COMMONWEALTH OF KENTUCKY

KENTUCKY SUPREME COURT

NO. 2021-SC-0228-T
(2021-CA-0702)

ANDY BESHEAR, in his official capacity as APPELLANTS/MOVANTS

Governor of the Commonwealth of Kentucky, et al.

On Review from Boone Circuit Court

v. Honorable Richard A. Brueggemann, Judge
Case No. 21-CI-00678

RIDGEWAY PROPERTIES, LLC, d/b/a

Beans Café and Baker, et al. APPELLEES/RESPONDENTS

MOVANTS’ INITIAL BRIEF

_________________________ _________________________
S. Travis Mayo Wesley W. Duke
Chief Deputy General Counsel Executive Director
Taylor Payne Office of Legal Services
Marc Farris David T. Lovely
Laura C. Tipton Deputy General Counsel
Deputy General Counsel Cabinet for Health and Family Services
Office of the Governor 275 East Main Street 5W-A
700 Capitol Avenue, Suite 106 Frankfort, KY 40621
Frankfort, KY 40601 (502) 564-7042
700 Capitol Avenue, Suite 106 wesleyw.duke@ky.gov
(502) 564-2611 davidt.lovely@ky.gov
travis.mayo@ky.gov
taylor.payne@ky.gov
marc.farris@ky.gov
laurac.tipton@ky.gov

Counsel for the Governor Counsel for Secretary Eric

Friedlander and Dr. Steven Stack
 CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of this Initial Brief, and all exhibits thereto,
was served on August 10, 2021, via electronic mail and per the Clerk’s direction via U.S. Mail
on August 11, 2021, upon: Hon. Christopher Wiest, 25 Town Center Boulevard, Suite 104,
Crestview Hills, Kentucky 41017; Hon. Thomas Bruns, 4750 Ashwood Drive, Suite 200,
Cincinnati, Ohio 45241; Hon. Zach Gottesman, 404 East 12 Street, First Floor, Cincinnati, Ohio
45202; Hon. Victor B. Maddox, Hon. S. Chad Meredith, Hon. Brett R. Nolan, Hon. Aaron J.
Silletto, Hon. Heather L. Becker, Hon. Marc Manley, Office of the Attorney General, 700
Capital Avenue, Suite 118, Frankfort, Kentucky 40601; and via U.S. Mail only upon Hon.
Richard A. Brueggemann, Judge, Boone Circuit Court, Boone County Justice Center, 6025
Rogers Lane, Room 141, Burlington, Kentucky 41005; and the Kentucky Court of Appeals,
Attn: Clerk, 360 Democrat Drive, Frankfort, Kentucky 40601.

I further certify that counsel did not withdraw the record on appeal.

__________________________
S. Travis Mayo
 STATEMENT CONCERNING ORAL ARGUMENT
The court has indicated it does not plan to have oral argument, and movants do not

believe it is necessary.

i
 STATEMENT OF POINTS AND AUTHORITIES

STATEMENT CONCERNING ORAL ARGUMENT……….…………………….... i

STATEMENT OF POINTS AND AUTHORITIES……….…………………….... ii-iv

INTRODUCTION ……………………………………………………………………....1

FACTUAL & PROCEDURAL BACKGROUND……………………………………..4

Beshear v. Acree, 615 S.W.3d 780, 830 (Ky. 2020)……….…………….….....…4

I. This Court Unanimously Vacates The Boone Circuit Court’s

First Injunction In This Case…………………………………………………...5

Beshear v. Acree, 615 S.W.3d at 830 …………………..….…………….….....…6

II. The General Assembly Passes Unconstitutional Legislation……………….…6

Senate Bill 1 (R.S. 2021)………………………………………………….............6

Senate Bill 2 (R.S. 2021)……………………………………………………..…...6
House Bill 1 (R.S. 2021)…………………………………………..……………...6

III. Governor Beshear and Secretary Friedlander File Suit In Franklin

Circuit Court………………..…………………………………………………....7

IV. The Franklin Circuit Court Issues Temporary Injunctive Orders………...…7

House Joint Resolution 77 (R.S. 2021)…...……………..……………….............11

V. Beans Café Collaterally Attacks The Franklin Circuit Temporary Injunction

Order By Reviving This Case In Boone Circuit Court…………………..…..12

VI. The Boone Circuit Court Abuses Its Discretion In Entering An Amended
Permanent Injunction Of Its Own....…………………………………….........14

VII. Movants Seek Relief Pursuant to CR 65.08…………………………………...15

VIII. The Rise of the Delta Variant…………………………………………….……16

LEGAL STANDARD………………………………………………..…………………19

CR 65.08…………………………………………………………………………19
Fed. R. Civ. P. 62(c) ……………………………………………………….........20
Fed. R. App. P. 8(a)……………………………………………………………...20

ii
 Michigan State A. Philip Randolph Institute v. Johnson,
749 F. App’x 342 (6th Cir. 2018)………………………………………….....20

ARGUMENT……………………………………………………………………………20

I. The Boone Circuit Court’s Judgment Is Likely to Be Reversed…………….21

A. The Boone Circuit Court Lacked Jurisdiction to Enter the Statewide

Injunction Because Beans Café Lacked Standing ……………………….21

Commonwealth Cabinet for Health and Family Servs., Dep’t for

Medicaid Servs., v. Sexton, 566 S.W.3d 185 (Ky. 2018)…………….............21

1. Beans Café failed to allege an injury or causation to establish

standing………………………………………………………………….21

Beshear v. Acree, 615 S.W.3d at 825-27 (Ky. 2020)……………….passim

Commonwealth v. Bredhold, 599 S.W.3d 409 (Ky. 2020)………………23
McCloud v. City of Cadiz, 548 S.W.2d 158 (Ky. 1977) ………………...23
Waddle v. City of Somerset, 134 S.W.2d 956 (Ky. 1939)……………….23

2. The Boone Circuit Court erroneously determined standing………...24

Sexton, 566 S.W.3d 185 (Ky. 2018)....................................................24, 25

Beshear v. Acree, 615 S.W.3d at 830………………………..........…25, 27
Union Light, Heat & Power Co. v. Blackwell’s Adm’r,
291W.2d 539 (Ky. 1956)…………………………………………….......27

B. The Boone Circuit Court Lacked Jurisdiction Because Beans Café’s

Claim Became Moot Prior to the Entry of the Statewide Injunction…..28

Commonwealth v. Terrell, 464 S.W.3d 495 (Ky. 2015)………………...…28

Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014)………..……………...…….28
Commonwealth ex rel. Brown v. Interactive Media Entm’t &
Gaming Ass’n, 306 S.W.3d 32 (Ky. 2010)…….…...………….………..…29
Warth v. Seldin, 422 U.S. 490 (1975)……….……………………………..29
Beshear v. Acree, 615 S.W.3d at 828………………………..............…29-30

C. The Attorney General’s Nominal Participation Did Not Otherwise

Provide the Court Jurisdiction. …………………………………………30

Beshear v. Acree, 615 S.W.3d at 786………………………...................…30

Louisville Taxicab & Transfer Co. v. Johnson, 224 S.W.2d 639 (1949) …30
City of Covington v. Bd. of Trs. Of Policemen’s and Firefighters’ Retirement
Fund of City of Covington, 903 S.W.2d 517 (Ky. 1995)…………………..31
Hayes v. Ridge, 946 F. Supp. 354 (E.D. Pa. 1996)………………………...32

iii
 Dairymen, Inc. v. F.T.C., 1981 WL 2140 (W.D.Ky. Aug. 5, 1981) ……...32

D. The Boone Circuit Action Is an Improper Collateral Attack on the

Franklin Circuit Court Order Enjoining Enforcement of
HB 1, SB 1, SB 2 and HJR 77 ……………………………………………33

Duff v. Hagins, 143 S.W. 378 (Ky. 1912)…………………………......34, 38

Strother v. Day, 279 S.W.2d 785 (Ky. 1955)………………….........…34, 35
Louisville & N. R. Co. v. Bays’ Adm’x, 295 S.W. 452 (Ky. 1927)…….…..34
Conway v. Thompson, 300 S.W.3d 152 (Ky. 2009) …………………...36-37

E. The Boone Circuit Court’s Factual Findings are Clearly Erroneous …39

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)..passim

1. The Court Did Not Comply With The Civil Rules For Experts……..39

Civil Rule 26.02……………………………………………………....….39

Oliphant v. Ries, 568 S.W.3d 336 (Ky. 2019)…………….…….…….…40
S. Yuba River Citizens League v. Nat'l Marine Fisheries Serv., 257 F.R.D.
607 (E.D. Cal. 2009)…………………………………………………....40

2. The court failed to perform a meaningful Daubert analysis …….….41

City of Owensboro v. Adams, 136 S.W.3d 446 (Ky. 2004)………….…..41

3. The court committed clear error by adopting unreliable testimony

and relying on facts outside the record …………………….…………43

Walters v. Moore, 121 S.W.3d 210 (Ky. App. 2003)……………………43

Moore v. Asente, 110 S.W.3d 336 (Ky. 2003) ……………………….….44
S.R. v. J.N., 307 S.W.3d 631 (Ky. App. 2010) ………………………….45
Beshear v. Acree, 615 S.W.3d at 826-27…………………...................…46
Union Light, Heat & Power 291 S.W.2d 539 (Ky. 1956) ……….……...46

II. Beans Café Will Not Suffer Irreparable Injury If This Court Stays The
Permanent Injunction Pending Appeal ………………………………………46

Interactive Media, 306 S.W.3d 32 (Ky. 2010)………..…………………………46

III. Movants Will Suffer Irreparable Harm Absent A Stay, And The Public
Interest Favors A Stay Of The Permanent Injunction ………………………47

Beshear v. Acree, 615 S.W.3d at 788, 830………...…………....................…47-48

CONCLUSION ………………………………………………………………………...49

iv
 INTRODUCTION

The COVID-19 pandemic found new life in the United States in the last few

weeks. New cases of and hospitalizations for COVID-19 are increasing in the United

States and Kentucky at the fastest rate of growth of the pandemic because of the

transmission of the highly contagious SARS-CoV-2 Delta variant. In the past 14 days, the

United States has seen a 118% increase in cases, an 87% increase in hospitalized cases

and a 101% increase in deaths. 1 Over that same time period in Kentucky, cases have

increased 137%, hospitalized cases have increased 123% and deaths have increased

211%. 2 For the first time since February 2021, the United States is averaging more than

100,000 new cases a day, and Kentucky is averaging over 2,000 new cases a day.

The Delta variant is nearly twice as contagious as previous COVID-19 variants,

and fully vaccinated people with Delta variant breakthrough infections can spread the

virus to others. 3 An average of 225 children age 17 and under are admitted daily to U.S.

hospitals, a 27.2% increase from the prior week. 4 This is on top of a 45.7% increase from

the week before that. 5 More than 71,000 children and teenagers were infected with

COVID-19 last week, up 84% from the previous week and five times as many cases as

the end of June, more than 93,000 children and teenagers were infected with COVID-19

1
Coronavirus in the U.S.: Latest Map and Case Count (updated Aug. 10, 2021), available at
https://www.nytimes.com/interactive/2021/us/covid-cases.html (last visited Aug. 10, 2021).
2
Tracking Coronavirus in Kentucky: Latest Map and Case Count (updated Aug. 10, 2021), available at
https://www.nytimes.com/interactive/2021/us/kentucky-covid-cases.html (last visited Aug. 10, 2021).
3
CDC, Delta Variant: What We Know About the Science (updated Aug. 6, 2021), available at
https://www.cdc.gov/coronavirus/2019-ncov/variants/delta-variant.html (last visited Aug. 10, 2021).
4
CDC, COVID Data Tracker, New Admissions of Patients with Confirmed COVID-19 per 100,000
Population by Age Group, United States, available at https://covid.cdc.gov/covid-data-tracker/#new-
hospital-admissions (last visited Aug. 10, 2021).
5
Holly Yan, ‘All the beds are taken up by Covid victims’: Hospitals in the South are running out of space
or staff, CNN Health, Aug. 8, 2021, available at https://www.cnn.com/2021/08/08/health/us-coronavirus-
sunday/index.html (last visited Aug. 10, 2021).

