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.

i
 STATEMENT CONCERNING ORAL ARGUMENT

The Court has scheduled oral argument for September 17, 2020.

ii
 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

iii
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

iv
 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

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 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

vi
 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

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APPENDIX.......................................................................................................................................65

viii
 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.

1
 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).

2
 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).

3
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.

4
 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.

5
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

6
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.

7
 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

8
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

9
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

10
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

11
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—

12
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.

13
 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

14
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.

15
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

16
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–

17
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.

18
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

19
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

20
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

21
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

22
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

23
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

24
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

25
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).

26
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

27
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

28
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

29
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.

30
 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

31
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).

32
 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

33
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.

34
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

35
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

36
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
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.

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.

38
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

39
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

40
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.

41
 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

42
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.

43
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.

44
 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

45
. . . 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

46
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

47
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,
48
“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.

49
 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

50
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.

51
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

52
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

53
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.

54
 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

55
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.

56
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

57
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.

58
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

59
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.

60
 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.

61
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.

62
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

63
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

64
 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, Not applicable

2020 WL 2305307 (E.D. Ky. May 8, 2020)

4 Ramsek v. Beshear, No. 3:20-cv-00036, 2020 WL 3446249 Not applicable

(E.D. Ky. June 24, 2020)

5 Roberts v. Neace, 2:20-cv-054, 2020 WL 2115358 Not applicable

(E.D. Ky. May 4, 2004)
TAB 1
Roberts v. Neace, 958 F.3d 409 (2020)

[1] congregants were likely to succeed on merits of free

exercise claim;
KeyCite Yellow Flag - Negative Treatment
Declined to Follow by Elim Romanian Pentecostal Church v. Pritzker, 7th
[2] congregants demonstrated irreparable harm;
Cir.(Ill.), June 16, 2020
958 F.3d 409
[3] balance of harms weighed in favor of injunction; and
United States Court of Appeals, Sixth Circuit.

[4] public interest was factor favoring injunction.

Theodore Joseph ROBERTS, Randall
Daniel, and Sally O’Boyle, on behalf
Motion granted.
of themselves and all others similarly
situated, Plaintiffs-Appellants,
v.
West Headnotes (11)
Robert D. NEACE, in his capacity as
Boone County Attorney, Andrew G.
[1] Federal Courts Injunction and temporary
Beshear, in his official capacity as restraining order cases
Governor of the Commonwealth of In deciding whether to grant an injunction
Kentucky, Eric Friedlander, in his pending appeal, the Court of Appeals considers:
(1) whether the applicant is likely to succeed
official capacity as Acting Secretary
on the merits; (2) whether the applicant will
of the Cabinet for Health and Family be irreparably injured absent an injunction; (3)
Services, Defendants-Appellees. whether an injunction will injure the other
parties; and (4) whether the public interest favors
No. 20-5465 an injunction.
|
3 Cases that cite this headnote
Decided and Filed: May 9, 2020*

Synopsis [2] Constitutional Law Strict scrutiny;

Background: Church congregants who wanted to attend in-
person worship services brought action against Kentucky's
Governor, the Acting Secretary of Kentucky's Cabinet
for Health and Family Services, and county attorney,
challenging, as violating congregants' constitutional rights
to free exercise of religion and to travel interstate, orders
issued during COVID-19 pandemic prohibiting faith-based
mass gatherings, requiring the closing of organizations
that were not life-sustaining, and prohibiting interstate
travel. The United States District Court for the Eastern
[3]
District of Kentucky, William O. Bertelsman, Senior District
Judge, 2020 WL 2115358, granted preliminary injunction to
congregants with respect to prohibition of interstate travel.
Congregants filed interlocutory appeal and filed motion for
injunction pending appeal with respect to free exercise claim.
Holdings: The Court of Appeals held that:
 compelling interest
A law that discriminates against religious
practices usually will be invalidated under the
Free Exercise Clause, because it is the rare law
that can be justified by a compelling interest and
that is narrowly tailored to advance that interest.
U.S. Const. Amend. 1.
Constitutional Law Neutrality;  general
applicability
Faith-based discrimination in violation of the
Free Exercise Clause can come in many forms,
including a law that is motivated by animus
toward people of faith in general or one faith in
particular, a law that singles out religious activity
alone for regulation, or a law that appears to be
generally applicable on the surface but is not

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 1

Roberts v. Neace, 958 F.3d 409 (2020)

generally applicable in practice due to exceptions governmental avoidance of bigotry. U.S. Const.
for comparable secular activities. U.S. Const. Amend. 1.
Amend. 1.
1 Cases that cite this headnote

[4] Federal Courts Injunction and temporary
restraining order cases
Church congregants who wanted to attend in-
person worship services were likely to succeed
on merits, as factor favoring injunction pending
interlocutory appeal from denial of preliminary
injunction, of claim that Kentucky Governor's
order, prohibiting faith-based mass gatherings
during COVID-19 pandemic, violated Free
Exercise Clause based on discrimination against
religious practices, where the order contained
four pages of exceptions for comparable secular
activities, so that strict scrutiny was warranted,
order burdened sincere faith practices, and it
was not the least restrictive means of furthering
Commonwealth's goals of lessening the spread
of the virus and protecting Commonwealth's
citizens. U.S. Const. Amend. 1.
[7] Constitutional Law Neutrality;  general
applicability
A law that is challenged under the Free Exercise
Clause is not neutral and generally applicable
unless there is neutrality between religion and
non-religion. U.S. Const. Amend. 1.
1 Cases that cite this headnote
[8] Constitutional Law Neutrality;  general
applicability
A law that is challenged under the Free
Exercise Clause can reveal a lack of neutrality
by protecting secular activities more than
comparable religious ones. U.S. Const. Amend.
1.
1 Cases that cite this headnote

3 Cases that cite this headnote

[9] Federal Courts Injunction and temporary
restraining order cases
[5] Constitutional Law Neutrality;  general
Irreparable harm, to church congregants who
applicability
wanted to attend in-person worship services,
As a rule of thumb, the more exceptions to
was a factor favoring injunction pending
a governmental prohibition that encompasses
interlocutory appeal by congregants from
religious activities, the less likely it will count
denial of preliminary injunction in their action
as a generally applicable, non-discriminatory
challenging under Free Exercise Clause an order
law if it is challenged under the Free Exercise
of Kentucky's Governor prohibiting faith-based
Clause, because at some point, an exception-
mass gatherings during COVID-19 pandemic;
ridden prohibition takes on the appearance and
order prohibited congregants from worshiping as
reality of a system of individualized exemptions,
they wished. U.S. Const. Amend. 1.
which is the antithesis of a neutral and generally
applicable policy and just the kind of state action 4 Cases that cite this headnote
that must run the gauntlet of strict scrutiny. U.S.
Const. Amend. 1.
[10] Federal Courts Injunction and temporary
1 Cases that cite this headnote restraining order cases
Balance of harms was a factor favoring
injunction pending interlocutory appeal by
[6] Constitutional Law Neutrality;  general
church congregants, who wanted to attend
applicability
in-person worship services, from denial of
The constitutional benchmark under the Free
preliminary injunction in their action challenging
Exercise Clause is government neutrality, not
under Free Exercise Clause an order of
Kentucky's Governor prohibiting faith-based

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 2

Roberts v. Neace, 958 F.3d 409 (2020)
mass gatherings during COVID-19 pandemic; an
injunction could appropriately permit religious
services with same risk-minimizing precautions
as similar secular activities, while permitting
Governor to enforce social-distancing rules in
both settings. U.S. Const. Amend. 1.
5 Cases that cite this headnote
[11] Federal Courts Injunction and temporary
restraining order cases
Public interest was a factor favoring
injunction pending interlocutory appeal by
church congregants, who wanted to attend
in-person worship services, from denial of
preliminary injunction in their action challenging
under Free Exercise Clause an order of
Kentucky's Governor prohibiting faith-based
mass gatherings during COVID-19 pandemic;
treatment of similarly situated entities in
comparable ways served public health interests
at 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 for
the 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, for
Appellants; Barry L. Dunn, OFFICE OF THE KENTUCKY
ATTORNEY GENERAL, Frankfort, Kentucky for Amicus
Curiae 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 AND
FAMILY SERVICES, Frankfort, Kentucky, for Appellees
Beshear and Friedlander.
Before: SUTTON, McKEAGUE, and NALBANDIAN,
Circuit Judges.
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
ORDER
PER CURIAM.
Three congregants of Maryville Baptist Church wish to attend
in-person worship services this Sunday, May 10. By order
of the Kentucky Governor, however, they may not attend
“faith-based” “mass gatherings” through May 20. Claiming
that this limitation on corporate worship violates the free-
exercise protections of the First and Fourteenth Amendments
to the United States Constitution, the congregants seek
emergency relief barring the Governor and other officials
from enforcing the ban against them. The Attorney General of
the Commonwealth supports their motion as amicus curiae.
The Governor and other officials oppose the motion.
Governor Beshear has issued two pertinent orders arising
from the COVID-19 pandemic. The first order, issued on
March 19, prohibits “[a]ll mass gatherings,” “including, but
not limited to, community, civic, public, leisure, faith-based,
or sporting events.” R. 1-4 at 1. It excepts “normal operations
at airports, bus and train stations, ... shopping malls and
centers,” and “typical office environments, factories, or retail
or grocery stores where large numbers of people are present,
but maintain appropriate social distancing.” Id.
The second order, issued on March 25, requires organizations
that are not “life-sustaining” to close. R. 1-7 at 2. The
order lists 19 broad categories of life-sustaining organizations
and over a hundred sub-categories spanning four pages.
Among the many exempt entities are laundromats, accounting
services, law firms, hardware *412 stores, airlines, mining
operations, funeral homes, landscaping businesses, and
grocery stores. Religious organizations do not count as “life-
sustaining,” except when they provide “food, shelter, and
social services.” Id. at 3.
On April 12, Maryville Baptist Church held an Easter service.
Some congregants went into the church. Others parked their
cars in the church’s parking lot and listened to the service over
a loudspeaker. Kentucky State Police arrived in the parking
lot and issued notices to the congregants that their attendance,
whether in the church or outdoors, amounted to a criminal
act. The officers recorded congregants’ license plate numbers
and sent letters to vehicle owners requiring them to self-
quarantine for 14 days or be subject to further sanction.
3
Roberts v. Neace, 958 F.3d 409 (2020)
Theodore Joseph Roberts, Randall Daniel, and Sally O’Boyle
all attended this Easter service, and they all complied with
the State’s social-distancing and hygiene requirements during
it. At some point during the service, the state police placed
attendance-is-criminal notices on their cars. In response,
the three congregants sued Governor Beshear, another state
official, and a county official, claiming that the orders and
their enforcement actions violate their free-exercise and
interstate-travel rights under the U.S. Constitution.
The district court denied relief on the free-exercise claim and
preliminarily enjoined Kentucky from enforcing its ban on
interstate travel. The congregants appealed. They asked the
district court to grant an injunction pending appeal on the free-
exercise claim, but the court refused. The congregants now
seek an injunction pending appeal from our court based on
their free-exercise claim.
Two other cases, challenging the same ban, have been making
their way through the federal district courts of Kentucky.
In contrast to the district court in this case, they both
preliminarily granted relief to the claimants based on the
federal free-exercise claim. On May 8, a district court from
the Western District of Kentucky issued an order preliminarily
enjoining the Governor from enforcing the orders’ ban on
in-person worship with respect to the same church at issue
in our case. Maryville Baptist Church, Inc. v. Beshear, No.
3:20-cv-278-DJH-RSE (W.D. Ky. May 8, 2020). That same
day, a district court from the Eastern District of Kentucky
reached the same conclusion in an action involving a different
church. Tabernacle Baptist Church, Inc. of Nicholasville,
Kentucky v. Beshear, N. 3:20-cv-00033-GFVT, 2020 WL
2111316 (E.D. Ky. May 8, 2020). In doing so, it observed that
“the constitutionality of these governmental actions will be
resolved at the appellate level, at which point the Sixth Circuit
will have the benefit of the careful analysis of the various
district courts, even if we disagree.” Id. at 5.
This is not our first look at the issues. Last week, we granted
relief in the case from the Western District of Kentucky with
respect to drive-in services and urged the district court and
parties to prioritize resolution of the more difficult in-person
aspects of the case. Maryville Baptist Church, Inc. v. Beshear,
957 F.3d 610 (6th Cir. May 2, 2020). We are grateful for their
input. In assessing today’s motion for emergency relief, we
incorporate some of the reasoning (and language) from our
earlier decision.
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
We have jurisdiction over this appeal. “Interlocutory orders
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). Under
the circumstances, this order operates as the denial of an
injunction. And no one can fairly doubt that this appeal
will “further the *413 statutory purpose of permit[ting]
litigants to effectually challenge interlocutory orders of
serious, 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 scheduled
on the Sundays and Wednesdays between today and May 20,
when the Governor has agreed to permit places of worship to
reopen. Lost time means lost rights.
[1] We ask four questions in evaluating whether to grant a
stay pending appeal: Is the applicant likely to succeed on the
merits? Will the applicant be irreparably injured absent a stay?
Will a stay injure the other parties? Does the public interest
favor 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 Fourteenth
Amendments. 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 law
that incidentally burdens religious practices usually will be
upheld. 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 discriminates
against religious practices usually will be invalidated because
it is the rare law that can be “justified by a compelling interest
and is narrowly tailored to 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).
[3] These orders likely fall on the prohibited side of the
line. Faith-based discrimination can come in many forms. A
law might be motivated by animus toward people of faith in
general or one faith in particular. Id. A law might single out
religious activity alone for regulation. Hartmann v. Stone, 68
F.3d 973, 979 (6th Cir. 1995). Or a law might appear to be
generally applicable on the surface but not be so in practice
due to exceptions for comparable secular activities. See Ward
v. Polite, 667 F.3d 727, 738 (6th Cir. 2012); see also Fraternal
Order of Police Newark Lodge No. 12 v. City of Newark, 170
F.3d 359, 365–67 (3d Cir. 1999).
4
Roberts v. Neace, 958 F.3d 409 (2020)
Were the Governor’s orders motivated by animus toward
people of faith? We don’t think so. The initial enforcement
of the orders at Maryville Baptist Church no doubt seemed
discriminatory to the congregants. But we don’t think it’s fair
at this point and on this record to say that the orders or their
manner of enforcement turned on faith-based animus.
Do the orders single out faith-based practices for special
treatment? 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 not
suffice by itself to show that the Governor singled out faith
groups for disparate treatment. The order lists many other
group activities, and we accept the Governor’s submission
that he needed to mention worship services by name because
there are many of them, they meet regularly, and their ubiquity
poses material risks of contagion.
[4] [5] Do the four pages of exceptions in the orders, and the not. What he can’t do is assume the worst when people go to
kinds of group activities allowed, remove them from the safe
harbor for generally applicable laws? We think so. As a rule of
thumb, the more exceptions to a prohibition, the less likely it
will count as a generally applicable, non-discriminatory law.
Ward, 667 F.3d at 738. “At some point, an exception-ridden
policy takes on the appearance and reality of a system of
individualized exemptions, the *414 antithesis of a neutral
and generally applicable policy and just the kind of state
action that must run the gauntlet of strict scrutiny.” Id. at 740. of Health & Mental Hygiene, 763 F.3d 183, 196–98 (2d Cir.
The Governor insists at the outset that there are “no
exceptions.” ROA (20-5427) 13-1 at 25. But that is word
play. The orders allow “life-sustaining” operations and don’t
include worship services in the definition. And many of
the serial exemptions for secular activities pose comparable
public health risks to worship services. For example: The
exception for “life-sustaining” businesses allows law firms,
laundromats, liquor stores, gun shops, airlines, mining
operations, funeral homes, and landscaping businesses 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 of faith
organizations, even if the groups adhere to all the public
health guidelines required of the other services.
Keep in mind that the Church and its congregants just want
to be treated equally. They don’t seek to insulate themselves
from the Commonwealth’s general public health guidelines.
They simply wish to incorporate them into their worship
services. They are willing to practice social distancing. They
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
are willing to follow any hygiene requirements. They do not
ask to share a chalice. The Governor has offered no good
reason for refusing to trust the congregants who promise to
use 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 the
same people—going to work on one day and going to worship
on another? How can the same person be trusted to comply
with social-distancing and other health guidelines in secular
settings but not be trusted to do the same in religious settings?
The distinction defies explanation, or at least the Governor
has not provided one.
Some groups in some settings, we appreciate, may fail to
comply with social-distancing rules. If so, the Governor is
free to enforce the social-distancing rules against them for
that reason and in that setting, whether a worship setting or
worship but assume the best when people go to work or go
about the rest of their daily lives in permitted social settings.
We have plenty of company in ruling that at some point
a proliferation of unexplained exceptions turns a generally
applicable law into a discriminatory one. See, e.g., Tenafly
Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144, 165–70 (3d
Cir. 2002); Fraternal Order of Police, 170 F.3d at 365; see
also Cent. Rabbinical Cong. of U.S. & Can. v. N.Y.C. Dep’t
2014).
We don’t doubt the Governor’s sincerity in trying to do his
level best to lessen the spread of the virus or his authority
to 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 or
not, has a right “to expose the community ... to communicable
disease.” Prince v. Massachusetts, 321 U.S. 158, 166–67, 64
S.Ct. 438, 88 L.Ed. 645 (1944). But restrictions inexplicably
applied to one group and exempted from another do little
to further these goals and do much to burden religious
freedom. Assuming all of the same precautions are taken,
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. While the *415 law
may take periodic naps during a pandemic, we will not let it
sleep through one.
5
Roberts v. Neace, 958 F.3d 409 (2020)
[6] [7] [8] Nor does it make a difference that faith-
based bigotry did not motivate the orders. The constitutional
benchmark is “government neutrality,” not “governmental
avoidance of bigotry.” See Colo. Christian Univ. v. Weaver,
534 F.3d 1245, 1260 (10th Cir. 2008). A law is not neutral
and generally applicable unless there is “neutrality between
religion and non-religion.” Hartmann, 68 F.3d at 978. And
a law can reveal a lack of neutrality by protecting secular
activities 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. City
of Coweta, 449 F.3d 1132, 1145 (10th Cir. 2006) (“[T]he Free
Exercise Clause is not confined to actions based on animus.”).
All of this requires the orders to satisfy the strictures of
strict scrutiny. They cannot. No one contests that the orders
burden sincere faith practices. Faith plainly motivates the
worship services. And no one disputes the Church’s sincerity.
Orders prohibiting religious gatherings, enforced by police
officers telling congregants they violated a criminal law and
by officers taking down license plate numbers, will chill
worship gatherings.
At the same time, no one contests that the Governor has a
compelling interest in preventing the spread of a novel, highly
contagious, sometimes fatal virus. The Governor has plenty
of reasons to try to limit this contagion, and we have little
doubt he is trying to do just that.
The question is whether the orders amount to “the least
restrictive means” of serving these laudable goals. That’s a
difficult hill to climb, and it was never meant to be anything
less. See Lukumi, 508 U.S. at 546, 113 S.Ct. 2217. 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,” R. 1-4 at 1, 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.
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
Sure, the Church might use Zoom services or the like, as
so many places of worship have decided to do over the last
two months. But who is to say that every member of the
congregation has access to the necessary technology to make
that work? Or to say that every member of the congregation
must see it as an adequate substitute for what it means when
“two or three gather in my Name,” Matthew 18:20, or what
it means when “not forsaking the assembling of ourselves
together,” 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 Governor
DeWine’s approach—to allow places of worship in Ohio to
hold services but then to admonish all of them (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 during coronavirus, Columbus
Dispatch, (Apr. 1, *416 2020). But the Free Exercise Clause
does not protect sympathetic religious practices alone. And
that’s exactly what the federal courts are not to judge—how
individuals 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 groups
of 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 group
of people go to one place has nothing to do with it. Risks
of contagion turn on social interaction in close quarters; the
virus does not care why they are there. So long as that is the
case, why do the orders permit people who practice social
distancing and good hygiene in one place but not another for
similar lengths of time? It’s not as if law firm office meetings
and gatherings at airport terminals always take less time than
worship services. If the problem is numbers, and risks that
grow with greater numbers, there is a straightforward remedy:
limit the number of people who can attend a service at one
time. All in all, the Governor did not customize his orders to
the least restrictive way of dealing with the problem at hand.
[9] [10] [11] Other factors. Preliminary injunctions in
constitutional cases often turn on likelihood of success on
the merits, usually making it unnecessary to dwell on the
remaining three factors. City of Pontiac Retired Emps. Ass’n
v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc)
(per curiam). Just so here. The prohibition on attending any
worship service through May 20 assuredly inflicts irreparable
6
Roberts v. Neace, 958 F.3d 409 (2020)

