitsreligious services with the same risk-minimizing precautionsas similar secular activities, and permits the Governor toenforce social-distancing rules in both settings. As for thepublic interest, treatment of similarly situated entities incomparable ways serves public health interests at the sametime it preserves bedrock free-exercise guarantees. See Baysv. City of Fairborn, 668 F.3d 814, 825 (6th Cir. 2012).
In the week since our last ruling, the Governor has notanswered our concerns that the secular activities permittedby the order pose the same public-health risks as thekinds of in-person worship barred by the order. As before,the Commonwealth remains free to enforce its ordersagainst all who refuse to comply with social-distancingand other generally applicable public health imperatives.All this preliminary injunction does is allow people—oftenthe same people—to seek spiritual relief subject to thesame precautions as when they seek employment, groceries,
laundry, firearms, and liquor. It’s not easy to decide what isCaesar’s and what is God’s in the context of a pandemic thathas different phases and afflicts different parts of the countryin different ways. But at this point and in this place, theunexplained breadth of the ban on religious services, togetherwith its haven for numerous secular exceptions, cannot co-exist with a society that places religious freedom in a place ofhonor in the Bill of Rights: the First Amendment.
The plaintiffs’ motion for an injunction pending appeal isGRANTED. The Governor and the other defendants areenjoined, during the pendency of this appeal, from enforcingorders prohibiting in-person services at the Maryville BaptistChurch if the Church, its ministers, and its congregantsadhere to the public health requirements mandated for “life-sustaining” entities.
All Citations
958 F.3d 409
Footnotes* This decision was originally filed as an unpublished order on May 9, 2020. The court has now designated the order for
publication.
End of Document © 2020 Thomson Reuters. No claim to original U.S.Government Works.
TAB 2
Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag - Negative Treatment Declined to Follow by Elim Romanian Pentecostal Church v. Pritzker, 7th
Cir.(Ill.), June 16, 2020
957 F.3d 610United States Court of Appeals, Sixth Circuit.
MARYVILLE BAPTIST CHURCH, INC.;Dr. Jack Roberts, Plaintiffs-Appellants,
v.Andy BESHEAR, in his official capacity
as Governor of the Commonwealthof Kentucky, Defendant-Appellee.
No. 20-5427|
Decided and Filed: May 2, 2020*
SynopsisBackground: Church brought action alleging that executiveorders issued by governor in response to COVID-19 crisisthat prohibited mass gatherings of individuals violated FirstAmendment and Kentucky Religious Freedom RestorationAct. The United States District Court for the Western Districtof Kentucky, David J. Hale, J., 2020 WL 1909616, deniedchurch's motion for temporary restraining order (TRO),and church filed interlocutory appeal. Church moved forinjunction pending appeal.
[Holding:] The Court of Appeals held that church was likelyto succeed on merits of its claim.
Motion granted in part.
West Headnotes (4)
[1] Federal Courts Injunction
When order has practical effect of injunction,and appeal furthers statutory purpose ofpermitting litigants to effectually challengeinterlocutory orders of serious, perhapsirreparable, consequence, Court of Appeals willreview it.
[2] Federal Courts Supersedeas or Stay ofProceedings
Court of Appeals reviews four factors whenevaluating whether to grant stay pending appeal:(1) whether stay applicant has made strongshowing that he is likely to succeed on merits;(2) whether applicant will be irreparably injuredabsent stay; (3) whether issuance of stay willsubstantially injure other parties interested inproceeding; and (4) where public interest lies.
2 Cases that cite this headnote
[3] Federal Courts Injunction and temporaryrestraining order cases
Church was likely to succeed on merits of itsclaim that executive orders issued by governorin response to COVID-19 crisis that prohibitedmass gatherings violated First Amendment andKentucky Religious Freedom Restoration Actas applied to drive-in church services withsocial distancing, and thus was entitled to staypending appeal of district court order denyingits motion for temporary restraining order,notwithstanding governor's compelling interestin preventing spread of novel, highly contagious,sometimes fatal virus; orders substantiallyburdened congregants' sincerely held religiouspractices, and permitted serial exemptions forsecular activities that posed comparable publichealth risks to worship services. U.S. Const.Amends. 1, 14; Ky. Rev. Stat. Ann. § 446.350.
8 Cases that cite this headnote
[4] Constitutional Law Neutrality; generalapplicability
Constitutional Law Strict scrutiny; compelling interest
Generally applicable law that incidentallyburdens religious practices usually will beupheld under Free Exercise Clause, but law thatdiscriminates against religious practices usuallywill be invalidated unless law is justified bycompelling interest and is narrowly tailored toadvance that interest. U.S. Const. Amend. 1.
Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 2
7 Cases that cite this headnote
*611 Appeal from the United States District Court forthe Western District of Kentucky at Louisville. No. 3:20-cv-00278—David J. Hale, District Judge.
Attorneys and Law Firms
ON BRIEFS: Matthew D. Staver, Horatio G. Mihet,Roger K. Gannam, LIBERTY COUNSEL, Orlando, Florida,for Appellants; Carmine G. Iaccarino, OFFICE OFTHE KENTUCKY ATTORNEY GENERAL, Frankfort,Kentucky, for Amicus Curiae in support of Appellants. S.Travis Mayo, OFFICE OF THE GOVERNOR, Frankfort,Kentucky, for Appellee; Richard B. Katskee, Alex J.Luchenitser, AMERICANS UNITED FOR SEPARATIONOF CHURCH AND STATE, Washington, D.C., for AmicusCuriae in support of Appellee.
Before: SUTTON, McKEAGUE, and NALBANDIAN,Circuit Judges.
ORDER
PER CURIAM.
Maryville Baptist Church and its pastor, Dr. Jack Roberts,appeal the district court's order denying their emergencymotion for a temporary restraining order. The Church claimsthat the district court's order effectively denied their motionfor a preliminary injunction to stop Governor Andy Beshearand other Commonwealth officials from enforcing andapplying two COVID-19 orders. The orders, according tothe Church, prohibit its members from gathering for drive-in and in-person worship services regardless of whether theymeet or exceed the social distancing and hygiene guidelinesin place for permitted commercial and other non-religiousactivities. The Church moves for an injunction pendingappeal, which the Attorney General supports as amicuscuriae. The Governor opposes the motion.
Governor Beshear issued two pertinent COVID-19 orders.The first order, issued on March 19, prohibits “[a]ll massgatherings,” “including, but not limited to, community, civic,public, leisure, faith-based, or sporting events.” R. 1-5 at1. It excepts “normal operations at airports, bus and trainstations, ... shopping malls and centers,” and “typical office
environments, factories, or retail or grocery stores where largenumbers of people are present, but maintain appropriate socialdistancing.” Id.
The second order, issued on March 25, requires organizationsthat are not “life-sustaining” to close. R. 1-7 at 2. Accordingto the order, religious organizations are not “life-sustaining”organizations, except when they function as charities byproviding “food, shelter, and social services.” Id. at 3.Laundromats, accounting services, law firms, hardwarestores, and many other entities count as life-sustaining.
On April 12, Maryville Baptist Church held a drive-inEaster service. Congregants parked their cars in the church'sparking lot and listened to a sermon over a loudspeaker.Kentucky State Police arrived in the parking lot and issuednotices to the congregants that their attendance at the drive-in service amounted to a criminal act. The officers recordedcongregants' license plate numbers and sent letters to vehicleowners requiring them to self-quarantine *612 for 14 daysor be subject to further sanction.
The Church says these orders and enforcement actions violateits congregants' rights under Kentucky's Religious FreedomRestoration Act and the free-exercise guarantee of the Firstand Fourteenth Amendments to the U.S. Constitution.
[1] We have jurisdiction over the appeal. “Interlocutoryorders of the district courts of the United States ... granting,continuing, modifying, refusing or dissolving injunctions”are immediately appealable. 28 U.S.C. § 1292(a)(1). As ageneral rule, we do not entertain appeals from a district court'sdecision to grant or deny a temporary restraining order. That'sbecause temporary restraining orders are usually “of shortduration and usually terminate with a prompt ruling on apreliminary injunction, from which the losing party has animmediate right of appeal.” Ne. Ohio Coal. for the Homeless& Serv. Emps. Int'l Union, Local 1199 v. Blackwell, 467 F.3d999, 1005 (6th Cir. 2006). But usually is not always, and thelabel a district court attaches to an order does not control.When an order “has the practical effect of an injunction,” id.,and an appeal “further[s] the statutory purpose of permit[ting]litigants to effectually challenge interlocutory orders ofserious, perhaps irreparable, consequence,” Carson v. Am.Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 67 L.Ed.2d59 (1981), we will review it. We also tend to wait untilthe claimant seeks a stay from the district court, and thecourt rules on it. Claimants sought a stay on April 30. Thedistrict court has not yet ruled. But one explanation for
Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 3
the stay motion is tomorrow's Sunday service. Under thesecircumstances, no one can fairly doubt that time is of theessence. The case will become moot just over three Sundaysfrom now, May 20, when the Governor has agreed to permitplaces of worship to reopen. And the district court's orderhas the practical effect of denying the Church's motion fora preliminary injunction, especially if no service, whetherdrive-in or in-person, is allowed in the interim.
[2] We review four factors when evaluating whether togrant a stay pending appeal: “(1) whether the stay applicanthas made a strong showing that he is likely to succeedon the merits; (2) whether the applicant will be irreparablyinjured absent a stay; (3) whether issuance of the staywill substantially injure the other parties interested in theproceeding; and (4) where the public interest lies.” Nken v.Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550(2009) (quotation omitted).
[3] Likelihood of success. The Church is likely to succeedon its state and federal claims, especially with respect to theban's application to drive-in services. Start with the claimunder Commonwealth law—Kentucky's Religious FreedomRestoration Act. “Government shall not substantially burden”a person's “right to act ... in a manner motivated by asincerely held religious belief,” it guarantees, “unless thegovernment proves by clear and convincing evidence” that it“has used the least restrictive means” to further “a compellinggovernmental interest in infringing the specific act.” Ky. Rev.Stat. § 446.350. The point of the law is to exercise an authorityevery State has: to provide more protection for religiousliberties at the state level than the U.S. Constitution providesat the national level. In this instance, the purpose of theKentucky RFRA is to provide more protection than the free-exercise guarantee of the First Amendment, as interpretedby Employment Division v. Smith, 494 U.S. 872, 110 S.Ct.1595, 108 L.Ed.2d 876 (1990). The Kentucky requirementsparallel in large measure the RFRAs enacted by other Statesand one enacted by Congress, *613 all of which share thegoal of imposing strict scrutiny on laws that burden sincerelymotivated religious practices. See, e.g., Tex. Civ. Prac. &Rem. § 110.003; see 42 U.S.C. § 2000bb-1.
Application of this test requires little elaboration in mostrespects. The Governor's actions substantially burden thecongregants' sincerely held religious practices—and plainlyso. Religion motivates the worship services. And no onedisputes the Church's sincerity. Orders prohibiting religiousgatherings, enforced by police officers telling congregants
they violated a criminal law and by officers taking downlicense plate numbers, amount to a significant burden onworship gatherings. See Gonzales v. O Centro EspiritaBeneficente Uniao, 546 U.S. 418, 428–32, 126 S.Ct. 1211,163 L.Ed.2d 1017 (2006); Barr v. City of Sinton, 295 S.W.3d287, 301 (Tex. 2009). At the same time, the Governor hasa compelling interest in preventing the spread of a novel,highly contagious, sometimes fatal virus. All accept theseconclusions.
The likelihood-of-success inquiry instead turns on whetherGovernor Beshear's orders were “the least restrictive means”of achieving these public health interests. Ky. Rev. Stat. §446.350. That's a difficult hill to climb, and it was nevermeant to be anything less. See Barr, 295 S.W.3d at 289;Holt v. Hobbs, 574 U.S. 352, 364, 135 S.Ct. 853, 190L.Ed.2d 747 (2015). The way the orders treat comparablereligious and non-religious activities suggests that they donot amount to the least restrictive way of regulating thechurches. The orders permit uninterrupted functioning of“typical office environments,” R. 1-5 at 1, which presumablyincludes business meetings. How are in-person meetings withsocial distancing any different from drive-in church serviceswith social distancing? Kentucky permits the meetings andbans the services, even though the open-air services wouldseem to present a lower health risk. The orders likewise permitparking in parking lots with no limit on the number of carsor the length of time they are there so long as they are notlistening to a church service. On the same Easter Sundaythat police officers informed congregants they were violatingcriminal laws by sitting in their cars in a parking lot, hundredsof cars were parked in grocery store parking lots less than amile from the church. The orders permit big-lot parking forsecular purposes, just not for religious purposes. All in all,the Governor did not narrowly tailor the order's impact onreligious exercise.
In responding to the state and federal claims, the Governordenies that the ban applies to drive-in worship services, andthe district court seemed to think so as well. But that is notwhat the Governor's orders say. By their terms, they applyto “[a]ll mass gatherings,” “including, but not limited to, ...faith-based ... events.” R. 1-5 at 1. In deciding to open upfaith-based events on May 20, and to permit other eventsbefore then such as car washes and dog grooming, see Healthyat Work: Phase 1 Reopening, https://govstatus.egov.com/ky-healthy-at-work (last visited May 2, 2020), the Governor didnot say that drive-in services are exempt. And that is notwhat the Governor has done anyway. Consistent with the
Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 4
Governor's threats on Good Friday, state troopers came to theChurch's Easter service, told congregants that they were inviolation of a criminal law, and took down the license platenumbers of everyone there, whether they had participated ina drive-in or in-person service.
It bears noting that neither the Governor nor the AttorneyGeneral has raised sovereign immunity as a defense tothis claim. See *614 Pennhurst State Sch. & Hosp. v.Halderman, 465 U.S. 89, 102, 104 S.Ct. 900, 79 L.Ed.2d 67(1984). That is within their rights, see Wis. Dep't. of Corr. v.Schacht, 524 U.S. 381, 389, 118 S.Ct. 2047, 141 L.Ed.2d 364(1998), and perhaps springs from a commendable recognitionthat, with or without a pandemic, no one wants to ignore statelaw in creating or enforcing these orders.
[4] The Governor's orders also likely “prohibit[ ] the freeexercise” of “religion” in violation of the First and FourteenthAmendments, especially with respect to drive-in services.U.S. Const amends. I, XIV; Cantwell v. Connecticut, 310U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). Onthe one hand, a generally applicable law that incidentallyburdens religious practices usually will be upheld. See Smith,494 U.S. at 878–79, 110 S.Ct. 1595; New Doe Child #1 v.Congress of the United States, 891 F.3d 578, 591–93 (6th Cir.2018). On the other hand, a law that discriminates againstreligious practices usually will be invalidated unless the law“is justified by a compelling interest and is narrowly tailoredto advance that interest.” Church of the Lukumi Babalu Aye,Inc. v. City of Hialeah, 508 U.S. 520, 553, 113 S.Ct. 2217,124 L.Ed.2d 472 (1993).
Discriminatory laws come in many forms. Outright banson religious activity alone obviously count. So do generalbans that cover religious activity when there are exceptionsfor comparable secular activities. See Ward v. Polite, 667F.3d 727, 738 (6th Cir. 2012); see also Fraternal Orderof Police Newark Lodge No. 12 v. City of Newark, 170F.3d 359, 365–67 (3d Cir. 1999). As a rule of thumb, themore exceptions to a prohibition, the less likely it willcount as a generally applicable, non-discriminatory law.Ward, 667 F.3d at 738. “At some point, an exception-riddenpolicy takes on the appearance and reality of a system ofindividualized exemptions, the antithesis of a neutral andgenerally applicable policy and just the kind of state actionthat must run the gauntlet of strict scrutiny.” Id. at 740. Asjust shown, the Governor's orders do not seem to survivestrict scrutiny, particularly with respect to the ban on outdoorservices. The question, then, is one of general applicability.
The Governor's orders have several potential hallmarks ofdiscrimination. One is that they prohibit “faith-based” massgatherings by name. R. 1-5 at 1. But this does not sufficeby itself to show that the Governor singled out faith groupsfor disparate treatment. The order lists many other groupactivities, and we accept the Governor's submission that heneeded to mention faith groups by name because there aremany of them, they meet regularly, and their ubiquity posesmaterial risks of contagion.
The real question goes to exceptions. The Governor insistsat the outset that there are “no exceptions at all.” AppelleeBr. at 21. But that is word play. The orders allow “life-sustaining” operations and don't include worship services inthat definition. And many of the serial exemptions for secularactivities pose comparable public health risks to worshipservices. For example: The exception for “life-sustaining”businesses allows law firms, laundromats, liquor stores, andgun shops to continue to operate so long as they follow social-distancing and other health-related precautions. R. 1-7 at 2–6.But the orders do not permit soul-sustaining group services offaith organizations, even if the groups adhere to all the publichealth guidelines required of essential services and even whenthey meet outdoors.
