Conmomuealth of Kentucky Court of Appeals NO. 2020-CA-000834-OA. HON. ANDREW BESHEAR, in his official capacity as Governor of the Commonwealth of Kentucky, KENTUCKY CABINET FOR HEALTH AND FAMILY SERVICES, ERIC FRIEDLANDER, in his official capacity as Secretary of the Kentucky Cabinet for Health and Family Services, and DR. STEVEN STACK, in his official capacity as Commissioner of the Kentucky Department for Public Health PETITIONERS AN ORIGINAL ACTION ve ARISING FROM BOONE CIRCUIT COURT ACTION NO. 20-CI-00678 HON. RICHARD A. BRUEGGEMANN, Judge, 52” Judicial Circuit, Boone Circuit Court RESPONDENT and FLORENCE SPEEDWAY, INC., RIDGEWAY PROPERTIES, LLC d/b/a BEAN'S CAFE & BAKERY, LITTLE LINKS TO LEARNING, LLC, and HON. DANIEL J. CAMERON, in his official capacity as Attorney General of the Commonwealth of Kentucky REAL PARTIES IN INTERESTNO. 2020-CA-000849-OA HON. ANDREW BESHEAR, in his official capacity as Governor of the Commonwealth of Kentucky, KENTUCKY CABINET FOR HEALTH AND FAMILY SERVICES, ERIC FRIEDLANDER, in his official capacity as Secretary of the Kentucky Cabinet for Health and Family Services, DR. STEVEN STACK, in his official capacity as Commissioner of the Kentucky Department for Public Health, and KENTUCKY DEPARTMENT FOR PUBLIC HEALTH PETITIONERS AN ORIGINAL ACTION v. ARISING FROM SCOTT CIRCUIT COURT ACTION NO. 20-CI-00376 HON. BRIAN PRIVETT, RESPONDENT Judge, 14" Judicial Circuit, Scott Circuit Court, and RYAN QUARLES, in his official capacity as Commissioner of Agriculture, EVANS. ORCHARD AND CIDER MILL, LLC, WEDCO DISTRICT HEALTH DEPARTMENT, CRYSTAL MILLER, and HON. DANIEL J. CAMERON, in his official capacity as Attomey General of the Commonwealth of Kentucky REAL PARTIES IN INTEREST ORDER: DENYING MOTION FOR INTERMEDIATE RELIEF IN NO. 2020-CA-000834-OA AND NO. 2020-1 eRe ERE Ee 2-These cases come before the Court on separate petitions for writs pursuant to CR! 76.36, and related motions for intermediate relief pursuant to CR 76.36(4). Though these original actions began in separate cirouit courts of the Commonwealth, the respective petitions and motions for relief present the same issues and involve many of the same parties. For these reasons, and for the conservation of judicial resources, we have consolidated the cases for purposes of review and adjudication. This Order addresses the request for intermediate relief in the form of emergency orders pursuant to CR 76.36(4), pending review by a three-judge panel of this Court of the respective petitions. Having reviewed the limited record in both original actions, considered the arguments of counsél, and being otherwise sufficiently advised, IT IS HEREBY ORDERED that Petitioners’ respective motions for intermediate relief in both cases shall be, and hereby are, DENIED. L BACKGROUND — 2020-CA-000834-OA On June 22, 2020, Real Parties In Interest Florence Speedway, Inc., Little Links to Learning, LLC, and others filed a verified amended complaint in the Boone Circuit Court challenging the constitutionality of certain emergency Executive Orders issued by Governor Andrew Beshear. The first Executive Order, } Kentucky Rules of Civil Procedure.dated March 6, 2020, declared a state of emergency in Kentucky due to the outbreak of COVID-19. It is undisputed that COVID-19 is a novel coronavirus which may manifest in severe respiratory illness and, in some cases, leads to death. On March 19, 2020, Governor Beshear issued an Executive Order prohibiting mass gatherings. On March 25, 2020, he issued an Executive Order directing all businesses that are “not life-sustaining” to cease operations, with certain exceptions not relevant here. Beginning in April 2020, the Governor issued Executive Orders establishing requirements for reopening Kentucky businesses. Pertinent to this original action, he later established “Requirements for Automobile Racing Tracks” (dated June 1, 2020), and “Requirements for Childcare Programs” (dated June 8, 2020). The June 1, 2020 directive required racetracks to “prohibit fans and outside media” and to ensure that “everyone on premises adhere to social distancing guidelines by staying at least six (6) feet away from other people whenever possible.” The directive also established: cleaning and disinfecting requirements; requirements pertaining to the use of personal protective equipment (PPE) by employees; and training and safety protocols. The June 8, 2020 directive allowed center-based licensed childcare businesses to. reopen subject to certain requirements, including: limited class sizesof ten (10) children; additional social distancing; additional disinfecting standards; PPE requirements for adults; and additional training and safety protocols. ‘The verified amended complaint alleges the Executive Orders, including