laundry, firearms, and liquor. It’s not easy to decide what is

harm by prohibiting them from worshiping how they wish.
Caesar’s and what is God’s in the context of a pandemic that
See Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001).
has different phases and afflicts different parts of the country
As for harm to others, an injunction appropriately permits
in different ways. But at this point and in this place, the
religious services with the same risk-minimizing precautions
unexplained breadth of the ban on religious services, together
as similar secular activities, and permits the Governor to
with its haven for numerous secular exceptions, cannot co-
enforce social-distancing rules in both settings. As for the
exist with a society that places religious freedom in a place of
public interest, treatment of similarly situated entities in
honor in the Bill of Rights: the First Amendment.
comparable ways serves public health interests at the same
time it preserves bedrock free-exercise guarantees. See Bays
The plaintiffs’ motion for an injunction pending appeal is
v. City of Fairborn, 668 F.3d 814, 825 (6th Cir. 2012).
GRANTED. The Governor and the other defendants are
enjoined, during the pendency of this appeal, from enforcing
In the week since our last ruling, the Governor has not
orders prohibiting in-person services at the Maryville Baptist
answered our concerns that the secular activities permitted
Church if the Church, its ministers, and its congregants
by the order pose the same public-health risks as the
adhere to the public health requirements mandated for “life-
kinds of in-person worship barred by the order. As before,
sustaining” entities.
the Commonwealth remains free to enforce its orders
against all who refuse to comply with social-distancing
and other generally applicable public health imperatives. All Citations
All this preliminary injunction does is allow people—often
the same people—to seek spiritual relief subject to the 958 F.3d 409
same precautions as when they seek employment, groceries,

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.

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 7

TAB 2
Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (2020)

KeyCite Yellow Flag - Negative Treatment

[2] Federal Courts Supersedeas or Stay of
Declined to Follow by Elim Romanian Pentecostal Church v. Pritzker, 7th
Cir.(Ill.), June 16, 2020
Proceedings
957 F.3d 610 Court of Appeals reviews four factors when
United States Court of Appeals, Sixth Circuit. evaluating whether to grant stay pending appeal:
(1) whether stay applicant has made strong
MARYVILLE BAPTIST CHURCH, INC.; showing that he is likely to succeed on merits;
(2) whether applicant will be irreparably injured
Dr. Jack Roberts, Plaintiffs-Appellants,
absent stay; (3) whether issuance of stay will
v. substantially injure other parties interested in
Andy BESHEAR, in his official capacity proceeding; and (4) where public interest lies.
as Governor of the Commonwealth 2 Cases that cite this headnote
of Kentucky, Defendant-Appellee.
[3] Federal Courts Injunction and temporary
No. 20-5427
restraining order cases
|
Church was likely to succeed on merits of its
Decided and Filed: May 2, 2020*
claim that executive orders issued by governor
Synopsis in response to COVID-19 crisis that prohibited
Background: Church brought action alleging that executive mass gatherings violated First Amendment and
orders issued by governor in response to COVID-19 crisis Kentucky Religious Freedom Restoration Act
that prohibited mass gatherings of individuals violated First as applied to drive-in church services with
Amendment and Kentucky Religious Freedom Restoration social distancing, and thus was entitled to stay
Act. The United States District Court for the Western District pending appeal of district court order denying
of Kentucky, David J. Hale, J., 2020 WL 1909616, denied its motion for temporary restraining order,
church's motion for temporary restraining order (TRO), notwithstanding governor's compelling interest
and church filed interlocutory appeal. Church moved for in preventing spread of novel, highly contagious,
injunction pending appeal. sometimes fatal virus; orders substantially
burdened congregants' sincerely held religious
practices, and permitted serial exemptions for
secular activities that posed comparable public
[Holding:] The Court of Appeals held that church was likely health risks to worship services. U.S. Const.
to succeed on merits of its claim. Amends. 1, 14; Ky. Rev. Stat. Ann. § 446.350.

8 Cases that cite this headnote

Motion granted in part.

[4] Constitutional Law Neutrality;  general

applicability
West Headnotes (4)
Constitutional Law Strict scrutiny;
 compelling interest
[1] Federal Courts Injunction Generally applicable law that incidentally
When order has practical effect of injunction, burdens religious practices usually will be
and appeal furthers statutory purpose of upheld under Free Exercise Clause, but law that
permitting litigants to effectually challenge discriminates against religious practices usually
interlocutory orders of serious, perhaps will be invalidated unless law is justified by
irreparable, consequence, Court of Appeals will compelling interest and is narrowly tailored to
review it. advance that interest. U.S. Const. Amend. 1.

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 1

Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (2020)
7 Cases that cite this headnote
*611 Appeal from the United States District Court for
the 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 OF
THE 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 SEPARATION
OF CHURCH AND STATE, Washington, D.C., for Amicus
Curiae 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 emergency
motion for a temporary restraining order. The Church claims
that the district court's order effectively denied their motion
for a preliminary injunction to stop Governor Andy Beshear
and other Commonwealth officials from enforcing and
applying two COVID-19 orders. The orders, according to
the Church, prohibit its members from gathering for drive-
in and in-person worship services regardless of whether they
meet or exceed the social distancing and hygiene guidelines
in place for permitted commercial and other non-religious
activities. The Church moves for an injunction pending
appeal, which the Attorney General supports as amicus
curiae. The Governor opposes the motion.
Governor Beshear issued two pertinent COVID-19 orders.
The first order, issued on March 19, prohibits “[a]ll mass
gatherings,” “including, but not limited to, community, civic,
public, leisure, faith-based, or sporting events.” R. 1-5 at
1. It excepts “normal operations at airports, bus and train
stations, ... shopping malls and centers,” and “typical office
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
environments, factories, or retail or grocery stores where large
numbers of people are present, but maintain appropriate social
distancing.” Id.
The second order, issued on March 25, requires organizations
that are not “life-sustaining” to close. R. 1-7 at 2. According
to the order, religious organizations are not “life-sustaining”
organizations, except when they function as charities by
providing “food, shelter, and social services.” Id. at 3.
Laundromats, accounting services, law firms, hardware
stores, and many other entities count as life-sustaining.
On April 12, Maryville Baptist Church held a drive-in
Easter service. Congregants parked their cars in the church's
parking lot and listened to a sermon over a loudspeaker.
Kentucky State Police arrived in the parking lot and issued
notices to the congregants that their attendance at the drive-
in service amounted to a criminal act. The officers recorded
congregants' license plate numbers and sent letters to vehicle
owners requiring them to self-quarantine *612 for 14 days
or be subject to further sanction.
The Church says these orders and enforcement actions violate
its congregants' rights under Kentucky's Religious Freedom
Restoration Act and the free-exercise guarantee of the First
and Fourteenth Amendments to the U.S. Constitution.
[1] We have jurisdiction over the appeal. “Interlocutory
orders 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 a
general rule, we do not entertain appeals from a district court's
decision to grant or deny a temporary restraining order. That's
because temporary restraining orders are usually “of short
duration and usually terminate with a prompt ruling on a
preliminary injunction, from which the losing party has an
immediate right of appeal.” Ne. Ohio Coal. for the Homeless
& Serv. Emps. Int'l Union, Local 1199 v. Blackwell, 467 F.3d
999, 1005 (6th Cir. 2006). But usually is not always, and the
label 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 of
serious, perhaps irreparable, consequence,” Carson v. Am.
Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 67 L.Ed.2d
59 (1981), we will review it. We also tend to wait until
the claimant seeks a stay from the district court, and the
court rules on it. Claimants sought a stay on April 30. The
district court has not yet ruled. But one explanation for
2
Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (2020)
the stay motion is tomorrow's Sunday service. Under these
circumstances, no one can fairly doubt that time is of the
essence. The case will become moot just over three Sundays
from now, May 20, when the Governor has agreed to permit
places of worship to reopen. And the district court's order
has the practical effect of denying the Church's motion for
a preliminary injunction, especially if no service, whether
drive-in or in-person, is allowed in the interim.
[2] We review four factors when evaluating whether to
grant a stay pending appeal: “(1) whether the stay applicant
has made a strong showing that he is likely to succeed
on the merits; (2) whether the applicant will be irreparably
injured absent a stay; (3) whether issuance of the stay
will substantially injure the other parties interested in the
proceeding; 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 succeed
on its state and federal claims, especially with respect to the
ban's application to drive-in services. Start with the claim
under Commonwealth law—Kentucky's Religious Freedom
Restoration Act. “Government shall not substantially burden”
a person's “right to act ... in a manner motivated by a
sincerely held religious belief,” it guarantees, “unless the
government proves by clear and convincing evidence” that it
“has used the least restrictive means” to further “a compelling
governmental interest in infringing the specific act.” Ky. Rev.
Stat. § 446.350. The point of the law is to exercise an authority
every State has: to provide more protection for religious
liberties at the state level than the U.S. Constitution provides
at the national level. In this instance, the purpose of the
Kentucky RFRA is to provide more protection than the free-
exercise guarantee of the First Amendment, as interpreted
by Employment Division v. Smith, 494 U.S. 872, 110 S.Ct.
1595, 108 L.Ed.2d 876 (1990). The Kentucky requirements
parallel in large measure the RFRAs enacted by other States
and one enacted by Congress, *613 all of which share the
goal of imposing strict scrutiny on laws that burden sincerely
motivated 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 most
respects. The Governor's actions substantially burden the
congregants' sincerely held religious practices—and plainly
so. Religion motivates the worship services. And no one
disputes the Church's sincerity. Orders prohibiting religious
gatherings, enforced by police officers telling congregants
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
they violated a criminal law and by officers taking down
license plate numbers, amount to a significant burden on
worship gatherings. See Gonzales v. O Centro Espirita
Beneficente 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.3d
287, 301 (Tex. 2009). At the same time, the Governor has
a compelling interest in preventing the spread of a novel,
highly contagious, sometimes fatal virus. All accept these
conclusions.
The likelihood-of-success inquiry instead turns on whether
Governor 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 never
meant to be anything less. See Barr, 295 S.W.3d at 289;
Holt v. Hobbs, 574 U.S. 352, 364, 135 S.Ct. 853, 190
L.Ed.2d 747 (2015). The way the orders treat comparable
religious and non-religious activities suggests that they do
not amount to the least restrictive way of regulating the
churches. The orders permit uninterrupted functioning of
“typical office environments,” R. 1-5 at 1, 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. All in all,
the Governor did not narrowly tailor the order's impact on
religious exercise.
In responding to the state and federal claims, the Governor
denies that the ban applies to drive-in worship services, and
the district court seemed to think so as well. But that is not
what the Governor's orders say. By their terms, they apply
to “[a]ll mass gatherings,” “including, but not limited to, ...
faith-based ... events.” R. 1-5 at 1. In deciding to open up
faith-based events on May 20, and to permit other events
before then such as car washes and dog grooming, see Healthy
at Work: Phase 1 Reopening, https://govstatus.egov.com/ky-
healthy-at-work (last visited May 2, 2020), the Governor did
not say that drive-in services are exempt. And that is not
what the Governor has done anyway. Consistent with the
3
Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (2020)
Governor's threats on Good Friday, state troopers came to the
Church's Easter service, told congregants that they were in
violation of a criminal law, and took down the license plate
numbers of everyone there, whether they had participated in
a drive-in or in-person service.
It bears noting that neither the Governor nor the Attorney
General has raised sovereign immunity as a defense to
this 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 recognition
that, with or without a pandemic, no one wants to ignore state
law in creating or enforcing these orders.
[4] The Governor's orders also likely “prohibit[ ] the free
exercise” of “religion” in violation of the First and Fourteenth
Amendments, especially with respect to drive-in services.
U.S. Const amends. I, XIV; Cantwell v. Connecticut, 310
U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). On
the one hand, a generally applicable law that incidentally
burdens 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 against
religious practices usually will be invalidated unless the law
“is justified by a compelling interest and is narrowly tailored
to 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 bans
on religious activity alone obviously count. So do general
bans that cover religious activity when there are exceptions
for comparable secular activities. See Ward v. Polite, 667
F.3d 727, 738 (6th Cir. 2012); see also Fraternal Order
of Police Newark Lodge No. 12 v. City of Newark, 170
F.3d 359, 365–67 (3d Cir. 1999). As a rule of thumb, the
more exceptions to a prohibition, the less likely it will
count as a generally applicable, non-discriminatory law.
Ward, 667 F.3d at 738. “At some point, an exception-ridden
policy takes on the appearance and reality of a system of
individualized exemptions, the antithesis of a neutral and
generally applicable policy and just the kind of state action
that must run the gauntlet of strict scrutiny.” Id. at 740. As
just shown, the Governor's orders do not seem to survive
strict scrutiny, particularly with respect to the ban on outdoor
services. The question, then, is one of general applicability.
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
The Governor's orders have several potential hallmarks of
discrimination. One is that they prohibit “faith-based” mass
gatherings by name. R. 1-5 at 1. But this does not suffice
by itself to show that the Governor singled out faith groups
for disparate treatment. The order lists many other group
activities, and we accept the Governor's submission that he
needed to mention faith groups by name because there are
many of them, they meet regularly, and their ubiquity poses
material risks of contagion.
The real question goes to exceptions. The Governor insists
at the outset that there are “no exceptions at all.” Appellee
Br. at 21. But that is word play. The orders allow “life-
sustaining” operations and don't include worship services in
that definition. And many of the serial exemptions for secular
activities pose comparable public health risks to worship
services. For example: The exception for “life-sustaining”
businesses allows law firms, laundromats, liquor stores, and
gun 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 of
faith organizations, even if the groups adhere to all the public
health guidelines required of essential services and even when
they meet outdoors.
We don't doubt the Governor's sincerity in trying to do his
level best to lessen the spread of the virus or his authority to
protect 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 or
not, has a right “to expose the community ... to communicable
disease.” Prince v. Massachusetts, 321 U.S. 158, 166–67, 64
S.Ct. 438, 88 L.Ed. 645 (1944). But restrictions inexplicably
applied to one group and exempted from another do little to
further these goals and do much to burden religious freedom.
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. While the law may take periodic naps during
a pandemic, we will not let it sleep through one.
Sure, the Church might use Zoom services or the like, as
so many places of worship have decided to do over the last
two months. But who is to say that every member of the
congregation has access to the necessary technology to make
4
Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (2020)