We don't doubt the Governor's sincerity in trying to do hislevel best to lessen the spread of the virus or his authority toprotect the Commonwealth's citizens. See *615 Jacobson v.Massachusetts, 197 U.S. 11, 27, 25 S.Ct. 358, 49 L.Ed. 643(1905). And we agree that no one, whether a person of faith ornot, has a right “to expose the community ... to communicabledisease.” Prince v. Massachusetts, 321 U.S. 158, 166–67, 64S.Ct. 438, 88 L.Ed. 645 (1944). But restrictions inexplicablyapplied to one group and exempted from another do little tofurther these goals and do much to burden religious freedom.Assuming all of the same precautions are taken, why is itsafe to wait in a car for a liquor store to open but dangerousto wait in a car to hear morning prayers? Why can someonesafely walk down a grocery store aisle but not a pew? Andwhy can someone safely interact with a brave deliverywomanbut not with a stoic minister? The Commonwealth has nogood answers. While the law may take periodic naps duringa pandemic, we will not let it sleep through one.
Sure, the Church might use Zoom services or the like, asso many places of worship have decided to do over the lasttwo months. But who is to say that every member of thecongregation has access to the necessary technology to make
Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 5
that work? Or to say that every member of the congregationmust see it as an adequate substitute for what it means when“two or three gather in my Name.” Matthew 18:20; see alsoOn Fire Christian Ctr., Inc. v. Fischer, No. 3:20-CV-264-JRW, ––– F.Supp.3d ––––, ––––, 2020 WL 1820249, at *7–8 (W.D. Ky. Apr. 11, 2020). As individuals, we have somesympathy for Governor DeWine's approach—to allow placesof worship in Ohio to hold services but then to admonishthem all (we assume) that it's “not Christian” to hold in-person services during a pandemic. Doral Chenoweth III,Video: Dewine says it's “not Christian” to hold church duringcoronavirus, Columbus Dispatch, April 1, 2020. But this isnot about sympathy. And it's exactly what the federal courtsare not to judge—how individuals comply with their ownfaith as they see it. Smith, 494 U.S. at 886–87, 110 S.Ct. 1595.
Keep in mind that the Church and Dr. Roberts do not seekto insulate themselves from the Commonwealth's generalpublic health guidelines. They simply wish to incorporatethem into their worship services. They are willing to practicesocial distancing. They are willing to follow any hygienerequirements. They are not asking to share a chalice. TheGovernor has offered no good reason so far for refusing totrust the congregants who promise to use care in worshipin just the same way it trusts accountants, lawyers, andlaundromat workers to do the same. Are they not often thesame people, going to work on one day and attending worshipon another? If any group fails, as assuredly some groups havefailed in the past, the Governor is free to enforce the social-distancing rules against them for that reason.
The Governor claims, and the district court seemed to thinkso too, that the explanation for these groups of people to bein the same area—intentional worship—distinguishes themfrom groups of people in a parking lot or a retail store oran airport or some other place where the orders allow manypeople to be. We doubt that the reason a group of people goto one place has anything to do with it. Risks of contagionturn on social interaction in close quarters; the virus does notcare why they are there. So long as that is the case, why dothe orders permit people who practice social distancing andgood hygiene in one place but not another? If the problem isnumbers, and risks that grow with greater numbers, then thereis a straightforward remedy: limit the number of people whocan attend a service at one time.
Other factors. Preliminary injunctions in constitutional casesoften turn on likelihood of success on the merits, usuallymaking it unnecessary to dwell on the *616 remaining three
factors. City of Pontiac Retired Emps. Ass'n v. Schimmel,751 F.3d 427, 430 (6th Cir. 2014) (en banc) (per curiam).That's true here with respect to the ban on drive-in worshipservices. As for harm to the claimants, the prohibition onattending any worship service this Sunday and the Sundaysthrough May 20 assuredly inflicts irreparable harm. Bonnellv. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001). As forharm to others, an injunction appropriately permits religiousservices with the same risk-minimizing precautions as similarsecular activities, and permits the Governor to enforcesocial-distancing rules in both settings. As for the publicinterest, treatment of similarly situated entities in comparableways serves public health interests at the same time itpreserves bedrock free-exercise guarantees. See Bays v. Cityof Fairborn, 668 F.3d 814, 825 (6th Cir. 2012).
The balance is more difficult when it comes to in-person services. Allowance for drive-in services this Sundaymitigates some harm to the congregants and the Church. Inview of the fast-moving pace of this litigation and in view ofthe lack of additional input from the district court, whether ofa fact-finding dimension or not, we are inclined not to extendthe injunction to in-person services at this point. We realizethat this falls short of everything the Church has asked for andmuch of what it wants. But that is all we are comfortable doingafter the 24 hours the plaintiffs have given us with this case. Inthe near term, we urge the district court to prioritize resolutionof the claims in view of the looming May 20 date and for theGovernor and plaintiffs to consider acceptable alternatives.The breadth of the ban on religious services, together witha haven for numerous secular exceptions, should give pauseto anyone who prizes religious freedom. But it's not alwayseasy to decide what is Caesar's and what is God's—and that'sassuredly true in the context of a pandemic.
Accordingly, the plaintiffs' motion for an injunction pendingappeal, and their motion to expedite briefing, oral argumentand submission on the briefs, is GRANTED IN PART. TheGovernor and all other Commonwealth officials are herebyenjoined, during the pendency of this appeal, from enforcingorders prohibiting drive-in services at the Maryville BaptistChurch if the Church, its ministers, and its congregantsadhere to the public health requirements mandated for “life-sustaining” entities.
All Citations
957 F.3d 610
Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 6
Footnotes* This decision was originally filed as an unpublished order on May 2, 2020. The court has now designated the order for
publication.
End of Document © 2020 Thomson Reuters. No claim to original U.S.Government Works.
TAB 3
Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 2305307Only the Westlaw citation is currently available.
United States District Court, E.D. Kentucky,Central Division.
Frankfort.
TABERNACLE BAPTIST CHURCH, INC.OF NICHOLASVILLE, Kentucky, Plaintiff,
v.Andrew BESHEAR, in his
official capacity as Governor ofKentucky, et al., Defendants.
Civil No. 3:20-cv-00033-GFVT|
Signed May 8, 2020
SynopsisBackground: Church brought action against Governor ofKentucky, alleging that executive order mandating that allbusinesses that were not “life-sustaining” close in light ofCOVID-19 pandemic violated church's First Amendmentrights to free exercise of religion and freedom of assembly.Church sought temporary restraining order (TRO) enjoiningGovernor from enforcing executive order with respect to in-person religious services.
Holdings: The District Court, Gregory F. Van Tatenhove, J.,held that:
[1] church met requirements to pursue pre-enforcementchallenge;
[2] church showed entitlement to TRO; and
[3] the Court would issue statewide TRO.
Ordered accordingly.
West Headnotes (21)
[1] Constitutional Law Criminal Law
To establish standing to bring a pre-enforcement challenge based on alleged threat toconstitutional rights, a plaintiff must sufficientlyallege: (1) an intention to engage in a course ofconduct arguably affected with a constitutionalinterest; (2) that is proscribed by a law; and(3) there exists a credible threat of prosecutionthereunder.
[2] Constitutional Law First Amendment inGeneral
Constitutional Law Criminal Law
Church met requirements to pursue pre-enforcement challenge of executive orderpromulgated by Governor of Kentucky, allegingthat order, which mandated that all businessesthat were not “life-sustaining” close in lightof COVID-19 pandemic, violated church's FirstAmendment rights; church alleged intention toengage in course of conduct arguably affectedwith constitutional interest, namely freedom ofreligion and freedom of assembly, that conductwas proscribed by executive order, violationof executive order was a misdemeanor underKentucky law, and there was an establishedrecord of enforcement against religious entitiesthat had violated executive order in same waychurch proposed, constituting a credible threatof prosecution under order. U.S. Const. Amend.1; Ky. Rev. Stat. Ann. §§ 39A.990, 532.020(2),534.040.
[3] Injunction Grounds in general; multiplefactors
In determining whether to issue a temporaryrestraining order (TRO), the court examines:1) whether the movant has shown a stronglikelihood of success on the merits; 2) whetherthe movant will suffer irreparable harm if theinjunction is not issued; 3) whether the issuanceof the injunction would cause substantial harm toothers; and 4) whether the public interest wouldbe served by issuing the injunction. Fed. R. Civ.P. 65(b)(1).
Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 2
[4] Injunction Preservation of status quo
Injunction Extraordinary or unusual natureof remedy
A temporary restraining order (TRO) is anextraordinary remedy designed for the limitedpurpose of preserving the status quo pendingfurther proceedings on the merits.
[5] Injunction Temporary restraining orders
Jurisprudence runs counter to the notion of courtaction taken before reasonable notice and anopportunity to be heard has been granted bothsides of a dispute, as is requested via a motion fortemporary restraining order (TRO).
[6] Civil Rights Preliminary Injunction
Church showed entitlement to temporaryrestraining order (TRO) enjoining Governorof Kentucky from enforcing against churchexecutive order mandating that all businessesthat were not “life-sustaining” close in light ofCOVID-19 pandemic, based on church's pre-enforcement assertion that order violated its FirstAmendment right to free exercise of religion;order placed burden on free exercise of religionin Kentucky in a manner beyond what wasreasonably required for the safety of the public,given that many of the order’s exemptions forsecular activities posed comparable public healthrisks to worship services, meaning that order’sprohibition of mass gatherings was not narrowlytailored, and absent a TRO, church’s congregantswould be forced to forego in-person service. U.S.Const. Amend. 1.
3 Cases that cite this headnote
[7] Civil Rights Preliminary Injunction
When constitutional rights are threatened orimpaired, irreparable injury is presumed, forpurposes of a motion for temporary restrainingorder.
[8] Civil Rights Preliminary Injunction
The loss of First Amendment freedoms, foreven minimal periods of time, unquestionablyconstitutes irreparable injury, as required forpurposes of a temporary restraining order (TRO).U.S. Const. Amend. 1.
[9] Civil Rights Preliminary Injunction
When a party seeks a preliminary injunction onthe basis of a violation of the First Amendment,the likelihood of success on the merits often willbe the determinative factor. U.S. Const. Amend.1.
[10] Municipal Corporations Nature andscope of power of municipality
The possession and enjoyment of all rights aresubject to such reasonable conditions as may bedeemed by the governing authority of the countryessential to the safety, health, peace, good orderand morals of the community.
[11] Health Contagious and Infectious Diseases
When faced with a society-threatening epidemic,a state may implement emergency measuresthat curtail constitutional rights so long as themeasures have at least some real or substantialrelation to the public health crisis and are notbeyond all question, a plain, palpable invasion ofrights secured by the fundamental law.
[12] Health Contagious and Infectious Diseases
In determining whether a state's curtailment ofconstitutional rights has some real or substantialrelation to public health concerns arising froma society-threatening epidemic, courts may askwhether the state's emergency measures lackbasic exceptions for extreme cases, and whetherthe measures are pretextual, that is, arbitrary oroppressive.
Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 3
[13] Health Contagious and Infectious Diseases
Courts may not second-guess the wisdomor efficacy of state measures that curtailconstitutional rights, in evaluating whether thosemeasures are permissible as having real orsubstantial relation to a society-threateningepidemic or public health crisis.
[14] Health Contagious and Infectious Diseases
States have considerable leeway in enactingmeasures during public health emergencies.
[15] Health Contagious and Infectious Diseases
An acknowledged power of a local communityto protect itself against an epidemic might go sofar beyond what was reasonably required for thesafety of the public, as to authorize or compel thecourts to interfere to protect constitutional rights.
[16] Constitutional Law Neutrality
A law that incidentally burdens religion, but thatis neutral and of general applicability need notbe justified by a compelling government interest.U.S. Const. Amend. 1.
[17] Constitutional Law Neutrality
If a law curtailing religious rights is not neutral orgenerally applicable, then it must be justified bya compelling governmental interest and must benarrowly tailored to advance that interest. U.S.Const. Amend. 1.
[18] Civil Rights Preliminary Injunction
The likelihood of success on the meritsis largely determinative in constitutionalchallenges seeking a temporary restraining order(TRO).
[19] Civil Rights Injunction
The public interest favors the enjoinment of aconstitutional violation.
[20] Civil Rights Preliminary Injunction
The District Court would issue statewidetemporary restraining order (TRO) enjoiningGovernor of Kentucky from enforcing executiveorder banning mass gatherings, for purposes ofchurch's action against Governor asserting thatorder violated church's First Amendment rightto freedom of religion; executive order at issuedid not just affect plaintiff church, but rather toall churches across the state of Kentucky. U.S.Const. Amend. 1.
1 Cases that cite this headnote
[21] Injunction Scope of Relief in General
Injunction Geographical scope of relief
One of the principles of equity jurisprudence isthat the scope of injunctive relief is dictated bythe extent of the violation established, not by thegeographical extent of the plaintiff class.
Attorneys and Law Firms
Andrew Miller, Kevin Gallagher, Matthew T. Martens,Wilmer Cutler Pickering Hale & Dorr, LLP, Washington, DC,Hiram S. Sasser, III, Roger Byron, First Liberty Institute,Plano, TX, Joseph A. Bilby, Bilby Law PLLC, Frankfort, KY,for Plaintiff.
La Tasha Buckner, Laura Crittenden Tipton, Marc GriffinFarris, Steven Travis Mayo, Taylor Payne, Office of theGovernor, Frankfort, KY, For Defendant Andrew Beshear.
D. Brent Irvin, J. Wesley Warden Duke, David ThomasLovely, Cabinet for Health & Family Services - FrankfortOffice of Legal Services, Frankfort, KY, for Defendant EricFriedlander.
OPINION & ORDER
Gregory F. Van Tatenhove, United States District Judge
Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 4
*1 We are a relatively young nation. But our Constitution is
the oldest in the world.1 We describe it as enduring— a valuethat must be protected not only when it is easy but when itis hard.
And this is a hard and difficult time. A new virus sweeps theworld, ravages our economy and threatens our health. Publicofficials, including the defendants in this case, make minuteby minute decisions with the best of intentions and the goalof saving the health and lives of our citizens.
But what of that enduring Constitution in times like these?Does it mean something different because society is desperatefor a cure or prescription?
Simply put, that is the question presented here. TabernacleBaptist Church wants to gather for corporate worship. Theywant to freely exercise their deeply held religious beliefabout what it means to be a faithful Christian. For them, itis “essential” that they do so. And they want to invoke theConstitution's protection on this point.
But the governor, by executive order, has put a stop to that. Hecan do that, but he must have a compelling reason for using hisauthority to limit a citizen's right to freely exercise somethingwe value greatly— the right of every American to follow theirconscience on matters related to religion. As explained below,despite an honest motive, it does not appear at this preliminarystage that reason exists. Consequently, as explained below, themotions for a temporary restraining order are GRANTED.
I
To curb the spread of the coronavirus in the Commonwealthof Kentucky, Governor Andrew Beshear has issued a seriesof executive orders limiting social interaction betweenKentuckians. Non-essential businesses are temporarilyclosed, restaurants are relegated to take-out only, and citizenshave been asked to practice social distancing. The plaintiffstake exception to two of these protective measures. OnMarch 19, 2020, as part of broader efforts to “flatten the
curve,”2 acting Secretary of the Cabinet for Health andFamily Services Eric Friedlander issued an order prohibiting“mass gatherings.” [R. 3-7.]. Per Secretary Friedlander'sOrder, mass gatherings include “any event or conveningthat brings together groups of individuals, including, but notlimited to, community, civic, public, leisure, faith-based,or sporting events; parades; concerts; festivals; conventions;
fundraisers; and similar activities.” Id. (emphasis added).Some activities which necessarily involve large groups ofindividuals were excluded. “[A]irports, bus and train stations,medical facilities, libraries, shopping malls and centers, orother spaces where persons may be in transit” were notincluded within the definition of “mass gathering,” nor were“typical office environments, factories, or retail or grocerystores[.]” Id.
*2 Later, on March 25, 2020, Governor Beshear issued anexecutive order mandating all businesses which are not “life-sustaining” close. [R. 3-5.]. Religious organizations wereexcluded from the category of “life-sustaining,” except tothe extent they provide “food, shelter and social services.”Id. Entities allowed to remain open included hardwarestores, laundromats and dry cleaners, law offices, and liquorstores, provided they adhere to social distancing and hygieneguidelines. See id.