the June 1, 2020 and June 8, 2020 Minimum Requirements just described, violate the constitutional rights of the Real Parties In Interest protected pursuant to: Section 1 of the Kentucky Constitution (right to life, liberty, and acquiring and protecting property); Section 2 of the Kentucky Constitution (prohibition on absolute and arbitrary power over the lives, liberty and property of the citizens); and Sections 27 and 28 of the Kentucky Constitution (separation of powers among the three branches of government). The verified amended complaint further challenges the constitutionality of certain statutes the Governor claims as the source of his authority to issue these Executive Orders. See KRS? 195A.025, KRS 39A.100, and KRS 214.200. Finally, it alleges the Executive Orders violate KRS Chapter 13A because they were implemented without the promulgation of administrative regulations. Florence Speedway, Little Links, and others subsequently filed a motion in the circuit court for a restraining order and temporary injunction. pursuant to CR 65.03 and CR 65.04. The Commonwealth of Kentucky, ex rel. 2 Kentucky Revised Statutes.Attorney General Daniel J. Cameron, moved to intervene in the underlying action and for a restraining order. On June 29, 2020, Governor Beshear issued “Requirements for Venues and Event Spaces” setting out minimum conditions for the reopening of such establishments. “[P]rofessional and amateur sporting/athletic stadiums and arenas” are included within the directive, which sets forth social distancing rules, cleaning and disinfecting requirements, PPE requirements, and training and safety requirements. Specifically, it requires these facilities to “[I]imit the persons, not including employees, present in any venue or event space to 50% of the maximum permitted occupancy capacity of the venue or event space, assuming all individuals in the venue or event space are able to maintain six (6) feet of space between each other with that level of occupancy.” Footnote 1 of the June 29, 2020 directive provides: “[vJenue and event spaces requirements do not supersede or replace Healthy at Work Youth Sports and Athletic Activities Guidance.” On July 2, 2020, following a hearing the day before, the circuit court, entered an order granting the Attorney General’s motion to intervene and granting, in part, a restraining order pursuant to CR 65.03. The order provides: 1. Defendants, Hon. Andrew Beshear, Governor, Secretary Eric Friedlander, Dr. Steven Stack, the Cabinet for Health and Family Services, and their officers, agents, and attorneys and other persons in active concert or participation with them who receive actual ‘notice of the restraining order by personal service or otherwise, are 6.hereby ENJOINED from enforcing the requirements in their June 1, 2020 “Requirements for Automobile Racing Tracks” that prohibit fans, outside media, or guests of family members from attending events or races; they are also prohibited from enforcing footnote | of the June 29, 2020 “Requirements for Venues and Event Spaces” to the extent the footnote is in conflict with this paragraph. Thus, automobile racetracks may operate at 50% capacity, assuming all individuals attending are able to maintain 6- foot social distancing between households. 2. Defendants, Hon. Andrew Beshear, Governor, Secretary Eric Friedlander, Dr. Steven Stack, the Cabinet for Health and Family Services, and their officers, agents, and attomeys and other persons in active concert or participation with them who receive actual notice of the restraining order by personal service or otherwise, are hereby ENJOINED from enforcing the requirements in their June 8, 2020 “Requirements for Childcare Programs” as to the requirements that “All childcare programs will need to utilize a maximum group size of ten children per group” and “Children will remain in the same group of ten children all day without being combined with another classroom.” Childcare programs shall be permitted the maximum group size of 28. The July 2, 2020 order reserved ruling on the Attorney General’s motion for a restraining order, noting that the motion would be “taken as sought under CR 65.04.” The order also reserved ruling on Florence Speedway’s and the Little Links’ motions for temporary injunctions “pending hearing which shall be held by the Court on July 16, 2020, at 10:00 a.m., and Counsel shall then appear to present any further testimony, evidence, or argument.” The order further providesit shall remain in effect “until the entry of an Order on, or following, the hearing that is scheduled in this matter for July 16, 2020.” In response, Petitioners initiated an original action in this Court pursuant to CR 76.36, which was assigned Court of Appeals No. 2020-CA- 