that work? Or to say that every member of the congregation
must see it as an adequate substitute for what it means when
“two or three gather in my Name.” Matthew 18:20; 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 Governor DeWine's approach—to allow places
of worship in Ohio to hold services but then to admonish
them 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 during
coronavirus, Columbus Dispatch, April 1, 2020. But this is
not about sympathy. And it's exactly what the federal courts
are not to judge—how individuals comply with their own
faith as they see it. Smith, 494 U.S. at 886–87, 110 S.Ct. 1595.
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 worship
services. As for harm to the claimants, the prohibition on
attending any worship service this Sunday and the Sundays
through May 20 assuredly inflicts irreparable harm. Bonnell
v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001). As for
harm to others, an injunction appropriately permits religious
services with the same risk-minimizing precautions as similar
secular activities, and permits the Governor to enforce
social-distancing rules in both settings. As for the public
interest, treatment of similarly situated entities in comparable
ways serves public health interests at the same time it
preserves bedrock free-exercise guarantees. See Bays v. City
of Fairborn, 668 F.3d 814, 825 (6th Cir. 2012).

The balance is more difficult when it comes to in-

Keep in mind that the Church and Dr. Roberts do not seek
person services. Allowance for drive-in services this Sunday
to insulate themselves from the Commonwealth's general
mitigates some harm to the congregants and the Church. In
public health guidelines. They simply wish to incorporate
view of the fast-moving pace of this litigation and in view of
them into their worship services. They are willing to practice
the lack of additional input from the district court, whether of
social distancing. They are willing to follow any hygiene
a fact-finding dimension or not, we are inclined not to extend
requirements. They are not asking to share a chalice. The
the injunction to in-person services at this point. We realize
Governor has offered no good reason so far for refusing to
that this falls short of everything the Church has asked for and
trust the congregants who promise to use care in worship
much of what it wants. But that is all we are comfortable doing
in just the same way it trusts accountants, lawyers, and
after the 24 hours the plaintiffs have given us with this case. In
laundromat workers to do the same. Are they not often the
the near term, we urge the district court to prioritize resolution
same people, going to work on one day and attending worship
of the claims in view of the looming May 20 date and for the
on another? If any group fails, as assuredly some groups have
Governor and plaintiffs to consider acceptable alternatives.
failed in the past, the Governor is free to enforce the social-
The breadth of the ban on religious services, together with
distancing rules against them for that reason.
a haven for numerous secular exceptions, should give pause
to anyone who prizes religious freedom. But it's not always
The Governor claims, and the district court seemed to think
easy to decide what is Caesar's and what is God's—and that's
so too, that the explanation for these groups of people to be
assuredly true in the context of a pandemic.
in the same area—intentional worship—distinguishes them
from groups of people in a parking lot or a retail store or
Accordingly, the plaintiffs' motion for an injunction pending
an airport or some other place where the orders allow many
appeal, and their motion to expedite briefing, oral argument
people to be. We doubt that the reason a group of people go
and submission on the briefs, is GRANTED IN PART. The
to one place has anything to do with it. Risks of contagion
Governor and all other Commonwealth officials are hereby
turn on social interaction in close quarters; the virus does not
enjoined, during the pendency of this appeal, from enforcing
care why they are there. So long as that is the case, why do
orders prohibiting drive-in services at the Maryville Baptist
the orders permit people who practice social distancing and
Church if the Church, its ministers, and its congregants
good hygiene in one place but not another? If the problem is
adhere to the public health requirements mandated for “life-
numbers, and risks that grow with greater numbers, then there
sustaining” entities.
is a straightforward remedy: limit the number of people who
can attend a service at one time.
All Citations
Other factors. Preliminary injunctions in constitutional cases
often turn on likelihood of success on the merits, usually 957 F.3d 610
making it unnecessary to dwell on the *616 remaining three

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 5

Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (2020)

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.

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 6

TAB 3
Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, --- F.Supp.3d ---- (2020)

To establish standing to bring a pre-

enforcement challenge based on alleged threat to
2020 WL 2305307
constitutional rights, a plaintiff must sufficiently
Only the Westlaw citation is currently available.
allege: (1) an intention to engage in a course of
United States District Court, E.D. Kentucky,
conduct arguably affected with a constitutional
Central Division.
interest; (2) that is proscribed by a law; and
Frankfort.
(3) there exists a credible threat of prosecution
thereunder.
TABERNACLE BAPTIST CHURCH, INC.
OF NICHOLASVILLE, Kentucky, Plaintiff,
v. [2] Constitutional Law First Amendment in
Andrew BESHEAR, in his General

official capacity as Governor of Constitutional Law Criminal Law

Kentucky, et al., Defendants.
Civil No. 3:20-cv-00033-GFVT
|
Signed May 8, 2020
Synopsis
Background: Church brought action against Governor of
Kentucky, alleging that executive order mandating that all
businesses that were not “life-sustaining” close in light of
COVID-19 pandemic violated church's First Amendment
rights to free exercise of religion and freedom of assembly.
Church sought temporary restraining order (TRO) enjoining
Governor from enforcing executive order with respect to in-
person religious services.
Holdings: The District Court, Gregory F. Van Tatenhove, J.,
held that:
Church met requirements to pursue pre-
enforcement challenge of executive order
promulgated by Governor of Kentucky, alleging
that order, which mandated that all businesses
that were not “life-sustaining” close in light
of COVID-19 pandemic, violated church's First
Amendment rights; church alleged intention to
engage in course of conduct arguably affected
with constitutional interest, namely freedom of
religion and freedom of assembly, that conduct
was proscribed by executive order, violation
of executive order was a misdemeanor under
Kentucky law, and there was an established
record of enforcement against religious entities
that had violated executive order in same way
church proposed, constituting a credible threat
of prosecution under order. U.S. Const. Amend.
1; Ky. Rev. Stat. Ann. §§ 39A.990, 532.020(2),
534.040.

[1] church met requirements to pursue pre-enforcement

challenge; [3] Injunction Grounds in general;  multiple
factors
[2] church showed entitlement to TRO; and In determining whether to issue a temporary
restraining order (TRO), the court examines:
[3] the Court would issue statewide TRO. 1) whether the movant has shown a strong
likelihood of success on the merits; 2) whether
the movant will suffer irreparable harm if the
Ordered accordingly. injunction is not issued; 3) whether the issuance
of the injunction would cause substantial harm to
others; and 4) whether the public interest would
be served by issuing the injunction. Fed. R. Civ.
West Headnotes (21)
P. 65(b)(1).

[1] Constitutional Law Criminal Law

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 1

Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, --- F.Supp.3d ---- (2020)
[4] Injunction Preservation of status quo
Injunction Extraordinary or unusual nature
of remedy
A temporary restraining order (TRO) is an
extraordinary remedy designed for the limited
purpose of preserving the status quo pending
further proceedings on the merits.
[5] Injunction Temporary restraining orders
Jurisprudence runs counter to the notion of court
action taken before reasonable notice and an
opportunity to be heard has been granted both
sides of a dispute, as is requested via a motion for
temporary restraining order (TRO).
[6] Civil Rights Preliminary Injunction
Church showed entitlement to temporary
restraining order (TRO) enjoining Governor
of Kentucky from enforcing against church
executive order mandating that all businesses
that were not “life-sustaining” close in light of
COVID-19 pandemic, based on church's pre-
enforcement assertion that order violated its First
Amendment right to free exercise of religion;
order placed burden on free exercise of religion
in Kentucky in a manner beyond what was
reasonably required for the safety of the public,
given that many of the order’s exemptions for
secular activities posed comparable public health
risks to worship services, meaning that order’s
prohibition of mass gatherings was not narrowly
tailored, and absent a TRO, church’s congregants
would 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 or
impaired, irreparable injury is presumed, for
purposes of a motion for temporary restraining
order.
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
[8] Civil Rights Preliminary Injunction
The loss of First Amendment freedoms, for
even minimal periods of time, unquestionably
constitutes irreparable injury, as required for
purposes of a temporary restraining order (TRO).
U.S. Const. Amend. 1.
[9] Civil Rights Preliminary Injunction
When a party seeks a preliminary injunction on
the basis of a violation of the First Amendment,
the likelihood of success on the merits often will
be the determinative factor. U.S. Const. Amend.
1.
[10] Municipal Corporations Nature and
scope of power of municipality
The possession and enjoyment of all rights are
subject to such reasonable conditions as may be
deemed by the governing authority of the country
essential to the safety, health, peace, good order
and morals of the community.
[11] Health Contagious and Infectious Diseases
When faced with a society-threatening epidemic,
a state may implement emergency measures
that curtail constitutional rights so long as the
measures have at least some real or substantial
relation to the public health crisis and are not
beyond all question, a plain, palpable invasion of
rights secured by the fundamental law.
[12] Health Contagious and Infectious Diseases
In determining whether a state's curtailment of
constitutional rights has some real or substantial
relation to public health concerns arising from
a society-threatening epidemic, courts may ask
whether the state's emergency measures lack
basic exceptions for extreme cases, and whether
the measures are pretextual, that is, arbitrary or
oppressive.
2
Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, --- F.Supp.3d ---- (2020)

The public interest favors the enjoinment of a

[13] Health Contagious and Infectious Diseases constitutional violation.
Courts may not second-guess the wisdom
or efficacy of state measures that curtail
constitutional rights, in evaluating whether those [20] Civil Rights Preliminary Injunction
measures are permissible as having real or
The District Court would issue statewide
substantial relation to a society-threatening
temporary restraining order (TRO) enjoining
epidemic or public health crisis.
Governor of Kentucky from enforcing executive
order banning mass gatherings, for purposes of
church's action against Governor asserting that
[14] Health Contagious and Infectious Diseases order violated church's First Amendment right
States have considerable leeway in enacting to freedom of religion; executive order at issue
measures during public health emergencies. did not just affect plaintiff church, but rather to
all churches across the state of Kentucky. U.S.
Const. Amend. 1.
[15] Health Contagious and Infectious Diseases
1 Cases that cite this headnote
An acknowledged power of a local community
to protect itself against an epidemic might go so
far beyond what was reasonably required for the [21] Injunction Scope of Relief in General
safety of the public, as to authorize or compel the Injunction Geographical scope of relief
courts to interfere to protect constitutional rights. One of the principles of equity jurisprudence is
that the scope of injunctive relief is dictated by
the extent of the violation established, not by the
[16] Constitutional Law Neutrality geographical extent of the plaintiff class.
A law that incidentally burdens religion, but that
is neutral and of general applicability need not
be justified by a compelling government interest.
U.S. Const. Amend. 1.
Attorneys and Law Firms

Andrew Miller, Kevin Gallagher, Matthew T. Martens,

[17] Constitutional Law Neutrality Wilmer Cutler Pickering Hale & Dorr, LLP, Washington, DC,
If a law curtailing religious rights is not neutral or Hiram S. Sasser, III, Roger Byron, First Liberty Institute,
generally applicable, then it must be justified by Plano, TX, Joseph A. Bilby, Bilby Law PLLC, Frankfort, KY,
a compelling governmental interest and must be for Plaintiff.
narrowly tailored to advance that interest. U.S.
Const. Amend. 1. La Tasha Buckner, Laura Crittenden Tipton, Marc Griffin
Farris, Steven Travis Mayo, Taylor Payne, Office of the
Governor, Frankfort, KY, For Defendant Andrew Beshear.
[18] Civil Rights Preliminary Injunction
D. Brent Irvin, J. Wesley Warden Duke, David Thomas
The likelihood of success on the merits Lovely, Cabinet for Health & Family Services - Frankfort
is largely determinative in constitutional Office of Legal Services, Frankfort, KY, for Defendant Eric
challenges seeking a temporary restraining order Friedlander.
(TRO).

OPINION & ORDER

[19] Civil Rights Injunction
Gregory F. Van Tatenhove, United States District Judge