[1] [2] Plaintiff Tabernacle Baptist Church describes itselfas “an independent, fundamental, Baptist church, independentof the world but dependent on the Word of God.” Id. at¶ 13. Since issuance of the above orders, Tabernacle hasceased holding in-person religious services. [R. 3-1 at 5.]Instead, Tabernacle has resorted to broadcasting servicesonline via Facebook or holding drive-in services whereincongregants may listen to the service over their FM radio. Id.For Plaintiff, these substitutes offer cold comfort. “Tabernaclehas a sincerely-held religious belief that online services anddrive-in services do not meet the Lord's requirement that thechurch meet together in person for corporate worship.” Id. Forthis reason, Tabernacle argues the foregoing Orders violateits First Amendment rights to free exercise of religion and
freedom of assembly.3 [R. 1.] Tabernacle argues it is likely tosucceed on the merits of its claims because the orders are notnarrowly tailored to serve the public health interest.
Defendants dispute this characterization. Although notrequired in the context of ruling on a TRO, the Courtheld a telephone hearing this afternoon, shortly after theDefendants filed an appeal in a similar case. Counsel forTabernacle, the Attorney General, Secretary Friedlander, andGovernor Beshear participated in the call. Defendants arguedthe prohibition on mass gatherings is constitutional, becauseit is applicable to all mass gatherings generally. Further, theDefendants pointed out factual distinctions between the socialinteraction that takes place in a transactional setting, such as agrocery store, and the communal nature of religious services.The arguments made were substantive, not jurisdictional.
Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 5
*3 Notably, Tabernacle's is not the first challenge thathas sought to enjoin the actions of Kentucky officialsthat curtailed residents' ability to participate in corporateworship. To date, three other district courts in Kentucky haveconsidered whether to grant a temporary restraining order toenjoin government proscriptions on religious gatherings. Inone case, the plaintiff church requested a TRO against theCity of Louisville's prohibition on drive-in church serviceson Easter. On Fire Christian Ctr., Inc. v. Fischer, No. 3:20-CV-264-JRW, ––– F.Supp.3d ––––, 2020 WL 1820249, 2020U.S. Dist. LEXIS 65924 (W.D. Ky. Apr. 11, 2020). Theother two cases centered on the constitutionality of GovernorBeshear's executive orders. See Roberts v. Neace, No. 2:20-CV-054-WOB, ––– F.Supp.3d ––––, 2020 WL 2115358,2020 U.S. Dist. LEXIS 77987 (E.D. Ky. May 4, 2020);Maryville Baptist Church, Inc. v. Beshear, No. 3:20-CV-278-DJH, ––– F.Supp.3d ––––, 2020 WL 1909616, 2020 U.S.Dist. LEXIS 70072 (W.D. Ky. Apr. 18, 2020). Appeals arepending before the Sixth Circuit in each of these latter cases.In Roberts, plaintiffs have moved for an injunction pendingappeal that would permit them to attend in-person churchservices this Sunday. [Roberts, et al. v. Neace, et a., 2:20-54-WOB-CJS, R. 56.] The Plaintiffs in Maryville Baptist areawaiting a district court ruling on their motion to enjoin theGovernor's prohibition on mass gatherings as it applies to in-person religious services while their appeal remains pending.Id.
While instructive, this Court is not bound by the decisions ofthe district courts in those cases. See Camreta v. Greene, 563U.S. 692, 709 n. 7, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011);Ohio A. Philip Randolph Inst. v. Larose, 761 F. App'x 506,514 n. 4 (6th Cir. 2019) (“[T]ypically district court judgesare not bound by previous decisions of other judges withinthe same district.”). Ultimately, the constitutionality of thesegovernmental actions will be resolved at the appellate level,at which point the Sixth Circuit will have the benefit of thecareful analysis of the various district courts, even if wedisagree.
II
[3] Rule 65 allows the Court to issue a TRO without noticeto the other party only if “(A) specific facts in an affidavitor a verified complaint clearly show that immediate andirreparable injury, loss, or damage will result to the movantbefore the adverse party can be heard in opposition; and (B)
the movant's attorney certifies in writing any efforts made togive notice and the reasons why it should not be required.”Fed. R. Civ. P. 65(b)(1). As noted, the Governor and SecretaryFriedlander filed an appearance, and participated in a hearingheld earlier today. Additionally, although the Governor hasnot yet prepared a response to the instant motion, the Courtconsidered briefing filed by the defendants in other, similarchallenges to the prohibition on mass gatherings as it pertainsto religious services, and provided at the Court's request. Indetermining whether to issue a TRO, the Court examines: 1)whether the movant has shown a strong likelihood of successon the merits; 2) whether the movant will suffer irreparableharm if the injunction is not issued; 3) whether the issuanceof the injunction would cause substantial harm to others; and4) whether the public interest would be served by issuing theinjunction. Overstreet v. Lexington–Fayette Urban CountyGovernment, 305 F.3d 566, 573 (6th Cir. 2002) (citationsomitted).
[4] [5] “[A] temporary restraining order is an extraordinaryremedy designed for the limited purpose of preserving thestatus quo pending further proceedings on the merits[.]”Stein v. Thomas, 672 Fed. App'x 565, 572 (6th Cir. 2016).This is because “our entire jurisprudence runs counter to thenotion of court action taken before reasonable notice andan opportunity to be heard has been granted both sides ofa dispute.” Reed v. Cleveland Bd. of Educ., 581 F.2d 570,573 (6th Cir. 1978) (quoting Granny Goose Foods, Inc. v.Teamsters, 415 U.S. 423, 439, 94 S.Ct. 1113, 39 L.Ed.2d435 (1974)). Thus, Tabernacle must show that the foregoingpreliminary injunction factors are met, and that immediate,irreparable harm will result if the TRO is not issued.
A
*4 [6] [7] [8] [9] The First Amendment provides that“Congress shall make no law respecting an establishment ofreligion, or exercising the free exercise thereof,” with fewexceptions. U.S. Const. amend. 1. “When constitutional rightsare threatened or impaired, irreparable injury is presumed.”ACLU Fund of Mich. v. Livingston Cnty., 796 F.3d 636, 649(6th Cir. 2015) (internal citations omitted). The SupremeCourt has held “[t]he loss of First Amendment freedoms,for even minimal periods of time, unquestionably constitutesirreparable injury.” Elrod v. Burns, 427 U.S. 347, 373, 96S.Ct. 2673, 49 L.Ed.2d 547 (1976). This is precisely whatTabernacle alleges: violation of its First Amendment rights,specifically its right to exercise its religion and the right
Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 6
to freely assemble. [R. 1; R. 3-1.] Sixth Circuit precedentestablishes that, “when a party seeks a preliminary injunctionon the basis of a ... violation of the First Amendment,the likelihood of success on the merits often will be thedeterminative factor.” Jones v. Caruso, 569 F.3d 258, 265 (6thCir. 2009).
[10] Of course, “[t]he possession and enjoyment of allrights are subject to such reasonable conditions as may bedeemed by the governing authority of the country essentialto the safety, health, peace, good order and morals of thecommunity.” Crowley v. Christensen, 137 U.S. 86, 89, 11S.Ct. 13, 34 L.Ed. 620 (1890). The question becomes, then,whether the mass gathering prohibition issued by GovernorBeshear amounts to “reasonable conditions” on Kentuckians'constitutional right to free exercise of their sincerely-heldreligious beliefs. Context is important. The orders at issue donot simply restrict religious expression; they restrict religiousexpression in an attempt to protect the public health duringa global pandemic. As a result, the Court is tasked withidentifying precedent in unprecedented times.
Defendant Governor Beshear and other courts have lookedto Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358,49 L.Ed. 643 (1905). See In re Abbott, 954 F.3d 772 (5thCir. 2020); Adams & Boyle, P.C. v. Slatery, 956 F.3d 913(6th Cir. 2020); On Fire Christian Ctr. v. Fischer, –––F.Supp.3d ––––, –––– – ––––, 2020 WL 1820249, *8–9,2020 U.S. Dist. LEXIS 65924, *16–17 (W.D. Ky. Apr. 11,2020). There, the Supreme Court considered whether, whenfaced with an outbreak of smallpox, the city of Cambridgecould constitutionally require its adult residents to receivevaccinations against the disease. See Jacobson, 197 U.S. at25–26, 25 S.Ct. 358. Those who refused to vaccinate weresubjected to a fine. Id. at 26, 25 S.Ct. 358. Although thedefendant argued the law was an invasion of his libertyand violative of due process, the Supreme Court upheld thevaccination requirement based on public health concerns. Id.at 39, 25 S.Ct. 358.
[11] [12] [13] [14] [15] Though over a century old,Jacobson is arguably the case that most directly speaks to“the expanded scope of a state's police power during timesof public health crises[.]” Adams & Boyle, P.C., 956 F.3d at––––, 2020 WL 1982210 at *6. The Fifth Circuit has distilledJacobson's analysis into a clearer, multi-factor test:
The bottom line is this: when faced with a society-threatening epidemic, a state may implement emergencymeasures that curtail constitutional rights so long as
the measures have at least some “real or substantialrelation” to the public health crisis and are not “beyond allquestion, a plain, palpable invasion of rights secured bythe fundamental law.” Courts may ask whether the state'semergency measures lack basic exceptions for “extremecases,” and whether the measures are pretextual—thatis, arbitrary or oppressive.” At the same time, however,courts may not second-guess the wisdom or efficacy of themeasures.
In re Abbott, 954 F.3d 772, 784–85 (5th Cir. 2020)(internal citations omitted); see also Adams & Boyle, P.C.v. Slatery, 956 F.3d 913 (6th Cir. 2020) (applying theforegoing factors to the Governor of Tennessee's directive to“postpone surgical and invasive procedures that are electiveand non-urgent” including abortions). The Jacobson testgives states considerable leeway in enacting measures duringpublic health emergencies. However, “even under Jacobson,constitutional rights still exist.” On Fire Christian Ctr., –––F.Supp.3d at ––––, 2020 WL 1820249 at *8. And whilecourts should refrain from second-guessing the efficacy of astate's chosen protective measures, “an acknowledged powerof a local community to protect itself against an epidemic ...might go so far beyond what was reasonably required for thesafety of the public, as to authorize or compel the courts tointerfere[.]” Jacobson, 197 U.S. at 28, 25 S.Ct. 358.
*5 [16] [17] Here, not only has Tabernacle alleged anirreparable injury, but Tabernacle is likely to succeed onthe merits of its federal constitutional claim. Defendantdoes not dispute that the challenged orders place a burdenon the free exercise of religion in Kentucky. A law thatincidentally burdens religion, but “that is neutral and ofgeneral applicability need not be justified by a compellinggovernment interest[.]” Church of Lukumi Babalu Aye v. Cityof Hialeah, 508 U.S. 520, 531, 113 S.Ct. 2217, 124 L.Ed.2d472 (1993). If a law is not neutral or generally applicable, thenit “must be justified by a compelling governmental interestand must be narrowly tailored to advance that interest.”Id. 531–32, 113 S.Ct. 2217. Even viewed through thestate-friendly lens of Jacobson, the prohibition on religiousservices presently operating in the Commonwealth is “beyondwhat was reasonably required for the safety of the public.”Jacobson, 197 U.S. at 28, 25 S.Ct. 358.
The Sixth Circuit recently addressed a similar challenge toKentucky's prohibition on religious services. See MaryvilleBaptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020).Maryville Baptist Church held a drive-in service on EasterSunday. But, pursuant to the prohibition on mass gatherings
Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 7
and executive order closing non-essential businesses—thesame orders challenged in this case—“Kentucky State Policearrived in the parking lot and issued notices to the congregantsthat their attendance at the drive-in service amounted to acriminal act.” Id. at ––––, 2020 WL 2111316 at *1. On appeal,the Sixth Circuit considered whether to stay the district court'sorder denying Maryville Baptist Church's motion to enjoinenforcement of these restrictions. Id. In its analysis, the Courtobserved that Maryville Baptist was likely to succeed onthe merits of its claim because “[t]he way the orders treatcomparable religious and non-religious activities suggeststhat they do not amount to the least restrictive way ofregulating the churches.” Id. at ––––, 2020 WL 2111316 at *2.
Ultimately, the Sixth Circuit opted to enjoin enforcement ofthe orders only as they pertained to drive-in services. Id. at––––, 2020 WL 2111316 at *5. Maryville Baptist does notdecide this case, but it is indicative of what might come.It follows that the prohibition on in-person services shouldbe enjoined as well. The restrictions which the Sixth Circuitcriticized as “inexplicably applied to one group and exemptedfrom another” are the same restrictions Tabernacle challengestoday. Id. at ––––, 2020 WL 2111316 at *4. And, as theSixth Circuit recognized, “many of the serial exemptionsfor secular activities pose comparable public health risks toworship services.” Id. at ––––, 2020 WL 2111316 at *3. Theprohibition on mass gatherings is not narrowly tailored asrequired by Lukumi. There is ample scientific evidence thatCOVID-19 is exceptionally contagious. But evidence that therisk of contagion is heightened in a religious setting any morethan a secular one is lacking. If social distancing is goodenough for Home Depot and Kroger, it is good enough for in-person religious services which, unlike the foregoing, benefitfrom constitutional protection.
Finally, the Court is cognizant that absent a temporaryrestraining order today, congregants Tabernacle Baptist willbe forced to forego in-person service this Sunday. Tabernaclestates it “is committed to physically gathering its congregantsin person in its sanctuary in a manner consistent with socialdistancing precautions in order to ensure the safety and well-being of its congregants.” [R. 3-1 at 4.] And, should theybe permitted to gather, Tabernacle has said it will follow theCenter for Disease Control's guidelines on mass gatherings.Id. On this condition, the Court will GRANT Plaintiff'sMotion for Temporary Restraining Order.
B
[18] [19] Plaintiffs have established a likelihood of successon the merits with respect to their free exercise claim, andthe Court grants their motion for a TRO on that basis. Thelikelihood of success on the merits is largely determinativein constitutional challenges like this one, however, theremaining factors also mitigate in favor of Plaintiffs. Asalready explained, Tabernacle's injury is irreparable. SeeElrod, 427 U.S. at 373, 96 S.Ct. 2673. To stay the prohibitionon mass gatherings with respect to religious services whichobserve the social distancing guidelines promulgated by theCenter for Disease Control, as Tabernacle has promisedto do, does not harm the Defendants. Finally, the publicinterest favors the enjoinment of a constitutional violation.See Martin-Marietta Corp. v. Bendix Corp., 690 F.2d 558, 568(6th Cir. 1982).
*6 While the Court has granted Plaintiff's and the AttorneyGeneral's Motions for a TRO based on the free exerciseclause of the First Amendment, that is not the only issuebefore it. Tabernacle also brings claims grounded in the FirstAmendment guarantee of freedom to assemble, the KentuckyConstitution, and Kentucky's Religious Freedom RestorationAct. [R. 1] These issues are reserved for another day, and willbenefit from briefing from the Defendants.
C
[20] [21] As a final matter, the Court considers the scopeof the TRO. The Attorney General urges the Court to applyits injunction statewide rather than limiting its applicationto Tabernacle Baptist Church. In Califano v. Yamasaki, theSupreme Court pointed out that one of the “principles ofequity jurisprudence” is that “the scope of injunctive reliefis dictated by the extent of the violation established, notby the geographical extent of the plaintiff class.” Rodgersv. Bryant, 942 F.3d 451 (8th Cir. 2019) (quoting Califanov. Yamasaki, 442 U.S. 682, 99 S.Ct. 2545, 61 L.Ed.2d 176(1979)); see also Trump v. Int'l Refugee Assist. Project, –––U.S. ––––, 137 S. Ct. 2080, 2087, 198 L.Ed.2d 643 (2017)(per curiam) (“Crafting a preliminary injunction is an exerciseof discretion and judgment, often dependent as much onthe equities of a given case as the substance of the legalissues it presents.”); De Beers Consol. Mines Ltd. v. UnitedStates, 325 U.S. 212, 220, 65 S. Ct. 1130, 89 L. Ed. 1566(1945) (“A preliminary injunction is always appropriate to
Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 8
grant intermediate relief of the same character as that whichmay be granted finally.”). In the present case, the ExecutiveOrder at issue does not just affect Tabernacle Baptist Church.The Executive Order applies to all churches. Therefore, asthe Eighth Circuit has recently upheld, injunctive relief mayextend statewide because the violation established impacts theentire state of Kentucky.
III
The Constitution will endure. It would be easy to put it on theshelf in times like this, to be pulled down and dusted off whenmore convenient. But that is not our tradition. Its enduringquality requires that it be respected even when it is hard.