000834-OA. Petitioners seek a writ that: (1) mandates the circuit court to dissolve the July 2, 2020 restraining order; (2) prohibits the circuit court from hearing the ; Attorney General’s motion for a restraining order as well as the temporary injunction motion of the remaining Real Parties In Interest; and (3) grants intermediate relief staying enforcement of the July 2, 2020 restraining order during the pendency of this original action. The Real Parties In Interest filed responses to the motion for intermediate relief. On July 8, 2020, the Attorney General moved to dismiss this original action. On July 9, 2020, the Petitioners filed a response. H. BACKGROUND — 2020-CA-000849-OA On June 29, 2020, Real Parties In Interest Ryan Quarles, in his official capacity as Commissioner of Agriculture, and Evans Orchard and Cider Mill, LLC, filed a complaint in the Scott Circuit Court challenging the constitutionality of certain emergency Executive Orders issued by Governor Andrew Beshear. , Attorney General Daniel J. Cameron subsequently intervened in the case. 3 Counsel for the Governor agreed to this date for the temporary injunction hearing. -8-Commissioner Quarles is the head of the Kentucky Department of Agriculture, The Department’s purpose is to “[p]romote agritourism in Kentucky to potential visitors, both national and international; and . .. [alssist in sustaining the viability and growth of the agritourism industry in Kentucky.” KRS 247.800. There are currently 548 agritourism businesses in Kentucky registered with the Department, including Evans Orchard. The complaint alleges Evans Orchard is a family-owned business that operates “agritourism attractions,” including: pick-your-own fruits, such as strawberries, blueberries, pears, flowers, pumpkins, and apples; a retail market for selling food products and other products; a café and bakery; a 96,000 square-foot outdoor Playing Area and Barnyard for children; and an Event Barn for weddings and other outdoor/indoor ceremonies and events, The Playing Area and Bamyard cover two aeres, and the complaint alleges the area has “sufficient capacity for more than 2,000 people under normal circumstances.” The peak season for such agritourism businesses is September and October, and Evans Orchard typically employs approximately 40 people during that time. As noted in the background discussion of the first original action set out above, the Governor’s Executive Order, dated March 6, 2020, declared a state of emergency in Kentucky due to the outbreak of COVID-19. According to Dr. Steven J. Stack, the Commissioner of the Kentucky Department for Public Health, 9.COVID-19 is transmitted “mainly among people who are in close contact with each other (within about 6 feet) for a prolonged period” through respiratory droplets from an infected person’s mouth and nose. Pertinent to the dispute among the parties, on June 8, 2020, Governor Beshear directed that “limited outdoor attractions” could reopen subject to certain conditions, including: (1) the limitation of “the persons, not including employees, present in any given tourism facility or business to an amount small enough to permit at least six (6) feet of social distancing between all individuals or households;” and (2) the development and implementation by the facilities of plans and protocols “to create transmission barriers, where possible, and promote and enforce social distancing; implement touchless solutions, where practical; and enhance and promote sanitation and hygiene practices.” In Executive Orders dated June 16, 2020 and June 22, 2020, Governor Beshear set forth specific “Guidance for Gatherings of Up to Fifty (50) People,” effective June 29, 2020, which: (1) permit such gatherings only where social distancing of six (6) feet can be maintained among households; (2) require individuals to wear a cloth face covering or mask if they will be closer than six (6) feet to someone outside their own household; and (3) prohibit the sharing of “food, drink containers, napkins or utensils.”Evans Orchard states it will be “unable to profitably operate the Playing Area and Barnyard for the remainder of the 2020 calendar year,” and it will be “unable to host weddings and other events at its Event Barn for the ~ remainder of the 2020 calendar year” . .. “so long as those Executive Orders remain in effect.” Petitioners counter that the Governor, by an additional Executive Order dated June 29, 2020, issued new “Requirements for Venues and Event Spaces,” under which Evans Orchard may operate the Event Barn at up-to 50% capacity if certain additional conditions are observed.