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 3

Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, --- F.Supp.3d ---- (2020)
*1 We are a relatively young nation. But our Constitution is
1
the oldest in the world. We describe it as enduring— a value
that must be protected not only when it is easy but when it
is hard.
And this is a hard and difficult time. A new virus sweeps the
world, ravages our economy and threatens our health. Public
officials, including the defendants in this case, make minute
by minute decisions with the best of intentions and the goal
of 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 desperate
for a cure or prescription?
Simply put, that is the question presented here. Tabernacle
Baptist Church wants to gather for corporate worship. They
want to freely exercise their deeply held religious belief
about what it means to be a faithful Christian. For them, it
is “essential” that they do so. And they want to invoke the
Constitution's protection on this point.
But the governor, by executive order, has put a stop to that. He
can do that, but he must have a compelling reason for using his
authority to limit a citizen's right to freely exercise something
we value greatly— the right of every American to follow their
conscience on matters related to religion. As explained below,
despite an honest motive, it does not appear at this preliminary
stage that reason exists. Consequently, as explained below, the
motions for a temporary restraining order are GRANTED.
I
To curb the spread of the coronavirus in the Commonwealth
of Kentucky, Governor Andrew Beshear has issued a series
of executive orders limiting social interaction between
Kentuckians. Non-essential businesses are temporarily
closed, restaurants are relegated to take-out only, and citizens
have been asked to practice social distancing. The plaintiffs
take exception to two of these protective measures. On
March 19, 2020, as part of broader efforts to “flatten the
curve,”2 acting Secretary of the Cabinet for Health and
Family Services Eric Friedlander issued an order prohibiting
“mass gatherings.” [R. 3-7.]. Per Secretary Friedlander's
Order, mass gatherings include “any event or 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;
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
fundraisers; and similar activities.” Id. (emphasis added).
Some activities which necessarily involve large groups of
individuals were excluded. “[A]irports, bus and train stations,
medical facilities, libraries, shopping malls and centers, 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 or grocery
stores[.]” Id.
*2 Later, on March 25, 2020, Governor Beshear issued an
executive order mandating all businesses which are not “life-
sustaining” close. [R. 3-5.]. Religious organizations were
excluded from the category of “life-sustaining,” except to
the extent they provide “food, shelter and social services.”
Id. Entities allowed to remain open included hardware
stores, laundromats and dry cleaners, law offices, and liquor
stores, provided they adhere to social distancing and hygiene
guidelines. See id.
[1] [2] Plaintiff Tabernacle Baptist Church describes itself
as “an independent, fundamental, Baptist church, independent
of the world but dependent on the Word of God.” Id. at
¶ 13. Since issuance of the above orders, Tabernacle has
ceased holding in-person religious services. [R. 3-1 at 5.]
Instead, Tabernacle has resorted to broadcasting services
online via Facebook or holding drive-in services wherein
congregants may listen to the service over their FM radio. Id.
For Plaintiff, these substitutes offer cold comfort. “Tabernacle
has a sincerely-held religious belief that online services and
drive-in services do not meet the Lord's requirement that the
church meet together in person for corporate worship.” Id. For
this reason, Tabernacle argues the foregoing Orders violate
its First Amendment rights to free exercise of religion and
freedom of assembly.3 [R. 1.] Tabernacle argues it is likely to
succeed on the merits of its claims because the orders are not
narrowly tailored to serve the public health interest.
Defendants dispute this characterization. Although not
required in the context of ruling on a TRO, the Court
held a telephone hearing this afternoon, shortly after the
Defendants filed an appeal in a similar case. Counsel for
Tabernacle, the Attorney General, Secretary Friedlander, and
Governor Beshear participated in the call. Defendants argued
the prohibition on mass gatherings is constitutional, because
it is applicable to all mass gatherings generally. Further, the
Defendants pointed out factual distinctions between the social
interaction that takes place in a transactional setting, such as a
grocery store, and the communal nature of religious services.
The arguments made were substantive, not jurisdictional.
4
Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, --- F.Supp.3d ---- (2020)
*3 Notably, Tabernacle's is not the first challenge that
has sought to enjoin the actions of Kentucky officials
that curtailed residents' ability to participate in corporate
worship. To date, three other district courts in Kentucky have
considered whether to grant a temporary restraining order to
enjoin government proscriptions on religious gatherings. In
one case, the plaintiff church requested a TRO against the
City of Louisville's prohibition on drive-in church services
on Easter. On Fire Christian Ctr., Inc. v. Fischer, No. 3:20-
CV-264-JRW, ––– F.Supp.3d ––––, 2020 WL 1820249, 2020
U.S. Dist. LEXIS 65924 (W.D. Ky. Apr. 11, 2020). The
other two cases centered on the constitutionality of Governor
Beshear'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 are
pending before the Sixth Circuit in each of these latter cases.
In Roberts, plaintiffs have moved for an injunction pending
appeal that would permit them to attend in-person church
services this Sunday. [Roberts, et al. v. Neace, et a., 2:20-54-
WOB-CJS, R. 56.] The Plaintiffs in Maryville Baptist are
awaiting a district court ruling on their motion to enjoin the
Governor'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 of
the district courts in those cases. See Camreta v. Greene, 563
U.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 judges
are not bound by previous decisions of other judges within
the same district.”). Ultimately, the constitutionality of these
governmental actions will be resolved at the appellate level,
at which point the Sixth Circuit will have the benefit of the
careful analysis of the various district courts, even if we
disagree.
II
[3] Rule 65 allows the Court to issue a TRO without notice
to the other party only if “(A) specific facts in an affidavit
or a verified complaint clearly show that immediate and
irreparable injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition; and (B)
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
the movant's attorney certifies in writing any efforts made to
give notice and the reasons why it should not be required.”
Fed. R. Civ. P. 65(b)(1). As noted, the Governor and Secretary
Friedlander filed an appearance, and participated in a hearing
held earlier today. Additionally, although the Governor has
not yet prepared a response to the instant motion, the Court
considered briefing filed by the defendants in other, similar
challenges to the prohibition on mass gatherings as it pertains
to religious services, and provided at the Court's request. In
determining whether to issue a TRO, the Court examines: 1)
whether the movant has shown a strong likelihood of success
on the merits; 2) whether the movant will suffer irreparable
harm if the injunction is not issued; 3) whether the issuance
of the injunction would cause substantial harm to others; and
4) whether the public interest would be served by issuing the
injunction. Overstreet v. Lexington–Fayette Urban County
Government, 305 F.3d 566, 573 (6th Cir. 2002) (citations
omitted).
[4] [5] “[A] temporary restraining order is an extraordinary
remedy designed for the limited purpose of preserving the
status 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 the
notion of court action taken before reasonable notice and
an opportunity to be heard has been granted both sides of
a 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.2d
435 (1974)). Thus, Tabernacle must show that the foregoing
preliminary 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 of
religion, or exercising the free exercise thereof,” with few
exceptions. U.S. Const. amend. 1. “When constitutional rights
are 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 Supreme
Court has held “[t]he loss of First Amendment freedoms,
for even minimal periods of time, unquestionably constitutes
irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373, 96
S.Ct. 2673, 49 L.Ed.2d 547 (1976). This is precisely what
Tabernacle alleges: violation of its First Amendment rights,
specifically its right to exercise its religion and the right
5
Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, --- F.Supp.3d ---- (2020)

to freely assemble. [R. 1; R. 3-1.] Sixth Circuit precedent the measures have at least some “real or substantial
establishes that, “when a party seeks a preliminary injunction relation” to the public health crisis and are not “beyond all
on the basis of a ... violation of the First Amendment, question, a plain, palpable invasion of rights secured by
the likelihood of success on the merits often will be the the fundamental law.” Courts may ask whether the state's
determinative factor.” Jones v. Caruso, 569 F.3d 258, 265 (6th emergency measures lack basic exceptions for “extreme
Cir. 2009). cases,” and whether the measures are pretextual—that
is, arbitrary or oppressive.” At the same time, however,
[10] Of course, “[t]he possession and enjoyment of all courts may not second-guess the wisdom or efficacy of the
rights are subject to such reasonable conditions as may be measures.
deemed by the governing authority of the country essential In re Abbott, 954 F.3d 772, 784–85 (5th Cir. 2020)
to the safety, health, peace, good order and morals of the (internal citations omitted); see also Adams & Boyle, P.C.
community.” Crowley v. Christensen, 137 U.S. 86, 89, 11 v. Slatery, 956 F.3d 913 (6th Cir. 2020) (applying the
S.Ct. 13, 34 L.Ed. 620 (1890). The question becomes, then, foregoing factors to the Governor of Tennessee's directive to
whether the mass gathering prohibition issued by Governor “postpone surgical and invasive procedures that are elective
Beshear amounts to “reasonable conditions” on Kentuckians' and non-urgent” including abortions). The Jacobson test
constitutional right to free exercise of their sincerely-held gives states considerable leeway in enacting measures during
religious beliefs. Context is important. The orders at issue do public health emergencies. However, “even under Jacobson,
not simply restrict religious expression; they restrict religious constitutional rights still exist.” On Fire Christian Ctr., –––
expression in an attempt to protect the public health during F.Supp.3d at ––––, 2020 WL 1820249 at *8. And while
a global pandemic. As a result, the Court is tasked with courts should refrain from second-guessing the efficacy of a
identifying precedent in unprecedented times. state's chosen protective measures, “an acknowledged power
of a local community to protect itself against an epidemic ...
Defendant Governor Beshear and other courts have looked might go so far beyond what was reasonably required for the
to Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, safety of the public, as to authorize or compel the courts to
49 L.Ed. 643 (1905). See In re Abbott, 954 F.3d 772 (5th interfere[.]” Jacobson, 197 U.S. at 28, 25 S.Ct. 358.
Cir. 2020); Adams & Boyle, P.C. v. Slatery, 956 F.3d 913
(6th Cir. 2020); On Fire Christian Ctr. v. Fischer, ––– *5 [16] [17] Here, not only has Tabernacle alleged an
F.Supp.3d ––––, –––– – ––––, 2020 WL 1820249, *8–9, irreparable injury, but Tabernacle is likely to succeed on
2020 U.S. Dist. LEXIS 65924, *16–17 (W.D. Ky. Apr. 11, the merits of its federal constitutional claim. Defendant
2020). There, the Supreme Court considered whether, when does not dispute that the challenged orders place a burden
faced with an outbreak of smallpox, the city of Cambridge on the free exercise of religion in Kentucky. A law that
could constitutionally require its adult residents to receiveincidentally burdens religion, but “that is neutral and of
vaccinations against the disease. See Jacobson, 197 U.S. at general applicability need not be justified by a compelling
25–26, 25 S.Ct. 358. Those who refused to vaccinate were government interest[.]” Church of Lukumi Babalu Aye v. City
subjected to a fine. Id. at 26, 25 S.Ct. 358. Although the of Hialeah, 508 U.S. 520, 531, 113 S.Ct. 2217, 124 L.Ed.2d
defendant argued the law was an invasion of his liberty 472 (1993). If a law is not neutral or generally applicable, then
and violative of due process, the Supreme Court upheld the it “must be justified by a compelling governmental interest
vaccination requirement based on public health concerns. Id. and must be narrowly tailored to advance that interest.”
at 39, 25 S.Ct. 358. Id. 531–32, 113 S.Ct. 2217. Even viewed through the
state-friendly lens of Jacobson, the prohibition on religious
[11] [12] [13] [14] [15] Though over a century old, services presently operating in the Commonwealth is “beyond
Jacobson is arguably the case that most directly speaks to what was reasonably required for the safety of the public.”
“the expanded scope of a state's police power during times Jacobson, 197 U.S. at 28, 25 S.Ct. 358.
of public health crises[.]” Adams & Boyle, P.C., 956 F.3d at
––––, 2020 WL 1982210 at *6. The Fifth Circuit has distilled The Sixth Circuit recently addressed a similar challenge to
Jacobson's analysis into a clearer, multi-factor test: Kentucky's prohibition on religious services. See Maryville
Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020).
The bottom line is this: when faced with a society- Maryville Baptist Church held a drive-in service on Easter
threatening epidemic, a state may implement emergency Sunday. But, pursuant to the prohibition on mass gatherings
measures that curtail constitutional rights so long as

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 6

Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, --- F.Supp.3d ---- (2020)
and executive order closing non-essential businesses—the
same orders challenged in this case—“Kentucky State Police
arrived in the parking lot and issued notices to the congregants
that their attendance at the drive-in service amounted to a
criminal act.” Id. at ––––, 2020 WL 2111316 at *1. On appeal,
the Sixth Circuit considered whether to stay the district court's
order denying Maryville Baptist Church's motion to enjoin
enforcement of these restrictions. Id. In its analysis, the Court
observed that Maryville Baptist was likely to succeed on
the merits of its claim because “[t]he way the orders treat
comparable religious and non-religious activities suggests
that they do not amount to the least restrictive way of
regulating the churches.” Id. at ––––, 2020 WL 2111316 at *2.
Ultimately, the Sixth Circuit opted to enjoin enforcement of
the orders only as they pertained to drive-in services. Id. at
––––, 2020 WL 2111316 at *5. Maryville Baptist does not
decide this case, but it is indicative of what might come.
It follows that the prohibition on in-person services should
be enjoined as well. The restrictions which the Sixth Circuit
criticized as “inexplicably applied to one group and exempted
from another” are the same restrictions Tabernacle challenges
today. Id. at ––––, 2020 WL 2111316 at *4. And, as the
Sixth Circuit recognized, “many of the serial exemptions
for secular activities pose comparable public health risks to
worship services.” Id. at ––––, 2020 WL 2111316 at *3. The
prohibition on mass gatherings is not narrowly tailored as
required by Lukumi. There is ample scientific evidence that
COVID-19 is exceptionally contagious. But evidence that the
risk of contagion is heightened in a religious setting any more
than a secular one is lacking. If social distancing is good
enough for Home Depot and Kroger, it is good enough for in-
person religious services which, unlike the foregoing, benefit
from constitutional protection.
Finally, the Court is cognizant that absent a temporary
restraining order today, congregants Tabernacle Baptist will
be forced to forego in-person service this Sunday. Tabernacle
states it “is committed to physically gathering its congregants
in person in its sanctuary in a manner consistent with social
distancing precautions in order to ensure the safety and well-
being of its congregants.” [R. 3-1 at 4.] And, should they
be permitted to gather, Tabernacle has said it will follow the
Center for Disease Control's guidelines on mass gatherings.
Id. On this condition, the Court will GRANT Plaintiff's
Motion for Temporary Restraining Order.
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
B
[18] [19] Plaintiffs have established a likelihood of success
on the merits with respect to their free exercise claim, and
the Court grants their motion for a TRO on that basis. The
likelihood of success on the merits is largely determinative
in constitutional challenges like this one, however, the
remaining factors also mitigate in favor of Plaintiffs. As
already explained, Tabernacle's injury is irreparable. See
Elrod, 427 U.S. at 373, 96 S.Ct. 2673. To stay the prohibition
on mass gatherings with respect to religious services which
observe the social distancing guidelines promulgated by the
Center for Disease Control, as Tabernacle has promised
to do, does not harm the Defendants. Finally, the public
interest 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 Attorney
General's Motions for a TRO based on the free exercise
clause of the First Amendment, that is not the only issue
before it. Tabernacle also brings claims grounded in the First
Amendment guarantee of freedom to assemble, the Kentucky
Constitution, and Kentucky's Religious Freedom Restoration
Act. [R. 1] These issues are reserved for another day, and will
benefit from briefing from the Defendants.
C
[20] [21] As a final matter, the Court considers the scope
of the TRO. The Attorney General urges the Court to apply
its injunction statewide rather than limiting its application
to Tabernacle Baptist Church. In Califano v. Yamasaki, the
Supreme Court pointed out that one of the “principles of
equity jurisprudence” is that “the scope of injunctive relief
is dictated by the extent of the violation established, not
by the geographical extent of the plaintiff class.” Rodgers
v. Bryant, 942 F.3d 451 (8th Cir. 2019) (quoting Califano
v. 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 exercise
of discretion and judgment, often dependent as much on
the equities of a given case as the substance of the legal
issues it presents.”); De Beers Consol. Mines Ltd. v. United
States, 325 U.S. 212, 220, 65 S. Ct. 1130, 89 L. Ed. 1566
(1945) (“A preliminary injunction is always appropriate to
7
Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, --- F.Supp.3d ---- (2020)

grant intermediate relief of the same character as that which
may be granted finally.”). In the present case, the Executive
Order at issue does not just affect Tabernacle Baptist Church.
The Executive Order applies to all churches. Therefore, as
the Eighth Circuit has recently upheld, injunctive relief may
extend statewide because the violation established impacts the
entire state of Kentucky.
1. The Motions for Temporary Restraining Order [R. 3; R.
13] are GRANTED;
2. Defendants are ENJOINED from enforcing the
prohibition on mass gatherings with respect to any in-
person religious service which adheres to applicable
social distancing and hygiene guidelines;

3. Intervening Plaintiff Attorney General Daniel Cameron's

Motion for Emergency Hearing [R. 13] is DENIED AS
III MOOT;
The Constitution will endure. It would be easy to put it on the
4. A telephonic scheduling conference shall be held Monday,
shelf in times like this, to be pulled down and dusted off when
May 11, 2020 at 11:00 a.m., with Judge Van Tatenhove sitting
more convenient. But that is not our tradition. Its enduring
in Frankfort, Kentucky; and
quality requires that it be respected even when it is hard.

5. To join the teleconference, the parties are DIRECTED

In light of the foregoing, the Court will grant Plaintiff's
to call AT&T Teleconferencing at 1-877-336-1280 and enter
Motion for a TRO. But the Court's review at this stage
Access Code 2086161 (followed by #), and, when requested,
is preliminary. In depth consideration of the constitutional
enter the Security Code 09170 (followed by #).
issues at play will require additional briefing from the parties,
and particularly a response from Defendants. Expedited
consideration is appropriate. Accordingly, and the Court All Citations
being otherwise sufficiently advised, it is ORDERED as
follows: --- F.Supp.3d ----, 2020 WL 2305307

Footnotes
1 “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 on
a 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 issue
at 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 (6th
Cir. 1997) (“Standing ‘is a qualifying hurdle that plaintiffs must satisfy even if raised sua sponte by the court.’ ”). To bring
such a challenge, a plaintiff must sufficiently allege (1) “an intention to engage in a course of conduct arguably affected
with a constitutional interest,” (2) that is “proscribed by a [law],” and (3) “there exists a credible threat of prosecution
thereunder.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (citation
omitted). It is beyond dispute that the first two elements are easily met. As to the third element, the Court notes first
that 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). And
second, there is an established record of enforcement against churches that have violated the executive order in the
same 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 record
before the Court, it appears that Tabernacle meets each element of the pre-enforcement standing analysis and, notably,

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 8

Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, --- F.Supp.3d ---- (2020)

the Governor has advanced no argument to the contrary. Indeed, the Governor, to this point in the litigation, evinces an
intent to continue enforcing the orders at issue.

End of Document © 2020 Thomson Reuters. No claim to original U.S.

Government Works.