In light of the foregoing, the Court will grant Plaintiff'sMotion for a TRO. But the Court's review at this stageis preliminary. In depth consideration of the constitutionalissues at play will require additional briefing from the parties,and particularly a response from Defendants. Expeditedconsideration is appropriate. Accordingly, and the Courtbeing otherwise sufficiently advised, it is ORDERED asfollows:
1. The Motions for Temporary Restraining Order [R. 3; R.13] are GRANTED;
2. Defendants are ENJOINED from enforcing theprohibition on mass gatherings with respect to any in-person religious service which adheres to applicablesocial distancing and hygiene guidelines;
3. Intervening Plaintiff Attorney General Daniel Cameron'sMotion for Emergency Hearing [R. 13] is DENIED ASMOOT;
4. A telephonic scheduling conference shall be held Monday,May 11, 2020 at 11:00 a.m., with Judge Van Tatenhove sittingin Frankfort, Kentucky; and
5. To join the teleconference, the parties are DIRECTEDto call AT&T Teleconferencing at 1-877-336-1280 and enterAccess Code 2086161 (followed by #), and, when requested,enter the Security Code 09170 (followed by #).
All Citations
--- F.Supp.3d ----, 2020 WL 2305307
Footnotes1 “Written in 1787, ratified in 1788, and in operation since 1789, the United States Constitution is the world's longest
surviving written charter of government.” United States Senate, Constitution Day, https://www.senate.gov/artandhistory/history/common/generic/ConstitutionDay.htm.
2 The term “flatten the curve” refers to slowing the spread of the coronavirus through the population. The goal is to “reduce[ ]the number of cases that are active at any given time, which in turn gives doctors, hospitals, police, schools, and vaccine-manufacturers time to respond, without becoming overwhelmed.” Siobhan Roberts, Flattening the Coronavirus Curve,The New York Times, https://www.nytimes.com/article/flatten-curve-coronavirus.html. The result is that, when plotted ona line graph, the rate of infection appears as a flattened curve rather than a steep peak.
3 The executive order has yet to be enforced against Plaintiff Tabernacle. However, the Court notes that there is no issueat this preliminary stage concerning Tabernacle's ability to establish standing in this apparent pre-enforcement challenge.McKay v. Federspiel, 823 F.3d 862, 867 (6th Cir. 2016); see also Michigan Gas Co. v. F.E.R.C., 115 F.3d 1266, 1269 (6thCir. 1997) (“Standing ‘is a qualifying hurdle that plaintiffs must satisfy even if raised sua sponte by the court.’ ”). To bringsuch a challenge, a plaintiff must sufficiently allege (1) “an intention to engage in a course of conduct arguably affectedwith a constitutional interest,” (2) that is “proscribed by a [law],” and (3) “there exists a credible threat of prosecutionthereunder.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (citationomitted). It is beyond dispute that the first two elements are easily met. As to the third element, the Court notes firstthat violation of the recently promulgated executive orders is a Class A misdemeanor under Kentucky law. See KRS§ 39A.990; see also KRS § 532.020(2); KRS § 534.040 (setting forth the penalties for a Class A misdemeanor). Andsecond, there is an established record of enforcement against churches that have violated the executive order in thesame way Tabernacle proposes. See Maryville Baptist Church v. Beshear, 957 F.3d 610, ––––, 2020 WL 1909616, at *1(6th Cir. 2020); Roberts, ––– F.Supp.3d ––––, ––––, 2020 WL 2115358, at *1, 2020 U.S. Dist. LEXIS 77987, at *2 (E.D.Ky. May 4, 2020). Thus, it appears that Tabernacle also meets this third and final element. In sum, on the limited recordbefore the Court, it appears that Tabernacle meets each element of the pre-enforcement standing analysis and, notably,
Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 9
the Governor has advanced no argument to the contrary. Indeed, the Governor, to this point in the litigation, evinces anintent to continue enforcing the orders at issue.
End of Document © 2020 Thomson Reuters. No claim to original U.S.Government Works.
TAB 4
Ramsek v. Beshear, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Blue Flag – Appeal Notification Appeal Filed by TONY RAMSEK, ET AL v. ANDREW BESHEAR, ET AL,
6th Cir., July 6, 2020
2020 WL 3446249Only the Westlaw citation is currently available.
United States District Court, E.D. Kentucky,Central Division.
Frankfort.
Tony RAMSEK, et al., Plaintiffs,v.
Andrew BESHEAR, in hisOfficial Capacity as Governor
of Kentucky, et al., Defendants.
Civil No. 3:20-cv-00036-GFVT|
Signed 06/24/2020
SynopsisBackground: Protestors that were blocked from protesting atKentucky state capitol by state police brought action againstKentucky governor and other state officials, challengingexecutive order prohibiting mass gatherings to prevent spreadof COVID-19. The District Court, Gregory F. Van Tatenhove,2020 WL 2614638, denied protesters' emergency motionfor a preliminary injunction. The Court of Appeals vacatedthat order and remanded for additional findings of fact andconclusions of law.
Holdings: The District Court, Gregory F. Van Tatenhove, J.,held that:
[1] executive order's prohibition on protests, even at Kentuckystate capitol, was content neutral, but
[2] order was not narrowly tailored, and thus protestorsdemonstrated likelihood of success on merits of theirFirst Amendment claim, warranting issuance of preliminaryinjunction.
Preliminary injunction granted.
West Headnotes (29)
[1] Injunction
On review, a denial of injunctive relief pendingappeal by the Supreme Court is similar in manyways to a denial of a writ of certiorari.
[2] Injunction
Like a denial of writ of certiorari, a variety ofconsiderations underlie a denial of injunctiverelief pending appeal, including considerationsbeyond simply the merits of the case.
[3] Injunction
Supreme Court's power to grant an injunctionpending appeal is used where the legal rights atissue are indisputably clear.
[4] Injunction
Unlike a stay, an injunction pending appeal doesnot simply suspend judicial alteration of thestatus quo but grants judicial intervention thathas been withheld by lower courts.
[5] Injunction
To issue a preliminary injunction, a court mustconsider: (1) whether the movant has showna strong likelihood of success on the merits;(2) whether the movant will suffer irreparableharm if the injunction is not issued; (3) whetherthe issuance of the injunction would causesubstantial harm to others; and (4) whether thepublic interest would be served by issuing theinjunction.
[6] Injunction
Even if a plaintiff is unable to show a strongor substantial probability of ultimate successon the merits, a preliminary injunction can beissued when the plaintiff at least shows serious
Ramsek v. Beshear, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 2
questions going to the merits and irreparableharm which decidedly outweighs any potentialharm to the defendant if an injunction is issued.
[7] Injunction
Kentucky executive order prohibiting massgatherings based on concerns about COVID-19,which applied to prohibit protests onKentucky state capitol grounds, was acontent neutral restriction on speech, forpurposes of determining whether protesters haddemonstrated likelihood of success on the meritsof their First Amendment claim, as requiredto entitle them to preliminary injunction; whileprotestors asserted that lack of enforcement oforder, and governor's participation in a differentprotest indicated discriminatory motive, order fitmold of a regulation serving purposes unrelatedto content of expression, with an incidental effecton speech, restricting manner in which protestorscould protest by limiting gathering size duringthe declaration of state of emergency. U.S. Const.Amend. 1.
[8] Constitutional Law
There is a push and pull between the public'sprivileges and the government's power toregulate in the arena of First Amendmentfreedom of speech and freedom of assembly.U.S. Const. Amend. 1.
[9] Constitutional Law
First Amendment freedom of speech does notguarantee the right to communicate one's viewsat all times and places or in any manner that maybe desired. U.S. Const. Amend. 1.
[10] Constitutional Law
To preserve First Amendment freedom ofspeech, government entities are strictly limitedin their ability to regulate private speech intraditional public fora. U.S. Const. Amend. 1.
[11] Constitutional Law
Although the First Amendment protects severalcategories of rights, it is often difficult in practiceto determine where one right ends and the nextbegins, which is particularly true with freedomof speech and freedom of assembly. U.S. Const.Amend. 1.
[12] Constitutional Law
Courts typically evaluate First Amendment freespeech, assembly, and petition claims under thesame analysis. U.S. Const. Amend. 1.
[13] Constitutional Law
Existence of a right of access to public property,and the standard by which limitations uponsuch a right must be evaluated under the FirstAmendment, differ depending on the character ofthe property at issue. U.S. Const. Amend. 1.
[14] Constitutional Law
Under the First Amendment, public fora areplaces which by long tradition have been devotedto assembly and debate. U.S. Const. Amend. 1.
[15] Constitutional Law
Content-based restrictions on expressive activityin a public forum are subject to strict scrutinyunder the First Amendment. U.S. Const. Amend.1.
[16] Constitutional Law
Under the First Amendment, a content-basedrestriction on speech in a public forum must benecessary to serve a compelling state interest,and any restriction must be narrowly tailored toachieve that interest. U.S. Const. Amend. 1.
[17] Constitutional Law
Ramsek v. Beshear, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 3
A content-based restriction on speech underthe First Amendment is one that singles out aspecific subject matter for differential treatment.U.S. Const. Amend. 1.
[18] Constitutional Law
Content-neutral time, place, and mannerrestrictions on speech are permissible under theFirst Amendment to the extent they are narrowlytailored to serve a significant governmentinterest, and leave open ample alternativechannels of communication. U.S. Const. Amend.1.
[19] Constitutional Law
Content-neutral time, place, and mannerrestrictions on expressive conduct such asgathering in a public forum are permissibleunder the First Amendment to the extent theyare narrowly tailored to serve a significantgovernment interest, and leave open amplealternative channels of communication. U.S.Const. Amend. 1.
[20] Constitutional Law
A regulation that serves purposes unrelated to thecontent of expression is deemed content neutralunder the First Amendment, even if it has anincidental effect on some speakers or messagesbut not others. U.S. Const. Amend. 1.
[21] Constitutional Law
First Amendment prohibits Congress and othergovernment entities and actors from abridgingthe freedom of speech; the First Amendmentdoes not say that Congress and other governmententities must abridge their own ability to speakfreely. U.S. Const. Amend. 1.
[22] Constitutional Law
While not “speech” in the purest sense ofthe word, gathering, picketing, and parading
constitute methods of expression, entitled to FirstAmendment protection. U.S. Const. Amend. 1.
[23] Constitutional Law
First Amendment right to freedom of speechalso covers expressive conduct, which is conductthat is intended to be communicative and that,in context, would reasonably be understood bythe viewer to be communicative. U.S. Const.Amend. 1.
[24] Injunction
Kentucky executive order limiting massgatherings based on concerns about spread ofCOVID-19, and which prohibited protests onthe grounds of the Kentucky state capitol, wasnot narrowly tailored, and thus protesters whowere unable to protest at capitol demonstratedlikelihood of success on the merits of their claimthat order violated the First Amendment, asrequired to support their motion for preliminaryinjunction; blanket ban on large gatherings wasnot only way to protect public health, sincethere were other ways to mitigate virus spread,and other measures, like social distancing andmask wearing, had been imposed in settings likerestaurants and office buildings, even as ordercontinued to prohibit political protest gatheringsof more than 10 people. U.S. Const. Amend. 1.
[25] Constitutional Law
A regulation of speech is narrowly tailoredunder the First Amendment if it promotesthe significant government interest withoutunnecessarily abridging speech. U.S. Const.Amend. 1.
[26] Federal Courts
In certain instances, a Sixth Circuit Court ofAppeals ruling made on preliminary injunctionreview may warrant law of the case treatment,precluding a district court from reconsideringissues addressed in that ruling.
Ramsek v. Beshear, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 4
[27] Health
States are allowed considerable leeway inenacting public health measures during a publichealth emergency, provided the measures haveat least some real or substantial relation tothe public health crisis and are not beyond allquestion, a plain, palpable invasion of rightssecured by the fundamental law.
[28] Health
Courts are to be circumspect second-guessing thepolicy decisions of public officials responding toa public health emergency.
[29] Health
While courts should refrain from second-guessing the efficacy of a state's chosenprotective measures during a public healthemergency, an acknowledged power of a localcommunity to protect itself against an epidemicmight go so far beyond what was reasonablyrequired for the safety of the public, as toauthorize or compel the courts to interfere.
Attorneys and Law Firms
Christopher David Wiest, Christopher Wiest, Atty at Law,PLLC, Crestview Hills, KY, Robert A. Winter, Jr., FortMitchell, KY, Thomas B. Bruns, Bruns, Connell, Vollmar &Armstrong, LLC, Cincinnati, OH, for Plaintiffs.
La Tasha Buckner, Laura Crittenden Tipton, Marc GriffinFarris, Steven Travis Mayo, Taylor Payne, Office of theGovernor, Frankfort, KY, for Defendant Andrew Beshear.
David Thomas Lovely, J. Wesley Warden Duke, Cabinetfor Health & Family Services - Frankfort Office of LegalServices, Frankfort, KY, for Defendants Eric Friedlander, Dr.Steven Stack.
OPINION & ORDER
Gregory F. Van Tatenhove, United States District Judge
*1 Trust us. That is the position the Governor takes inthis case. Trust us, as policy makers, to make the bestdecisions for the citizens of the Commonwealth in respondingto a pandemic. In large measure the Governor is right.The political branches, the policy makers, are far betterprovisioned than judges to gather the information needed tomake informed decisions.
But in one respect the Governor is wrong. His power is notabsolute. When it comes to restrictions on our liberty, courtsmust not accept as sufficient whatever explanation is offered.In exercising its constitutional function, it is not enough tosimply “trust” the conclusion of the political process that arestriction is necessary or right. The teaching of the cases isclear. Even in times of crisis, the Constitution puts limits ongovernmental action.
As explained below, a blanket prohibition on gathering inlarge groups to express constitutionally protected speech isunconstitutional. When liberty is at stake, policy makers mustbe more precise.
I
On March 19, 2020, as part of broader efforts to “flattenthe curve,” acting Secretary of the Cabinet for Healthand Family Services Eric Friedlander, issued an orderprohibiting “mass gatherings.” [R. 1-4.] Per SecretaryFriedlander's Order, mass gatherings include “any eventor convening that brings together groups of individuals,including, but not limited to, community, civic, public,leisure, faith-based, or sporting events; parades; concerts;festivals; conventions; fundraisers; and similar activities.”Id. Some activities which necessarily involve large groupsof individuals were excluded. “[A]irports, bus and trainstations, medical facilities, libraries, shopping malls andcenters, or other spaces where persons may be in transit”were not included within the definition of “mass gathering,”nor were “typical office environments, factories, or retail orgrocery stores[.]” Id. As Plaintiffs emphasize, protests are notincluded in this list of exemptions. [R. 6-1 at 4.]
Ramsek v. Beshear, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 5
Plaintiffs are four Kentucky residents who are deeplyconcerned about Governor Beshear's actions in responseto Covid-19 and desire to express their views throughprotesting. [R. 6-1 at 1–2.] On April 15, approximately 100individuals organized a protest at the State Capitol duringthe Governor's press conference. [R. 1 at ¶ 30.] Concernedabout the Commonwealth's economy, protestors expressedtheir opposition to the restrictions the Governor has putin place during the coronavirus pandemic. Id. In response,Governor Beshear took steps to minimize the impact of theprotests during his daily press conference. Id. at ¶ 31. TheKentucky State Police (KSP) restricted the public's access tothe area on the southeast side of the Capitol building where theGovernor's briefings take place. Id. They placed saw-horsebarriers on the patio of the Capitol and encircled the lawnoutside the Governor's office suite with yellow tape. Id. A signattached to the barrier states, “Pursuant to 200 K.A.R. 3:020,the Kentucky State Police has deemed this area a restrictedzone. No one is permitted past this point. Failure to adhere tothis Regulation may result in Criminal Penalty under K.R.S.511.070.” Id.
*2 During the Governor's daily briefing on April 16, furthermeasures were taken by the State Health Commissioner, Dr.Steven Stack, when he released a public announcement inregard to in-person mass gatherings at the Capitol. Id. at¶ 33. Dr. Stack created an alternative option for people toprotest on Capitol grounds, in which people may drive-inand drive-through the top floor of the Capitol parking garage.Id. However, “participants must remain in their vehicles,in designated parking areas and follow Centers for DiseaseControl and Prevention (CDC) recommendations.” Id. Dr.Stack said, “these options allow people to use their voicesand be heard while protecting the public health.” Id. ForPlaintiffs, this alternative is not good enough. They complainthat the designated area only has space for approximately 300vehicles and is too far away from the Capitol to be seen orheard. Id. at ¶ 35. Plaintiffs also argue these accommodationsare accommodations in name only.