* Like the verified amended complaint filed in the Boone Circuit Court action discussed above, the complaint filed in Scott Circuit Court alleges the contested Executive Orders and statutes cited as the authority for those Executive Orders are unconstitutional for the same reasons expressed to the Boone Circuit Court. It further alleges the Executive Orders were issued in violation of KRS Chapter 13A because they were issued without the promulgation of administrative 4 Evans Orchard requested permission to have a capacity of 100 people (approximately 25 families) at a time in the Playing Area and Barnyard. The WEDCO District Health Department, a defendant below, allegedly informed Evans Orchard that 10 individuals (approximately 2-3 families) at a time would be permitted until June 29, after which time up to 50 individuals (approximately 12-13 families) would be allowed. 5 ‘The Requirements for Venues and Event Spaces provides that all facilities must follow the June 29, 2020 “Healthy at Work Requirements for Restaurants and Bars” if they provide dining, service as a component of the event. The latter document sets forth rules regarding social distancing; use of Personal Protective Equipment (PPE); cleaning and disinfecting of the premises; and training and safety requirements. ieregulations. Finally, the complaint asserts the enforcement of the Executive Orders has been selective because, for example, the Executive Orders were not enforced during certain mass gatherings that occurred in Louisville, Frankfort, and other Kentucky communities in May and June 2020. On July 9, 2020, following a hearing, the Scott Circuit Court entered a restraining order pursuant to CR 65.03, providing: 1. Defendants Governor Andrew Beshear, Secretary Eric Friedlander, Dr. Steven Stack, the Cabinet for Health and Family Services, the Kentucky Department for Public Health, the WEDCO District Health Department, and Crystal Miller, and all of their employees, attorneys, and agents, are ENJOINED from enforcing any Executive Order, Secretary’s Order, or other order or guidance issued pursuant to KRS Chapter 39A related to the emergency declared by the Governor on March 6, 2020, against Evans Orchard & Cider Mill, LLC or any of the 548 agritourism businesses in Kentucky currently registered with the Department of Agricultural [sic]; * 2. Prior to issuing or enforcing any Executive Order, Secretary’s Order, or other order or guidance issued pursuant to KRS Chapter 39A related to the emergency declared by the Governor on March 6, 2020, the Governor or other person authorized by the Governor shall specifically state the emergency that requires the order, the location of the emergency, and the name of the local emergency management agency that has determined that the emergency is beyond its capabilities[.] Nothing in the limited record before this Court indicates the circuit court entered a temporary injunction, or set a termination date for the restraining -12-order, or set a date to hear argument on the temporary injunction. Neither does the record indicate any Petitioner moved the circuit court to dissolve the restraining order. Rather, Petitioners responded to the circuit court’s restraining order by filing an original action in this Court, designated No. 2020-CA-000849-OA. Petitioners request: (1) a writ of mandamus requiring Respondent to dissolve the restraining order; (2) a writ of prohibition enjoining Respondent “from hearing or ruling upon pending motions for further injunctive relief to the extent that the movants seek relief that is the same or substantially similar to that granted in the Order{;]” and (3) intermediate relief from the restraining order pursuant to CR 76.36(4). Petitioners argue COVID-19 presents a substantial public health emergency such that “[neither the Governor nor the citizenry he was elected to protect can wait for the circuit court to further address these matters so that an appeal may be taken.” They further maintain they have no remedy “by appeal or adequate remedy by moving to dissolve the restraining order” because they “were heard on the motion [for a restraining order] and their arguments were unequivocally spurned.” Therefore, Petitioners conclude that further action in the circuit court would be “futile.” -13-HI, ANALYSIS: Petitions for writs are of two classes. The first class “refers to subject- matter jurisdiction; that is, the lower court’s core authority to hear the case at all.” Appalachian Racing, LLC. v. Commonwealth, 504 8.W.3d 1, 4 (Ky. 2016). Petitioners do not challenge the circuit court’s proper exercise of subject matter jurisdiction in either original action in this Court. Both petitions seek a writ satisfying the requirements of the second class. The second class of writ “may be granted upon a showing .. . that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.” Caldwell! v. Chauvin, 464 8.W.3d 139, 145 (Ky. 2015) (quoting Hoskins v. Maricle, 150 $.W.3d 1, 10 (Ky. 2004) (internal quotation marks omitted)).