1
from July 29 to August 5. 6 In Kentucky, nearly four times as many children and

teenagers under age 18 – 4,165 – were diagnosed with COVID-19 in July than in June,

when 1,197 tested positive. 7

Vaccines and other public health interventions, such as facial coverings, can curb

the surge of cases, and federal officials, governors and local officials are taking steps to

require or encourage vaccinations and facial coverings. However, in January and

February 2021, the peak of COVID-19 infections up to this point, the General Assembly

enacted legislation to veto existing public health measures and end the declared state of

emergency. In early March and April 2021, the Franklin Circuit Court temporarily

enjoined enforcement of that legislation, thereby maintaining the status quo of the

existing state of emergency and comprehensive public health response. By June 2021,

Kentucky’s cases dropped to a daily average below 250, getting to as low as 125 cases a

day.

This appeal concerns the Boone Circuit Court’s collateral attack on that injunction

and issuance of a permanent injunction requiring enforcement of the unconstitutional

legislation. The permanent injunction at issue bars Movants from “issuing or enforcing,

against any person within this Commonwealth, any emergency order, emergency decree,

or emergency regulation” in conflict with the enjoined legislation. (Vol. VI, p. 780.) Like

6
Jemima McEvoy, Covi Cases Among Children Jumped 85% Last Week – Here Are The States Where
Kid Hospitalizations Are Increasing, Forbes, Aug. 4, 2021, available at
https://www.forbes.com/sites/jemimamcevoy/2021/08/04/covid-cases-among-children-jumped-84-last-
week-here-are-the-states-where-hospitalizations-are-increasing/?sh=42920faa3be9 (last visited Aug. 10,
2021); Am. Acad. Of Pediatrics, Children and COVID-19: State-Level Data Report, available at
https://services.aap.org/en/pages/2019-novel-coronavirus-covid-19-infections/children-and-covid-19-state-
level-data-report/ (last visited Aug. 10, 2021).
7
Alex Acquisto, Beshear calls on employers to enforce vaccine mandates as COVID-19 cases surge in KY,
Lexington Herald-Leader, Aug. 5, 2021, available at
https://www.kentucky.com/news/coronavirus/article253277523.html (last visited Aug. 10, 2021).

2
the similar, but narrower, injunction entered by the Scott Circuit Court and stayed by the

Court of Appeals, 8 the Boone Circuit Court’s Order is erroneous and an abuse of

discretion and should be stayed pending resolution of the appeal. 9 The Boone Circuit

Court did not simply issue a conflicting injunction, but overruled and nullified the

Franklin Circuit Court’s temporary injunction, eradicating any relief obtained by that

order. Such a result is inappropriate under KY. CONST. § 109 and other law.

The Boone Circuit injunction impairs Movants’ ability to swiftly respond to the

current surge in cases and hospitalizations. In particular, counsel for Respondent

Ridgeway Properties, LLC, d/b/a Beans Café & Bakery (“Beans Café”), has proclaimed

his intent to seek contempt sanctions against the Governor and his staff should he take

emergency measures to protect lives, duties and measures the Franklin Circuit Court

ordered to remain in place. Additionally, the Boone Circuit Court’s sweeping injunction

may impact the Commonwealth’s ability to continue to receive essential federal aid,

which depends on the emergency declared in Executive Order 2020-215 and would

continue but for its decision. This includes federal funding for zero cost COVID-19

testing; a $96 million grant from FEMA for vaccine distribution; expanded EBT for

children on free or reduced lunch programs; and FEMA funding for meals for seniors.

Undoubtedly, circumstances have changed: the public health is now at risk and these

funds are more critical than ever.

Beyond the public health stakes, the Boone Circuit Court’s decision is wrong on

the facts and the law. The Boone Circuit Court lacked jurisdiction to enter its order, as

8
See Order Granting Emergency Relief, Beshear v. Goodwood Brewing, LLC, No. 2021-CA-0391-I (Apr.
15, 2021).
9
Indeed, the Boone Circuit Court pointed to the erroneous and stayed Scott Circuit injunction to justify its
own improper order. (Amended Judgment, p. 12 (R., Vol. VI at 763).)

3
Beans Café lacked standing, and the lawsuit constituted an improper collateral attack on

the Franklin Circuit Court temporary injunction. In effect, the court ruled Movants must

follow laws that are enjoined, although Movants are following the law under a statewide

injunction that keeps the emergency measures in full force and effect. In fact, the

Governor first sought and received competing injunctive relief in Beshear v. Osborne,

Franklin Cir. Civil Action No. 21-CI-00089, precisely so that he would not run afoul of

the law.

Further, the Boone Circuit Court’s factual findings are clearly erroneous. They

recite a series of dangerous and debunked conspiracy theories, unsupported by evidence,

suggesting that Movants have not accurately represented the scope and severity of the

COVID-19 pandemic. The court’s factual inaccuracies are made all the worse by its

failure even to acknowledge the overwhelming evidence that Movants introduced.

On this record, and as set forth fully below, Movants Andy Beshear, in his official

capacity as Governor of the Commonwealth of Kentucky, Eric Friedlander, in his official

capacity as Secretary of the Kentucky Cabinet for Health and Family Services, and Dr.

Steven Stack, in his official capacity as Commissioner of the Kentucky Department for

Public Health, by counsel, seek relief from the permanent injunction entered by the

Boone Circuit Court, pending their appeal from the Boone Circuit Court’s judgment.

FACTUAL & PROCEDURAL BACKGROUND

This is the second time that this case has reached this Court. The first time, this

Court issued a unanimous decision resoundingly rejecting the Boone Circuit Court’s

decision as an abuse of discretion. Beshear v. Acree, 615 S.W.3d 615, 830 (Ky. 2020).

4
Now, the Boone Circuit Court has issued another erroneous decision, rehashing much of

the same reasoning rejected in Beshear v. Acree.

I. This Court Unanimously Vacates The Boone Circuit Court’s First Injunction
In This Case.

This case began on June 16, 2020, when former plaintiff Florence Speedway, Inc.,

brought this suit against former defendant Northern Kentucky Independent Health

District, challenging capacity limitations and other public health measures imposed under

orders of the Governor and Secretary in response to the COVID-19 pandemic. Florence

Speedway then amended its complaint to add Beans Café as a plaintiff and to add claims

against Movants challenging the Governor’s COVID-19 response. The Boone Circuit

Court granted preliminary restraint against Movants on July 2, 2020. When the Court of

Appeals declined to stay that restraint and the Boone Circuit Court from the bench orally

indicated it would enter a temporary injunction, this Court assumed jurisdiction over the

action under Section 110 of the Kentucky Constitution, staying all lower court orders

challenging the Governor’s executive authority to issue public health measures to slow

the spread of COVID-19. The Court allowed this matter to proceed before the Boone

Circuit Court, but stated that “no order, however characterized, shall be effective.”

Beshear v. Acree, No. 2020-SC-000313-OA, Order, July 17, 2020.

On July 20, 2020, the Boone Circuit Court entered an order summarizing its

factual findings and legal analysis and holding that, but for the Kentucky Supreme Court

order, it would have granted a preliminary injunction in favor of the plaintiffs. That

preliminary injunction would have struck down Kentucky’s lifesaving COVID-19

response. In a unanimous decision, this Court reversed the Boone Circuit Court’s July 20,

2020 order and remanded the matter for further proceedings, if any, consistent with its

5
Opinion. See Beshear v. Acree, 615 S.W.3d at 830. This Court’s decision made clear that

plaintiffs’ claims had no merit and were subject to dismissal, in their entirety. Contrary to

this direction, the Boone Circuit Court did not promptly dismiss the complaint.

II. The General Assembly Passes Unconstitutional Legislation.

During the 2021 Regular Session, the General Assembly passed unconstitutional

legislation – Senate Bill 1 (R.S. 2021), Senate Bill 2 (R.S. 2021), and House Bill 1 (R.S.

2021) – that is the subject of the underlying litigation in this case. All three bills relate to

the Governor’s ability to protect the public health during the ongoing COVID-19

emergency.

A full description of these bills, and their unconstitutionality, was presented to

this Court in Governor Beshear and Secretary Friedlander’s Initial Brief in Cameron v.

Beshear, No. 2021-SC-0107-T, and will not be repeated here. In brief, HB 1 attempts to

abrogate the successful actions taken by the Governor to address the COVID-19

pandemic and to prevent him from taking similar, effective actions in the future. SB 1

purports to amend provisions of KRS Chapter 39A to strip the Governor’s executive

authority to respond to any emergency that exceeds 30 days. In doing so, the bill attempts

to provide an end run around Sections 55 and 80 of the Kentucky Constitution, extending

the days the General Assembly convenes and/or forcing special sessions. SB 1 further

adds a new provision to KRS 39A.180 that allows the Governor to suspend a statute by

executive order under KRS Chapter 39A only if the suspension is approved by the

Attorney General. SB 2 seeks to limit and control the Governor’s and the Secretary’s

ability to respond to emergencies through emergency regulations.

6
III. Governor Beshear and Secretary Friedlander File Suit In Franklin Circuit
Court.

Although the Governor vetoed all three pieces of legislation, the General

Assembly overrode those vetoes. The Governor and the Secretary thus filed a declaratory

judgment action in Franklin Circuit Court, seeking a declaration that HB 1 and Senate

Bills 1 and 2 are unconstitutional. Among other claims, the Governor and the Secretary

asserted that all three pieces of legislation violate the Kentucky Constitution’s separation

of powers by usurping executive authority. They further claimed that HB 1 is

unconstitutionally arbitrary, vague, and unenforceable, in part because its incorporation

of “CDC guidance” as enforceable regulation does not specify which of the then nearly

180 guidance documents are now Kentucky law, nor does it address the fact that those

documents are updated often and without notice to the public and are not written in terms

of clear and enforceable rules or restrictions. Instead, the guidance documents provide

general, often overlapping, and sometimes contradictory advice. Additionally, the

Governor and the Secretary claimed that the provision of SB 1 granting the Attorney

General unilateral veto power over any suspension of the law the Governor deems

necessary in order to respond to an emergency violates Kentucky Constitution § 69.

IV. The Franklin Circuit Court Issues Temporary Injunctive Orders.

Along with their Complaint in Franklin Circuit Court, the Governor and the

Secretary moved for a temporary restraining order and temporary injunction to maintain

the status quo pending a ruling on the merits. When the Governor and the Secretary filed

their action, Kentucky and the United States were experiencing some of the highest

numbers of cases and deaths of the pandemic. Only four weeks earlier, on January 6,

7
Kentucky reported a record-high 5,742 new cases of COVID-19, as well as 34 deaths. 10

On that same day, 1,778 Kentuckians were hospitalized for COVID-19, with 428 patients

in the intensive care unit and 244 patients fighting for their lives on ventilators. 11 The

Commonwealth’s positivity rate increased to 12.34% on January 14. 12 Two weeks later,

on January 28, Kentucky reported a record number of 69 new deaths. 13

The court initially granted a partial restraining order as to the challenged

provisions of HB 1. Then, following full briefing and an evidentiary hearing, the court

granted the temporary injunction motion under CR 65.04 on March 3, 2021.

In its temporary injunction order, Franklin Circuit Court found that the Governor

and the Secretary presented substantial legal questions concerning the validity of the

legislation, that the Governor and the public will suffer immediate and irreparable injury

in the absence of injunctive relief, and that the public interest and the balance of the

equities require the granting of injunctive relief. (See R., Vol. II at 197.) The court

observed that decisions about relaxing public health measures as conditions warrant and

as public health concerns abate “should be made based on medical and scientific

evidence, not on arbitrary deadlines imposed by statutes irrespective of the spread of the

virus.” (Id. at 198.) The court held that the emergency orders and administrative

regulations currently in effect to address the COVID-19 pandemic shall remain in full

force and effect, notwithstanding HB 1, SB 1 and SB 2, until amended or ended by the

Governor, according to law, pending a final judgment of the court. (Id. at 215.)