According to Plaintiffs, at a rally held on May 2, KSPblocked streets surrounding the Capitol to prevent drive-through protesting, and eventually blocked off the entireperimeter of the protest. Id. at ¶¶ 41, 45. Plaintiff Ramsekcomplains that he attempted to utilize the designated zone,but police blocked the entrance of the parking garage. Id. at¶ 42. Defendants disagree with these allegations and statethat these areas were accessible on that date. [R. 19 at 8–9.]They explain that certain entrances and exits were blocked in
order to ensure an orderly flow of traffic during the protest, inconsideration of both social distancing and safety protocols.
Over the next month, there were many changes to restrictionsas the Commonwealth started to gradually reopen. OnMay 8, two district courts in Kentucky issued ordersthat preliminarily enjoined the Governor from enforcingthe prohibition on mass gatherings with respect to anyin-person religious service which adheres to applicablesocial distancing and hygiene guidelines. Maryville BaptistChurch, Inc. v. Beshear, 2020 WL 2393359, 2020 U.S. Dist.LEXIS 70072 (W.D. Ky. May 8, 2020); Tabernacle BaptistChurch, Inc. of Nicholasville, Kentucky v. Beshear, 2020 WL2305307, 2020 U.S. Dist. LEXIS 81534 (E.D. Ky. May 8,2020). The following day, the Secretary amended the MassGatherings Order by removing “in-person services of faith-based organizations” from the prohibition on mass gatherings,so long as the services follow the guidelines for places ofworship and social distancing guidance. [See R. 19 at 3 n.4.]On May 11, the Governor began reopening sectors of theeconomy that were closed due to Covid-19. [R. 45 at 4.]However, each entity reopening must meet certain minimumrequirements such as social distancing and certain hygienemeasures. Id. On May 22, restaurants were allowed to reopenat 33% capacity, and the Mass Gatherings Order was amendedto allow for groups of up to 10 to gather. [R. 44 at 3.] On June29, the Mass Gatherings Order is set to be amended again toallow groups of up to 50 to gather. Id.
This brings the Court back to the present case. Plaintiffsfiled their Complaint on May 10 [R. 1] and Motion forTemporary Restraining Order (TRO) [R. 6] on May 12, whichthe Court ultimately denied on May 15 [R. 10]. Followingthe initial hearing, Plaintiff Ramsek submitted an application
to hold an event on the Capitol grounds on May 23.1 [R.19 at 8.] After reviewing the application, Defendants tried tonegotiate with Plaintiffs in regard to the restrictions protestorswould need to follow if the permit were granted. UnderDefendants' proposal, protestors would have access to theupper or top level of the parking structure next to the CapitolAnnex Building, the parking lots behind the Capitol AnnexBuilding, as well as the parking lot next to the Capitol.Id. The public thoroughfare that loops around the Capitolwould also be accessible by any vehicle, so long as novehicle blocked ingress and egress for emergency vehicles,and did not prevent public business from being conducted. Id.Individuals would be required to engage in social distancingand hygiene measures recommended by the CDC and public
Ramsek v. Beshear, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 6
health officials. Id. A resolution was never reached by theparties.
*3 Thereafter, the Court denied Plaintiffs' EmergencyMotion for Preliminary Injunction, finding that Plaintiffslacked standing. [R. 22.] Plaintiffs appealed this decision tothe Sixth Circuit [R. 23] and requested this Court issue aninjunction pending appeal [R. 24], which was also denied[R. 27]. On May 23, the Sixth Circuit entered an orderconcluding Plaintiffs do have standing, and granting, in part,their motion for an injunction pending appeal. [R. 29.] TheSixth Circuit enjoined Defendants from prohibiting protestersfrom gathering for drive-in and drive-through protests butdid not determine whether Plaintiffs may conduct in-personprotests. Id. On May 29, the Sixth Circuit vacated thisCourt's order denying Plaintiffs' preliminary injunction anddetermining Plaintiffs lacked standing. [R. 31.] The SixthCircuit remanded the case for additional findings of fact andconclusions of law “concerning a prohibition on in-personprotests and whether there are features of large in-personprotests that distinguish them from other mass gatherings,such as at retail venues, which the Order permits, and church,which our prior decisions permit.” Id.
In light of the Sixth Circuit Opinion, Plaintiffs filed anEmergency Motion for Discovery requesting to depose Dr.Steven Stack in order to develop the factual record. [R. 30.]The Court held a telephonic status conference on June 1, atwhich the parties discussed the potential impact of the recentSupreme Court decision in South Bay United PentecostalChurch v. Newsom, ––– U.S. ––––, 140 S. Ct. 1613, –––L.Ed.2d –––– (2020) (Mem). The Court directed the parties tofile simultaneous briefing in regard to this issue and Plaintiffs'Motion for Expedited Discovery in preparation for a hearingheld on June 4. [R. 33.]
Following the hearing, the Court granted Plaintiffs' Motionfor Expedited Discovery and ordered Plaintiffs to promptlynotice Dr. Steven Stack for deposition in regard to theissue of differences between in-person protests and othermass gatherings currently allowed under the Mass GatheringsOrder. [R. 38.] During the deposition, Dr. Stack confirmedthat the orders issued during the pandemic are generatedbased on his assessment of risks and how to best minimizethe risks of spreading the virus. [R. 43 at 9.] Dr. Stackemphasized that “large mass gatherings are an elevated riskof spreading this infection.” Id. at 97. The risk of transmissionof disease and infection increases as the crowd grows largerand spacing between individuals becomes more difficult. Id.
at 58. The virus can be spread by droplets from coughing,sneezing, speaking, shouting and singing. Id. at 12–13. WhileKentucky's Mass Gathering Order prohibits gathering ingroups of more than ten, Dr. Stack explained that the CDCdefines “mass gathering” as a group of more than 250 people.
Id. at 68.2
As Dr. Stack inferred, outdoor gatherings are less risky thanindoor gatherings. Id. at 50–51. Many regulated activitiessuch as church services and restaurants have 33% capacityrequirements, but these are only for indoor gatherings. Id. at28–33, 39–40. There are no limits on the number of peoplewho can attend permitted outdoor activities, such as churchand auctions, as long as they keep six feet apart and adhereto the regulations. Id. at 36–38. Office-based businesses areallowed to open, but no more than 50% of employees are tobe physically present in the office, and they must adhere tothe guidelines. Id. at 48.
Dr. Stack testified that control measures could be placed onprotests, but his concern was that previous protests were notorganized to encourage precautions of social distancing andmask wearing. Id. at 56. Social distancing, mask wearing, andhandwashing are the most important measures to minimizethe risk of infection during such gatherings, but they are hardto enforce on a large crowd. Id. at 61. Dr. Stack also explainedthat transitory activities, such as grocery stores, are less riskythan communal activities, such as church, factories, or offices.Id. at 84. The Court ordered simultaneous briefing upon theparties' receipt of the deposition transcript. [R. 38.] Limiteddiscovery and simultaneously briefing are now complete. [R.43; R. 44; R. 45.]
II
A
*4 This is an odd case. It is odd because other than adisagreement about access to the Capitol grounds in Frankforton one occasion, there is no evidence in the record thatPlaintiffs have faced any sanction for having exercised theirFirst Amendment rights related to protest-related gatherings.Actually, no one has.
Once more, the Governor has expressly declared thateven though violating an order of the Executive Branchis punishable as a misdemeanor, he will not seek that
Ramsek v. Beshear, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 7
consequence for anyone. So, the position of the ExecutiveBranch is that you must not assemble in large groups to protestbut there will be no legal consequence if you do.
Words aside, it is difficult to see how the Secretary's orderis anything but advisory. Nevertheless, the plain language ofthe order is proscriptive. And this Court is bound to acceptas settled that these Plaintiffs have standing despite a lack ofspecific injury. [R. 29.]
Across the country courts are being asked to review stateexecutive branch actions being taken in the face of theCovid-19 pandemic. One case has even reached the SupremeCourt, albeit only in the context of a plea for preliminaryrelief. South Bay United Pentecostal Church v. Newsom, –––U.S. ––––, 140 S. Ct 1613, ––– L.Ed.2d ––––. It is thiscase that Defendants believe decides this matter. For severalreasons, that demands too much of the preliminary views ofone Justice.
In South Bay, plaintiffs filed suit challenging the applicationof California's stay-at-home order to in-person religiousservices. See S. Bay United Pentecostal Church v. Newsom,959 F.3d 938, 939 (9th Cir. 2020). After both the district courtand Ninth Circuit denied plaintiffs' application for injunctionpending appeal, the Supreme Court similarly denied reliefin a 5-4 decision. 140 S. Ct. 1613. Chief Justice Robertsissued a concurring opinion, which was not joined by any
other Justice, expounding on the reasons for denial.3 See id.Defendants now contend this concurring opinion “decisivelyresolves this case.” [R. 36 at 2.] Plaintiffs disagree, arguingthat Justice Roberts' opinion “does not create any precedent,much less binding precedent.” [R. 35 at 5.]
The Court finds that, while informative, Justice Roberts'concurring opinion does not create precedent which controlsin this case. To start, Justice Roberts analyzed a differentexecutive order as it concerned a separate First Amendmentright in a distinct factual circumstance. Separately, andperhaps most importantly, the Court finds significant theprocedural context in which the Supreme Court acted.
*5 [1] [2] On review, a denial of injunctive relief pendingappeal by the Supreme Court is similar in many ways to adenial of a writ of certiorari. See, e.g., Teague v. Lane, 489U.S. 288, 296, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); seealso Janklow v. Planned Parenthood, Sioux Falls Clinic, 517U.S. 1174, 1181, 116 S.Ct. 1582, 134 L.Ed.2d 679 (1996)(Scalia, J. dissenting). Like a denial of writ of certiorari, a
variety of considerations underlie a denial of injunctive relief—considerations beyond simply the merits of the case. See,e.g., Janklow, 517 U.S. at 1181, 116 S.Ct. 1582 (Scalia, J.dissenting) (describing such decisions as “discretionary (andunexplained) denials”); Brown v. Gilmore, 533 U.S. 1301, 122S.Ct. 1, 150 L.Ed.2d 782 (2001) (Rehnquist, C.J.). Indeed, inRespect Maine PAC v. McKee, the Supreme Court explainedthat to warrant such relief “demands a significantly higherjustification than a request for a stay, because unlike a stay,an injunction does not simply suspend judicial alteration ofthe status quo but grants judicial intervention that has beenwithheld by lower courts.” 562 U.S. 996, 131 S.Ct. 445,178 L.Ed.2d 346 (2010) (cleaned up). The legal principlesapplied by the Supreme Court in this context lead naturallyto a conclusion that, like opinions accompanying the denialof certiorari, opinions accompanying the denial of injunctiverelief pending appeal “cannot have the same effect asdecisions on the merits.” Teague, 489 U.S. at 296, 109 S.Ct.1060; see also Janklow, 517 U.S. at 1181, 116 S.Ct. 1582(Scalia, J. dissenting) (explaining the impropriety of lowercourts possibly giving authoritative effect to a two-Justiceopinion concurring in a denial of an injunctive relief pendingappeal).
Notwithstanding the above considerations, certain lowercourts have accorded significant weight to Justice Roberts'concurring opinion, without any extended analysis ofthe precedential considerations laid out above. See,e.g., Calvary Chapel Lone Mountain v. Sisolak, No.220CV00907RFBVCF, ––– F.Supp.3d ––––, ––––, 2020 WL3108716, at *2 (D. Nev. June 11, 2020). At the very least,if the concurring opinion is to be accorded weight, thenthe fact that no other Justices joined the opinion must be
acknowledged and considered.4 In Marks v. United States, theSupreme Court explained that “[w]hen a fragmented Courtdecides a case and no single rationale explaining the resultenjoys the assent of the five justices, the holding of the Courtmay be viewed as that position taken by those Memberswho concurred in the judgments on the narrowest grounds.”430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).In expanding on this principle, the Marks court addressedcases decided on the merits and the principle articulatedhas since been applied in those circumstances. See id. at193–94, 97 S.Ct. 990 (discussing concurring opinions inFirst Amendment decisions). Logically, where a concurringopinion accompanies a decision in which the court did notfully address the merits, like here, the opinion cannot besaid to carry more weight than an opinion accompanyinga decision on the merits. At the very most, the grounds
Ramsek v. Beshear, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 8
set forth by Justice Roberts in support of his decision todeny injunctive relief in South Bay should be interpreted asnarrowly as possible. Marks, 430 U.S. at 193, 97 S.Ct. 990.
So, what was the basis for Justice Roberts' decision?Defendants argue that Justice Roberts' concurrence“conclusively explains that state elected officials have broadlatitude to enact public health measures ....” [R. 36 at 2.] True,in analyzing the California restrictions, Justice Roberts foundthey “appear[ed] consistent with the Free Exercise Clause ofthe First Amendment.” Id. And, he further explained that astate has broad latitude in restricting social activities in timesof emergency which “should be subject to second-guessing”only where those broad limits are exceeded. Id. But JusticeRoberts' analysis must be viewed in light of the standardapplied.
[3] [4] As Justice Roberts noted, the standard for theSupreme Court to grant an injunction pending appeal is a highbar: “This power is used where ‘the legal rights at issue areindisputably clear ....’ ” South Bay, 140 S. Ct. 1613 (citationomitted). This is so because, as noted above, “unlike a stay,an injunction ‘does not simply suspend judicial alterationof the status quo but grants judicial intervention that hasbeen withheld by lower courts.’ ” Respect Maine PAC, 562U.S. 996, 131 S.Ct. 445, 178 L.Ed.2d 346 (cleaned up).So, applying these principles, Justice Roberts denied relief,concluding that “[t]he notion that it is ‘indisputably clear’that the [California] limitations are unconstitutional seemsimprobable.” Id. at 1614.
*6 Accordingly, the Court declines to accord too broadof a precedential effect to Justice Roberts' concurrence inSouth Bay. A narrow reading is required and simply leadsto the conclusion that Justice Roberts found that it was not“indisputably clear” that the California law restricting in-person religious services violated the Free Exercise Clause.While informative, this conclusion does not create precedentwhich controls in this case.
Also relevant is the Sixth Circuit's recent teaching on similarissues. In Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020), andMaryville Baptist Church v. Beshear, 957 F.3d 610 (6th Cir.2020), the Sixth Circuit reviewed the constitutionality of theMass Gatherings Order at issue in this case. In both instances,plaintiffs argued they could show a likelihood of success onthe merits in proving that the Mass Gatherings Order violatedthe Free Exercise Clause as applied to church services.The Sixth Circuit agreed, finding that the Mass Gatherings
Order had “several potential hallmarks of discrimination.”5
Maryville Baptist, 957 F.3d at 612–14; Roberts, 958 F.3d at413.
Justice Roberts' concurrence in South Bay—which can fairlybe read to express disagreement with the Sixth Circuit'sreasoning in these cases—may indicate that five members ofthe Supreme Court would decide the cases differently. But,for the reasons set forth above, the Court declines to concludedefinitively that they would—and the Court will certainly notconclude, as Defendants propose, that the “Supreme Courthas now rejected” the Sixth Circuit's reasoning. [See R. 36at 4.] At this juncture, the Roberts and Maryville Baptistdecisions remain good law which this Court must follow tothe extent those holdings are applicable. These precedentialconsiderations resolved, the Court now turns to the substanceof Plaintiffs' First Amendment claim.
B
[5] [6] To issue a preliminary injunction, the Court mustconsider: 1) whether the movant has shown a stronglikelihood of success on the merits; 2) whether the movantwill suffer irreparable harm if the injunction is not issued; 3)whether the issuance of the injunction would cause substantialharm to others; and 4) whether the public interest would beserved by issuing the injunction. Overstreet v. Lexington–Fayette Urban County Government, 305 F.3d 566, 573 (6thCir. 2002) (citations omitted). The Court of Appeals clarifiedthat, “[w]hen a party seeks a preliminary injunction on thebasis of a potential constitutional violation, the likelihood ofsuccess on the merits often will be the determinative factor.”City of Pontiac Retired Employees Ass'n v. Schimmel, 751F.3d 427, 430 (6th Cir. 2014) (quoting Obama for Am. v.Husted, 697 F.3d 423, 436 (6th Cir. 2012)). However, evenif the plaintiff is unable “to show a strong or substantialprobability of ultimate success on the merits” an injunctioncan be issued when the plaintiff “at least shows seriousquestions going to the merits and irreparable harm whichdecidedly outweighs any potential harm to the defendant ifan injunction is issued.” In re Delorean Motor Co., 755 F.2d1223, 1229 (6th Cir. 1985).