§ The issuance of a writ is an extraordinary remedy, and the courts of the Commonwealth have always been cautious and conservative in granting such * Included in the second class is a sub-class of “special cases” not requiring proof of irreparable injury, but in which “a substantial miscarriage of justice” will occur if the lower court proceeds erroneously, and correction of the error is necessary “in the interest of orderly judicial administration.” Lucas v, MeDonald-Burkman, $81 S.W.3d 20, 23 (Ky. 2019) (quoting Independent Order of Foresters v. Chauvin, 175 8.W.3d 610, 616 (Ky. 2005) (quoting Bender v. Eaton, 343 S.W.2d 799, 801 (Ky. 1961)))).. Petitioners do not argue their cases based on the exceptional “special cases” sub-class of writs. It would not matter if they had because “the exception allows a petitioner to avoid only the requirement of great and irreparable injury, not the requirement of lack of an adequate remedy by appeal.” Independent Order of Foresters, 175 S.W.3d at 617 (citing Bender, 343 S.W.2d at 801). “14._ relief. Lucas v. MeDonald-Burkman, 581 $.W.3d 20, 23 (Ky. 2019) (citing Grange Mut, Ins. v. Trude, 151 $.W.3d 803, 808 (Ky. 2004). The remedy of a writ is considered extraordinary because it “bypasses the regular appellate process and requires significant interference with the lower courts’ administration of justice.” Cox v. Braden, 266 S.W.3d 792, 795 (Ky. 2008) (“courts of this Commonwealth are — and should be — loath to grant the extraordinary writs unless absolutely necessary”). For such reasons, the Supreme Court “articulated a strict standard to determine whether the remedy of a writ is available.” Jd. at 796. “[TJhe first prong of the threshold inquiry — lack of adequate remedy by appeal or otherwise” — is where this Court’s analysis begins. Jones v. Costanzo, 393 S.W.3d 1, 5 (Ky. 2012). “This is a practical and convenient formula for determining, prior to deciding the issue of alleged error, if petitioner may avail himself of this remedy” of a writ. Cox, 266 $.W.3d at 796 (citation and internal quotation marks omitted). In these cases, the Civil Rules, specifically CR 65, provide to Petitioners the swift and adequate remedy from a restraining order; therefore, extraordinary alternative relief by means of an original action for a writ is not appropriate. The motions for intermediate relief must be denied. The unavailability of an adequate remedy by appeal or otherwise “is an absolute prerequisite to the issuance of this second class of writ.” NewellEnterprises, Inc. v. Bowling, 158 8.W.3d 750, 754 (Ky. 2005) (overruled on other grounds by Interactive Media Entm’t and Gaming Ass’n, Inc, v. Wingate, 320 S.W.3d 692 (Ky. 2010) (footnotes omitted). Lack of an adequate remedy “means that any injury to [the petitioner] could not thereafter be rectified in subsequent proceedings in the case.” Jd. Petitioners’ injuries can be rectified in circuit court. ‘The Kentucky Supreme Court stated clearly that “CR 65.01 - CR 65.09 provides a well[-]defined path for the orderly resolution of such matters without the need to resort to the remedy of an extraordinary writ.” Goldstein v. Feeley, 299 $.W.3d 549, 555 (Ky. 2009). Any injury resulting from the Boone Circuit Court’s entry of a restraining order can be rectified in the subsequent proceeding scheduled for July 16, 2020. Any injury resulting from the Scott Circuit Court’s entry of a restraining order can be rectified pursuant to CR 65.04(5), and specifically by moving the circuit court to dissolve it. Restraining orders are intended to be short-lived. The well-defined path the Supreme Court referenced includes the following relevant provisions designed to protect the subjects of a restraining order from an enduring application: A restraining order becomes effective and binding on the party to be restrained at the time of service or when he is informed of the order, whichever is earlier. Unless it provides an earlier termination date, a restraining order shall remain in force until, and not after, (a) the time set for a hearing on a motion to dissolve the restraining order unless there is then pending a motion for a temporary injunction, or (b) the entry of an order on a motion for a - -16-temporary injunction, or (c) the entry of a final judgment, whichever is earlier. CR 65.03(5). In turn, CR 65.04 establishes the standard for replacing or dissolving a restraining order, as follows: ‘A temporary injunction may be granted during the pendency of an action on motion if it is clearly shown by verified complaint, affidavit, or other evidence that the movant’s rights are being or will be violated by an adverse party and the