10
KY COVID-19 Report, 06 JAN 21, available at
https://chfs.ky.gov/cvdaily/COVID19DailyReport010621.pdf (last visited Aug. 9, 2021).
11
Id.
12
KY COVID-19 Report, 14 JAN 21, available at
https://chfs.ky.gov/cvdaily/COVID19DailyReport011421.pdf (last visited Aug. 9, 2021).
13
KY COVID-19 Report, 28 JAN 21, available at
https://chfs.ky.gov/cvdaily/COVID19DailyReport012821.pdf (last visited Aug. 9, 2021).

8
 The court enjoined the provisions of SB 1 and SB 2 that limit emergency orders to

30 days without the General Assembly’s approval, and enjoined the provisions of SB 2

that limit to 30 days administrative regulations promulgated under KRS Chapter 214.

(Id.) The court also enjoined the provision of SB 1 that requires the Attorney General’s

written approval before the Governor may suspend a statute or administrative regulation

that conflicts with an emergency order. (Id. at 215-16.) The court extended its temporary

restraining order enjoining the challenged provisions of HB 1. (Id. at 216.)

In its February 3, 2021 partial restraining Order, the Court found that the portion

of HB 1 permitting entities to adopt operating plans based on CDC guidance, which does

not supply standards that can be regulated, “could create chaos and undermine any

effective enforcement of public health standards to prevent the spread of this deadly

disease during this pandemic. Moreover, in the absence of injunctive relief, it appears

that these provisions of House Bill 1 could likely wreak havoc with public health.” 14 The

court then wrote: “Under the provisions of House Bill 1, it is likely that hundreds, or even

thousands, of individual operating plans could be adopted, with no meaningful oversight

or review, and with great variations as to the rules that would apply throughout the state.

The Governor’s power—indeed, duty—to effectively enforce any uniform public health

standards would be severely undermined, if not destroyed.” 15 The court held that the

Verified Complaint “demonstrates that there will be immediate and irreparable injury to

the Governor’s right and constitutional duty to adopt emergency measures to curb the

spread of the COVID-19 virus and address the real, imminent and extreme public health

14
Beshear v. Osborne, Franklin Circuit Court Civil Action No. 21-CI-00089, Order, at 3 (Feb. 3, 2021)
(attached as Exhibit A).
15
Id. at 3-4.

9
crisis facing the public,” and that the public interest required that the effectiveness of

those portions of House Bill 1 be enjoined. 16

In extending the restraining order on HB 1 and enjoining certain portions of SB 1

and SB 2, the Franklin Circuit Court specifically found that it had jurisdiction over the

dispute because the Complaint appeared to present a justiciable controversy under

Sections 2, 3, 27, 28, 36, 42, 43, 69, 80 and 81 of the Kentucky Constitution and

Legislative Research Comm’n By and Through Prather v. Brown, 664 S.W.3d 907 (Ky.

1984). (R., Vol. II at 216-17.) The Court concluded:

As to the Attorney General’s argument that the case is not

justiciable, and the Governor lacks standing, the Court finds that these
three pieces of legislation seek to diminish the Governor’s power under
the Constitution to ensure “that laws be faithfully executed.” Ky. Const. §
81. They raise issues of the Governor’s powers under Kentucky
Constitution Section 69, and they raise profound questions concerning the
separation of powers between the Governor and the General Assembly
under Kentucky Constitution Sections 27 and 28. The Governor has
alleged irreparable injury to his constitutional powers and has made a
preliminary showing that the bills will impair the exercise of his
constitutional duty. That is sufficient to demonstrate a justiciable
controversy in which the Governor has standing to sue. If the Attorney
General agrees with the Governor that the legislation is unconstitutional,
then the Court will reconsider whether there is a case or controversy for
adjudication. But, in the event the Attorney General believes the
challenged legislation is valid and constitutional, he has a duty to defend
the laws under KRS 15.020 and his oath of office, and the Court has a
duty to decide the case. (Id. at 214.)

In reaching that conclusion, the court recognized that the challenged legislation –

HB 1, SB 1 and SB 2 – all raise serious separation of powers issues, as well as issues

under Sections 69 and 81 of the Kentucky Constitution concerning the appropriate

definition of executive power and allocation of power to prescribe rules, regulations, and

policies for public health between the legislative and executive branches. (Id. at 210,

16
Id. at 4.

10
212.) The court also found that HB 1, SB 1 and SB 2 present questions under Sections 2,

59 and 60. (Id. at 212.) The court found the Governor “has made a prima facie showing

that the challenged legislation infringes on the authority of the Executive Branch of state

government, and crosses the line between proper legislative oversight and improper

legislative micro-management.” (Id. at 210.) Noting that Section 69 of the Kentucky

Constitution provides that the “supreme executive authority of the Commonwealth shall

be vested in a Chief Magistrate, who shall be styled the ‘Governor of the Commonwealth

of Kentucky,’” the court stated that the case “directly raises the question of whether the

Executive Orders and E-regs governing the COVID19 crisis are fundamentally executive

or legislative in nature.” (Id.)

Not enjoining HB 1, SB 1 and SB 2, and letting the current emergency public

health measures expire would create “a chaotic legal environment in which everyone

would make their own rules, and state and local health officials would be barred from any

kind of effective enforcement of statewide standards and rules.” (Id. at 211.) For instance,

allowing HB 1 to take effect “would be an invitation to disaster.” (Id. at 212.) The court

determined that the testimony of Dr. Steven Stack, Commissioner of the Department for

Public Health, “supports the Court’s finding that this wholesale repeal of all applicable

Executive Orders and E-regs would likely result in a public health catastrophe.” (Id.)

On April 7, 2021, the Franklin Circuit Court amended its temporary injunction

against provisions of HB 1, SB 1, and SB 2 by further enjoining House Joint Resolution

77 (R.S. 2021) (“HJR 77”). 17 In its Order, the court incorporates its Temporary

17
See Beshear v. Osborne, Franklin Circuit Court Civil Action No. 21-CI-00089, Order (Exhibit B to
Supplemental Response to Motion for Leave to File Revised Third Amended Complaint (R., Vol. II,
Envelope I).)

11
Injunction Order entered on March 3, 2021, and orders that both of the temporary

injunctions shall apply statewide. (Id. at 7.) The Order became effective immediately

upon its entry and shall be in effect nunc pro tunc to the effective date of HJR 77. (Id. at

8.) Under the Order, the orders and administrative regulations the Governor and the

Secretary issued during the COVID-19 public health emergency shall remain in full force

and effect, until amended or terminated by the Governor, according to law, pending a

final judgment in the Franklin Circuit Court, notwithstanding HB 1, SB 1, SB 2 and HJR

77. (Id.)

V. Beans Café Collaterally Attacks The Franklin Circuit Temporary Injunction

Order By Reviving This Case In Boone Circuit Court.

On March 11, 2021, Beans Café filed a motion to amend its complaint and a

motion for temporary injunctive relief. (See R., Vol. I at 149.) Beans Café’s motions and

proposed class complaint made clear that its claims arose from the Franklin Circuit Court

injunction. (Third Am. Compl. ¶¶ 55-60 (R., Vol. III at 263-64).) Beans Café challenged

ongoing capacity and operating hours restrictions for restaurants and face coverings

requirements – restrictions that remained in place only because the Franklin Circuit Court

enjoined enforcement of HB 1, SB 1, SB 2 and HJR 77.

The Boone Circuit Court allowed Beans Café to amend its complaint, although it

denied Beans Café’s effort to add as an intervening plaintiff Deans Diner, LLC d/b/a

Brewed (“Brewed”), a business based in Fayette County. (See id. at 367-68.) The Boone

Circuit Court ordered expedited briefing and a hearing on the merits of Beans Café’s

claims for declaratory and permanent injunctive relief and on Beans Cafe’s motion for

class certification. (See id.) A hearing was held on May 17, 2021. Dr. Stack testified on

behalf of Movants, as he had in the 2020 proceeding. Beans Café provided testimony

12
from its owner, who testified – as he had in 2020 – that Movants’ public health measures

were causing him economic harm. Beans Café also provided testimony from a private

practice primary care physician who admitted her political disagreement with the

Governor’s policies in response to COVID-19, as well as an industrial hygienist who

opined on the efficacy of Kentucky’s public health measures before admitting he had not

read them. (See R., Tr. of May 17, 2021 Hearing (Brown Folder).)

On June 8, 2021, the Boone Circuit Court entered a Judgment and Order. (See R.,

Vol. VI at 703.) First, the court granted a declaratory judgment against Movants. (Id. at

730-31.) Based on the court’s Judgment and Order, this form of relief was intended to

apply broadly, obviating the need for class certification. (See id. at 731.) Second, the

court granted Beans Café’s Motion for a Permanent Injunction against Movants. (Id.)

However, the injunctive relief the court ordered was narrowly drawn to fit the claims

Beans Café asserted. The injunction only applied to Beans Café, and became effective on

June 10, 2021, at 5:00 pm – the evening before the June 11 date that Governor Beshear

had announced prior to the hearing that all restrictions on restaurants like Beans Café

would be lifted. The court also denied Movants’ cross-motion for summary judgment on

the constitutionality of HB 1, SB 1, SB 2 and HJR 77 without citing any basis in law

other than the rebuttable presumption of the constitutionality of a statute. (See id.

generally.)

Notwithstanding the extremely limited injunctive relief the court granted to the

named plaintiff only, Beans Café’s counsel sent an email to employees of the Kentucky

Department of Alcoholic Beverage Control (“ABC”), who are overseeing a pending

administrative action against Brewed, the Lexington coffee shop which was not a party to

13
the case and to which the court had denied intervention. (See Movants’ Renewed Motion

for Interlocutory Relief Under CR 65.09(3), Exhibit 1.) In the email, Beans Café’s

counsel notified ABC of the Boone Circuit Court’s June 8, 2021 Judgment and Order,

and indicated that ABC’s proceeding against Brewed – which concerned actions that

occurred well before the passage of the legislation at issue in this case – was enjoined.

(See id.) Importantly, Beans Café’s counsel intentionally omitted from his email the

language limiting the injunction to Beans Café. ABC then informed Beans Café’s counsel

that the Boone Circuit Court’s injunction was not binding authority on the administrative

proceeding between the Department and Brewed because neither was a party to the

action. (See id.) However, ABC expressly noted that Brewed could argue the effect of the

Boone Circuit Court’s declaratory relief to the hearing officer. (See id.)

VI. The Boone Circuit Court Abuses Its Discretion In Entering An Amended
Permanent Injunction Of Its Own.

Beans Café’s counsel then filed a motion before Boone Circuit Court to alter or

amend the June 8, 2021 Judgment and Order under the patently false premise that state

government was not complying with the declaratory and injunctive relief. (See R., Vol.

VI at 736.) Movants responded by noting that the injunctive relief was limited – indeed,

the injunctive relief had already expired, because the restrictions at issue in the case were

lifted on Friday, June 11, 2021. (See id. at 739-46.) Moreover, nothing in the Boone

Circuit Court action could affect ABC’s administrative proceeding against Brewed,

because the ABC proceeding was based on violations of executive orders upheld by the

Supreme Court in Beshear v. Acree, and those violations occurred in 2020 – before the

legislation at issue was even introduced. (See id.) Finally, Movants argued that Beans

14
Café’s counsel – who also represents Brewed – was attempting an end-run around the

ABC administrative proceeding by seeking to expand the injunction. (See id.)

Despite these arguments, the Boone Circuit Court accepted Beans Cafe’s

misleading representations and expanded its injunction to apply statewide. (See id. at

752.) Specifically, under the court’s June 15, 2021 Amended Judgment and Order,

Movants:

are ENJOINED from issuing or enforcing, against any person within this
Commonwealth, any emergency order, emergency decree, or emergency
regulation to the extent that the same are in conflict with, or are otherwise
contrary to, House Bill 1, Senate Bill 1, Senate Bill 2, and House Joint
Resolution 77, as passed in the 2021 session of the General Assembly.
For purposes of clarity, this injunction shall be applicable to [Movants],
their officers, agents, and attorneys; and upon other persons in active
concert with them who receive actual notice of this Order by personal
service or otherwise.

(Id. at 780.) Through its amended order, the Boone Circuit Court transformed a

declaratory judgment, which could be appealed in an orderly fashion, into a statewide

follow-the-law injunction that will imperil millions of dollars of federal funding and

impair existing and new emergency executive action to respond to the Delta variant.