1
[7] Plaintiffs' alleged irreparable injury is a violation of theirFirst Amendment rights. [R. 6-1 at 5.] The First Amendment
Ramsek v. Beshear, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 9
provides that “Congress shall make no law ... abridging thefreedom of speech, ... or the right of the people peaceablyassemble, and to petition the Government for a redress of
grievances.”6 U.S. Const. Amend. I. Plaintiffs complain thatthe Mass Gathering Order abridges their freedom of speech byprohibiting political protests, and their freedom to assembleand petition the government by limiting the number of peoplewho may gather for that purpose. [R. 1 at ¶¶ 59–80.]
*7 [8] [9] [10] Of course, these rights are not absolute.See Citizens for Tax Reform v. Deters, 518 F.3d 375, 375(6th Cir. 2008). There is a push and pull between the public'sprivileges and the government's power to regulate in thisarena. “[T]he First Amendment does not guarantee the rightto communicate one's views at all times and places or inany manner that may be desired.” Heffron v. Int'l Soc. ForKrishna Consciousness, 452 U.S. 640, 647, 101 S.Ct. 2559,69 L.Ed.2d 298 (1981). At the same time, “to preserve thisfreedom, government entities are strictly limited in theirability to regulate private speech in such ‘traditional publicfora.’ ” Pleasant Grove v. Summum, 555 U.S. 460, 469, 129S.Ct. 1125, 172 L.Ed.2d 853 (2009) (quoting Cornelius v.NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 800,105 S.Ct. 3439, 87 L.Ed.2d 567 (1985)).
[11] [12] Although the First Amendment protects severalcategories of rights, it is often difficult in practice to determinewhere one right ends and the next begins. This is particularlytrue with freedom of speech and freedom of assembly. DeJonge v. State of Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 81L.Ed. 278 (1937) (“The right of peaceable assembly is a rightcognate to those of free speech and free press and is equallyfundamental.”). Consequently, Courts typically evaluate freespeech, assembly and petition claims under the same analysis.See Clark v. Cmty. For Creative Non-Violence, 468 U.S. 288,293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984); see also Citizensfor Tax Reform, 518 F.3d at 379; Stagman v. Ryan, 176 F.3d986, 999 (7th Cir. 1999); United States v. Winslow, 116 Fed.App'x 703, 704 (6th Cir. 2004). This is so because it is notjust the speaking, chants and signs that are expressive; it isalso the message implicit in the size of a crowd. Cf. NAACP v.Button, 371 U.S. 415, 430, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963)(finding that “the First and Fourteenth Amendments protectcertain forms of orderly group activity”); NAACP v. Ala. exrel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d1488 (1958) (“Effective advocacy of both public and privatepoints of view, particularly controversial ones, is undeniablyenhanced by group association[.]”); De Jonge v. Oregon, 299U.S. 353, 364, 57 S.Ct. 255, 81 L.Ed. 278 (1937) (“The very
idea of a government, republican in form, implies a righton the part of its citizens to meet peaceably for consultationin respect to public affairs and to petition for a redress ofgrievances.”) (quoting United States v. Cruikshank, 92 U.S.542, 552, 23 L.Ed. 588 (1875)).
a
[13] [14] [15] [16] [17] [18] [19] “The existenceof a right of access to public property and the standard bywhich limitations upon such a right must be evaluated differdepending on the character of the property at issue.” PerryEduc. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37,44, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). Plaintiffs wishto gather in protest on the Kentucky State Capitol grounds.The parties agree the state Capitol grounds are a public
forum.7 Public forums are places “which by long tradition ...have been devoted to assembly and debate[.]” Id. at 45, 103S.Ct. 948. Content-based restrictions on expressive activityin public forums are subject to strict scrutiny. See Miller v.City of Cincinnati, 622 F.3d 524, 534 (6th Cir. 2010). Thatis, a content-based restriction must be necessary to serve acompelling state interest, and any restriction must be narrowlytailored to achieve that interest. Id. A content-based restrictionon speech is one that singles out a specific subject matter fordifferential treatment. See Reed v. Town of Gilbert, 576 U.S.155, 157, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015). In contrast,content-neutral time, place, and manner restrictions on speechare permissible to the extent they are “narrowly tailored toserve a significant government interest, and leave open amplealternative channels of communication.” Perry Educ. Ass'nv. Perry Local Educators' Ass'n, 460 U.S. 37, 46, 103 S.Ct.948, 74 L.Ed.2d 794 (1983). The same is true of expressiveconduct—such as gathering—in a public forum. See Winslow,116 Fed. App'x at 704 (citing Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221(1984)).
*8 [20] The unprecedented nature of the times in whichwe live, and the complexity of constitutional law generally,make the regulation challenged here difficult to place.The challenged Order explicitly prohibits “mass gatherings”which “include any event or convening that brings togethergroups of individuals, including, but not limited to,
community, civic, public, leisure, faith-based,8 or sportingevents; parades; concerts; festivals; conventions; fundraisers;and similar activities.” [R. 1-4.]. The Supreme Court hasinstructed that “[t]he principal inquiry in determining content
Ramsek v. Beshear, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 10
neutrality, in speech cases generally and in time, place, ormanner cases in particular, is whether the government hasadopted a regulation of speech because of disagreement withthe message it conveys.” Ward v. Rock Against Racism, 491U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).Further, “a regulation that serves purposes unrelated to thecontent of expression is deemed neutral, even if it has anincidental effect on some speakers or messages but notothers.” Id.
Here, the Order prohibiting mass gatherings existed priorto Plaintiffs' message. In fact, Plaintiffs' protest—and theirbeliefs about fully reopening the economy—are a responseto the Order. Governor Beshear may disagree with thecontent of the protestors' message, but it cannot be saidit was enacted with the intent to suppress Plaintiffs'political point of view. Nor has it been used to stifle thepolitical expression of others. In the wake of the deathof George Floyd in Minneapolis, the Black Lives Mattermovement migrated to Kentucky. Mike Stunson, KentuckiansProtested for George Floyd, Breonna Taylor LastWeekend. See the Scenes, Lexington Herald-Leader (June1, 2020), http://www.kentucky.com/news/state/kentucky/article243161386.html. Although public demonstrations havebeen occurring almost daily throughout Kentucky, there havebeen no reports of any enforcement actions taken againstparticipants for violating the Mass Gathering Order. In fact,Governor Beshear attended and spoke at a Black Lives Matterrally on June 5, 2020. [R. 45 at 6.]
Plaintiffs imply the lack of enforcement and the Governor'sattendance is further evidence of discriminatory treatmentagainst Plaintiffs. They go too far. Perhaps if Plaintiffshad been prosecuted for gathering to protest coronavirusrestrictions this argument would be justified. But aspreviously explained, other than a disagreement about accessto the Capitol grounds in Frankfort on one occasion, there isno evidence in the record that the Plaintiffs have faced anysanction for having exercised their First Amendment rights.
Related to this argument is Plaintiffs' contention that theMass Gatherings Order is an impermissible content-basedrestriction on speech based on the identity of the speaker. [R.45 at 11.] Plaintiffs point out “[i]f the Governor wants to givea press briefing at the Capitol, i.e., his own personal massgathering, it is permitted. But, if a group of peaceful protestorswant to gather to criticize certain unconstitutional actions ofthe Governor, too bad because the Governor has banned it.”
Id. Upon a preliminary review, the Court finds this argumentis without merit.
[21] The First Amendment does not regulate governmentspeech. “The First Amendment prohibits Congress and othergovernment entities and actors from ‘abridging the freedomof speech’; the First Amendment does not say that Congressand other government entities must abridge their own abilityto speak freely.” Matal v. Tam, ––– U.S. ––––, 137 S.Ct. 1744, 1757, 198 L.Ed.2d 366 (2017) (citing PleasantGrove v. City of Summum, 555 U.S. 460, 467, 129 S.Ct.1125, 172 L.Ed.2d 853 (2009)). Although Plaintiffs' briefsdo not attempt to address the distinction between private andgovernment speech, the Governor's official press briefings aregovernment speech not subject to First Amendment scrutiny.See Walker v. Tex. Div., Sons of Confederate Veterans, Inc.,576 U.S. 200, 135 S. Ct. 2239, 2248, 192 L.Ed.2d 274(2015). Despite Plaintiffs' attempts to manufacture it, thereis no evidence in the record that the Governor “adopteda regulation of speech because of disagreement with themessage it conveys.” Rock Against Racism, 491 U.S. at 791,109 S.Ct. 2746.
*9 [22] Far from an interdiction on political speech, theMass Gatherings Order is one of many orders issued bythe state designed to curb the spread of the coronavirus bylimiting Kentuckians' interactions with one another, therebydecreasing opportunity for spread. [See R. 43-4; R. 43-5;R. 43-6; R. 43-7; R. 43-10.] And although the Courtdoes not believe it is Defendants' objective, by prohibitinggatherings, the Order incidentally prohibits public politicalprotests like Plaintiffs'. This matters, because this case isnot just about what is being said in speeches and chantsand signs. It's about what is being said with numbers. Andthe Constitution protects that as well. While not “speech”in the purest sense of the word, gathering, picketing, andparading “constitute methods of expression, entitled to FirstAmendment protection.” Shuttlesworth v. Birmingham, 394U.S. 147, 152, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (citingCox v. Louisiana, 379 U.S. 536, 555, 85 S.Ct. 453, 13 L.Ed.2d471 (1965)). Therefore, it appears the Mass Gathering orderfits the mold of “a regulation that serves purposes unrelated tothe content of expression,” but which has an incidental effecton speech. Applying this Supreme Court precedent, the Orderis content-neutral.
[23] Still, Plaintiffs argue that the Mass Gatherings Orderis a content-based restriction on speech because it permitspeople to “gather” in some places—namely, airports, bus
Ramsek v. Beshear, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 11
stations, and grocery stores—but not others, such as theCapitol grounds for purpose of political protest. [R. 6 at16.] There is nuance here, and unlike the Sixth Circuit, thisCourt has had the benefit of time to grapple with it. TheFirst Amendment protects the freedom of assembly just asmuch as it protects freedom of speech. And the right tofreedom of speech also covers expressive conduct, which is“conduct that is intended to be communicative and that, incontext, would reasonably be understood by the viewer tobe communicative.” Clark v. Community for Creative Non-Violence, 468 U.S. 288, 294, 104 S.Ct. 3065, 82 L.Ed.2d 221(1984). Restrictions on either must be content-neutral andnarrowly tailored to serve a significant government interest.
Plaintiffs' previous and future-planned protests are plainlyspeech. Also, it is easy to see how simply gathering together,in a time where gathering is prohibited due to a globalpandemic, might fall under the umbrella of “expressiveconduct” if one's intent is to protest that prohibition. ButPlaintiffs do not go so far as arguing that individuals makingregular use of airports, bus stations, and grocery stores aredoing so with an intention to communicate anything. Unlikean individual protesting on the Capitol lawn, one who isgrocery shopping or traveling is not, by that action, engagingin protected speech. See Dallas v. Stanglin, 490 U.S. 19, 25,109 S.Ct. 1591, 104 L.Ed.2d 18 (1989) (“It is possible tofind some kernel of expression in almost every activity aperson undertakes—for example, walking down the street ormeetings one's friends at a shopping mall—but such a kernelis not sufficient to bring the activity within the protection ofthe First Amendment.”). To say then that the Order is content-based because it prohibits gathering in certain places, butpermits individuals to make use of public transport, grocerystores and the like, is counter intuitive.
Supreme Court precedent constrains the Court to concludethat the Mass Gatherings Order is a content-neutraltime, place, and manner restriction on Kentuckian's FirstAmendment rights. It restricts the manner in whichPlaintiffs may protest by prohibiting large gatherings. Andit circumscribes the time Plaintiffs may gather in protestto the duration state of emergency declaration. But it onlyincidentally does either. Because it is content-neutral, theOrder will be upheld if the Governor can show it is “narrowlytailored to serve a significant government interest, and leaveopen ample alternative channels of communication.” PerryEduc. Ass'n, 460 U.S. at 46, 103 S.Ct. 948.
b
[24] Plaintiffs do not dispute that the Governor has asignificant interest in protecting Kentuckians from Covid-19.They simply argue the Governor has gone too far in his pursuitof that interest. Based upon the record before it, the Courtagrees. Plaintiffs are likely to succeed in showing that theMass Gatherings Order is not narrowly tailored.
*10 [25] [26] A regulation is narrowly tailored ifit promotes the significant government interest withoutunnecessarily abridging speech. See Williams-Yulee v. Fla.Bar, 575 U.S. 433, 135 S. Ct. 1656, 1666, 191 L.Ed.2d570 (2015). Under immense time pressure, the Sixth Circuitreasoned that the Mass Gatherings Order was content-based,and therefore Plaintiffs were likely to succeed on the meritsof their claim, because “the Order permits citizens to gatherin retail stores, airports, parking lots, and churches, but doesnot permit them to gather for a protest[.]” [R. 29 at 4.]Upon further consideration and development of the record,
this Court believes the order is content-neutral.9 See suprasection II.B.1.a. The Sixth Circuit's observation is relevant foranother reason: retail stores, airports, churches and the likeserve as an inconvenient example of how the Mass GatheringOrder fails at narrow tailoring.
A blanket ban on large gatherings, including political protests,is not the only way to protect the public health. Clearly,policymakers have some tools at their disposal which willhelp mitigate the spread of coronavirus while still allowingKentuckians to exercise their First Amendment freedoms.As Dr. Stack explained in his deposition, maintaining asocial distance of six feet, wearing masks, and frequent andthorough handwashing each help to reduce the likelihoodof transmission of coronavirus from person to person. [R.43 at 72.] The Commonwealth has required implementationof these tools in places like restaurants, office buildings,and auctions, but continues to wholly prohibit gatheringsfor political protest above a set number no matter thecircumstance. See id.
This is problematic. Defendants are correct that there arecertain attributes of political protests that make it inherentlymore difficult to contain spread of the coronavirus; they areorganic, there is little ability to monitor who comes and whogoes, people travel out of their communities to attend, andpeople who are impassioned tend to shout, sing, and embrace.[R. 43 at 56.] Because of the nature of protests, participants
Ramsek v. Beshear, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 12
might be more likely to contract coronavirus during a protestthan they are in a restaurant operating at 33% capacity. Butit is the right to protest—through the freedom of speechand freedom of assembly clauses—that is constitutionallyprotected, not the right to dine out, work in an office setting,or attend an auction. Kentucky must do better than prohibitinglarge gatherings for protest outright.
As it currently stands, the state is enjoined from prohibitingdrive-through protests, provided those participating practicesocial distancing. [R. 29 at 6.] With this Order, they are alsoenjoined from enforcing the prohibition on mass gatherings asit relates to in-person, political protests. Now, using the toolsavailable, Defendants must amend the Mass Gatherings Orderto allow for both drive-through and in-person protests in amanner consistent with the medical and scientific realities,while bearing in mind the constitutional protections accordedsuch behavior. The Court expressly declines to opine on whatsuch an Order might include.
As the Sixth Circuit recognized before remand, the panelhad “no way to determine what the facts are concerninga prohibition on in-person protests and whether there arefeatures of large in-person protests that distinguish themfrom other mass gatherings[.]” [R. 31 at 1.] With thedeposition testimony of Dr. Stack, this Court has the benefitof more facts than were available to the Sixth Circuit. Andtheir Order granting injunction pending appeal hinted thatmore flexibility in the context of in-person protests mightbe constitutionally required. That is precisely the type ofpolicymaking best left to Defendants, and they are orderedto engage in it. In the case of political protests, it is suspectthat a generally applicable ban of groups larger than ten—orfifty, beginning June 29—is narrowly tailored, when nothingbut the size of the gathering is taken into consideration.Defendants must devise a way to utilize mitigation measuressuch as social distancing, mask wearing, handwashing, anda recommendation for outdoor over indoor events—as theyhave done in other contexts—that more liberally allowsgathering for the purpose of protest. Nevertheless, it is notthe role of the Court to dictate the exact restrictions to be putin place. Defendants have managed to make the necessaryadjustments as it concerns other constitutionally protectedactivities, and the Court is confident they can do so here. Aswritten, the Order is not narrowly-tailored, and the blanket
ban on mass gatherings must fail.10
c
*11 In reaching this conclusion, the Court is cognizant ofthe rule espoused in Jacobson v. Massachusetts and ChiefJustice Roberts' reasoning in his concurring opinion in SouthBay. See supra section II.A. In Jacobson, the SupremeCourt considered whether, when faced with an outbreakof smallpox, the city of Cambridge could constitutionallyrequire its adult residents to receive vaccinations against thedisease. See Jacobson, 197 U.S. at 25–26, 25 S.Ct. 358. Thosewho refused to vaccinate were subjected to a fine. Id. at 26,25 S.Ct. 358. Although the defendant argued the law wasan invasion of his liberty and violative of due process, theSupreme Court upheld the vaccination requirement based onpublic health concerns. Id. at 39, 25 S.Ct. 358.