movant will suffer immediate and irreparable injury, loss, or damage pending a final judgment in the action, or the acts of the adverse party will tend to render such final judgment ineffectual. CR 65.04(1). Success pursuant to this rule will substitute a temporary injunction for the restraining order and failure will dissolve it. Finally, regardless whether the “circuit court by interlocutory order has granted, denied, modified, or dissolved a temporary injunction[,]” CR 65.07(1) provides the aggrieved party the potential for remedy by interlocutory appeal to this Court. That was so in the procedurally similar case of Goldstein v. Feeley. As in the instant cases, the circuit court in Goldstein entered a restraining order. 299 $.W.3d at 551. The similarities continue: [The writ petitioner] filed his petition for a writ less than two weeks before the temporary injunction hearing [the circuit court] scheduled . . . . That hearing was itself an available remedy, a forum in which he could prove to the trial court his claim that proceeding further was error. An adverse ruling from that hearing would have been subject to appellate review under CR 65.07(1). -17-Id. at 553-54. As described, when parties and the court in an action for injunctive relief follow the procedure of CR 65, the adequate remedy is not by appeal or otherwise; it is by appeal and otherwise. That remedy is available here. However, Petitioners suggest this Court has discretion to deviate from the so-called well-defined path. It is correct that the Supreme Court said, “[W]e do not hold that a case proceeding along that path should never be diverted by an application to an intermediate court for a writ... .” Jd, at 555. Petitioners build on that premise in their petition and in their responses to the Attorney General’s motion to dismiss, in which they cite and discuss Appalachian Racing v. Commonwealth, supra.’ That case, however, is dissimilar to these cases. In Appalachian Racing, the Supreme Court glossed over the threshold issue of an adequate remedy. 504 $,W.3d at 4. More accurately, the Supreme Court declined to undertake its own analysis, deferring instead to this Court’s determination that there was no adequate remedy because there was no objection by the party opposing the writ. The Supreme Court said only this: [T]he [Court of Appeals] panel determined that [the petitioner] did not possess an adequate remedy for the trial court’s restraining order — a non-appealable interlocutory order. Appalachian Racing does not appear to dispute this aspect of the panel’s analysis, so we are confident that the Court of Appeals was correct in determining the Commission met its burden of showing no adequate remedy by appeal. 7 Filed in No. 2020-CA-000834-OA only. “18+Id, Beyond this presumptive passage, the adequate remedy issue was unaddressed. The analysis went directly to the substance where, again, the case is dissimilar. The Supreme Court in Appalachian Racing affirmed this Court’s grant of the writ petition but “for slightly differing reasons” than this Court expressed. Id. at 2. “[T]he real reason the Floyd Circuit Court may not [by restraining order] enjoin the Comimission from considering the application [for racing and wagering at a competing track] is because the circuit court exercises the judicial authority of the Commonwealth and the Commission exercises executive authority, and there is currently no justiciable claim for a court of law to decide.”* Id, at 6. In Appalachian Racing, there was no executive action subject to judicial review; i-e., no agency final order existed from which an appeal could be taken pursuant to KRS 230.330.? These facts contrast with the instant cases in which executive action has been taken in the form of the Governor’s executive orders. * It could well be argued that the Supreme Court should have analyzed the writ petition as one of the first class. The Supreme Court’s holding that there was “no justiciable claim” before the circuit court means that court adjudicated the claim and entered a restraining order despite lacking subject matter jurisdiction to do so. “Section 112(5) of the Kentucky Constitution grants the circuit court jurisdiction only of ‘justiciable causes.’ * Appalachian Racing, LLC v. Family Tr. Foundation of Kentucky, Inc., 423 §.W.3d 726, 732-33 (Ky. 2014) (quoting Ky. Const. 