VII. Movants Seek Relief Pursuant to CR 65.08.

Because the Boone Circuit Court’s permanent injunction constitutes an abuse of

discretion and subjects Movants to a statewide injunction that erases the relief Movants

obtained in the Franklin Circuit Court, Movants sought relief in the Court of Appeals

under Kentucky Rule of Civil Procedure (“CR”) 65.08. 18 The Court of Appeals entered

18
After the Boone Circuit Court entered its initial judgment, but before it amended that judgment, the
Kentucky Supreme Court heard argument on CR 65.07 motions filed in both Cameron v. Beshear, No.
2021-SC-0107-T, which is the Attorney General’s challenge to the Franklin Circuit Court injunction, and
Beshear v. Goodwood Brewing Co., No. 2021-SC-0126-T, concerning the stayed Scott Circuit Court
injunction. No decision has been rendered in either case as of this filing.

15
an Order recommending transfer of the matter to this Court pursuant to CR 74.02(5). On

July 20, 2021, this Court accepted transfer and ordered expedited briefing on the merits

of the motion.

VIII. The Rise of the Delta Variant.

With the rise of the Delta variant, circumstances have changed swiftly and

dramatically since the entry of the Boone Circuit Court’s Amended Judgment and Order

on June 15, 2021. Indeed, they have changed swiftly and dramatically since this Court’s

denial of CR 65.09 relief on July 20. On June 15, there were 290 new cases of COVID-19

reported in the state, and the Commonwealth’s positivity rate was at 2.05%. 19 On July 1,

these numbers were even lower, with only 215 new cases reported and a positivity rate of

1.99%. 20 Additionally, there were 201 COVID-19 hospitalizations, with 55 of those in

the ICU and 25 on ventilators. 21

However, just last week, on August 4, 2021, Kentucky saw 2,583 new cases – the

most since February 3, 2021 – and a 10.08% positivity rate – the highest since January

24, 2021. 22 Even worse, on August 10, 2,500 new cases of COVID-19 were reported,

with 1,251 COVID-19 hospitalizations, 339 opatients in the ICU and 168 on

ventilators. 23 The Commonwealth’s positivity rate increased to 11.05% and, continuing

an alarming trend, 490 new cases of COVID-19 were of people age 18 and under. 24 After

seeing no Kentucky counties in the red zone – the state health department’s highest

classification signifying a severe level of community spread – as of July 1, 2021, as of

19
chfs.ky.gov/cvdaily/COVID19DailyReport061521.pdf (last visited July 27, 2021).
20
https://chfs.ky.gov/cvdaily/COVID19DailyReport070121.pdf (last visited July 28, 2021).
21
Id.
22
See https://kentucky.gov/Pages/Activity-stream.aspx?n=GovernorBeshear&prId=910 (last visited Aug.
10, 2021); https://chfs.ky.gov/cvdaily/COVID19DailyReport080421.pdf (last visited Aug. 10, 2021).
23
https://chfs.ky.gov/agencies/dph/covid19/COVID19DailyReport.pdf (last visited Aug. 10, 2021).
24
Id.

16
August 9 only 16 of Kentucky’s 120 counties remained out of the red zone. 25 Alarmingly,

over 90% of ICU capacity in Kentucky’s Region 10, which includes Adair, Casey,

Clinton, Cumberland, Green, McCreary, Pulaski, Russell, Taylor, and Wayne Counties, is

in use. 26 The most recent CDC data show 118 of 120 Kentucky counties is at substantial

or high risk of community transmission of COVID-19. 27

First identified in India, the COVID-19 Delta variant is now the dominant strain

in the United States. 28 Labeled a “variant of concern” by the Centers for Disease Control

and Prevention (CDC), the Delta strain spreads more easily; according to researchers, it is

about 50% more contagious than the alpha variant, which was already 50% more

contagious than the original virus. 29 According to reports, the CDC director has described

the Delta variant as “more aggressive and much more transmissible than previously

circulating strains.” 30 Former head of the Food and Drug Administration Dr. Scott

Gottlieb recently warned “that for Americans who are unvaccinated and become infected

with the Delta variant, the virus will be the ‘most serious’ they get in their lifetime.” 31

World Health Organization “officials have said the variant . . . is the fastest and fittest

25
https://govstatus.egov.com/kycovid19 (last visited Aug. 10, 2021).
26
https://chfs.ky.gov/agencies/dph/covid19/COVID19DailyReport.pdf (last visited Aug. 10, 2021).
27
CDC, COVID Data Tracker, available at https://covid.cdc.gov/covid-data-
tracker/?utm_source=eGrams&utm_campaign=d37250769c-EMAIL_CAMPAIGN_2020_
12_01_05_59_COPY_01&utm_medium=email&utm_term=0_8585e42106-d37250769c-
1311662466#county-view (last visited Aug. 10, 2021).
28
Carolyn Crist, What You Need to Know About the Delta Variant, WebMD, July 12, 2021, available at
https://www.webmd.com/lung/news/20210712/what-to-know-about-covid-delta-variant (last updated July
21, 2021) (last visited Aug. 9, 2021).
29
See id.
30
Emily Anthes, The Delta Variant: What Scientists Know, New York Times, June 22, 2021, available at
https://www.nytimes.com/2021/06/22/health/delta-variant-covid.html (last updated July 22, 2021) (last
visited July 27, 2021).
31
Melissa Quinn, Gottlieb warns Delta variant will be ‘most serious virus’ unvaccinated get in their
lifetime, Face the Nation, July 18, 2021, available at https://www.cbsnews.com/news/scott-gottlieb-delta-
variant-covid-19-vaccines/ (last visited Aug. 9, 2021).

17
coronavirus strain yet, and it will ‘pick off’ the most vulnerable people, especially in

places with low Covid vaccination rates.” 32

Although the approved COVID-19 vaccines appear to be effective against the

Delta variant and against serious illness in the event of a breakthrough infection, 33 as of

August 6, 2021, 47% of Kentuckians remained unvaccinated. 34 Moreover, only 38% of

Kentuckians in the 18-29 age group and 48% in the 30-39 age group have been

administered a first vaccine dose. 35 Vaccination rates in the bottom five Kentucky

counties are 23-24%. 36 And, of course, no vaccine has yet been approved for the

youngest Kentucky citizens, ages 11 and under. Furthermore, emerging data suggests

higher reinfection rates in those unvaccinated individuals who previously had COVID-19

than with other variants. Public Health England “found the risk of reinfection with Delta

may be 46% greater than with the Alpha variant, with the highest risk seen six months

after a first infection – when second cases caused by Delta were 2.37 times more

common than with Alpha.” 37

Significantly, and in contrast to other known variants, “[n]ew data suggests that

people who are vaccinated and have breakthrough infections from the delta variant may

have as much viral load as a person who is unvaccinated, which suggests they may be

32
Berkeley Lovelace Jr., WHO urges fully vaccinated people to continue to wear masks as delta Covid
variant spreads, CNBC, June 25, 2021, available at https://www.cnbc.com/2021/06/25/delta-who-urges-
fully-vaccinated-people-to-continue-to-wear-masks-as-variant-spreads.html (last updated June 25, 2021)
(last visited Aug. 9, 2021).
33
Carolyn Crist, What You Need to Know About the Delta Variant, WebMD, July 12, 2021, available at
https://www.webmd.com/lung/news/20210712/what-to-know-about-covid-delta-variant (last updated July
21, 2021) (last visited Aug. 9, 2021).
34
https://dashboard.chfs.ky.gov/views/KYPublicFacingDashboard_16191000580170/KentuckyCOVID-
19Vaccination?:iid=1&:isGuestRedirectFromVizportal=y&:embed=y (last visited Aug. 9, 2021).
35
Id.
36
Id.
37
Ian Sample, PHE upgrade Delta variant’s risk level due to reinfection risk, The Guardian, July 23, 2021,
available at https://www.theguardian.com/world/2021/jul/23/phe-upgrade-delta-variants-risk-level-due-to-
reinfection-risk (last visited Aug. 9, 2021).

18
able to spread it to others[.]”38 In part as a result of this new data, the CDC has

recommended that vaccinated individuals resume wearing masks in public indoor spaces

in areas where transmission is substantial or high, 39 as well as uniformly in schools

regardless of community transmission rates. 40 The CDC also provided updated guidance

encouraging governments to consider implementing additional prevention strategies,

depending in part on the rate of community spread and extent of vaccination coverage. 41

Studies have repeatedly shown that facial coverings mandates are an effective prevention

strategy that can arrest the exponential growth of COVID-19 cases and prevent hospital

overrun. 42

LEGAL STANDARD

Under CR 65.08(1), “[a]fter an appeal is taken from a final judgment granting or

denying an injunction any party may move the circuit court to grant, suspend or modify

injunctive relief during the pendency of the appeal.” Where a request to the trial court is

impractical, the movant may seek relief from the Court of Appeals in the first instance.

CR 65.08(3).

38
Yasmeen Abutaleb, Joel Achenbach, Dan Diamond and Adam Taylor, CDC to urge vaccinated people to
resume wearing masks indoors in some circumstances as delta variant spreads, The Washington Post, July
28, 2021, available at https://www.washingtonpost.com/health/2021/07/27/cdc-masks-guidance-indoors/
(last visited Aug. 9, 2021).
39
See When You’ve Been Fully Vaccinated, CDC, https://www.cdc.gov/coronavirus/2019-
ncov/vaccines/fully-vaccinated.html (last updated July 27, 2021) (last visited Aug. 9, 2021).
40
See Guidance for COVID-19 Prevention in K-12 Schools, CDC, https://www.cdc.gov/coronavirus/2019-
ncov/community/schools-childcare/k-12-guidance.html (last updated Aug. 5, 2021) (last visited Aug. 9,
2021).
41
CDC COVID-19 Response Team, Guidance for Implementing COVID-19 Prevention Strategies in the
Context of Varying Community Transmission Levels and Vaccination Coverage, available at
https://www.cdc.gov/mmwr/volumes/70/wr/mm7030e2.htm (last visited Aug. 9, 2021).
42
See CDC, The Science of Masking to Control COVID-19, at 17-25 (collecting studies), available at
https://www.cdc.gov/coronavirus/2019-ncov/downloads/science-of-masking-full.pdf (last visited Aug. 9,
2021).

19
 No Kentucky case specifically addresses the standard of review on a CR 65.08

motion. Under corresponding federal rules (see Fed. R. Civ. P. 62(c); Fed. R. App. P.

8(a)), however, the Sixth Circuit considers the following four factors: “(1) the likelihood

that the party seeking the stay will prevail on the merits—which, in the case of staying a

permanent injunction, constitutes the likelihood of reversal; (2) the likelihood that the

moving party will be irreparably harmed; (3) the prospect that others will be harmed by

the stay; and (4) the public interest in the stay.” 43 Michigan State A. Philip Randolph

Institute v. Johnson, 749 F. App’x 342, 344 (6th Cir. 2018) (citing Michigan Coal. of

Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991)).

“These factors are not prerequisites that must be met, but are interrelated considerations

that must be balanced together.” Griepentrog, 945 F.2d at 153.

On review, an appellate court reviews the trial court’s “legal conclusions de novo

and its factual findings for clear error.” Johnson, 749 F. App’x at 344.

ARGUMENT

As set forth more fully below, the Boone Circuit Court’s judgment is likely to be

reversed. The Boone Circuit Court lacked jurisdiction because Beans Café lacked

standing, and the action constituted an improper collateral attack on the Franklin Circuit

Court’s temporary injunction. Further, the Boone Circuit Court’s factual findings,

including its finding and ultimate legal conclusion that Beans Café had demonstrated

irreparable harm, were clearly erroneous. In addition, Movants and the public will be

43
“It is well established that Kentucky courts rely upon Federal case law when interpreting a Kentucky rule
of procedure that is similar to its federal counterpart.” Manning v. Liberty Tire Services of Ohio, LLC, 577
S.W,3d 102, 109 n. 3 (Ky. App. 2019) (quoting Curtis Green & Clay Green, Inc. v. Clark, 318 S.W.3d 98,
105 (Ky. App. 2010)); see also Metropolitan Property & Cas. Ins. Co. v. Overstreet, 103 S.W.3d 31, 35
(Ky. 2003) (“Because FRCP 35(a) mirrors CR 35.01, federal court decisions interpreting [FRCP 35(a)]
may be accepted as persuasive authority when examining CR 35.01.’”) (quoting Taylor v. Morris, 62
S.W.3d 377, 379 (Ky. 2001)).