[27] [28] Thus, Jacobson allows states considerable leewayin enacting public health measures during a public healthemergency, provided “the measures have at least some ‘realor substantial relation’ to the public health crisis and arenot ‘beyond all question, a plain, palpable invasion of rightssecured by the fundamental law.’ ” In re Abbott, 954 F.3d 772,784–85 (5th Cir. 2020) (citing Jacobson v. Commonwealthof Massachusetts, 197 U.S. 11, 31, 25 S.Ct. 358, 49 L.Ed.643 (1905)). Under Jacobson, courts are to be circumspectsecond-guessing the policy decisions of public officialsresponding to a public health emergency. See id.
Justice Roberts echoed that sentiment, recognizing, “[t]heprecise question of when restrictions on particular socialactivities should be lifted during the pandemic is adynamic and fact-intensive matter subject to reasonabledisagreement.” South Bay United Pentecostal Church v.Newsom, ––– U.S. ––––, 140 S. Ct. 1613, ––– L.Ed.2d––––. Therefore, public officials should be afforded widelatitude “to act in areas fraught with medical and scientificuncertainties.” Id. Justice Roberts goes on to say that “[w]herethose broad limits are not exceeded, they should not be subjectto second-guessing by an ‘unelected federal judiciary,’ whichlacks the background, competence, and expertise to assesspublic health and is not accountable to the people.” Id.
Defendants argue that Jacobson and Justice Roberts'concurrence in South Bay “decisively resolve[ ] this case.” [R.36 at 2.] Defendants contend they have not exceeded the“broad limits” of Jacobson, and therefore this Court shouldnot “engage in an impermissible second-guessing of the MassGatherings Order[.]” Id. at 5. Further, Defendants read Justice
Ramsek v. Beshear, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 13
Roberts' opinion in South Bay as “expressly forbid[ding] thissort of probing review” into the facts underlying Defendants'policy decisions undertaken through the deposition of Dr.Stack. Id. at 6.
[29] The Court has already addressed what it thinks is theprecedential value of Justice Roberts' concurrence in SouthBay. Supra section II.A. And while courts should refrain fromsecond-guessing the efficacy of a state's chosen protectivemeasures, “an acknowledged power of a local communityto protect itself against an epidemic ... might go so farbeyond what was reasonably required for the safety of thepublic, as to authorize or compel the courts to interfere[.]”Jacobson, 197 U.S. at 28, 25 S.Ct. 358. “[E]ven underJacobson, constitutional rights still exist.” On Fire ChristianCtr., Inc. v. Fischer, 2020 WL 1820249 at *8, 2020 U.S. Dist.LEXIS 65924, at * 15 (W.D. Ky. April 11, 2020). There is adifference between second-guessing the efficacy of institutinga Mass Gatherings Order in the first instance—which theCourt does not do—and requiring the Governor to use hisdiscretion to craft an Order that does not completely eliminate
Kentuckians' ability to gather for in-person exercise of theirFirst Amendment rights. The Court does the latter.
III
If you think about it, the very nature of a pandemic threatensour liberty in every conceivable way. A perfect responsewould require everyone to stay put and limit contact witheveryone else. But that is not the world we live in.
*12 Policy makers are necessarily balancing interests. Andcourts should give them deference to do this difficult andimportant task. While that deference may be robust in a timeof crisis it is not absolute. The Governor has gone too farhere. The Motion for a Preliminary Injunction [R. 6] will beGRANTED.
All Citations
--- F.Supp.3d ----, 2020 WL 3446249
Footnotes1 200 KAR 3:020 Section 2.(1) requires any “visitor seeking to hold an event at a state facility or on state grounds” to
complete an application that requires information regarding the place, time, and number of people attending the event.Any application may be denied if the event poses a safety or security risk. Id. at Section 2.(1)(d)3. No party is contestingthis Regulation, as evidenced by the parties' attempts to negotiate the terms of such a permit.
2 The varied use of the term “mass gathering” is confounding. Kentucky's current Order currently prohibits “massgatherings” of more than 10 individuals. In contrast, the CDC defines a “mass gathering” as a group of 250 people or more.Dr. Stack refers to groups of 250 people or more as a “large mass gathering.” [R. 43 at 97 (emphasis added).] Regardlessof the nomenclature, groups of more than ten are presently prohibited from congregating together in Kentucky. On June29, Kentucky plans to amend its order to allow groups of fifty or less to meet.
3 The other four Justices who voted to deny relief gave no indication as to the basis for their decisions. On the other hand,three of the four Justices who voted to grant the application for relief—Justices Kavanaugh, Thomas, and Gorsuch—joined in a dissenting opinion authored by Justice Kavanaugh which clearly laid out the basis for their respective decisions.140 S. Ct. 1613 (Kavanaugh, J., joined by Thomas & Gorsuch, JJ., dissenting). In an opinion that quoted heavily from theSixth Circuit's decision in Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020), Justice Kavanaugh concluded that “California's25% occupancy cap on religious worship services indisputably discriminates against religion, and such discriminationviolates the First Amendment.” Id. (citation omitted). In reaching this conclusion, the dissenting Justices explained thatCalifornia had failed to provide “a compelling justification for distinguishing between (i) religious worship services and (ii)the litany of other secular businesses that are not subjected to an occupancy cap.” Id.
4 The Court has no reason to speculate that, even though they did not join the opinion, the other four Justices who votedto deny relief agreed with Justice Roberts' basis for denying relief.
5 As of May 9, 2020, the order prohibiting mass gatherings has been amended to allow in-person services of faith-basedorganizations, provided those present abide by Kentucky's Guidelines for Places of Worship. [See R. 19 at 3 n.4.]
6 The First Amendment was made applicable to the states through the Fourteenth Amendment. See Thornhill v. Alabama,310 U.S. 88, 95, 60 S.Ct. 736, 84 L.Ed. 1093 (1940).
7 Plaintiffs characterize the Capitol building as “a traditional public forum and/or a designated public forum[.]” [R. 6-1 at 5.]In their briefing, Defendants refer to the Capitol as simply a public forum. [R. 19 at 15.] Whether the Capitol is a traditionalpublic forum or a designated public forum is of no effect. In either type of public forum, “[r]easonable time, place, and
Ramsek v. Beshear, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 14
manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compellingstate interest.” Perry Educ. Ass'n, 460 U.S. at 46, 103 S.Ct. 948.
8 As previously mentioned, the order prohibiting mass gatherings has been amended to allow in-person services of faith-based organizations, provided those present abide by Kentucky's Guidelines for Places of Worship. [See R. 19 at 3 n.4.]
9 In certain instances, a Sixth Circuit ruling made on preliminary injunction review may warrant “law of the case” treatment—precluding a district court from reconsidering issues addressed in that ruling. Howe v. City of Akron, 801 F.3d 718, 739–41 (6th Cir. 2015). The Sixth Circuit has explained, however, that such treatment is only proper “when a court reviewingthe propriety of a preliminary injunction issues a fully considered ruling on an issue of law with the benefit of a fullydeveloped record.” Id. at 740. As explained, the Sixth Circuit did not have those advantages in this case.
10 The Court concludes that Plaintiffs have demonstrated a likelihood of success on the merits. The likelihood of success onthe merits is largely determinative in constitutional challenges like this one, however, the remaining factors also mitigatein favor of Plaintiffs. The Supreme Court has held “[t]he loss of First Amendment freedoms, for even minimal periodsof time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d547 (1976). No harm will come to Defendants if they are enjoined from enforcing the existing Order, which they haverepeatedly stated they will not enforce. Finally, the public interest favors enjoinment of a constitutional violation. SeeMartin-Marietta Corp v. Bendix Corp., 690 F.2d 558 568 (6th Cir. 1982).
End of Document © 2020 Thomson Reuters. No claim to original U.S.Government Works.
TAB 5
Roberts v. Neace, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag - Negative Treatment Injunction Pending Appeal Granted by Roberts v. Neace, 6th Cir.(Ky.), May
9, 2020
2020 WL 2115358Only the Westlaw citation is currently available.
United States District Court, E.D. Kentucky,Northern Division.
at Covington.
Theodore JosephROBERTS, et al., Plaintiffs
v.Hon. Robert NEACE, et al., Defendants
CIVIL ACTION NO. 2:20cv054 (WOB-CJS)|
Signed May 4, 2020
SynopsisBackground: Church parishioners and citizen brought actionchallenging the constitutionality of executive orders issued byKentucky governor in response to COVID-19 public healthcrisis alleging that prohibiting mass gatherings violated FirstAmendment right to free exercise of religion and restrictionson out-of-state travel violated right to substantive due process.Plaintiffs moved for emergency temporary restraining orderand preliminary injunction.
Holdings: The District Court, William O. Bertelsman, SeniorDistrict Judge, held that:
[1] church parishioners were not likely to succeed on meritsof their claim, and
[2] restrictions on out-of-state travel were not narrowlytailored to serve compelling state interest, and thus,preliminary injunction was warranted declaring travelrestrictions invalid and prohibiting their enforcement.
Motion granted in part and denied in part.
West Headnotes (14)
[1] Injunction Extraordinary or unusual natureof remedy
A preliminary injunction is an extraordinaryremedy never awarded as of right.
[2] Injunction Grounds in general; multiplefactors
Party seeking a preliminary injunction mustprove: (1) that they are likely to succeed on themerits of their claim; (2) that they are likelyto suffer irreparable harm in the absence ofpreliminary relief; (3) that the balance of equitiestips in their favor; and (4) that an injunction is inthe public interest.
[3] Injunction Balancing or weighinghardship or injury
A court considering whether to grant apreliminary injunction must balance thecompeting claims of injury and must considerthe effect on each party of the granting orwithholding of the requested relief.
[4] Constitutional Law Strict scrutiny; compelling interest
Under the Free Exercise Clause of the FirstAmendment, a law that is neutral and ofgeneral applicability need not be justified by acompelling governmental interest even if the lawhas the incidental effect of burdening a particularreligious practice. U.S. Const. Amend. 1.
[5] Constitutional Law Neutrality; generalapplicability
Under the Free Exercise Clause of the FirstAmendment, a law is not neutral if itdiscriminates against some or all religious beliefsor regulates or prohibits conduct because it is
Roberts v. Neace, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 2
undertaken for religious reasons. U.S. Const.Amend. 1.
[6] Constitutional Law Neutrality; generalapplicability
Under the Free Exercise Clause of the FirstAmendment, neutrality is lacking where theobject of a law is to infringe upon or restrictpractices because of their religious motivation.U.S. Const. Amend. 1.
[7] Constitutional Law Neutrality; generalapplicability
All laws are selective to some extent, and thatreality does not render a law constitutionallysuspect under the Free Exercise Clause of theFirst Amendment, rather, the First Amendmentinquiry focuses on whether the government isselectively imposing burdens only on conductmotivated by religious belief. U.S. Const.Amend. 1.
[8] Constitutional Law Strict scrutiny; compelling interest
A law that fails to satisfy the neutrality andgeneral applicability requirements under the FreeExercise Clause of the First Amendment must bejustified by a compelling governmental interestand must be narrowly tailored to advance thatinterest. U.S. Const. Amend. 1.
[9] Civil Rights Preliminary Injunction
Church parishioners were not likely to succeedon merits of their claim that executive ordersissued by Kentucky governor in response toCOVID-19 crisis prohibiting mass gatheringsviolated their First Amendment right to the freeexercise of religion, and thus, were not entitled topreliminary injunction challenging the executiveorders, even though certain businesses allowed toremain open presented similar health risks; therewas an undeniable difference between certainactivities that were life sustaining, such as food,medical care and supplies, and certain travel
necessary to maintain employment, and othersthat were not, the public health crisis fromCOVID-19 presented life-or-death dangers, andchurch parishioners were not alone in havingtheir lives and activities disrupted by COVID-19and the measures that the federal and stategovernments had taken to address it. U.S. Const.Amend. 1.
1 Cases that cite this headnote
[10] Constitutional Law Police powerquestions
Constitutional Law Public welfare ingeneral
It is imperative in certain circumstances thatjudges give legislatures and executives, themore responsive branches of government, theflexibility they need to respond quickly andforthrightly to threats to the general welfare, evenif that flexibility sometimes comes at the cost ofindividual liberties.
[11] Constitutional Law Freedom of Traveland Movement
Constitutional right to travel from one state toanother is firmly embedded in jurisprudence, andthe right is virtually unconditional.
[12] Constitutional Law Personal liberty
Even though the governmental purpose belegitimate and substantial, that purpose cannot bepursued by means that broadly stifle fundamentalpersonal liberties when the end can be morenarrowly achieved; the breadth of legislativeabridgment must be viewed in the light ofless drastic means for achieving the same basicpurpose.
[13] Constitutional Law Levels of scrutiny; strict or heightened scrutiny
Ordinarily, where a fundamental liberty interestprotected by the substantive due processcomponent of the Fourteenth Amendment is
Roberts v. Neace, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 3
involved, the government cannot infringe on thatright unless the infringement is narrowly tailoredto serve a compelling state interest. U.S. Const.Amend. 14.
[14] Civil Rights Preliminary Injunction
Constitutional Law Compelling interesttest
Constitutional Law Public health
Health Quarantine
Restrictions on out-of-state travel in executiveorders issued by Kentucky governor in responseto COVID-19 crisis, which banned residentsfrom traveling out of state except in certaincircumstances and required residents travelingfrom other states for reasons outside exceptionsto quarantine for 14 days, were not narrowlytailored to serve compelling state interest ofslowing spread of the COVID-19 virus inthe state, and thus, preliminary injunction waswarranted declaring travel restrictions invalidand prohibiting their enforcement; restrictionsinfringed on the basic right of citizens to engagein interstate travel and lacked procedural dueprocess. U.S. Const. Amend. 14.
1 Cases that cite this headnote
Attorneys and Law Firms
Christopher David Wiest, Christopher Wiest, Atty at Law,PLLC, Crestview Hills, KY, Robert A. Winter, Jr., FortMitchell, KY, Thomas B. Bruns, Bruns, Connell, Vollmar &Armstrong, LLC, Cincinnati, OH, for Plaintiffs.
Jennifer Haddad Langen, Jeffrey C. Mando, Adams, Stepner,Woltermann & Dusing, PLLC, Covington, KY, La TashaBuckner, Laura Crittenden Tipton, Marc Griffin Farris,Steven Travis Mayo, Taylor Payne, Office of the GovernorKY, Frankfort, KY, David Thomas Lovely, J. Wesley WardenDuke, Cabinet for Health & Family Services - FrankfortOffice of Legal Services, Frankfort, KY, for Defendants.
MEMORANDUM OPINION AND ORDER
William O. Bertelsman, United States District Judge
*1 Plaintiffs Theodore Joseph Roberts, Randall Daniel, andSally Boyle bring this action challenging the constitutionalityof certain measures instituted by the Commonwealth ofKentucky in response to the COVID-19 public health crisis.
Specifically, plaintiffs Daniel and Boyle allege that the ban on“mass gatherings” as applied to in-person church attendanceviolates their right to freedom of religion under the FirstAmendment. (Doc. 6, ¶¶ 56-66). Plaintiff Roberts allegesthat restrictions on out-of-state travel violate his fundamentalliberty interest and thus his right to substantive due process.(Id. ¶¶ 67-73). Plaintiffs further allege that the Travel Banviolates their right to procedural due process. (Id. ¶¶ 74-79).
This matter is before the Court on plaintiffs' emergencymotion for temporary restraining order and motion forpreliminary injunction (Doc. 7). The Court previously heardoral argument on these motions and took the matter undersubmission. (Doc. 33).
By agreement of the parties, the Court now issues thefollowing Memorandum Opinion and Order ruling on
plaintiffs' motion for preliminary injunction.1
Factual and Procedural Background
A. Challenged RestrictionsOn March 6, 2020, Kentucky Governor Andrew Beshearbegan issuing a series of Executive Orders placing restrictionson Kentucky citizens as part of an effort to slow the spreadof the COVID-19 virus in the Commonwealth. (Am. Compl.¶¶ 13-23).
As relevant here, on March 19, 2020, GovernorBeshear issued an Executive Order prohibiting all “massgatherings.” (Am. Compl. Exh. D). The Order states: “Massgatherings include any event or convening that bringstogether groups of individuals, including, but not limitedto, community, civic, public, leisure, faith-based, or sportingevents; parades; concerts; festivals; conventions; fundraisers;and similar activities.” The Order states that mass gatheringsdo not include “normal operations at airports, bus and trainstations, medical facilities, libraries, shopping malls andcenters, or other spaces where persons may be in transit,” aswell as “typical office environments, factories, or retail or
Roberts v. Neace, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 4
grocery stores where large numbers of people are present, butmaintain appropriate social distancing.” (Id.).