112(5)). However, the circuit court action sought declaratory relief. “[O]f course the Floyd Circuit Court has subject- matter jurisdiction over declaratory judgment actions. So [the Supreme Court concluded] this case is best analyzed under the second class of writs.” Appalachian Racing, 504 S.W.34 at 4, ° The Supreme Court said: ‘Commission actions are no doubt subject to judicial review, but only once the matter is properly appealable. As the Court of Appeals panel recognized, if the Commission does issue Keeneland a license [the executive branch action ~19-Appalachian Racing does not support Petitioners’ cause for a writ because, in the instant cases, there is a justiciable cause — a challenge to Governor Beshear’s right to exercise power by various executive orders. Kentucky courts have jurisdiction to address challenges to a governor's executive orders and they have exercised that jurisdiction in cases such as Commonwealth ex rel. Cowan v. Wilkinson" and Gordon v. Morrow'' and Commonwealth ex rel. Beshear v. Commonwealth Office of the Governor ex rel. Bevin.'* See also Sibert v. Garrett, 197 Ky. 17, 246 S.W. 455, 463 (1922) (“The Legislature makes the laws, the prematurely restrained], that action may be appealed to the Franklin Circuit Court. [citing by footnote KRS 230,300] At that point, a judicially cognizable case or controversy is in fact mature . Appalachian Racing, 504 8.W.3d at 6. The Supreme Court’s citation to KRS 230.300 is clearly in error. ‘The statute authorizing appeals from the Racing Commission to the judiciary is KRS 230.330, and it states: “Any licensee or any applicant aggrieved by any final order of the racing commission may appeal to the Franklin Circuit Court in accordance with KRS Chapter 133.” 1 $28 S.W.2d 610, 611 (Ky. 1992) (overruled by Commonwealth ex rel. Conway v. Thompson, 300 8.W.3d 152 (Ky. 2009) (“Franklin Circuit Court temporary injunetion prohibited Wallace G. Wilkinson, then Governor of the Commonwealth of Kentucky, from being swom in and acting as a member of the Board of Trustees of the University of Kentucky pursuant to an executive order he issued”). Commonwealth ex rel. Conway v. Thompson, reversed that part of Wilkinson that required the Attorney General to have a “personal right” to pursue injunctive relief against executive branch action. 300 S.W.3d 152, 172 (Ky. 2010) (“we have no doubt that the Attomey General of the Commonwealth of Kentucky has standing to seek injunctive relief [against executive branch action] on behalf of the citizens of the Commonwealth”). "186 Ky. 713, 218 S.W. 258, 260 (1920) (“{S]uit was brought... to restrain Gov. Morrow from canceling or attempting to cancel [a contract], by executive order. ..”). "2 Commonwealth ex rel. Beshear v. Commonwealth Office of the Governor ex rel. Bevin, 498 S.W.3d 355, 366 (Ky. 2016) (“Attorney General, as chief law officer of Kentucky, has broad authority to sue for declaratory and injunctive relief against state actors, including the Governor”) -20-judiciary expounds them, and the Governor sees that they are faithfully executed; but even in this duty he is restrained in some degree, because they must be enforced according to the Constitution and laws, and not at his will and discretion.” (emphasis added)). However, Petitioners argue that “[t]here can be no reasonable expectation that the circuit court will dissolve the restraining order” because it already heard and rejected their arguments at their respective restraining order hearings. They say it “would be futile” to challenge the restraining orders by moving to dissolve them, or to present a defense at subsequent hearings. Our jurisprudence rejects the cynicism of this argument. Petitioners’ subjective perception of the futility of pursuing an available remedy does not make that remedy inadequate. Obviously, “our writ law does not require the lack of a guaranteed remedy . . . , it requires the lack of an adequate remedy.” Bailey v. Bertram, 471 8.W.3d 687, 693 (Ky. 2015). Ifa party’s perceived futility of proceeding under CR 65 were “sufficient to meet this [lack-of-adequate-remedy] requirement for a writ, then all cases would meet it[.]” Id. Despite Petitioners’ lament, there is no guarantee that the Real Parties In Interest will prevail at any subsequent hearing. Our reality is that, to the greatest extent possible, Kentucky courts assure justice for all but promise victory to none, 21-Additionally, Petitioners raise the urgency of a pandemic as reason for finding their CR 65 remedy inadequate. They claim “(neither the Governor nor the citizenry he was elected to protect can wait for the circuit court to further address these matters.” The concern is that, without these executive dictates, there necessarily will be an increase in Kentucky COVID-19 cases and deaths. This Court is aware of the current anomalous state of both the health of Kentuckians and the economy of Kentucky. But, in the context of considering intermediate relief, there are several sound reasons for marginalizing the Governor’s concerns. That this season of our history is temporarily in flux does not alone justify a similar fluidity in our procedural or substantive