20
irreparably harmed absent a stay of the Boone Circuit permanent injunction, but a stay

will cause no harm to Beans Café.

I. The Boone Circuit Court’s Judgment Is Likely to Be Reversed.

A. The Boone Circuit Court Lacked Jurisdiction to Enter the Statewide

Injunction Because Beans Café Lacked Standing.
“[T]he existence of a plaintiff’s standing is a constitutional requirement to

prosecute any action in the courts of this Commonwealth[.]” Commonwealth Cabinet for

Health and Family Servs., Dep’t for Medicaid Servs., v. Sexton, 566 S.W.3d 185, 188

(Ky. 2018). Every court must ascertain whether a plaintiff has constitutional standing. Id.

To sue in Kentucky, a plaintiff “must allege personal injury fairly traceable to the

defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.”

Id. at 196 (citations omitted). Further, a plaintiff “must demonstrate that it has suffered a

concrete and particularized injury that is either actual or imminent . . . [and] [t]he injury

must be ... ‘distinct and palpable,’ and not ‘abstract’ or ‘conjectural’ or ‘hypothetical.’”

Id. (citations omitted). If a plaintiff lacks standing, the court lacks jurisdiction. Id. at 195.

Here, Beans Café failed to demonstrate any injury caused by Movants, and the court

abused its discretion when it found Beans Café had standing.

1. Beans Café failed to allege an injury or causation to establish

standing.

Throughout the COVID-19 pandemic, Beans Café refused to comply with public

health measures issued by Movants. It brought this action initially to challenge the

capacity limitations, facial covering requirements and other social distancing measures

placed upon restaurants. See Beshear v. Acree, 615 S.W.3d at 825-27. Beans Café argued

the measures harmed the economic interests of its business and that it faced closure for

non-compliance. Id. This Court held those limitations to be reasonable and necessary. Id.

21
at 826-27. Still, Beans Café refused to comply. (Third Amended Complaint, p. 15, ¶ 61

(R., Vol. III at 265).)

Upon the purported change in law under HB 1 – and despite the statewide

injunction against its enforcement – Beans Café created a plan it claimed adhered to CDC

guidance rather than the existing public health measures issued by Movants. (Id. at ¶¶ 65-

66 (Vol. III, p. 265).) Its owner testified that Beans Café followed its own plan and did

not require facial coverings or follow other executive branch public health measures. (See

Tr. of May 17, 2021 Hearing, 28:14-25, 29:10-19 (R., Brown Folder); Plaintiffs’ Exhibit

3 (R., Envelope II).) He further testified that he had faced no penalty or threat of penalty

as a result. (Id. at 34:2-17.) See Beshear v. Acree, 615 S.W.3d at 827-28 (Beans Café

lacked standing to challenge facial covering mandate because it did not face order of

business closure or threat of business closure.). Regardless, Beans Café still alleged the

challenged measures “cause substantial hardship to Plaintiff who has been adversely

affected thereby[]” and “create serious problems for the Plaintiff, threaten to, and actually

do, impair their business goodwill[.]” (Id. at ¶¶ 72-73 (R., Vol. III at 266-67).) Of course,

that cannot be true given Beans Café’s simultaneous allegation and testimony that it had

not adhered to the challenged measures, but instead adopted measures it claimed were

consistent with CDC guidance in accordance with HB 1. Any hardship or impairment of

business goodwill suffered by Beans Café after passage of HB 1 is attributable to HB 1,

not the challenged measures it refused to follow.

Failing to allege an actual injury, Beans Café alleged that having faced past

enforcement for its refusal to comply with the measures this Court held to be lawful, it

“fears additional enforcement actions should [it] fail to adhere to the Governor’s

22
restrictions.” 44 (Id. at ¶ 65 (R., Vol. III at 265).) Yet, it also admitted that its license was

restored upon agreement to comply with the lawful measures. (Id. at ¶ 64 (R., Vol. III at

265.) Regardless, that enforcement by the Boone and Grant County Attorneys, non-

parties to the action either before or after amendment, occurred in 2020 before the

passage of HB 1, and concerned prior public health measures that this Court held to be

lawful responses to the COVID-19 pandemic. Beshear v. Acree, 615 S.W.3d at 826-27.

Such “allegations of possible future injury do not satisfy the requirements of standing.”

Commonwealth v. Bredhold, 599 S.W.3d 409, 417 (Ky. 2020) (citation omitted). And

even if prior enforcement could be a “threat” of future enforcement, “[a] threatened

injury must be ‘certainly impending’ to constitute injury in fact.” Id. (citation omitted).

Beans Café’s failure to establish an injury puts the challenged actions in proper

context: a collateral attack on the Franklin Circuit Court statewide injunction. Without

that injunction, Beans Café’s would have no “fear of additional enforcement[.]” The

challenged public health measures would have ceased to exist, HB 1 would have taken

effect and the Governor would have followed the new law. It is the existence of the

Franklin Circuit Court injunction that gave rise to Beans Café’s “fear[.]” Yet, despite the

Franklin Circuit Court injunction, Movants did not enforce or threaten to enforce the

challenged public health measures against Beans Café, and the action still amounts to a

request for a follow-the-law injunction. Such a follow-the-law request does not create a

justiciable controversy between parties. See, e.g., McCloud v. City of Cadiz, 548 S.W.2d

158 (Ky. 1977); Waddle v. City of Somerset, 281 Ky. 3, 134 S.W.2d 956 (1939) (“[T]he

court is asked to exercise its extraordinary restraining authority to compel the city

Notably, Beans Café voluntarily dismissed the defendant who had actually taken enforcement action, the
44

Northern Kentucky Independent Health District.

23
authorities to obey the law in the future,... notwithstanding the law itself imposes such

duty, and which cannot be made more mandatory by a superinduced order from the

court....”). Accordingly, Beans Café lacked standing as it suffered no injury, let alone an

injury that Movants caused.

2. The Boone Circuit Court erroneously determined standing.

The Boone Circuit Court analyzed Beans Café’s standing in light of the “[i]mpact

of [the] Governor’s Emergency Decrees[.]” (Amended Judgment and Order, p. 12 (R.,

Vol. VI at 763).) In doing so, the court disregarded the inconvenient facts alleged by

Beans Café and ignored the law of the case in Beshear v. Acree. Ultimately, the court

found an “injury” to Beans Café based upon its potential compliance with public health

measures, the effectiveness of which the court questioned by acceptance of dangerous

and debunked conspiracy theories challenging the scope and severity of COVID-19, none

of which is relevant to whether Beans Café “suffered a concrete and particularized injury

that is either actual or imminent[.]” Sexton, 566 S.W.3d at 188.

As the court acknowledged, “[a]fter passage of the New Legislation, [Beans Café]

opted to develop a compliance plan based upon CDC guidance in lieu of the Governor’s

mandates.” (Amended Judgment, p. 13 (R., Vol. VI at 764).) The court also recognized

that Beans Café’s owner “testified that he fears enforcement actions may still be brought

against him even though as of yet, that has not occurred following the passage of the

Acts.” (Id.) Still, the court managed to find that Beans Café suffered economic harm as a

result of the public health measures it refused to follow. (Id. at p. 12 (R., Vol. VI at 763).)

These findings are irreconcilable and cannot establish standing. To reconcile the

inconsistency, one must assume the court considered the economic harm alleged prior to

24
the change in law. But that alleged harm is irrelevant to Beans Café’s standing to

challenge the measures as violating HB 1.

Indeed, Beans Café did allege economic harm following the filing of the initial

Complaint in this matter. See Beshear v. Acree, 615 S.W.3d at 830. This Court addressed

that alleged harm – along with Beans Café’s arguments that capacity limitations, social

distancing and facial covering requirements were arbitrary – and found the public health

measures to be lawful and any alleged – but not proven – economic harm did not

outweigh the public health interest under the appropriate scrutiny. Id. Under the Third

Amended Complaint, Beans Café challenges the public health measures as inconsistent

with HB 1, SB 1 and SB 2. Beans Café’s claims arose upon the passage of these bills.

Therefore, Beans Café’s standing must rely on an injury caused after their passage.

Sexton, 566 S.W.3d at 196 (“the injury must be fairly traceable to the challenged action”)

(emphasis added). To the extent the court relied on bare, unproven allegations of

economic harm by Beans Café that only could have occurred prior to the passage of HB

1, SB 1 and SB 2, the court erred. Beans Café did not – and cannot – establish any injury

caused by Movants after the claims arose following passage of HB 1, SB 1 and SB 2.

The court then considered the “[i]mpact of [the] Governor’s Emergency Decrees”

on Beans Cafe in light of a host of outrageously false “scientific” statements from its

supposed experts. For example, contrary to the overwhelming public health consensus

concerning how COVID-19 is spread and its effect on the public, Boone Circuit Court

accepted as fact the conclusion of a primary care physician that “the government’s

actions [to stop the spread of COVID-19] have inflicted more harm and death” than the

disease itself. (Amended Judgment, p. 14 (R., Vol. VI at 765).) The Boone Circuit Court

25
failed to note that the same “expert” testified that her opinion was based in part on her

incorrect belief that schools do not close for flu (they do) and that children cannot spread

COVID-19 (they can). (Tr. of May 17, 2021 Hearing, 82:14-22, 79:10-13 (R., Brown

Folder).) The Boone Circuit Court also credited the testimony of an industrial hygienist

that Kentucky’s facial coverings requirements and distancing measures were ineffective.

(Amended Judgement, pp. 15-18 (R., Vol. VI at 766-69).) Again, the Boone Circuit Court

failed to acknowledge that this “expert” admitted he had not even reviewed Kentucky’s

public health measures and guidance before offering this “expert” testimony on their

efficacy. (Tr. of May 17, 2021 Hearing, 150:10-151:24, 152:13-20, 153:7-19 (R., Brown

Folder).) Finally, despite the fact that Beans Café put forward no evidence on this point,

the Boone Circuit Court accepted as fact a baseless and dangerous conspiracy theory that

case counts have been inflated by public health experts. (Amended Judgment, pp. 20-21

(R., Vol. VI at 771-72).) In brief, the Boone Circuit Court accepted Beans Café’s

nonsensical claims that PCR testing has not been performed correctly because individuals

are not informed as to how many cycles are run on PCR machines. Medical experts and

the popular press have repeatedly debunked this junk science from so-called “armchair

molecular biologists” who have spread these conspiracy theories on Facebook. 45

In direct conflict with Beshear v. Acree, the court used this testimony to conclude

that Beans Café was injured because the public health measures are neither effective nor

45
See, e.g., Robinson Fletcher, PCR tests are not prone to false positives, despite what's on Facebook,
experts say, CBC News, available at https://www.cbc.ca/news/health/pcr-tests-false-positives-myth-reality-
1.6034273 (last visited Aug. 9, 2021); Infectious Diseases Society of America and Association for
Molecular Pathology, IDSA and AMP joint statement on the use of SARS-CoV-2 PCR cycle threshold (Ct)
values for clinical decision-making, available at https://www.idsociety.org/globalassets/idsa/public-
health/covid-19/idsa-amp-statement.pdf (“Due to the myriad of analytical and clinical factors known to
impact Ct values, caution is advised when applying published correlations of Ct values with disease
severity or as a predictor of active infection and hence transmissibility. At the current time, routine use of
Ct values to inform clinical decision making is not advised.”) (last visited Aug. 9, 2021).