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 9

TAB 4
Ramsek v. Beshear, --- F.Supp.3d ---- (2020)
KeyCite Blue Flag – Appeal Notification
Appeal Filed by TONY RAMSEK, ET AL v. ANDREW BESHEAR, ET AL,
6th Cir., July 6, 2020
2020 WL 3446249
Only 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 his
Official Capacity as Governor
of Kentucky, et al., Defendants.
Civil No. 3:20-cv-00036-GFVT
|
Signed 06/24/2020
Synopsis
Background: Protestors that were blocked from protesting at
Kentucky state capitol by state police brought action against
Kentucky governor and other state officials, challenging
executive order prohibiting mass gatherings to prevent spread
of COVID-19. The District Court, Gregory F. Van Tatenhove,
2020 WL 2614638, denied protesters' emergency motion
for a preliminary injunction. The Court of Appeals vacated
that order and remanded for additional findings of fact and
conclusions of law.
Holdings: The District Court, Gregory F. Van Tatenhove, J.,
held that:
[1] executive order's prohibition on protests, even at Kentucky
state capitol, was content neutral, but
[2] order was not narrowly tailored, and thus protestors
demonstrated likelihood of success on merits of their
First Amendment claim, warranting issuance of preliminary
injunction.
Preliminary injunction granted.
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
West Headnotes (29)
[1] Injunction
On review, a denial of injunctive relief pending
appeal by the Supreme Court is similar in many
ways to a denial of a writ of certiorari.
[2] Injunction
Like a denial of writ of certiorari, a variety of
considerations underlie a denial of injunctive
relief pending appeal, including considerations
beyond simply the merits of the case.
[3] Injunction
Supreme Court's power to grant an injunction
pending appeal is used where the legal rights at
issue are indisputably clear.
[4] Injunction
Unlike a stay, an injunction pending appeal does
not simply suspend judicial alteration of the
status quo but grants judicial intervention that
has been withheld by lower courts.
[5] Injunction
To issue a preliminary injunction, a court must
consider: (1) whether the movant has shown
a strong likelihood of success on the merits;
(2) whether the movant will suffer irreparable
harm if the injunction is not issued; (3) whether
the issuance of the injunction would cause
substantial harm to others; and (4) whether the
public interest would be served by issuing the
injunction.
[6] Injunction
Even if a plaintiff is unable to show a strong
or substantial probability of ultimate success
on the merits, a preliminary injunction can be
issued when the plaintiff at least shows serious
1
Ramsek v. Beshear, --- F.Supp.3d ---- (2020)

questions going to the merits and irreparable

harm which decidedly outweighs any potential
harm to the defendant if an injunction is issued.
[7] Injunction
Kentucky executive order prohibiting mass
gatherings based on concerns about COVID-19,
which applied to prohibit protests on
Kentucky state capitol grounds, was a
content neutral restriction on speech, for
purposes of determining whether protesters had
demonstrated likelihood of success on the merits
of their First Amendment claim, as required
to entitle them to preliminary injunction; while
protestors asserted that lack of enforcement of
order, and governor's participation in a different
protest indicated discriminatory motive, order fit
mold of a regulation serving purposes unrelated
to content of expression, with an incidental effect
on speech, restricting manner in which protestors
could protest by limiting gathering size during
the declaration of state of emergency. U.S. Const.
Amend. 1.
[11] Constitutional Law
Although the First Amendment protects several
categories of rights, it is often difficult in practice
to determine where one right ends and the next
begins, which is particularly true with freedom
of speech and freedom of assembly. U.S. Const.
Amend. 1.
[12] Constitutional Law
Courts typically evaluate First Amendment free
speech, assembly, and petition claims under the
same analysis. U.S. Const. Amend. 1.
[13] Constitutional Law
Existence of a right of access to public property,
and the standard by which limitations upon
such a right must be evaluated under the First
Amendment, differ depending on the character of
the property at issue. U.S. Const. Amend. 1.

[14] Constitutional Law

Under the First Amendment, public fora are
[8] Constitutional Law
places which by long tradition have been devoted
There is a push and pull between the public's to assembly and debate. U.S. Const. Amend. 1.
privileges and the government's power to
regulate in the arena of First Amendment
freedom of speech and freedom of assembly.
[15] Constitutional Law
U.S. Const. Amend. 1.
Content-based restrictions on expressive activity
in a public forum are subject to strict scrutiny
under the First Amendment. U.S. Const. Amend.
[9] Constitutional Law
1.
First Amendment freedom of speech does not
guarantee the right to communicate one's views
at all times and places or in any manner that may
[16] Constitutional Law
be desired. U.S. Const. Amend. 1.
Under the First Amendment, a content-based
restriction on speech in a public forum must be
necessary to serve a compelling state interest,
[10] Constitutional Law
and any restriction must be narrowly tailored to
To preserve First Amendment freedom of achieve that interest. U.S. Const. Amend. 1.
speech, government entities are strictly limited
in their ability to regulate private speech in
traditional public fora. U.S. Const. Amend. 1.
[17] Constitutional Law

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 2

Ramsek v. Beshear, --- F.Supp.3d ---- (2020)
A content-based restriction on speech under
the First Amendment is one that singles out a
specific subject matter for differential treatment.
U.S. Const. Amend. 1.
[18] Constitutional Law
Content-neutral time, place, and manner
restrictions on speech are permissible under the
First Amendment to the extent they are narrowly
tailored to serve a significant government
interest, and leave open ample alternative
channels of communication. U.S. Const. Amend.
1.
[19] Constitutional Law
Content-neutral time, place, and manner
restrictions on expressive conduct such as
gathering in a public forum are permissible
under the First Amendment to the extent they
are narrowly tailored to serve a significant
government interest, and leave open ample
alternative channels of communication. U.S.
Const. Amend. 1.
[20] Constitutional Law
A regulation that serves purposes unrelated to the
content of expression is deemed content neutral
under the First Amendment, even if it has an
incidental effect on some speakers or messages
but not others. U.S. Const. Amend. 1.
[21] Constitutional Law
First Amendment prohibits Congress and other
government entities and actors from abridging
the freedom of speech; the First Amendment
does not say that Congress and other government
entities must abridge their own ability to speak
freely. U.S. Const. Amend. 1.
[22] Constitutional Law
While not “speech” in the purest sense of
the word, gathering, picketing, and parading
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
constitute methods of expression, entitled to First
Amendment protection. U.S. Const. Amend. 1.
[23] Constitutional Law
First Amendment right to freedom of speech
also covers expressive conduct, which is conduct
that is intended to be communicative and that,
in context, would reasonably be understood by
the viewer to be communicative. U.S. Const.
Amend. 1.
[24] Injunction
Kentucky executive order limiting mass
gatherings based on concerns about spread of
COVID-19, and which prohibited protests on
the grounds of the Kentucky state capitol, was
not narrowly tailored, and thus protesters who
were unable to protest at capitol demonstrated
likelihood of success on the merits of their claim
that order violated the First Amendment, as
required to support their motion for preliminary
injunction; blanket ban on large gatherings was
not only way to protect public health, since
there were other ways to mitigate virus spread,
and other measures, like social distancing and
mask wearing, had been imposed in settings like
restaurants and office buildings, even as order
continued to prohibit political protest gatherings
of more than 10 people. U.S. Const. Amend. 1.
[25] Constitutional Law
A regulation of speech is narrowly tailored
under the First Amendment if it promotes
the significant government interest without
unnecessarily abridging speech. U.S. Const.
Amend. 1.
[26] Federal Courts
In certain instances, a Sixth Circuit Court of
Appeals ruling made on preliminary injunction
review may warrant law of the case treatment,
precluding a district court from reconsidering
issues addressed in that ruling.
3
Ramsek v. Beshear, --- F.Supp.3d ---- (2020)
[27] Health
States are allowed considerable leeway in
enacting public health measures during a public
health emergency, provided the measures have
at least some real or substantial relation to
the public health crisis and are not beyond all
question, a plain, palpable invasion of rights
secured by the fundamental law.
[28] Health
Courts are to be circumspect second-guessing the
policy decisions of public officials responding to
a public health emergency.
[29] Health
While courts should refrain from second-
guessing the efficacy of a state's chosen
protective measures during a public health
emergency, an acknowledged power of a local
community to protect itself against an epidemic
might go so far beyond what was reasonably
required for the safety of the public, as to
authorize 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., Fort
Mitchell, KY, Thomas B. Bruns, Bruns, Connell, Vollmar &
Armstrong, LLC, Cincinnati, OH, for Plaintiffs.
La Tasha Buckner, Laura Crittenden Tipton, Marc Griffin
Farris, Steven Travis Mayo, Taylor Payne, Office of the
Governor, Frankfort, KY, for Defendant Andrew Beshear.
David Thomas Lovely, J. Wesley Warden Duke, Cabinet
for Health & Family Services - Frankfort Office of Legal
Services, Frankfort, KY, for Defendants Eric Friedlander, Dr.
Steven Stack.
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
OPINION & ORDER
Gregory F. Van Tatenhove, United States District Judge
*1 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.
On March 19, 2020, as part of broader efforts to “flatten
the curve,” acting Secretary of the Cabinet for Health
and Family Services Eric Friedlander, issued an order
prohibiting “mass gatherings.” [R. 1-4.] Per Secretary
Friedlander's Order, mass gatherings include “any event
or 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 groups
of individuals were excluded. “[A]irports, bus and train
stations, medical facilities, libraries, shopping malls and
centers, 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 or
grocery stores[.]” Id. As Plaintiffs emphasize, protests are not
included in this list of exemptions. [R. 6-1 at 4.]
4
Ramsek v. Beshear, --- F.Supp.3d ---- (2020)
Plaintiffs are four Kentucky residents who are deeply
concerned about Governor Beshear's actions in response
to Covid-19 and desire to express their views through
protesting. [R. 6-1 at 1–2.] On April 15, approximately 100
individuals organized a protest at the State Capitol during
the Governor's press conference. [R. 1 at ¶ 30.] Concerned
about the Commonwealth's economy, protestors expressed
their opposition to the restrictions the Governor has put
in place during the coronavirus pandemic. Id. In response,
Governor Beshear took steps to minimize the impact of the
protests during his daily press conference. Id. at ¶ 31. The
Kentucky State Police (KSP) restricted the public's access to
the area on the southeast side of the Capitol building where the
Governor's briefings take place. Id. They placed saw-horse
barriers on the patio of the Capitol and encircled the lawn
outside the Governor's office suite with yellow tape. Id. A sign
attached to the barrier states, “Pursuant to 200 K.A.R. 3:020,
the Kentucky State Police has deemed this area a restricted
zone. No one is permitted past this point. Failure to adhere to
this Regulation may result in Criminal Penalty under K.R.S.
511.070.” Id.
*2 During the Governor's daily briefing on April 16, further
measures were taken by the State Health Commissioner, Dr.
Steven Stack, when he released a public announcement in
regard to in-person mass gatherings at the Capitol. Id. at
¶ 33. Dr. Stack created an alternative option for people to
protest on Capitol grounds, in which people may drive-in
and 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 Disease
Control and Prevention (CDC) recommendations.” Id. Dr.
Stack said, “these options allow people to use their voices
and be heard while protecting the public health.” Id. For
Plaintiffs, this alternative is not good enough. They complain
that the designated area only has space for approximately 300
vehicles and is too far away from the Capitol to be seen or
heard. Id. at ¶ 35. Plaintiffs also argue these accommodations
are accommodations in name only.
According to Plaintiffs, at a rally held on May 2, KSP
blocked streets surrounding the Capitol to prevent drive-
through protesting, and eventually blocked off the entire
perimeter of the protest. Id. at ¶¶ 41, 45. Plaintiff Ramsek
complains 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 state
that these areas were accessible on that date. [R. 19 at 8–9.]
They explain that certain entrances and exits were blocked in
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
order to ensure an orderly flow of traffic during the protest, in
consideration of both social distancing and safety protocols.
Over the next month, there were many changes to restrictions
as the Commonwealth started to gradually reopen. On
May 8, two district courts in Kentucky issued orders
that preliminarily enjoined the Governor from enforcing
the prohibition on mass gatherings with respect to any
in-person religious service which adheres to applicable
social distancing and hygiene guidelines. Maryville Baptist
Church, Inc. v. Beshear, 2020 WL 2393359, 2020 U.S. Dist.
LEXIS 70072 (W.D. Ky. May 8, 2020); Tabernacle Baptist
Church, Inc. of Nicholasville, Kentucky v. Beshear, 2020 WL
2305307, 2020 U.S. Dist. LEXIS 81534 (E.D. Ky. May 8,
2020). The following day, the Secretary amended the Mass
Gatherings 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 of
worship and social distancing guidance. [See R. 19 at 3 n.4.]
On May 11, the Governor began reopening sectors of the
economy that were closed due to Covid-19. [R. 45 at 4.]
However, each entity reopening must meet certain minimum
requirements such as social distancing and certain hygiene
measures. Id. On May 22, restaurants were allowed to reopen
at 33% capacity, and the Mass Gatherings Order was amended
to allow for groups of up to 10 to gather. [R. 44 at 3.] On June
29, the Mass Gatherings Order is set to be amended again to
allow groups of up to 50 to gather. Id.
This brings the Court back to the present case. Plaintiffs
filed their Complaint on May 10 [R. 1] and Motion for
Temporary Restraining Order (TRO) [R. 6] on May 12, which
the Court ultimately denied on May 15 [R. 10]. Following
the 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 to
negotiate with Plaintiffs in regard to the restrictions protestors
would need to follow if the permit were granted. Under
Defendants' proposal, protestors would have access to the
upper or top level of the parking structure next to the Capitol
Annex Building, the parking lots behind the Capitol Annex
Building, as well as the parking lot next to the Capitol.
Id. The public thoroughfare that loops around the Capitol
would also be accessible by any vehicle, so long as no
vehicle 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 distancing
and hygiene measures recommended by the CDC and public
5
Ramsek v. Beshear, --- F.Supp.3d ---- (2020)
health officials. Id. A resolution was never reached by the
parties.
*3 Thereafter, the Court denied Plaintiffs' Emergency
Motion for Preliminary Injunction, finding that Plaintiffs
lacked standing. [R. 22.] Plaintiffs appealed this decision to
the Sixth Circuit [R. 23] and requested this Court issue an
injunction pending appeal [R. 24], which was also denied
[R. 27]. On May 23, the Sixth Circuit entered an order
concluding Plaintiffs do have standing, and granting, in part,
their motion for an injunction pending appeal. [R. 29.] The
Sixth Circuit enjoined Defendants from prohibiting protesters
from gathering for drive-in and drive-through protests but
did not determine whether Plaintiffs may conduct in-person
protests. Id. On May 29, the Sixth Circuit vacated this
Court's order denying Plaintiffs' preliminary injunction and
determining Plaintiffs lacked standing. [R. 31.] The Sixth
Circuit remanded the case for additional findings of fact and
conclusions of law “concerning a prohibition on in-person
protests and whether there are features of large in-person
protests 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 an
Emergency 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, at
which the parties discussed the potential impact of the recent
Supreme Court decision in South Bay United Pentecostal
Church v. Newsom, ––– U.S. ––––, 140 S. Ct. 1613, –––
L.Ed.2d –––– (2020) (Mem). The Court directed the parties to
file simultaneous briefing in regard to this issue and Plaintiffs'
Motion for Expedited Discovery in preparation for a hearing
held on June 4. [R. 33.]
Following the hearing, the Court granted Plaintiffs' Motion
for Expedited Discovery and ordered Plaintiffs to promptly
notice Dr. Steven Stack for deposition in regard to the
issue of differences between in-person protests and other
mass gatherings currently allowed under the Mass Gatherings
Order. [R. 38.] During the deposition, Dr. Stack confirmed
that the orders issued during the pandemic are generated
based on his assessment of risks and how to best minimize
the risks of spreading the virus. [R. 43 at 9.] Dr. Stack
emphasized that “large mass gatherings are an elevated risk
of spreading this infection.” Id. at 97. The risk of transmission
of disease and infection increases as the crowd grows larger
and spacing between individuals becomes more difficult. Id.
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
at 58. The virus can be spread by droplets from coughing,
sneezing, speaking, shouting and singing. Id. at 12–13. While
Kentucky's Mass Gathering Order prohibits gathering in
groups of more than ten, Dr. Stack explained that the CDC
defines “mass gathering” as a group of more than 250 people.
Id. at 68.2
As Dr. Stack inferred, outdoor gatherings are less risky than
indoor gatherings. Id. at 50–51. Many regulated activities
such as church services and restaurants have 33% capacity
requirements, but these are only for indoor gatherings. Id. at
28–33, 39–40. There are no limits on the number of people
who can attend permitted outdoor activities, such as church
and auctions, as long as they keep six feet apart and adhere
to the regulations. Id. at 36–38. Office-based businesses are
allowed to open, but no more than 50% of employees are to
be physically present in the office, and they must adhere to
the guidelines. Id. at 48.
Dr. Stack testified that control measures could be placed on
protests, but his concern was that previous protests were not
organized to encourage precautions of social distancing and
mask wearing. Id. at 56. Social distancing, mask wearing, and
handwashing are the most important measures to minimize
the risk of infection during such gatherings, but they are hard
to enforce on a large crowd. Id. at 61. Dr. Stack also explained
that transitory activities, such as grocery stores, are less risky
than communal activities, such as church, factories, or offices.
Id. at 84. The Court ordered simultaneous briefing upon the
parties' receipt of the deposition transcript. [R. 38.] Limited
discovery 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 a
disagreement about access to the Capitol grounds in Frankfort
on one occasion, there is no evidence in the record that
Plaintiffs have faced any sanction for having exercised their
First Amendment rights related to protest-related gatherings.
Actually, no one has.
Once more, the Governor has expressly declared that
even though violating an order of the Executive Branch
is punishable as a misdemeanor, he will not seek that
6
Ramsek v. Beshear, --- F.Supp.3d ---- (2020)