jurisprudence. The Petitioners have failed to offer a reason why Kentucky courts should not apply our laws and procedures in these troubled times the same as when times are tranquil, just as we apply laws and procedures equally to pauper and prince. There are also more concrete considerations weighing against granting a motion for intermediate relief when a remedy is available in the original court. Justice Noble identified several in Cox v. Braden, supra. First, pursuit of a writ is not likely to ease the Governor's concern for tee rn ere are errata 65 procedures have proven to “slow down the administration of justice (even when correctly entertained)[.]” Cox, 266 S.W.3d at 795. -22-The second negative is that this Court does not have the full record before it. “The expedited nature of writ proceedings necessitates an abbreviated record. This magnifies the chance of incorrect rulings that would prematurely and improperly cut off the rights of litigants ....” Jd. The short delay in the “well- defined path” provided in CR 65 between the beginning and end of a restraining order does not outweigh the benefit of adjudication upon a more complete record. Third, “when they are used as de facto interlocutory appeals (an increasing, undesired trend), writ petitions also consume valuable judicial resources..." Id. A fourth negative aspect in pursuing a writ is simply that it “impose[s] potentially unnecessary costs on litigants.” Id. Lastly among the negatives cited in Cox is that “the majority of [writ petitions] are unsuccessful,” which is precisely why the Supreme Court, striving for efficient resolution of disputes on the merits, clearly and repeatedly “articulated a strict standard to determine whether the remedy of a writ is available.” Id. at 796. Keeping the injunction process moving in the original court is preferred, and that is the function of CR 65. We list these reasons as relevant considerations in the decision whether to grant intermediate relief. “[T]he issuance of a writ is inherently discretionary. Even if the requirements are met and error found, the grant of a writ -23-rémains within the sole discretion of the Court.” Commonwealth v. Shaw, 600 S.W.3d 233 (Ky. 2020) (citation omitted); Goldstein, 299 S.W.3d 555 (“[I]ntermediate court may consider the remedies inherent within CR 65.01 et seg. as factors to be weighed in exercising its discretion to grant or deny the wr To this list, we add one more factor, particularly applicable to these times and circumstances — the wisdom and common sense of Kentuckians. The people of this Commonwealth — indeed, the people of the nation — have followed the course of the pandemic, and each and all know how it has disrupted every life. They have followed relevant events on various media and processed a wealth of information from a multitude of sources. Governor Beshear frequently has been one of those sources. Not everything the Governor conveys in his heartfelt messages has the force of law, nor is such force necessary when his constituents’ good sense and good nature, and his own leadership, suffice. No one can say how many Kentuckians know, or even eare to consider, whether what they hear is edict or advice. Disregarding any distinction between the two, Kentuckians have taken measures they believe must be taken to protect themselves, those they know and love, and those they are yet to meet. And, by their innate wisdom and common sense, they succeeded in keeping Kentucky ranked among states with the lowest per capita incidence of coronavirus. They are 24.entitled to as much credit for that success as is the leadership of their Governor and his advisors. Certainly, Kentuckians’ lives have changed, not for the better perhapé, but for the necessary and, hopefully, only for the time being. This Court does not believe that, for the very short duration of the restraining orders, Kentuckians will suffer to a greater degree than without them. With or without them, Kentuckians remain capable of doing the wise and common-sense things necessary to keep each other safe in the coming days, just as they have until now. For this reason, and for the many others discussed in this Order, the intermediate relief sought by Petitioners is not appropriate. IV. CONCLUSION WHEREFORE, Petitioners’ motions for intermediate relief shall be, and hereby are, DENIED. Their respective petitions for writs of mandamus and prohibition, as well as the Attorney General’s motion to dismiss, shall be assigned to a three-Judge Panel of the Court following expiration of the response time for the petitions and motion provided in the Civil Rules. The Court by this Order does not express any opinion as to the merits of Petitioners” claims. ENTERED: _JUL 13 2020 GH, COURT OF APPEALS -25-