26
needed to address the spread of COVID-19, and the court further found “there to be no

emergency justification” for the public health measures or “need to deprive people of

their liberty.” (Amended Judgment, pp. 18-21 (R., Vol. VI at 769-72).) Of course, Beans

Café sought none of these conclusions in the Complaint and did not argue this to be its

injury. (Third Amended Complaint, ¶¶ 91-93 (R., Vol. III at 270-71)) (seeking a

declaration that HB 1, SB 1 and SB 2 are valid and enforceable and the challenged public

health measures are null and void as a result). Nonetheless, Beshear v. Acree, as the law

of this case, precluded the Boone Circuit Court’s finding when it held:

Plaintiffs and the Attorney General argue that the injunction serves
the public interest because the Governor's orders have caused economic
hardships and burdened the constitutional rights of citizens. In their view,
the injunction will allow Kentuckians to reestablish control over critical
aspects of their lives. We conclude that the greater public interest lies
instead with the public health of the citizens of the Commonwealth as a
whole. The global COVID-19 pandemic threatens not only the health and
lives of Kentuckians but also their own economic interests; the interests of
the vast majority take precedence over the individual business interests of
any one person or entity. While we recognize and appreciate that the
Plaintiffs allege injuries to entire industries in the state, such as the
restaurant and childcare industries, the interests of these industries simply
cannot outweigh the public health interests of the state as a whole.
The Governor's orders were, and continue to be, necessary to slow
the spread of COVID-19 and protect the health and safety of all Kentucky
citizens. This type of highly contagious etiological hazard is precisely the
type of emergency that requires a statewide response and properly serves
as a basis for the Governor's actions under KRS Chapter 39A.

615 S.W.3d at 830. See also Union Light, Heat & Power co. v. Blackwell’s Adm’r, 291

S.W.2d 539, 542 (Ky. 1956) (“It is an iron rule, universally recognized, that an opinion or

decision of an appellate court in the same cause is the law of the case for a subsequent

trial or appeal however erroneous the opinion or decision may have been.”). The Boone

Circuit Court disregarded Beshear v. Acree on the grounds that HB 1, SB 1 and SB 2

changed the analysis, yet the court’s analysis is wholly disconnected from the legislation

27
and Beans Café’s claims seeking its enforcement against Movants. Indeed, the testimony

considered was entirely irrelevant to Beans Café’s claim asking the court to require

Movants to comply with the legislation. The court, however, used the testimony to

manufacture an injury to Beans Café from the “[i]mpact of [the] Governor’s Emergency

Decrees” that in no way related to the claim. Not only does this not establish an injury,

but the court’s conclusions were precluded by the law of the case. Accordingly, the court

lacked jurisdiction to enter the Amended Judgment and Order because Beans Café lacked

standing.

B. The Boone Circuit Court Lacked Jurisdiction Because Beans Café’s

Claim Became Moot Prior to the Entry of the Statewide Injunction.

“A case becomes moot as a result of a change in circumstances ‘which vitiates

the underlying vitality of the action.’” Commonwealth v. Terrell, 464 S.W.3d 495, 498

(Ky. 2015) (citation omitted). The concern underlying the mootness rule is ultimately the

role of the courts within our system of separated powers, a role that does not extend to the

issuance of merely advisory opinions. Morgan v. Getter, 441 S.W.3d 94, 99 (Ky. 2014).

Here, by the time the Boone Circuit Court entered its statewide injunction in the

Amended Judgment, Beans Café could not plausibly claim a concrete injury fairly

traceable to Movants’ actions. The restrictions on restaurants about which Beans Café

complained expired on June 11, 2021. 46 Therefore, even if Beans Café faced a threat of

injury due to the continued existence of conflicting public health measures, the case

became moot when those measures expired. Notably, the Governor announced he would

46
Ky. Exec. Order 2021-386 (June 11, 2021), available at
https://governor.ky.gov/attachments/20210611_Executive-Order_2021-386.pdf (last visited Aug. 9, 2021).

28
lift those restrictions on June 11 as early as May 14, 2021. 47 Movants notified the court

and Beans Café of these circumstances, which prompted the court to suggest expedited

briefing so that the claims could still be heard by this Court. (See Motion to Hold in

Abeyance Hearing (R., Vol. III, p. 362); VR Apr. 20, 2021, 9:36:30-9:37:00.) On an

expedited schedule, the Court entered its initial order, granting Beans Café less than 24

hours of relief from the expiring public health measures Beans Café was not following

anyway. (See R., Vol. VI, p. 731.) By reopening the judgment to broaden the injunctive

relief after June 11, the Court then granted relief on a moot claim.

Additionally, Beans Café’s motion to amend the injunction had nothing to do with

its claims in this case; instead, it concerned its counsel’s attempt to use this decision to

enjoin an administrative proceeding concerning another client. But, the claims of another

party cannot establish continued standing for expanded injunctive relief. See

Commonwealth ex rel. Brown v. Interactive Media Entm’t & Gaming Ass’n, 306 S.W.3d

32, 38 (Ky. 2010) (“[T]he primary requirement for standing [is] that the party has a real

interest in the litigation….”); Warth v. Seldin, 422 U.S. 490, 499 (1975) (“[T]his Court

has held that the plaintiff generally must assert his own legal rights and interests, and

cannot rest his claim to relief on the legal rights or interests of third parties”). The Boone

Circuit Court had no basis to enter the statewide injunction because, as ABC and

Movants have made clear, that third-party business is not a party to the case, and, in any

event, Beans Café’s counsel may argue the applicability of the declaratory judgment in

that pending administrative proceeding. See Beshear v. Acree, 615 S.W.3d at 828 (though

47
Gov. Beshear: Economy set for liftoff as final capacity limits end June 11 (May 14, 2021), available at
https://kentucky.gov/Pages/Activity-stream.aspx?n=GovernorBeshear&prId=775 (last visited Aug. 9,
2021).

29
state maintains broad police powers of enforcement, plaintiffs maintain recourse to

challenge enforcement in the enforcement proceeding). As a result, the Boone Circuit

Court lacked jurisdiction to enter the statewide injunction on June 15, 2021.

C. The Attorney General’s Nominal Participation Did Not Otherwise

Provide the Court With Jurisdiction.

The Attorney General is not an intervening party to the Third Amended

Complaint. When the civil action began in June 2020, the Attorney General moved to

intervene. Beshear v. Acree, 615 S.W.3d at 786. Following this Court’s Opinion

reversing the Boone Circuit Court’s order and remanding for further proceedings, if any,

consistent with the Opinion, the Boone Circuit Court failed to address Movants’ pending

motion to dismiss. The action remained open, and upon the Franklin Circuit Court’s entry

of the temporary injunction, Beans Café sought leave to amend its Complaint. The Third

– and operative – Amended Complaint reset the deck. See Louisville Taxicab & Transfer

Co. v. Johnson, 224 S.W.2d 639, 642 (1949) (“An amended pleading . . . supersedes the

former pleading. The original pleading is abandoned by the amendment and is no longer

a part of the pleader's averments against his adversary[.]”) (citation and internal quotation

marks omitted). The Attorney General did not move to intervene in the new action.

However, the Boone Circuit Court continued to name the Attorney General as an

intervening party in its orders and the Attorney General continued to participate in a

limited capacity.

The Attorney General did not seek intervention for good reason. As a party

enjoined by the Franklin Circuit Court, undoubtedly the doctrine preventing collateral

attacks of judgments in sister circuits applied to the Attorney General. See infra,

Argument I(D). However, without intervening, the Attorney General argued, “The only

30
persons purportedly enjoined in the Franklin Circuit Court are the Attorney General and

the Legislative Research Commission. The Plaintiff [Beans Café] is not a party to the

Franklin Circuit Court action, and is thus not bound by any injunction entered in that

case.” (Attorney General’s Response to Defendant’s Cross-Motion For Summary

Judgment and Brief in Support of the Constitutionality of Senate Bill 1, Senate Bill 2,

House Bill 1 and House Joint Resolution 77, pp. 13-14 (R., Vol. V at 585-86).) While

that argument fails to appreciate that the Franklin Circuit Court injunction enjoined

enforcement of the bills statewide, the argument clearly does not hold weight if the

Attorney General were a party.

Moreover, the doctrine of res judicata precluded the Attorney General from

attacking the Franklin Circuit Court temporary injunction as a party in Boone Circuit

Court. Res judicata precludes “entire claims that were brought or should have been

brought in a prior action.” City of Covington v. Bd. of Trs. Of Policemen’s and

Firefighters’ Retirement Fund of City of Covington, 903 S.W.2d 517, 521 (Ky. 1995). A

subset of res judicata, collateral estoppel prevents a party in one action from relitigating

the same issues in a subsequent action. Id. Because collateral estoppel is based in rules of

justice and fairness, Kentucky courts apply the doctrine on a case by case basis. Id.

(citation omitted). 48

In the case here, the Attorney General conceded the Franklin Circuit Court

temporary injunction enjoined him from enforcing HB 1, SB 1, SB 2 and HJR 77. In that

action, the Governor, the Attorney General, the Speaker of the House, the Senate

President, and the Legislative Research Commission fully briefed, presented evidence,

48
Additionally, the law of the case would equally apply to the Attorney General had he intervened. See
supra, Arg. I(A)2.

31
and argued the merits of a preliminary injunction motion challenging the constitutionality

of the legislation and the equities favoring an injunction. Following entry of that

injunction order, Beans Café filed the underlying suit seeking nullification of that legal

conclusion: a preliminary injunction and declaration that the bills were constitutional and

rescinded the public health measures applicable to restaurants. Res judicata and collateral

estoppel precluded the Attorney General from seeking the same conclusion.

Indeed, even “[A] preliminary injunction ruling has preclusive effect with regard

to subsequent motions for preliminary injunction.” Hayes v. Ridge, 946 F. Supp. 354, 364

(E.D. Pa. 1996), aff’d, 216 F.3d 1076 (3d Cir. 2000). See also Dairymen, Inc. v. F.T.C.,

1981 WL 2140, at *1-2 (W.D. Ky. Aug. 5, 1981) (applying collateral estoppel to a

second proceeding as a result of prior preliminary injunction hearing.) (attached as

Exhibit B). Where a party seeks the relief on the same issues and facts previously denied

by a court during a preliminary injunction hearing in which the party fully presented the

issues, collateral estoppel precludes such relief. Hayes, 946 F. Supp. at 365. Additionally,

here, the obvious forum shopping and immediacy of the Third Amended Complaint filed

in Boone Circuit Court support a finding that res judicata would apply had the Attorney

General attempted to intervene. Id. at 366. To avoid those outcomes, the Attorney

General did not intervene. The Boone Circuit Court’s naming of the Attorney General as

an intervening plaintiff in the Amended Judgment is erroneous and cannot alleviate the

jurisdictional defects of Beans Café’s claims. Accordingly, this Court should vacate the

Amended Judgment because the Boone Circuit Court lacked jurisdiction to enter it.

32
 D. The Boone Circuit Action Is an Improper Collateral Attack on the
Franklin Circuit Court Order Enjoining Enforcement of HB 1, SB 1,
SB 2 and HJR 77.

The underlying action is a transparent and improper collateral attack on the

Franklin Circuit Court Orders in Beshear v. Osborne, which enjoin enforcement of the

same bills on which Beans Café based its claims – statewide. The Boone Circuit Court

abused its discretion in issuing a permanent injunction despite the preceding statewide

injunction that relieved Movants of the obligation to comply with the bills. The problem

with the Boone Circuit Court judgment is not one of “conflicting circuit decisions[.]”

(Amended Judgment, p. 12 (Vol. VI, p. 763).) Rather, the problem is that the Boone

Circuit Court purported to erase the relief obtained by Movants in Franklin Circuit Court.

Like the Scott Circuit Court decision, which the Court of Appeals stayed, the Boone

Circuit Court’s erroneous decision requires this Court’s correction.

Beans Café’s collateral attack through this action should have been evident to the

Boone Circuit Court. In its Third Amended Complaint, Beans Café contends the Franklin

Circuit Court action and injunction “are nullities as a matter of law.” (Am. Compl., ¶ 59

(R., Vol. III at 264).) Beans Café could obtain relief – an injunction requiring Movants to

enforce HB 1, SB 1 and SB 2 – only by complete nullification of the Franklin Circuit

Court’s statewide temporary injunction order. Indeed, the Amended Judgment prevents

Movants from realizing the relief they obtained in Franklin Circuit Court. Thus,

“[u]nquestionably this is a collateral attack, for . . . any proceeding which has an

independent purpose and contemplates some other relief or result other than the

overthrowing of the judgment, even though the overthrowing of the judgment may be

33
necessary to accomplish this purpose, is, nevertheless, collateral.” Duff v. Hagins, 143

S.W. 378, 379 (Ky. 1912) (internal citation and quotation marks omitted).