consequence for anyone. So, the position of the Executive variety of considerations underlie a denial of injunctive relief
Branch is that you must not assemble in large groups to protest —considerations beyond simply the merits of the case. See,
but there will be no legal consequence if you do. e.g., Janklow, 517 U.S. at 1181, 116 S.Ct. 1582 (Scalia, J.
dissenting) (describing such decisions as “discretionary (and
Words aside, it is difficult to see how the Secretary's order unexplained) denials”); Brown v. Gilmore, 533 U.S. 1301, 122
is anything but advisory. Nevertheless, the plain language of S.Ct. 1, 150 L.Ed.2d 782 (2001) (Rehnquist, C.J.). Indeed, in
the order is proscriptive. And this Court is bound to accept Respect Maine PAC v. McKee, the Supreme Court explained
as settled that these Plaintiffs have standing despite a lack of that to warrant such relief “demands a significantly higher
specific injury. [R. 29.] justification than a request for a stay, because unlike a stay,
an injunction does not simply suspend judicial alteration of
Across the country courts are being asked to review state the status quo but grants judicial intervention that has been
executive branch actions being taken in the face of the withheld by lower courts.” 562 U.S. 996, 131 S.Ct. 445,
Covid-19 pandemic. One case has even reached the Supreme 178 L.Ed.2d 346 (2010) (cleaned up). The legal principles
Court, albeit only in the context of a plea for preliminary applied by the Supreme Court in this context lead naturally
relief. South Bay United Pentecostal Church v. Newsom, ––– to a conclusion that, like opinions accompanying the denial
U.S. ––––, 140 S. Ct 1613, ––– L.Ed.2d ––––. It is this of certiorari, opinions accompanying the denial of injunctive
case that Defendants believe decides this matter. For several relief pending appeal “cannot have the same effect as
reasons, that demands too much of the preliminary views of decisions on the merits.” Teague, 489 U.S. at 296, 109 S.Ct.
one Justice. 1060; see also Janklow, 517 U.S. at 1181, 116 S.Ct. 1582
(Scalia, J. dissenting) (explaining the impropriety of lower
In South Bay, plaintiffs filed suit challenging the application courts possibly giving authoritative effect to a two-Justice
of California's stay-at-home order to in-person religious opinion concurring in a denial of an injunctive relief pending
services. See S. Bay United Pentecostal Church v. Newsom, appeal).
959 F.3d 938, 939 (9th Cir. 2020). After both the district court
and Ninth Circuit denied plaintiffs' application for injunction Notwithstanding the above considerations, certain lower
pending appeal, the Supreme Court similarly denied relief courts have accorded significant weight to Justice Roberts'
in a 5-4 decision. 140 S. Ct. 1613. Chief Justice Roberts concurring opinion, without any extended analysis of
issued a concurring opinion, which was not joined by any the precedential considerations laid out above. See,
other Justice, expounding on the reasons for denial.3 See id. e.g., Calvary Chapel Lone Mountain v. Sisolak, No.
Defendants now contend this concurring opinion “decisively 220CV00907RFBVCF, ––– F.Supp.3d ––––, ––––, 2020 WL
resolves this case.” [R. 36 at 2.] Plaintiffs disagree, arguing 3108716, at *2 (D. Nev. June 11, 2020). At the very least,
that Justice Roberts' opinion “does not create any precedent, if the concurring opinion is to be accorded weight, then
much less binding precedent.” [R. 35 at 5.] the fact that no other Justices joined the opinion must be
acknowledged and considered.4 In Marks v. United States, the
The Court finds that, while informative, Justice Roberts' Supreme Court explained that “[w]hen a fragmented Court
concurring opinion does not create precedent which controls decides a case and no single rationale explaining the result
in this case. To start, Justice Roberts analyzed a different enjoys the assent of the five justices, the holding of the Court
executive order as it concerned a separate First Amendment may be viewed as that position taken by those Members
right in a distinct factual circumstance. Separately, and who concurred in the judgments on the narrowest grounds.”
perhaps most importantly, the Court finds significant the 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).
procedural context in which the Supreme Court acted. In expanding on this principle, the Marks court addressed
cases decided on the merits and the principle articulated
*5 [1] [2] On review, a denial of injunctive relief pending has since been applied in those circumstances. See id. at
appeal by the Supreme Court is similar in many ways to a 193–94, 97 S.Ct. 990 (discussing concurring opinions in
denial of a writ of certiorari. See, e.g., Teague v. Lane, 489 First Amendment decisions). Logically, where a concurring
U.S. 288, 296, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); see opinion accompanies a decision in which the court did not
also Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 fully address the merits, like here, the opinion cannot be
U.S. 1174, 1181, 116 S.Ct. 1582, 134 L.Ed.2d 679 (1996) said to carry more weight than an opinion accompanying
(Scalia, J. dissenting). Like a denial of writ of certiorari, a a decision on the merits. At the very most, the grounds

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 7

Ramsek v. Beshear, --- F.Supp.3d ---- (2020)

set forth by Justice Roberts in support of his decision to Order had “several potential hallmarks of discrimination.”5
deny injunctive relief in South Bay should be interpreted as Maryville Baptist, 957 F.3d at 612–14; Roberts, 958 F.3d at
narrowly as possible. Marks, 430 U.S. at 193, 97 S.Ct. 990. 413.

So, what was the basis for Justice Roberts' decision? Justice Roberts' concurrence in South Bay—which can fairly
Defendants argue that Justice Roberts' concurrence be read to express disagreement with the Sixth Circuit's
“conclusively explains that state elected officials have broad reasoning in these cases—may indicate that five members of
latitude to enact public health measures ....” [R. 36 at 2.] True, the Supreme Court would decide the cases differently. But,
in analyzing the California restrictions, Justice Roberts found for the reasons set forth above, the Court declines to conclude
they “appear[ed] consistent with the Free Exercise Clause of definitively that they would—and the Court will certainly not
the First Amendment.” Id. And, he further explained that a conclude, as Defendants propose, that the “Supreme Court
state has broad latitude in restricting social activities in times has now rejected” the Sixth Circuit's reasoning. [See R. 36
of emergency which “should be subject to second-guessing” at 4.] At this juncture, the Roberts and Maryville Baptist
only where those broad limits are exceeded. Id. But Justice decisions remain good law which this Court must follow to
Roberts' analysis must be viewed in light of the standard the extent those holdings are applicable. These precedential
applied. considerations resolved, the Court now turns to the substance
of Plaintiffs' First Amendment claim.
[3] [4] As Justice Roberts noted, the standard for the
Supreme Court to grant an injunction pending appeal is a high
bar: “This power is used where ‘the legal rights at issue are
indisputably clear ....’ ” South Bay, 140 S. Ct. 1613 (citation B
omitted). This is so because, as noted above, “unlike a stay,
[5] [6] To issue a preliminary injunction, the Court must
an injunction ‘does not simply suspend judicial alteration
consider: 1) whether the movant has shown a strong
of the status quo but grants judicial intervention that has
likelihood of success on the merits; 2) whether the movant
been withheld by lower courts.’ ” Respect Maine PAC, 562
will suffer irreparable harm if the injunction is not issued; 3)
U.S. 996, 131 S.Ct. 445, 178 L.Ed.2d 346 (cleaned up).
whether the issuance of the injunction would cause substantial
So, applying these principles, Justice Roberts denied relief,
harm to others; and 4) whether the public interest would be
concluding that “[t]he notion that it is ‘indisputably clear’
served by issuing the injunction. Overstreet v. Lexington–
that the [California] limitations are unconstitutional seems
Fayette Urban County Government, 305 F.3d 566, 573 (6th
improbable.” Id. at 1614.
Cir. 2002) (citations omitted). The Court of Appeals clarified
that, “[w]hen a party seeks a preliminary injunction on the
*6 Accordingly, the Court declines to accord too broad
basis of a potential constitutional violation, the likelihood of
of a precedential effect to Justice Roberts' concurrence in
success on the merits often will be the determinative factor.”
South Bay. A narrow reading is required and simply leads
City of Pontiac Retired Employees Ass'n v. Schimmel, 751
to the conclusion that Justice Roberts found that it was not
F.3d 427, 430 (6th Cir. 2014) (quoting Obama for Am. v.
“indisputably clear” that the California law restricting in-
Husted, 697 F.3d 423, 436 (6th Cir. 2012)). However, even
person religious services violated the Free Exercise Clause.
if the plaintiff is unable “to show a strong or substantial
While informative, this conclusion does not create precedent
probability of ultimate success on the merits” an injunction
which controls in this case.
can be issued when the plaintiff “at least shows serious
questions going to the merits and irreparable harm which
Also relevant is the Sixth Circuit's recent teaching on similar
decidedly outweighs any potential harm to the defendant if
issues. In Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020), and
an injunction is issued.” In re Delorean Motor Co., 755 F.2d
Maryville Baptist Church v. Beshear, 957 F.3d 610 (6th Cir.
1223, 1229 (6th Cir. 1985).
2020), the Sixth Circuit reviewed the constitutionality of the
Mass Gatherings Order at issue in this case. In both instances,
plaintiffs argued they could show a likelihood of success on
the merits in proving that the Mass Gatherings Order violated 1
the Free Exercise Clause as applied to church services.
[7] Plaintiffs' alleged irreparable injury is a violation of their
The Sixth Circuit agreed, finding that the Mass Gatherings
First Amendment rights. [R. 6-1 at 5.] The First Amendment