Subsequent Executive Orders closed non-life-sustainingretail businesses; banned most elective medical procedures;shut down additional businesses for in-person work; andplaced further restrictions on retail establishments that wereallowed to remain open. (Am. Compl. ¶¶ 18-23).
On March 30, 2020, the Governor issued an Executive Orderbanning Kentucky residents from travelling out of state,except when required for employment; to obtain groceries,medicine, or other necessary supplies; to seek or obtaincare by a licensed healthcare provider; to provide care fordependents, the elderly, or other vulnerable person; or whenrequired by court order. (Am. Compl. Exh. H). The Order alsorequired any Kentuckian in another state for reasons otherthan those set forth in the exceptions to self-quarantine forfourteen days upon returning to Kentucky. (Id.).
*2 Finally, on April 2, 2020, Governor Beshear issuedan additional Executive Order expanding the travel ban torequire residents of states other than Kentucky who travel intothe Commonwealth for reasons outside the above exceptionsalso to self-quarantine for fourteen days. (Am. Compl. Exh.I).
B. Bases for Plaintiffs' ClaimsNotwithstanding the ban on mass gatherings, on EasterSunday, April 12, 2020, plaintiffs attended in-person churchservices at Maryville Baptist Church in Hillview, BullittCounty, Kentucky. (Am. Compl. ¶ 27). Plaintiffs allege thatthey did so in accord with their sincerely held religious beliefsthat in-person church attendance was required, and that theyobserved appropriate social distancing and safety measuresduring the service. (Id. ¶¶ 28-29).
Upon exiting the church, plaintiffs found on their vehiclewindshields a Notice informing them that their presence atthat location was in violation of the “mass gathering” ban.(Am. Compl. ¶ 32). Plaintiffs allege that the notices wereplaced there by the Kentucky State Police at the behest ofGovernor Beshear, who had stated that he was going to targetreligious services for such notices. (Id. ¶ 33-34).
The Notice states that the recipient is required to self-quarantine for fourteen days and that the local healthdepartment will send them a self-quarantine agreement. Inbold, the notice continues: “Failure to sign or comply with
the agreement may result in further enforcement measures,”and “Please be advised that KRS 39A.990 makes it aClass A misdemeanor to violate an emergency order.” (Id.¶ 32). Plaintiffs subsequently received such documentationfrom the Kentucky Cabinet for Health and Family Services,Department for Public Health. (Doc. 37 at 5-6).
With regard to the Travel Ban, plaintiff Roberts alleges thatthe ban prevents him from travelling to Ohio and Indianafor a variety of personal reasons that do not fall within theexceptions found in Governor Beshear's orders. (Am. Compl.¶ 40).
Analysis
[1] [2] [3] “A preliminary injunction is an ‘extraordinaryremedy never awarded as of right.’ ” Adams & Boyle, P.C. v.Slatery, 956 F.3d 913, ––––, No. 20-5408, 2020 WL 1982210,at *7 (6th Cir. April 24, 2020) (quoting Winter v. Nat. Res.Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d249 (2008)). “Rather, the party seeking the injunction mustprove: (1) that they are likely to succeed on the merits oftheir claim, (2) that they are likely to suffer irreparable harmin the absence of preliminary relief, (3) that the balance ofequities tips in their favor, and (4) that an injunction is in thepublic interest.” Id. A court considering whether to grant apreliminary injunction must therefore “balance the competingclaims of injury and must consider the effect on each partyof the granting or withholding of the requested relief.” Id.(citation omitted).
A. Mass Gathering BanThe Court first considers plaintiffs' claim that Kentucky'sban on mass gatherings impermissibly infringes their FirstAmendment right to the free exercise of religion.
The Free Exercise Clause of the First Amendment, whichhas been applied to the States through the FourteenthAmendment, provides that “Congress shall make no lawrespecting an establishment of religion, or prohibiting the freeexercise thereof.” Church of the Lukumi Babalu Aye, Inc.v. City of Hialeah, 508 U.S. 520, 531, 113 S.Ct. 2217, 124L.Ed.2d 472 (1993).
*3 [4] [5] [6] “A law that is neutral and ofgeneral applicability need not be justified by a compellinggovernmental interest even if the law has the incidental effect
Roberts v. Neace, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 5
of burdening a particular religious practice.” Id. A law is notneutral if it “discriminates against some or all religious beliefsor regulates or prohibits conduct because it is undertakenfor religious reasons.” Id. at 533, 113 S.Ct. 2217. Stateddifferently, neutrality is lacking where “the object of a law isto infringe upon or restrict practices because of their religiousmotivation.” Id.
[7] Further, as to general applicability, the Supreme Courtnoted in Lukumi that “all laws are selective to some extent,”and that reality does not render a law constitutionally suspect.Id. at 542, 113 S.Ct. 2217. Rather, the First Amendmentinquiry, again, focuses on whether the government isselectively imposing “burdens only on conduct motivated byreligious belief.” Id. at 543, 113 S.Ct. 2217.
[8] A law that fails to satisfy the neutrality and generalapplicability requirements “must be justified by a compellinggovernmental interest and must be narrowly tailored toadvance that interest.” Id. 531-32, 113 S.Ct. 2217.
[9] With these principles in mind, it is abundantly clear thatthe “object or purpose of” Kentucky's mass gathering banis not “the suppression of religion or religious conduct.”Lukumi, 508 U.S. at 533, 113 S.Ct. 2217. To the contrary,the plain text of the challenged order categorically bans all“mass gatherings” as a means of preventing the spread ofa life-threatening virus. The illustrative examples set forthare sweeping: “community, civic, public, leisure, faith-based,or sporting events; parades; concerts; festivals; conventions;fundraisers; and similar activities.” (Doc. 6-4 at 1).
Plaintiffs do not argue that the State has permitted any otherof the cited examples of mass gatherings to take place; rather,plaintiffs argue that certain businesses that the governmenthas allowed to remain open present similar health risks.That, of course, is a judgment call, but what is missing isany evidence that Kentucky has conducted the essential/non-essential analysis with religion in mind. Lukumi, 508 U.S. at543, 113 S.Ct. 2217.
Moreover, there is an undeniable difference between certainactivities that are, literally, life sustaining and other that arenot. Food, medical care and supplies, certain travel necessaryto maintain one's employment and thus income, are, in thatsense, essential. Concerts, sports events, and parades clearlyare not. And while plaintiffs argue that faith-based gatheringsare as important as physical sustenance, as a literal matter,they are not life-sustaining in the physical sense.
[10] As the Sixth Circuit observed just recently in the contextof this pandemic, it “is imperative in such circumstances thatjudges give legislatures and executives—the more responsivebranches of government—the flexibility they need to respondquickly and forthrightly to threats to the general welfare, evenif that flexibility sometimes comes at the cost of individualliberties.” Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, ––––,No. 20-5408, 2020 WL 1982210, at *1 (6th Cir. April 24,2020).
Does the mass gathering ban have the effect of preventingplaintiffs who comply with it from attending in-person churchservices? Yes. Does the ban do so because the gatherings arefaith-based? No.
For this reason, another Kentucky federal court hearing a casebrought by the church attended by plaintiffs recently deniedthe church's motion for a temporary restraining order, findingthat the church had not demonstrated a likelihood of successon the merits of its First Amendment claim. See MaryvilleBaptist Church, Inc. v. Beshear, ––– F. Supp.3d ––––, No.3:20cv278, 2020 WL 1909616 (W.D. Ky. April 18, 2020).The relief sought by the church was the same: in-person
services with no state-imposed restrictions.2
*4 The Court notes that just two days ago the Courtof Appeals for the Sixth Circuit overruled, in part, JudgeHale's denial of the temporary restraining order. (Doc. 41-1).However, the Sixth Circuit expressly limited its holding todrive-in church services:
The Governor and all other Commonwealth officials arehereby enjoined, during the pendency of this appeal, fromenforcing orders prohibiting drive-in services at theMaryville Baptist Church if the Church, its ministers, andits congregants adhere to the public health requirementsmandated for “life-sustaining” entities.
Id. at 10 (emphasis added). And the Court stated: “[W]e areinclined not to extend the injunction to in-person servicesat this point.” Id. Had the Court felt that such a broaderinjunction was warranted, it was within its power to so order.This Court thus does not find that opinion to control theoutcome here.
In his opinion, Judge Hale also considered the church's claimunder the Kentucky Religious Freedom Restoration Act,which invokes the more demanding “compelling interest”
Roberts v. Neace, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 6
test. Judge Hale concluded that, even under that standard, thechurch did not demonstrate a likelihood of success. Id. at *3.
This Court agrees. The current public health crisis presentslife-or-death dangers. Plaintiffs are not alone in having theirlives and activities disrupted by it and the measures thatour federal and state governments have taken to address it.Indeed, it is hard to imagine that there is any American thathas not been impacted. But unless a law can be shown to havereligion within its cross-hairs, either facially or in application,the fact that religious practices are impinged by it does notcontravene the First Amendment.
For these reasons, the Court concludes that plaintiffs havenot shown a likelihood of success on their merits of theirFirst Amendment claim, and their motion for preliminary
injunction on that basis will be denied.3
B. Travel Ban4
After careful review, the Court concludes that the Travel Bandoes not pass constitutional muster. The restrictions infringeon the basic right of citizens to engage in interstate travel, andthey carry with them criminal penalties.
[11] The “ ‘constitutional right to travel from one State toanother’ is firmly embedded in our jurisprudence.” Saenz v.Roe, 526 U.S. 489, 498, 119 S.Ct. 1518, 143 L.Ed.2d 689(1999) (quoting United States v. Guest, 383 U.S. 745, 757,86 S.Ct. 1170, 16 L.Ed.2d 239 (1966)). Indeed, the right is“virtually unconditional.” Id. (quoting Shapiro v. Thompson,394 U.S. 618, 643, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969)). Seealso United States v. Guest, 383 U.S. 745, 757, 86 S.Ct. 1170,16 L.Ed.2d 239 (1966) (“The constitutional right to travelfrom one State to another ... occupies a position fundamentalto the concept of our Federal Union. It is a right that has beenfirmly established and repeatedly recognized.”).
[12] To be valid, such orders must meet basic Constitutionalrequirements. As the Supreme Court has stated:
(E)ven though the governmental purpose be legitimate andsubstantial, that purpose cannot be pursued by means thatbroadly stifle fundamental personal liberties when the endcan be more narrowly achieved. The breadth of legislativeabridgment must be viewed in the light of less drasticmeans for achieving the same basic purpose.
*5 Aptheker v. Sec. of State, 378 U.S. 500, 508, 84 S.Ct.1659, 12 L.Ed.2d 992 (1964) (quoting NAACP v. Alabama,377 U.S. 288, 307-08, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964)).
[13] “Ordinarily, where a fundamental liberty interestprotected by the substantive due process component of theFourteenth Amendment is involved, the government cannotinfringe on that right ‘unless the infringement is narrowlytailored to serve a compelling state interest.’ ” Johnsonv. City of Cincinnati, 310 F.3d 484, 502 (6th Cir. 2002)(quoting Washington v. Glucksberg, 521 U.S. 702, 721, 117S.Ct. 2258, 138 L.Ed.2d 772 (1997)). See also Andreano v.City of Westlake, 136 F. Appx. 865, 870-71 (6th Cir. 2005)(discussing arbitrary and capricious aspect of substantive dueprocess claim); Pearson v. City of Grand Blanc, 961 F.2d1211, 1217 (6th Cir. 1992) (similar).
[14] The travel restrictions now before the Court violatethese principles. They have the following effects, amongothers:
1. A person who lives or works in Covington would violatethe order by taking a walk on the Suspension Bridge to theOhio side and turning around and walking back, since thestate border is several yards from the Ohio riverbank.
2. A person who lives in Covington could visit a friendin Florence, Kentucky (roughly eight miles away) withoutviolating the executive orders. But if she visited anotherfriend in Milford, Ohio, about the same distance fromCovington, she would violate the Executive Orders andhave to be quarantined on return to Kentucky. Both thesetrips could be on an expressway and would involve thesame negligible risk of contracting the virus.
3. Family members, some of whom live in NorthernKentucky and some in Cincinnati less than a mile away,would be prohibited from visiting each other, even if socialdistancing and other regulations were observed.
4. Check points would have to be set up at the entrancesto the many bridges connecting Kentucky to other states.The I-75 bridge connecting Kentucky to Ohio is one of thebusiest bridges in the nation. Massive traffic jams wouldresult. Quarantine facilities would have to be set up by theState to accommodate the hundreds, if not thousands, ofpeople who would have to be quarantined.
5. People from states north of Kentucky would haveto be quarantined if they stopped when passing through
Roberts v. Neace, --- F.Supp.3d ---- (2020)
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 7
Kentucky on the way to Florida or other southerndestinations.
6. Who is going to provide the facilities to do all thequarantining?
The Court questioned counsel for defendants Beshear andFriedlander during oral argument about some of thesepotential applications of the Travel Ban, and counsel indeedconfirmed that the Court's interpretations were correct.(Doc. 38 at 9-13).
The Court is aware that the pandemic now pervadingthe nation must be dealt with, but without violating thepublic's constitutional rights. Not only is there a lack ofprocedural due process with respect to the Travel Ban, butthe above examples show that these travel regulations arenot narrowly tailored to achieve the government's purpose.See Johnson v. City of Cincinnati, 310 F.3d 484, 503(6th Cir. 2002) (“[I]f there are other, reasonable ways toachieve those goals with a lesser burden on constitutionallyprotected activity, a State may not choose the way of greaterinterference. If it acts at all, it must choose ‘less drasticmeans.’ ”) (quoting Dunn v. Blumstein, 405 U.S. 330, 343,
92 S.Ct. 995, 31 L.Ed.2d 274 (1972)).5
*6 Therefore, a preliminary injunction will enter declaringthe Travel Ban orders invalid and prohibiting theirenforcement.
Therefore, having reviewed this matter, and the Court beingadvised,
IT IS ORDERED that:
(1) Plaintiffs' motion for a preliminary injunction (Doc.7) be, and is hereby, GRANTED IN PART ANDDENIED IN PART;
(2) Plaintiffs shall post a bond in the amount of $1000.00.See Fed. R. 65 (c); and
(3) A preliminary injunction consistent with thisMemorandum Opinion and Order shall enterconcurrently herewith.
All Citations
--- F.Supp.3d ----, 2020 WL 2115358
Footnotes1 The Court acknowledges that Governor Beshear has filed a notice stating that beginning on May 20, 2020, “faith-based
organizations will be permitted to have in-person services at a reduced capacity, with social distancing, and cleaningand hygiene measures implemented and followed.” (Doc. 40). Given that this date is nearly three weeks away, the Courtconcludes that an expeditious ruling herein is still warranted.
2 Another court granted plaintiffs a temporary restraining order where the City of Louisville had banned drive-in churchservices, which the plaintiffs wished to attend on Easter. See On Fire Christian Center, Inc. v. Fischer, ––– F. Supp. 3d––––, No. 3:20cv264, 2020 WL 1820249, at *8 (W.D. Ky. April 11, 2020). Although plaintiffs here make a passing referencein their Complaint to drive-in services, that is not the relief they seek, nor have they suggested it as a compromise.The Court also notes that Governor Beshear, at the Court's invitation, filed an amicus curiae brief in that case statinghis position that his “mass gathering” ban does not prohibit drive-in religious services where proper safety protocol areobserved. See Case No. 3:20cv264, Doc. 27. The issue in On-Fire was thus different than the one before this Court.
3 For the same reasons, the Court also concludes that plaintiffs have failed to satisfy the remaining preliminary injunctionfactors.
4 Prospective injunctive relief against State defendants is proper under the doctrine of Ex Parte v. Young, 209 U.S. 123,28 S.Ct. 441, 52 L.Ed. 714 (1908).
5 Minor amendments to the regulations might alleviate the problems. For example, the Ohio travel regulations only restricttravel into that state by a person who intends to “stay” in the state. While the word “stay” is perhaps vague, it certainlyimplies an intent to remain in the state at least 24 hours, so that persons stopping while driving through the state orchanging planes at the airport would not face the risk of being unnecessarily quarantined for 14 days.Further, the Ohio provisions are requests for the most part and recite that they have been issued for the “guidance” ofthe public. Nor do they apply “to persons who as part of their normal life live in one state and work or gain essentialservices in another state.”Ohio's rules, therefore, do not appear overbroad and have a rational basis for combating the coronavirus, while stillpreserving the population's constitutional rights.
Related Documents