As this Court has held, “[n]o doctrine is better settled than that domestic

judgments of a court of general jurisdiction cannot be collaterally attac[k]ed unless the

absence of jurisdiction in the particular case appears from the record.” Strother v. Day,

279 S.W.2d 785, 789 (Ky. 1955). See also Louisville & N. R. Co. v. Bays’ Adm’x, 295

S.W. 452, 453 (Ky. 1927) (“This was a collateral attack upon the validity of this order

[appointing an administratrix], and the principle that a court's orders cannot be so

attacked is too well settled to require the citation of authority.”). Further, “A court has

judicial power or jurisdiction to determine its jurisdiction in a particular case. Where that

jurisdiction depends on a question of fact which the court is required to ascertain, its

judgment determining that such fact does or does not exist is conclusive until it is

reversed or set aside in a direct proceeding in the court which rendered the judgment. It is

not subject to a collateral attack in the same or any other court.” Strother, 279 S.W.2d at

789.

Here, the Franklin Circuit Court determined that it had jurisdiction to issue its

order and temporarily enjoined the same legislation at issue in Beans Café’s Complaint,

finding that the Governor and the Secretary raised substantial legal questions regarding

the legislation’s constitutionality. The Boone Circuit Court never determined the Franklin

Circuit Court lacked jurisdiction to enter the statewide temporary injunction. Nor did

Beans Café argue the Court lacked jurisdiction, instead simply arguing the Court erred by

enjoining bills rather than parties. 49 Failing to find the Franklin Circuit Court order to be

49
Notably, the Franklin Circuit Court did enjoin the Senate President, the Speaker of the House, the
Legislative Research Commission and the Attorney General from enforcing HB 1, SB 1 and SB 2, and it

34
void, the Boone Circuit Court lacked authority to entertain, and ultimately grant, Beans

Café’s collateral attack.

The Boone Circuit Court ultimately concluded it could act because the plaintiffs

in this action are not parties to the Franklin Circuit Court action. (Amended Judgment, p.

11 (R., Vol. VI at 762).) To do so, the court misrepresented Movants’ argument, asserting

it to be “more closely related to comity” and then concluding comity did not apply when

the parties were not identical to the earlier action. (Id.) Notably, however, the prohibition

on collateral attacks applies regardless of whether there is identity of the parties across

the two actions. In Strother v. Day, Kentucky’s then-highest court considered “the

question of the finality of the judgments of the Fayette Circuit Court and the power of the

Boone Circuit Court in a collateral attack to vacate them.” 279 S.W.2d at 788. The court

expressly noted that it did not “have a question of res judicata, which ordinarily is

inapplicable to strangers to a judgment.” Id. Instead, it had “a question of a collateral

attack on a judgment of a court of equal or coordinate jurisdiction.” Id. The prohibition

on collateral attacks is broader than the doctrine of res judicata or comity.

Moreover, the court ignored the fact that Movants Governor Beshear and

Secretary Friedlander are parties to the Franklin Circuit case. Thus, it is readily apparent

why the Boone Circuit Court’s conclusion makes no sense: it wholly deprives Movants of

the ability to exercise or comply with the relief afforded by the Franklin Circuit Court. If

the lower court were correct, statewide preliminary injunctions become meaningless

when, as here, a party obtains relief from enforcement of an unconstitutional law, but any

relieved Movants from enforcing those laws and allowed Movants to continue enforcement of executive
public health measures that would conflict with those laws. See Beshear v. Osborne, Franklin Circuit Court
Civil Action No. 21-CI-00089, Order (Exhibit B to Supplemental Response to Motion for Leave to File
Revised Third Amended Complaint (R., Vol. II, Envelope I)).

35
individual or entity can seek later relief forcing the party to comply with or enforce the

unconstitutional law. 50 There is no plausible way to comply with the conflicting

injunctions, and the first is nullified not by an appropriate appellate court as required in

KY. CONST. § 109, but a co-equal sister court.

Beans Café has relied on Conway v. Thompson, 300 S.W.3d 152 (Ky. 2009), for

the proposition that sister circuit courts may enter conflicting injunctions. Importantly,

however, the facts in Thompson involved different results arising from similar lawsuits –

not a collateral attack in one circuit court on the decision of another. Indeed, Thompson

did not address an injunction that nullified the effect of a prior injunction, but the

issuance of an injunction in one circuit and the refusal of another circuit to issue a similar

injunction statewide.

In Thompson, the Court considered a provision of HB 406, the 2008-2010

biennial budget bill, which “drastically altered the law regarding whether time spent on

parole would count toward a prisoner’s unexpired sentence[.]” Id. at 158. Specifically,

the Court considered whether the General Assembly intended that provision to apply

retroactively. See id. In August 2008, the Commonwealth’s Attorney for the 28th Judicial

Circuit of Kentucky filed a declaratory judgment action in Pulaski Circuit Court, seeking

to prevent the Kentucky Department of Corrections (“DOC”) from applying HB 406

retroactively. Id. at 159. In September 2008, the Pulaski Circuit Court entered a

temporary injunction preventing the DOC Commissioner “from retroactively applying

HB 406 either to release any prisoner from custody or to grant a final discharge to any

50
Indeed, the Boone Circuit Court did not follow its own logic. After first conceding that injunctions can
only bind the parties to the action, (Amended Judgment, p. 11 (R., Vol. VI at 762)), it nonetheless issued a
statewide injunction based on Beans Café’s counsel’s representations about events occurring in an
administrative proceeding regarding a non-party to the case.

36
parolee.” Id. The court limited its temporary injunction to “prisoners or parolees in the

DOC’s custody by virtue of a judgment entered in the 28th Judicial Circuit.” Id.

The next month, in October 2008, the Attorney General filed a “strikingly

similar” suit in Franklin Circuit Court, challenging the DOC’s practice of applying HB

406 retroactively. Id. Then, “[i]n December 2008, despite the fact that the Pulaski Circuit

Court had already issued a temporary injunction based upon the same facts, the Franklin

Circuit Court denied the Attorney General’s request for a temporary injunction.” Id. at

160. The Attorney General appealed under CR 65.07. Id.

In Thompson, then, the two lawsuits – one in Pulaski Circuit Court and one in

Franklin Circuit Court – sought the same preliminary relief: a temporary injunction

preventing DOC from retroactively applying HB 406. The later-filed Franklin Circuit

action was not a collateral attack on the Pulaski Circuit Court’s temporary injunction

order. Rather, because at the time the Pulaski Circuit Court’s temporary injunction only

applied in the 28th Judicial Circuit, the Attorney General essentially asked the Franklin

Circuit Court to provide the same relief and expand that injunctive relief statewide. In

declining to do so, the Franklin Circuit Court did not undermine or interfere with – or

have any effect at all on – the Pulaski Circuit temporary injunction. Only later, in April

2009, did the Pulaski Circuit Court issue a statewide permanent injunction, see id., which

simply arrived at a different result from the Franklin Circuit Court, but had no effect on

its order denying relief.

Here, in contrast, the Boone Circuit Court action only exists to require compliance

with HB 1, SB 1, SB 2, and HJR 77 in light of the Franklin Circuit Court injunction

relieving Movants from compliance with the bills. In other words, absent the Franklin

37
Circuit injunction, Beans Café has no lawsuit. This case would be similar to Thompson

had Movants secured injunctive relief in Franklin Circuit Court and then sought – and

been denied – the same relief in Boone Circuit Court to enforce the public health

measures against Beans Café. Thompson is inapplicable because different plaintiffs

sought similar injunctions in different jurisdictions. The latter action did not depend on

the existence of the initial injunction, and the denial of the second requested injunction

did not prevent DOC from complying with the first injunction or deny the plaintiff the

relief obtained in the first injunction. As addressed above, see supra Arg. I.A., Beans

Café did not allege any injury caused by Movants, it alleged the potential for injury if

Movants sought to enforce the public health measures against it, an outcome made

possible only by the Franklin Circuit Court statewide temporary injunction. Thompson

does not relieve the Boone Circuit Court from preventing an improper collateral attack on

the Franklin Circuit preliminary ruling. See Duff, 143 S.W. at 379.

Finally, even if the Boone Circuit Court was not inclined to dismiss Beans Café’s

Amended Complaint as an improper collateral attack on the Franklin Circuit decision, its

legal conclusions concerning HB 1, SB 1, SB 2, and HJR 77 were contrary to law. In fact,

the court barely addressed Movants’ arguments, raised in counterclaims and a cross-

motion for summary judgment, that those bills are unconstitutional; instead, Boone

Circuit recited and rejected them without providing any legal basis, other than a

conclusory assertion that the bills “enjoy ‘a strong presumption of constitutionality.’”

(Amended Judgment, p. 28 (R., Vol. VI at 779).) That truism is the beginning of the

analysis of constitutional claims, not the end. Yet that statement reflects the Boone

Circuit Court’s entire consideration of Movants’ claims on the merits that these bills are

38
unconstitutional. Because the Boone Circuit Court refused even to consider Movants’

legal claims, it abused its discretion.

Accordingly, the Boone Circuit Court could not grant Beans Café the statewide

injunctive relief it purported to grant in the Amended Judgment. It cannot reverse the

Franklin Circuit Court’s preliminary ruling, and its injunction constitutes an abuse of

discretion that is likely to be reversed.

E. The Boone Circuit Court’s Factual Findings are Clearly Erroneous.

The Boone Circuit Court erred by basing its decision on clearly erroneous factual

findings, including facts outside the record; by relying on purported expert testimony

without complying with Civil Rule 26 concerning expert disclosure; and by failing to

ensure the reliability of that testimony as required under KRE 702 and Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Indeed, the Boone Circuit Court’s

Opinion demonstrates the dangers of not following the procedures for expert testimony.

By allowing testimony from purported experts without performing the required inquiry

into reliability and without ensuring Movants had adequate notice to challenge those

purported experts, the court entered an opinion that is contrary to science and instead

recites dangerous and disproven conspiracy theories. This Court should stay the

permanent injunction because it relies on Boone Circuit’s erroneous fact-finding.

1. The court did not comply with the Civil Rules for experts.
Civil Rule 26.02 contemplates that expert testimony will be provided only after

discovery, including disclosure of the identity of experts, “the subject matter on which

the expert is expected to testify, and ... the substance of the facts and opinions to which

the expert is expected to testify and a summary of the grounds for each opinion.” CR

26.02(4)(a)(i). The purpose of expert discovery is to ensure parties are “adequately

39
prepared,” and expert discovery ‘simplifies and clarifies the issues in a case; eliminates or

significantly reduces the element of surprise; [and] helps to achieve a balanced search for

the truth, which in turn helps to ensure that trials are fair....’” Oliphant v. Ries, 568

S.W.3d 336, 345-46 (Ky. 2019). While this case proceeded on an abbreviated schedule,

federal courts applying the federal analog of Civil Rule 26 have held that experts must

comply with that rule not just at trial, but even at the preliminary injunction and summary

judgment phases. See S. Yuba River Citizens League v. Nat'l Marine Fisheries Serv., 257

F.R.D. 607, 611 (E.D. Cal. 2009) (collecting cases and noting that, “[a]lthough these

rules refer to experts used at trial, courts have applied them when an expert's testimony is

offered to the court in connection with summary judgment motions, reasoning that in

such situations, the expert has ‘entered the judicial arena.’” (citation omitted)).

In this case, there was no discovery under the court’s abbreviated schedule. 51 As a

result, Movants had no notice of who the witnesses would be, what opinions they would

assert, or the bases for those opinions. (Tr. of May 17, 2021 Hearing, 161:21-22 (R.,

Brown Folder).) The experts in this case failed to provide reports setting forth their

opinions; indeed, they repeatedly failed to clearly state what their opinions concerned,

and counsel for Movants struggled in vain to pin down on what issues the experts were

purporting to opine. (Id. 69:16-20.) As a result, Movants were unable to meaningfully

respond to the so-called experts’ dangerous opinions that, for example, masks do not

work – a conclusion rejected by the overwhelming scientific community, including the

51
A schedule notably imposed by the court so it could issue a ruling before the case was moot on June 11,
and a ruling that court then extended beyond the parameters of the case with its statewide injunction issued
after the case was moot. (See supra, Arg. I(B).)