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 8

Ramsek v. Beshear, --- F.Supp.3d ---- (2020)
provides that “Congress shall make no law ... abridging the
freedom of speech, ... or the right of the people peaceably
assemble, and to petition the Government for a redress of
grievances.”6 U.S. Const. Amend. I. Plaintiffs complain that
the Mass Gathering Order abridges their freedom of speech by
prohibiting political protests, and their freedom to assemble
and petition the government by limiting the number of people
who 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's
privileges and the government's power to regulate in this
arena. “[T]he First Amendment does not guarantee the right
to communicate one's views at all times and places or in
any manner that may be desired.” Heffron v. Int'l Soc. For
Krishna Consciousness, 452 U.S. 640, 647, 101 S.Ct. 2559,
69 L.Ed.2d 298 (1981). At the same time, “to preserve this
freedom, government entities are strictly limited in their
ability to regulate private speech in such ‘traditional public
fora.’ ” Pleasant Grove v. Summum, 555 U.S. 460, 469, 129
S.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 several on speech is one that singles out a specific subject matter for
categories of rights, it is often difficult in practice to determine differential treatment. See Reed v. Town of Gilbert, 576 U.S.
where one right ends and the next begins. This is particularly
true with freedom of speech and freedom of assembly. De
Jonge v. State of Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 81
L.Ed. 278 (1937) (“The right of peaceable assembly is a right
cognate to those of free speech and free press and is equally
fundamental.”). Consequently, Courts typically evaluate free
speech, 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 Citizens
for Tax Reform, 518 F.3d at 379; Stagman v. Ryan, 176 F.3d
986, 999 (7th Cir. 1999); United States v. Winslow, 116 Fed.
App'x 703, 704 (6th Cir. 2004). This is so because it is not
just the speaking, chants and signs that are expressive; it is
also 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 protect
certain forms of orderly group activity”); NAACP v. Ala. ex
rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d
1488 (1958) (“Effective advocacy of both public and private
points of view, particularly controversial ones, is undeniably
enhanced by group association[.]”); De Jonge v. Oregon, 299
U.S. 353, 364, 57 S.Ct. 255, 81 L.Ed. 278 (1937) (“The very
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
idea of a government, republican in form, implies a right
on the part of its citizens to meet peaceably for consultation
in respect to public affairs and to petition for a redress of
grievances.”) (quoting United States v. Cruikshank, 92 U.S.
542, 552, 23 L.Ed. 588 (1875)).
a
[13] [14] [15] [16] [17] [18] [19] “The existence
of a right of access to public property and the standard by
which limitations upon such a right must be evaluated differ
depending on the character of the property at issue.” Perry
Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37,
44, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). Plaintiffs wish
to 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, 103
S.Ct. 948. Content-based restrictions on expressive activity
in public forums are subject to strict scrutiny. See Miller v.
City of Cincinnati, 622 F.3d 524, 534 (6th Cir. 2010). That
is, a content-based restriction must be necessary to serve a
compelling state interest, and any restriction must be narrowly
tailored to achieve that interest. Id. A content-based restriction
155, 157, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015). In contrast,
content-neutral time, place, and manner restrictions on speech
are permissible to the extent they are “narrowly tailored to
serve a significant government interest, and leave open ample
alternative channels of communication.” Perry Educ. Ass'n
v. 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 expressive
conduct—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 which
we 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 together
groups of individuals, including, but not limited to,
community, civic, public, leisure, faith-based,8 or sporting
events; parades; concerts; festivals; conventions; fundraisers;
and similar activities.” [R. 1-4.]. The Supreme Court has
instructed that “[t]he principal inquiry in determining content
9
Ramsek v. Beshear, --- F.Supp.3d ---- (2020)
neutrality, in speech cases generally and in time, place, or
manner cases in particular, is whether the government has
adopted a regulation of speech because of disagreement with
the message it conveys.” Ward v. Rock Against Racism, 491
U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).
Further, “a regulation that serves purposes unrelated to the
content of expression is deemed neutral, even if it has an
incidental effect on some speakers or messages but not
others.” Id.
Here, the Order prohibiting mass gatherings existed prior
to Plaintiffs' message. In fact, Plaintiffs' protest—and their
beliefs about fully reopening the economy—are a response
to the Order. Governor Beshear may disagree with the
content of the protestors' message, but it cannot be said
it was enacted with the intent to suppress Plaintiffs'
political point of view. Nor has it been used to stifle the
political expression of others. In the wake of the death
of George Floyd in Minneapolis, the Black Lives Matter
movement migrated to Kentucky. Mike Stunson, Kentuckians
Protested for George Floyd, Breonna Taylor Last
Weekend. See the Scenes, Lexington Herald-Leader (June
1, 2020), http://www.kentucky.com/news/state/kentucky/
article243161386.html. Although public demonstrations have
been occurring almost daily throughout Kentucky, there have
been no reports of any enforcement actions taken against
participants for violating the Mass Gathering Order. In fact,
Governor Beshear attended and spoke at a Black Lives Matter
rally on June 5, 2020. [R. 45 at 6.]
Plaintiffs imply the lack of enforcement and the Governor's
attendance is further evidence of discriminatory treatment
against Plaintiffs. They go too far. Perhaps if Plaintiffs
had been prosecuted for gathering to protest coronavirus
restrictions this argument would be justified. But as
previously explained, other than a disagreement about access
to the Capitol grounds in Frankfort on one occasion, there is
no evidence in the record that the Plaintiffs have faced any
sanction for having exercised their First Amendment rights.
Related to this argument is Plaintiffs' contention that the
Mass Gatherings Order is an impermissible content-based
restriction on speech based on the identity of the speaker. [R.
45 at 11.] Plaintiffs point out “[i]f the Governor wants to give
a press briefing at the Capitol, i.e., his own personal mass
gathering, it is permitted. But, if a group of peaceful protestors
want to gather to criticize certain unconstitutional actions of
the Governor, too bad because the Governor has banned it.”
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
Id. Upon a preliminary review, the Court finds this argument
is without merit.
[21] The First Amendment does not regulate government
speech. “The First Amendment prohibits Congress and other
government entities and actors from ‘abridging the freedom
of speech’; the First Amendment does not say that Congress
and other government entities must abridge their own ability
to speak freely.” Matal v. Tam, ––– U.S. ––––, 137 S.
Ct. 1744, 1757, 198 L.Ed.2d 366 (2017) (citing Pleasant
Grove v. City of Summum, 555 U.S. 460, 467, 129 S.Ct.
1125, 172 L.Ed.2d 853 (2009)). Although Plaintiffs' briefs
do not attempt to address the distinction between private and
government speech, the Governor's official press briefings are
government 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, there
is no evidence in the record that the Governor “adopted
a regulation of speech because of disagreement with the
message it conveys.” Rock Against Racism, 491 U.S. at 791,
109 S.Ct. 2746.
*9 [22] Far from an interdiction on political speech, the
Mass Gatherings Order is one of many orders issued by
the state designed to curb the spread of the coronavirus by
limiting Kentuckians' interactions with one another, thereby
decreasing opportunity for spread. [See R. 43-4; R. 43-5;
R. 43-6; R. 43-7; R. 43-10.] And although the Court
does not believe it is Defendants' objective, by prohibiting
gatherings, the Order incidentally prohibits public political
protests like Plaintiffs'. This matters, because this case is
not just about what is being said in speeches and chants
and signs. It's about what is being said with numbers. And
the Constitution protects that as well. While not “speech”
in the purest sense of the word, gathering, picketing, and
parading “constitute methods of expression, entitled to First
Amendment protection.” Shuttlesworth v. Birmingham, 394
U.S. 147, 152, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (citing
Cox v. Louisiana, 379 U.S. 536, 555, 85 S.Ct. 453, 13 L.Ed.2d
471 (1965)). Therefore, it appears the Mass Gathering order
fits the mold of “a regulation that serves purposes unrelated to
the content of expression,” but which has an incidental effect
on speech. Applying this Supreme Court precedent, the Order
is content-neutral.
[23] Still, Plaintiffs argue that the Mass Gatherings Order
is a content-based restriction on speech because it permits
people to “gather” in some places—namely, airports, bus
10
Ramsek v. Beshear, --- F.Supp.3d ---- (2020)
stations, and grocery stores—but not others, such as the
Capitol grounds for purpose of political protest. [R. 6 at
16.] There is nuance here, and unlike the Sixth Circuit, this
Court has had the benefit of time to grapple with it. The
First Amendment protects the freedom of assembly just as
much as it protects freedom of speech. And the right to
freedom of speech also covers expressive conduct, which is
“conduct that is intended to be communicative and that, in
context, would reasonably be understood by the viewer to
be 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 and
narrowly tailored to serve a significant government interest.
Plaintiffs' previous and future-planned protests are plainly
speech. Also, it is easy to see how simply gathering together,
in a time where gathering is prohibited due to a global
pandemic, might fall under the umbrella of “expressive
conduct” if one's intent is to protest that prohibition. But
Plaintiffs do not go so far as arguing that individuals making
regular use of airports, bus stations, and grocery stores are
doing so with an intention to communicate anything. Unlike
an individual protesting on the Capitol lawn, one who is
grocery shopping or traveling is not, by that action, engaging
in protected speech. See Dallas v. Stanglin, 490 U.S. 19, 25,
109 S.Ct. 1591, 104 L.Ed.2d 18 (1989) (“It is possible to
find some kernel of expression in almost every activity a
person undertakes—for example, walking down the street or
meetings one's friends at a shopping mall—but such a kernel
is not sufficient to bring the activity within the protection of
the First Amendment.”). To say then that the Order is content-
based because it prohibits gathering in certain places, but
permits individuals to make use of public transport, grocery
stores and the like, is counter intuitive.
Supreme Court precedent constrains the Court to conclude
that the Mass Gatherings Order is a content-neutral
time, place, and manner restriction on Kentuckian's First
Amendment rights. It restricts the manner in which
Plaintiffs may protest by prohibiting large gatherings. And
it circumscribes the time Plaintiffs may gather in protest
to the duration state of emergency declaration. But it only
incidentally does either. Because it is content-neutral, the
Order will be upheld if the Governor can show it is “narrowly
tailored to serve a significant government interest, and leave
open ample alternative channels of communication.” Perry
Educ. Ass'n, 460 U.S. at 46, 103 S.Ct. 948.
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
b
[24] Plaintiffs do not dispute that the Governor has a
significant interest in protecting Kentuckians from Covid-19.
They simply argue the Governor has gone too far in his pursuit
of that interest. Based upon the record before it, the Court
agrees. Plaintiffs are likely to succeed in showing that the
Mass Gatherings Order is not narrowly tailored.
*10 [25] [26] A regulation is narrowly tailored if
it promotes the significant government interest without
unnecessarily abridging speech. See Williams-Yulee v. Fla.
Bar, 575 U.S. 433, 135 S. Ct. 1656, 1666, 191 L.Ed.2d
570 (2015). Under immense time pressure, the Sixth Circuit
reasoned that the Mass Gatherings Order was content-based,
and therefore Plaintiffs were likely to succeed on the merits
of their claim, because “the Order permits citizens to gather
in retail stores, airports, parking lots, and churches, but does
not 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 supra
section II.B.1.a. The Sixth Circuit's observation is relevant for
another reason: retail stores, airports, churches and the like
serve as an inconvenient example of how the Mass Gathering
Order 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 will
help mitigate the spread of coronavirus while still allowing
Kentuckians to exercise their First Amendment freedoms.
As Dr. Stack explained in his deposition, maintaining a
social distance of six feet, wearing masks, and frequent and
thorough handwashing each help to reduce the likelihood
of transmission of coronavirus from person to person. [R.
43 at 72.] The Commonwealth has required implementation
of these tools in places like restaurants, office buildings,
and auctions, but continues to wholly prohibit gatherings
for political protest above a set number no matter the
circumstance. See id.
This is problematic. Defendants are correct that there are
certain attributes of political protests that make it inherently
more difficult to contain spread of the coronavirus; they are
organic, there is little ability to monitor who comes and who
goes, people travel out of their communities to attend, and
people who are impassioned tend to shout, sing, and embrace.
[R. 43 at 56.] Because of the nature of protests, participants
11
Ramsek v. Beshear, --- F.Supp.3d ---- (2020)
might be more likely to contract coronavirus during a protest
than they are in a restaurant operating at 33% capacity. But
it is the right to protest—through the freedom of speech
and freedom of assembly clauses—that is constitutionally
protected, not the right to dine out, work in an office setting,
or attend an auction. Kentucky must do better than prohibiting
large gatherings for protest outright.
As it currently stands, the state is enjoined from prohibiting
drive-through protests, provided those participating practice
social distancing. [R. 29 at 6.] With this Order, they are also
enjoined from enforcing the prohibition on mass gatherings as
it relates to in-person, political protests. Now, using the tools
available, Defendants must amend the Mass Gatherings Order
to allow for both drive-through and in-person protests in a
manner consistent with the medical and scientific realities,
while bearing in mind the constitutional protections accorded
such behavior. The Court expressly declines to opine on what
such an Order might include.
As the Sixth Circuit recognized before remand, the panel
had “no way to determine what the facts are concerning
a prohibition on in-person protests and whether there are
features of large in-person protests that distinguish them
from other mass gatherings[.]” [R. 31 at 1.] With the
deposition testimony of Dr. Stack, this Court has the benefit
of more facts than were available to the Sixth Circuit. And
their Order granting injunction pending appeal hinted that
more flexibility in the context of in-person protests might
be constitutionally required. That is precisely the type of
policymaking best left to Defendants, and they are ordered
to engage in it. In the case of political protests, it is suspect
that a generally applicable ban of groups larger than ten—or
fifty, beginning June 29—is narrowly tailored, when nothing
but the size of the gathering is taken into consideration.
Defendants must devise a way to utilize mitigation measures
such as social distancing, mask wearing, handwashing, and
a recommendation for outdoor over indoor events—as they
have done in other contexts—that more liberally allows
gathering for the purpose of protest. Nevertheless, it is not
the role of the Court to dictate the exact restrictions to be put
in place. Defendants have managed to make the necessary
adjustments as it concerns other constitutionally protected
activities, and the Court is confident they can do so here. As
written, the Order is not narrowly-tailored, and the blanket
ban on mass gatherings must fail.10
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
c
*11 In reaching this conclusion, the Court is cognizant of
the rule espoused in Jacobson v. Massachusetts and Chief
Justice Roberts' reasoning in his concurring opinion in South
Bay. See supra section II.A. In Jacobson, the Supreme
Court considered whether, when faced with an outbreak
of smallpox, the city of Cambridge could constitutionally
require its adult residents to receive vaccinations against the
disease. See Jacobson, 197 U.S. at 25–26, 25 S.Ct. 358. Those
who refused to vaccinate were subjected to a fine. Id. at 26,
25 S.Ct. 358. Although the defendant argued the law was
an invasion of his liberty and violative of due process, the
Supreme Court upheld the vaccination requirement based on
public health concerns. Id. at 39, 25 S.Ct. 358.
[27] [28] Thus, Jacobson allows states considerable leeway
in enacting public health measures during a public health
emergency, provided “the measures have at least some ‘real
or substantial relation’ to the public health crisis and are
not ‘beyond all question, a plain, palpable invasion of rights
secured by the fundamental law.’ ” In re Abbott, 954 F.3d 772,
784–85 (5th Cir. 2020) (citing Jacobson v. Commonwealth
of Massachusetts, 197 U.S. 11, 31, 25 S.Ct. 358, 49 L.Ed.
643 (1905)). Under Jacobson, courts are to be circumspect
second-guessing the policy decisions of public officials
responding to a public health emergency. See id.
Justice Roberts echoed that sentiment, recognizing, “[t]he
precise question of when restrictions on particular social
activities should be lifted during the pandemic is a
dynamic and fact-intensive matter subject to reasonable
disagreement.” South Bay United Pentecostal Church v.
Newsom, ––– U.S. ––––, 140 S. Ct. 1613, ––– L.Ed.2d
––––. Therefore, public officials should be afforded wide
latitude “to act in areas fraught with medical and scientific
uncertainties.” Id. Justice Roberts goes on to say that “[w]here
those broad limits are not exceeded, they should not be subject
to second-guessing by an ‘unelected federal judiciary,’ which
lacks the background, competence, and expertise to assess
public 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 should
not “engage in an impermissible second-guessing of the Mass
Gatherings Order[.]” Id. at 5. Further, Defendants read Justice
12
Ramsek v. Beshear, --- F.Supp.3d ---- (2020)

Kentuckians' ability to gather for in-person exercise of their

Roberts' opinion in South Bay as “expressly forbid[ding] this
sort 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 the
precedential value of Justice Roberts' concurrence in South
Bay. Supra section II.A. And while courts should refrain from
second-guessing the efficacy of a state's chosen protective
measures, “an acknowledged power of a local community
to protect itself against an epidemic ... might go so far
beyond what was reasonably required for the safety of the
public, as to authorize or compel the courts to interfere[.]”
Jacobson, 197 U.S. at 28, 25 S.Ct. 358. “[E]ven under
Jacobson, constitutional rights still exist.” On Fire Christian
Ctr., Inc. v. Fischer, 2020 WL 1820249 at *8, 2020 U.S. Dist.
LEXIS 65924, at * 15 (W.D. Ky. April 11, 2020). There is a
difference between second-guessing the efficacy of instituting
a Mass Gatherings Order in the first instance—which the
Court does not do—and requiring the Governor to use his
discretion to craft an Order that does not completely eliminate
First Amendment rights. The Court does the latter.
III
If you think about it, the very nature of a pandemic threatens
our liberty in every conceivable way. A perfect response
would require everyone to stay put and limit contact with
everyone else. But that is not the world we live in.
*12 Policy makers are necessarily balancing interests. And
courts should give them deference to do this difficult and
important task. While that deference may be robust in a time
of crisis it is not absolute. The Governor has gone too far
here. The Motion for a Preliminary Injunction [R. 6] will be
GRANTED.
All Citations
--- F.Supp.3d ----, 2020 WL 3446249

Footnotes
1 200 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 contesting
this 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 “mass
gatherings” 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).] Regardless
of the nomenclature, groups of more than ten are presently prohibited from congregating together in Kentucky. On June
29, 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 the
Sixth Circuit's decision in Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020), Justice Kavanaugh concluded that “California's
25% occupancy cap on religious worship services indisputably discriminates against religion, and such discrimination
violates the First Amendment.” Id. (citation omitted). In reaching this conclusion, the dissenting Justices explained that
California 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 voted
to 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-based
organizations, 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 traditional
public forum or a designated public forum is of no effect. In either type of public forum, “[r]easonable time, place, and

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 13

Ramsek v. Beshear, --- F.Supp.3d ---- (2020)

manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling
state 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 reviewing
the propriety of a preliminary injunction issues a fully considered ruling on an issue of law with the benefit of a fully
developed 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 on
the merits is largely determinative in constitutional challenges like this one, however, the remaining factors also mitigate
in favor of Plaintiffs. The Supreme Court has held “[t]he loss of First Amendment freedoms, for even minimal periods
of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d
547 (1976). No harm will come to Defendants if they are enjoined from enforcing the existing Order, which they have
repeatedly stated they will not enforce. Finally, the public interest favors enjoinment of a constitutional violation. See
Martin-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.

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 14

TAB 5
Roberts v. Neace, --- F.Supp.3d ---- (2020)

KeyCite Yellow Flag - Negative Treatment West Headnotes (14)

Injunction Pending Appeal Granted by Roberts v. Neace, 6th Cir.(Ky.), May
9, 2020
2020 WL 2115358 [1] Injunction Extraordinary or unusual nature
Only the Westlaw citation is currently available. of remedy
United States District Court, E.D. Kentucky, A preliminary injunction is an extraordinary
Northern Division. remedy never awarded as of right.
at Covington.

Theodore Joseph [2] Injunction Grounds in general;  multiple

ROBERTS, et al., Plaintiffs
v.
Hon. Robert NEACE, et al., Defendants
CIVIL ACTION NO. 2:20cv054 (WOB-CJS)
| tips in their favor; and (4) that an injunction is in
Signed May 4, 2020
Synopsis
Background: Church parishioners and citizen brought action
challenging the constitutionality of executive orders issued by
Kentucky governor in response to COVID-19 public health
crisis alleging that prohibiting mass gatherings violated First
Amendment right to free exercise of religion and restrictions
on out-of-state travel violated right to substantive due process.
Plaintiffs moved for emergency temporary restraining order
and preliminary injunction.
factors
Party seeking a preliminary injunction must
prove: (1) that they are likely to succeed on the
merits of their claim; (2) that they are likely
to suffer irreparable harm in the absence of
preliminary relief; (3) that the balance of equities
the public interest.
[3] Injunction Balancing or weighing
hardship or injury
A court considering whether to grant a
preliminary injunction must balance the
competing claims of injury and must consider
the effect on each party of the granting or
withholding of the requested relief.

Holdings: The District Court, William O. Bertelsman, Senior
District Judge, held that:
[1] church parishioners were not likely to succeed on merits
of their claim, and
[2] restrictions on out-of-state travel were not narrowly
tailored to serve compelling state interest, and thus,
preliminary injunction was warranted declaring travel
restrictions invalid and prohibiting their enforcement.
Motion granted in part and denied in part.
[4] Constitutional Law Strict scrutiny;
 compelling interest
Under the Free Exercise Clause of the First
Amendment, a law that is neutral and of
general applicability need not be justified by a
compelling governmental interest even if the law
has the incidental effect of burdening a particular
religious practice. U.S. Const. Amend. 1.
[5] Constitutional Law Neutrality;  general
applicability
Under the Free Exercise Clause of the First
Amendment, a law is not neutral if it
discriminates against some or all religious beliefs
or regulates or prohibits conduct because it is

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 1

Roberts v. Neace, --- F.Supp.3d ---- (2020)
undertaken for religious reasons. U.S. Const.
Amend. 1.
[6] Constitutional Law Neutrality;  general
applicability
Under the Free Exercise Clause of the First
Amendment, neutrality is lacking where the
object of a law is to infringe upon or restrict
practices because of their religious motivation.
U.S. Const. Amend. 1.
[7] Constitutional Law Neutrality;  general
applicability
All laws are selective to some extent, and that
reality does not render a law constitutionally
suspect under the Free Exercise Clause of the
First Amendment, rather, the First Amendment
inquiry focuses on whether the government is
selectively imposing burdens only on conduct
motivated by religious belief. U.S. Const.
Amend. 1.
[8] Constitutional Law Strict scrutiny;
 compelling interest
A law that fails to satisfy the neutrality and
general applicability requirements under the Free
Exercise Clause of the First Amendment must be
justified by a compelling governmental interest
and must be narrowly tailored to advance that
interest. U.S. Const. Amend. 1.
[9] Civil Rights Preliminary Injunction
Church parishioners were not likely to succeed
on merits of their claim that executive orders
issued by Kentucky governor in response to
COVID-19 crisis prohibiting mass gatherings
violated their First Amendment right to the free
exercise of religion, and thus, were not entitled to
preliminary injunction challenging the executive
orders, even though certain businesses allowed to
remain open presented similar health risks; there
was an undeniable difference between certain
activities that were life sustaining, such as food,
medical care and supplies, and certain travel
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
necessary to maintain employment, and others
that were not, the public health crisis from
COVID-19 presented life-or-death dangers, and
church parishioners were not alone in having
their lives and activities disrupted by COVID-19
and the measures that the federal and state
governments had taken to address it. U.S. Const.
Amend. 1.
1 Cases that cite this headnote
[10] Constitutional Law Police power
questions
Constitutional Law Public welfare in
general
It is imperative in certain circumstances that
judges give legislatures and executives, the
more responsive branches of government, the
flexibility they need to respond quickly and
forthrightly to threats to the general welfare, even
if that flexibility sometimes comes at the cost of
individual liberties.
[11] Constitutional Law Freedom of Travel
and Movement
Constitutional right to travel from one state to
another is firmly embedded in jurisprudence, and
the right is virtually unconditional.
[12] Constitutional Law Personal liberty
Even though the governmental purpose be
legitimate and substantial, that purpose cannot be
pursued by means that broadly stifle fundamental
personal liberties when the end can be more
narrowly achieved; the breadth of legislative
abridgment must be viewed in the light of
less drastic means for achieving the same basic
purpose.
[13] Constitutional Law Levels of scrutiny;
 strict or heightened scrutiny
Ordinarily, where a fundamental liberty interest
protected by the substantive due process
component of the Fourteenth Amendment is
2
Roberts v. Neace, --- F.Supp.3d ---- (2020)

involved, the government cannot infringe on that

right unless the infringement is narrowly tailored William O. Bertelsman, United States District Judge
to serve a compelling state interest. U.S. Const.
*1 Plaintiffs Theodore Joseph Roberts, Randall Daniel, and
Amend. 14.
Sally Boyle bring this action challenging the constitutionality
of certain measures instituted by the Commonwealth of
Kentucky in response to the COVID-19 public health crisis.
[14] Civil Rights Preliminary Injunction
Constitutional Law Compelling interest Specifically, plaintiffs Daniel and Boyle allege that the ban on
test “mass gatherings” as applied to in-person church attendance
Constitutional Law Public health violates their right to freedom of religion under the First
Amendment. (Doc. 6, ¶¶ 56-66). Plaintiff Roberts alleges
Health Quarantine
that restrictions on out-of-state travel violate his fundamental
Restrictions on out-of-state travel in executive
liberty interest and thus his right to substantive due process.
orders issued by Kentucky governor in response
(Id. ¶¶ 67-73). Plaintiffs further allege that the Travel Ban
to COVID-19 crisis, which banned residents
violates their right to procedural due process. (Id. ¶¶ 74-79).
from traveling out of state except in certain
circumstances and required residents traveling
This matter is before the Court on plaintiffs' emergency
from other states for reasons outside exceptions
motion for temporary restraining order and motion for
to quarantine for 14 days, were not narrowly
preliminary injunction (Doc. 7). The Court previously heard
tailored to serve compelling state interest of
oral argument on these motions and took the matter under
slowing spread of the COVID-19 virus in
submission. (Doc. 33).
the state, and thus, preliminary injunction was
warranted declaring travel restrictions invalid
By agreement of the parties, the Court now issues the
and prohibiting their enforcement; restrictions
following Memorandum Opinion and Order ruling on
infringed on the basic right of citizens to engage
in interstate travel and lacked procedural due plaintiffs' motion for preliminary injunction.1
process. U.S. Const. Amend. 14.

1 Cases that cite this headnote

Factual and Procedural Background

Attorneys and Law Firms
Christopher David Wiest, Christopher Wiest, Atty at Law,
PLLC, Crestview Hills, KY, Robert A. Winter, Jr., Fort
Mitchell, 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 Tasha
Buckner, Laura Crittenden Tipton, Marc Griffin Farris,
Steven Travis Mayo, Taylor Payne, Office of the Governor
KY, Frankfort, KY, David Thomas Lovely, J. Wesley Warden
Duke, Cabinet for Health & Family Services - Frankfort
Office of Legal Services, Frankfort, KY, for Defendants.
MEMORANDUM OPINION AND ORDER
A. Challenged Restrictions
On March 6, 2020, Kentucky Governor Andrew Beshear
began issuing a series of Executive Orders placing restrictions
on Kentucky citizens as part of an effort to slow the spread
of the COVID-19 virus in the Commonwealth. (Am. Compl.
¶¶ 13-23).
As relevant here, on March 19, 2020, Governor
Beshear issued an Executive Order prohibiting all “mass
gatherings.” (Am. Compl. Exh. D). The Order states: “Mass
gatherings include any event or 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.” The Order states that mass gatherings
do not include “normal operations at airports, bus and train
stations, medical facilities, libraries, shopping malls and
centers, or other spaces where persons may be in transit,” as
well as “typical office environments, factories, or retail or

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 3

Roberts v. Neace, --- F.Supp.3d ---- (2020)
grocery stores where large numbers of people are present, but
maintain appropriate social distancing.” (Id.).
Subsequent Executive Orders closed non-life-sustaining
retail businesses; banned most elective medical procedures;
shut down additional businesses for in-person work; and
placed further restrictions on retail establishments that were
allowed to remain open. (Am. Compl. ¶¶ 18-23).
On March 30, 2020, the Governor issued an Executive Order
banning Kentucky residents from travelling out of state,
except when required for employment; to obtain groceries,
medicine, or other necessary supplies; to seek or obtain
care by a licensed healthcare provider; to provide care for
dependents, the elderly, or other vulnerable person; or when
required by court order. (Am. Compl. Exh. H). The Order also
required any Kentuckian in another state for reasons other
than those set forth in the exceptions to self-quarantine for
fourteen days upon returning to Kentucky. (Id.).
*2 Finally, on April 2, 2020, Governor Beshear issued
an additional Executive Order expanding the travel ban to
require residents of states other than Kentucky who travel into
the Commonwealth for reasons outside the above exceptions
also to self-quarantine for fourteen days. (Am. Compl. Exh.
I).
B. Bases for Plaintiffs' Claims
Notwithstanding the ban on mass gatherings, on Easter
Sunday, April 12, 2020, plaintiffs attended in-person church
services at Maryville Baptist Church in Hillview, Bullitt
County, Kentucky. (Am. Compl. ¶ 27). Plaintiffs allege that
they did so in accord with their sincerely held religious beliefs
that in-person church attendance was required, and that they
observed appropriate social distancing and safety measures
during the service. (Id. ¶¶ 28-29).
Upon exiting the church, plaintiffs found on their vehicle
windshields a Notice informing them that their presence at
that location was in violation of the “mass gathering” ban.
(Am. Compl. ¶ 32). Plaintiffs allege that the notices were
placed there by the Kentucky State Police at the behest of
Governor Beshear, who had stated that he was going to target
religious 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 health
department will send them a self-quarantine agreement. In
bold, the notice continues: “Failure to sign or comply with
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
the agreement may result in further enforcement measures,”
and “Please be advised that KRS 39A.990 makes it a
Class A misdemeanor to violate an emergency order.” (Id.
¶ 32). Plaintiffs subsequently received such documentation
from 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 that
the ban prevents him from travelling to Ohio and Indiana
for a variety of personal reasons that do not fall within the
exceptions found in Governor Beshear's orders. (Am. Compl.
¶ 40).
Analysis
[1] [2] [3] “A preliminary injunction is an ‘extraordinary
remedy 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.2d
249 (2008)). “Rather, the party seeking the injunction must
prove: (1) that they are likely to succeed on the merits of
their claim, (2) that they are likely to suffer irreparable harm
in the absence of preliminary relief, (3) that the balance of
equities tips in their favor, and (4) that an injunction is in the
public interest.” Id. A court considering whether to grant a
preliminary injunction must therefore “balance the competing
claims of injury and must consider the effect on each party
of the granting or withholding of the requested relief.” Id.
(citation omitted).
A. Mass Gathering Ban
The Court first considers plaintiffs' claim that Kentucky's
ban on mass gatherings impermissibly infringes their First
Amendment right to the free exercise of religion.
The Free Exercise Clause of the First Amendment, which
has been applied to the States through the Fourteenth
Amendment, provides that “Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof.” Church of the Lukumi Babalu Aye, Inc.
v. City of Hialeah, 508 U.S. 520, 531, 113 S.Ct. 2217, 124
L.Ed.2d 472 (1993).
*3 [4] [5] [6] “A law that is neutral and of
general applicability need not be justified by a compelling
governmental interest even if the law has the incidental effect
4
Roberts v. Neace, --- F.Supp.3d ---- (2020)
of burdening a particular religious practice.” Id. A law is not
neutral if it “discriminates against some or all religious beliefs
or regulates or prohibits conduct because it is undertaken
for religious reasons.” Id. at 533, 113 S.Ct. 2217. Stated
differently, neutrality is lacking where “the object of a law is
to infringe upon or restrict practices because of their religious
motivation.” Id.
[7] Further, as to general applicability, the Supreme Court
noted 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 Amendment
inquiry, again, focuses on whether the government is
selectively imposing “burdens only on conduct motivated by
religious belief.” Id. at 543, 113 S.Ct. 2217.
[8] A law that fails to satisfy the neutrality and general
applicability requirements “must be justified by a compelling
governmental interest and must be narrowly tailored to
advance that interest.” Id. 531-32, 113 S.Ct. 2217.
[9] With these principles in mind, it is abundantly clear that
the “object or purpose of” Kentucky's mass gathering ban
is 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 of
a life-threatening virus. The illustrative examples set forth
are 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 other
of the cited examples of mass gatherings to take place; rather,
plaintiffs argue that certain businesses that the government
has allowed to remain open present similar health risks.
That, of course, is a judgment call, but what is missing is
any evidence that Kentucky has conducted the essential/non-
essential analysis with religion in mind. Lukumi, 508 U.S. at
543, 113 S.Ct. 2217.
Moreover, there is an undeniable difference between certain
activities that are, literally, life sustaining and other that are
not. Food, medical care and supplies, certain travel necessary
to maintain one's employment and thus income, are, in that
sense, essential. Concerts, sports events, and parades clearly
are not. And while plaintiffs argue that faith-based gatherings
are as important as physical sustenance, as a literal matter,
they are not life-sustaining in the physical sense.
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
[10] As the Sixth Circuit observed just recently in the context
of this pandemic, it “is imperative in such circumstances that
judges give legislatures and executives—the more responsive
branches of government—the flexibility they need to respond
quickly and forthrightly to threats to the general welfare, even
if that flexibility sometimes comes at the cost of individual
liberties.” 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 preventing
plaintiffs who comply with it from attending in-person church
services? Yes. Does the ban do so because the gatherings are
faith-based? No.
For this reason, another Kentucky federal court hearing a case
brought by the church attended by plaintiffs recently denied
the church's motion for a temporary restraining order, finding
that the church had not demonstrated a likelihood of success
on the merits of its First Amendment claim. See Maryville
Baptist 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 Court
of Appeals for the Sixth Circuit overruled, in part, Judge
Hale's denial of the temporary restraining order. (Doc. 41-1).
However, the Sixth Circuit expressly limited its holding to
drive-in church services:
The Governor and all other Commonwealth officials are
hereby enjoined, during the pendency of this appeal, from
enforcing orders prohibiting drive-in services at the
Maryville Baptist Church if the Church, its ministers, and
its congregants adhere to the public health requirements
mandated for “life-sustaining” entities.
Id. at 10 (emphasis added). And the Court stated: “[W]e are
inclined not to extend the injunction to in-person services
at this point.” Id. Had the Court felt that such a broader
injunction was warranted, it was within its power to so order.
This Court thus does not find that opinion to control the
outcome here.
In his opinion, Judge Hale also considered the church's claim
under the Kentucky Religious Freedom Restoration Act,
which invokes the more demanding “compelling interest”
5
Roberts v. Neace, --- F.Supp.3d ---- (2020)
test. Judge Hale concluded that, even under that standard, the
church did not demonstrate a likelihood of success. Id. at *3.
This Court agrees. The current public health crisis presents
life-or-death dangers. Plaintiffs are not alone in having their
lives and activities disrupted by it and the measures that
our federal and state governments have taken to address it.
Indeed, it is hard to imagine that there is any American that
has not been impacted. But unless a law can be shown to have
religion within its cross-hairs, either facially or in application,
the fact that religious practices are impinged by it does not
contravene the First Amendment.
For these reasons, the Court concludes that plaintiffs have
not shown a likelihood of success on their merits of their
First 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 Ban
does not pass constitutional muster. The restrictions infringe
on the basic right of citizens to engage in interstate travel, and
they carry with them criminal penalties.
[11] The “ ‘constitutional right to travel from one State to
another’ 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)). See
also United States v. Guest, 383 U.S. 745, 757, 86 S.Ct. 1170,
16 L.Ed.2d 239 (1966) (“The constitutional right to travel
from one State to another ... occupies a position fundamental
to the concept of our Federal Union. It is a right that has been
firmly established and repeatedly recognized.”).
[12] To be valid, such orders must meet basic Constitutional
requirements. As the Supreme Court has stated:
(E)ven though the governmental purpose be legitimate and
substantial, that purpose cannot be pursued by means that
broadly stifle fundamental personal liberties when the end
can be more narrowly achieved. The breadth of legislative
abridgment must be viewed in the light of less drastic
means for achieving the same basic purpose.
© 2020 Thomson Reuters. No claim to original U.S. Government Works.
*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 interest
protected by the substantive due process component of the
Fourteenth Amendment is involved, the government cannot
infringe on that right ‘unless the infringement is narrowly
tailored to serve a compelling state interest.’ ” Johnson
v. City of Cincinnati, 310 F.3d 484, 502 (6th Cir. 2002)
(quoting Washington v. Glucksberg, 521 U.S. 702, 721, 117
S.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 due
process claim); Pearson v. City of Grand Blanc, 961 F.2d
1211, 1217 (6th Cir. 1992) (similar).
[14] The travel restrictions now before the Court violate
these principles. They have the following effects, among
others:
1. A person who lives or works in Covington would violate
the order by taking a walk on the Suspension Bridge to the
Ohio side and turning around and walking back, since the
state border is several yards from the Ohio riverbank.
2. A person who lives in Covington could visit a friend
in Florence, Kentucky (roughly eight miles away) without
violating the executive orders. But if she visited another
friend in Milford, Ohio, about the same distance from
Covington, she would violate the Executive Orders and
have to be quarantined on return to Kentucky. Both these
trips could be on an expressway and would involve the
same negligible risk of contracting the virus.
3. Family members, some of whom live in Northern
Kentucky and some in Cincinnati less than a mile away,
would be prohibited from visiting each other, even if social
distancing and other regulations were observed.
4. Check points would have to be set up at the entrances
to the many bridges connecting Kentucky to other states.
The I-75 bridge connecting Kentucky to Ohio is one of the
busiest bridges in the nation. Massive traffic jams would
result. Quarantine facilities would have to be set up by the
State to accommodate the hundreds, if not thousands, of
people who would have to be quarantined.
5. People from states north of Kentucky would have
to be quarantined if they stopped when passing through
6
Roberts v. Neace, --- F.Supp.3d ---- (2020)

Kentucky on the way to Florida or other southern

*6 Therefore, a preliminary injunction will enter declaring
destinations.
the Travel Ban orders invalid and prohibiting their
6. Who is going to provide the facilities to do all the enforcement.
quarantining?
Therefore, having reviewed this matter, and the Court being
The Court questioned counsel for defendants Beshear and advised,
Friedlander during oral argument about some of these
potential applications of the Travel Ban, and counsel indeed IT IS ORDERED that:
confirmed that the Court's interpretations were correct.
(Doc. 38 at 9-13). (1) Plaintiffs' motion for a preliminary injunction (Doc.
7) be, and is hereby, GRANTED IN PART AND
The Court is aware that the pandemic now pervading DENIED IN PART;
the nation must be dealt with, but without violating the
public's constitutional rights. Not only is there a lack of (2) Plaintiffs shall post a bond in the amount of $1000.00.
procedural due process with respect to the Travel Ban, but See Fed. R. 65 (c); and
the above examples show that these travel regulations are
not narrowly tailored to achieve the government's purpose. (3) A preliminary injunction consistent with this
Memorandum Opinion and Order shall enter
See Johnson v. City of Cincinnati, 310 F.3d 484, 503
concurrently herewith.
(6th Cir. 2002) (“[I]f there are other, reasonable ways to
achieve those goals with a lesser burden on constitutionally
protected activity, a State may not choose the way of greater All Citations
interference. If it acts at all, it must choose ‘less drastic
means.’ ”) (quoting Dunn v. Blumstein, 405 U.S. 330, 343, --- F.Supp.3d ----, 2020 WL 2115358
5
92 S.Ct. 995, 31 L.Ed.2d 274 (1972)).

Footnotes
1 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 cleaning
and hygiene measures implemented and followed.” (Doc. 40). Given that this date is nearly three weeks away, the Court
concludes 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 church
services, 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 reference
in 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 stating
his position that his “mass gathering” ban does not prohibit drive-in religious services where proper safety protocol are
observed. 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 injunction
factors.
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 restrict
travel into that state by a person who intends to “stay” in the state. While the word “stay” is perhaps vague, it certainly
implies an intent to remain in the state at least 24 hours, so that persons stopping while driving through the state or
changing 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” of
the public. Nor do they apply “to persons who as part of their normal life live in one state and work or gain essential
services in another state.”
Ohio's rules, therefore, do not appear overbroad and have a rational basis for combating the coronavirus, while still
preserving the population's constitutional rights.

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 7