40
World Health Organization, CDC, and leading medical societies like the Infectious

Diseases Society of America. 52

2. The court failed to perform a meaningful Daubert analysis.

The expert testimony in this case also led the court to adopt unreliable opinions as

fact, contrary to the requirements of KRE 702 and Daubert. “It is uniformly held that

Daubert applies to bench trials as well as jury trials.” City of Owensboro v. Adams, 136

S.W.3d 446, 450 (Ky. 2004) (collecting cases). Even in a bench trial, the “trial court

must, at least, state on the record its Daubert conclusion with respect to reliability.” Id. at

451.

In this case, the record reveals that the court failed to perform any inquiry into the

reliability of the purported expert testimony, even though Movants repeatedly

demonstrated to the court that the testimony was unreliable. Cross-examination of the

witnesses revealed that their testimony did not meet the Daubert standard but was,

instead, “junk science,” meaning that it was “the product of only subjective belief or

unsupported speculation.” Adams, 136 S.W.3d at 452 (citing Gen. Elec. Co. v. Joiner,

522 U.S. 136, 154 n. 6 (1997) (Stevens, J., concurring in part and dissenting in part)).

For example, Dr. Rutherford ultimately testified that her opinion was “that the

mandates that were imposed by our state and in many other states will -- are causing

more harm in other public health capacities and not saving people from COVID-19

hospitalization and death.” (Tr. of May 17, 2021 Hearing, 69:16-20 (R., Brown Folder).)

Yet Dr. Rutherford admitted that her opinion concerning the efficacy of social distancing

requirements was not based on the scientific studies on which she purported to base her

52
See, e.g., ISDA, Face Coverings and Masks, collecting citations, available at
https://www.idsociety.org/public-health/covid-19/masks/ (last visited Aug. 9, 2021).

41
testimony. (Id., 71:16-20.) She also admitted the numerical calculations on which she

based her opinion concerning the efficacy of public health measures “probably” was not

statistically significant. (Id. 74:2-10.) Indeed, Dr. Rutherford repeatedly cited the closure

of schools as a measure she disagreed with, and then later admitted that school closure

was merely a recommendation. (Id., 84:7-21.)

Dr. Rutherford also testified that she based this opinion on a study evaluating a

model, not actual epidemiological results, and the specific conclusions of the model were

that school closures would increase deaths – even though, as she admitted, schools were

not closed. 53 In fact, that very model showed that certain government interventions would

reduce total deaths, including the social distancing to which Beans Café objected to in

this case. (Id.) The Boone Circuit Court also failed to note that the same “expert” testified

that her opinion was based in part on her incorrect belief that schools do not close for flu

(they do) and that children cannot spread COVID-19 (they can). (Tr. of May 17, 2021

Hearing, 82:14-22, 79:10-13 (R., Brown Folder).)

Similarly, Stephen Petty opined that masks were not effective in stopping the

spread of COVID-19. In particular, he concluded – and court agreed – that CDC was

being “dishonest” by stating masks work, and that CDC should “know better” than

reaching its conclusion. (Amended Judgment, pp. 17-18 (R., Vol. VI at 768-69).) His

opinion was based on the size of COVID-19 particles, which is .1 microns, and he even

suggested that N-95s provide limited protection because of that size. (Tr. of May 17,

2021 Hearing, 110:7-20 (R., Brown Folder).) Yet CDC studies make clear that masks

53
(See Amended Judgment, p. 14 n.53 (R., Vol. VI at 765) (citing Plaintiff’s Exh. 18: Ken Rice, Ben
Wynne, et al., Effect of school closures on mortality from coronavirus disease 2019: old and new
predictions, BMJ 2020; 371:m3588 (Oct. 7, 2020), available at
https://www.bmj.com/content/371/bmj.m3588 (last visited Aug. 9, 2021)).)

42
work because COVID-19 particles travel with other, larger particles and are therefore

blocked by masks. 54 Further, these studies show conclusively that masking is associated

with reduced spread of COVID-19 in settings both small (an airplane) and large (a

country). 55

In addition, as revealed by cross-examination, Petty in fact had no familiarity with

the public health measures at issue in this case, admitting that he did not know what

Kentucky’s public health rules are. (Id., 151:9-18.) And he suggested that his opinion

reflected the views of the American Industrial Hygiene Association (Id., 157:1-21.) In

fact, AIHA’s website recommends that members of the general public wear masks to

prevent the spread of COVID-19 56 – like every reputable professional organization to

address the issue.

Had Movants had prior access to these opinions and the facts on which they were

based, they could have noted all of these shortcomings. And had the court carefully

evaluated the opinions under the Daubert standard, it may not have made such

dangerously incorrect findings.

3. The court committed clear error by adopting unreliable

testimony and relying on facts outside the record.

A court “‘abuse[s] its discretion when it relies on clearly erroneous findings of

fact.’” Walters v. Moore, 121 S.W.3d 210, 215 (Ky. App. 2003) (quoting Romstadt v.

Allstate Ins. Co., 59 F.3d 608, 615 (6th Cir.1995)). On review of a trial court’s factual

54
CDC, Science Brief: Community Use of Cloth Masks to Control the Spread of SARS-CoV-2, available
at https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/masking-science-sars-
cov2.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-
ncov%2Fmore%2Fmasking-science-sars-cov2.html (last visited Aug. 9, 2021).
55
Id.
56
AIHA, Face Coverings, Masks, & Respirators: Know the Difference, available at https://aiha-
assets.sfo2.digitaloceanspaces.com/AIHA/resources/Public-Resources/1812_Know-the-Difference-PPE-
and-Face-Coverings.pdf (last visited Aug. 9, 2021).

43
findings for clear error, the appellate court must determine “whether or not those findings

are supported by substantial evidence.” Moore v. Asente, 110 S.W.3d 336, 354 (Ky.

2003). The Boone Circuit Court’s failure to comply with Daubert, its decision to conduct

its own fact-finding outside of the record, and its failure to consider evidence put on by

Movants led it to clearly erroneous factual findings.

First, as set forth above, the Boone Circuit Court’s reliance on expert testimony

that failed to meet the Daubert standard led it astray about such important matters as the

efficacy of social distancing and facial coverings requirements. Among other things, the

Boone Circuit Court adopted testimony from these purported “experts” that “government

actions” in response to COVID-19 “have inflicted more harm and death” than non-action

would have, “even if cases are reduced in the short-term,” (Amended Judgment, p. 14

(R., Vol. VI at 765)); that “the six-foot-distancing rule, and mask mandates, are wholly

ineffective at reducing the spread of this virus,” (id. at 16 (R., Vol. VI at 767)); that

“[m]asks are worthless” at preventing the spread of COVID-19 – even the N-95

respirators worn by infectious disease physicians, (id.); that “mask wearing provides no

benefit whatsoever,” (id. at 17 (R., Vol. VI at 768)); that CDC requirements for masking

are “dishonest,” and the CDC has “smart individuals who know better,” (id. at 17-18 (R.,

Vol. VI at 768-69); and that COVID-19 infection and death rates in what the Court called

“freer” states like Florida show “there to be no emergency justification for continuing

Governor Beshear’s orders,” (id. at 20 (R., Vol. VI at 771)). 57 The Boone Circuit Court’s

57
The Boone Circuit Court inexplicably concluded that Florida’s COVID-19 death rate of 167 per 100,000
people and Kentucky’s COVID-19 death rate of 150 per 100,000 reflected a “difference of a mere
0.017%.” (Amended Judgment at 19 (Vol. VI p. 770).) Florida’s death rate – as found by the Boone Circuit
Court – was in fact 11% higher than Kentucky’s. The Boone Circuit Court did not divulge how it reached
its calculation, but 167 minus 150, divided by 150, multiplied by 100 yields the correct percentage.

44
“inescapable conclusion” from the testimony was that “ordering masks to stop COVID-

19 is like putting up chain-link fencing to keep out mosquitos.” (Id. at 18 (R., Vol. VI at

769).) Because the court believed these measures ineffective, it hastily cast aside

Movants’ arguments about the danger of the permanent injunction in favor of Beans

Café’s claim.

Second, and most egregiously, the court appeared to conclude that CDC case

counts are inaccurate based on the court’s misunderstanding of PCR test procedures –

specifically, a claim that case counts are too high because of an absence of reporting

around the number of test cycles run on PCR samples. (Amended Judgment, p. 20 (R.,

Vol. VI at 771).) It is black-letter law that a trial court commits clear error when it relies

upon evidence not in the record. S.R. v. J.N., 307 S.W.3d 631, 634 (Ky. App. 2010).

Here, the “facts” were entirely outside the record; Beans Café presented no evidence

whatsoever on the topic of PCR test cycles. Instead, the Boone Circuit Court appears to

have based its finding on widely circulated social media posts by COVID deniers that

inaccurately suggest such case counts were inflated. These conspiracy theories have been

thoroughly debunked. 58 Yet the court appears to have based its injunctive relief on these

false theories, claiming that official case counts have been misused as “the poster child

for the need to deprive people of their liberty.” (Amended Judgment, pp. 20-21 (R., Vol.

VI at 771-72).)

58
See, e.g., Jonathan Jarry, The COVID-19 PCR Test Is Reliable Despite the Commotion About Ct Values,
McGill University Office for Science and Society, available at https://www.mcgill.ca/oss/article/covid-19-
critical-thinking/covid-19-pcr-test-reliable-despite-commotion-about-ct-values (last visited Aug. 9, 2021);
Reuters, Fact check: WHO released guidance on proper use of tests; it did not admit PCR tests showed
inflated infection numbers (Feb. 4, 2021), available at https://www.reuters.com/article/uk-factcheck-who-
instructions-pcr-guidan/fact-check-who-released-guidance-on-proper-use-of-tests-it-did-not-admit-pcr-
tests-showed-inflated-infection-numbers-idUSKBN2A429W (last visited Aug. 9, 2021).

45
 Third, the court’s fact-finding is also clearly erroneous because it is contrary to

this Court’s own conclusions – in this case – that social distancing and mask

requirements had a rational basis and were therefore entitled to deference. See Beshear v.

Acree, 615 S.W.3d at 826-27. The court improperly refused to follow the law of this case,

as determined by this Court, when it entered the permanent injunction. See Union Light,

Heat & Power 291 S.W.2d at 542 (“It is an iron rule, universally recognized, that an

opinion or decision of an appellate court in the same cause is the law of the case for a

subsequent trial or appeal however erroneous the opinion or decision may have been.”).

Dr. Stack even provided similar testimony in this case, but the court simply refused to

consider it – once again substituting its own policy judgments for the judgments of

Movants, against the express direction of this Court. Beshear v. Acree, 615 S.W.3d at

830.

The Boone Circuit Court failed to weigh the evidence at all. Instead, it simply

accepted at face value nonsensical “expert” testimony that bolstered Beans Café’s claim

and the court’s conclusions. As a result, its decision is clearly erroneous and should

ultimately be vacated.

II. Beans Café Will Not Suffer Irreparable Injury If This Court Stays The
Permanent Injunction Pending Appeal.

Beans Café did not show irreparable injury to justify the statewide injunction.

Indeed, the Boone Circuit Court’s statewide injunction was entered after Beans Café’s

claim became moot; thus, Beans Café had no injury that could justify such relief. See

Interactive Media, 306 S.W.3d at 38. Even worse, it was based on the inaccurate

representations of Beans Café’s counsel concerning a proceeding of another of his clients

46
– a non-party to the Boone Circuit action that the court specifically had not allowed to

become a party – before an administrative body.

Even before the case became moot as to Beans Café, however, Beans Café did

little to assert an irreparable injury, instead relying on economic harm and the

presumption of an irreparable injury via its constitutional claims. This Court rejected

similar claims in Beshear v. Acree, holding they did not warrant temporary relief from

statewide comprehensive public health measures. The remaining and primary claims

allege the Governor’s executive orders have expired pursuant to SB 1 and SB 2, to which

Beans Café is not entitled to any presumption of irreparable injury.

Without any demonstration of irreparable injury, the Boone Circuit Court abused

its discretion in granting the permanent injunction.

III. Movants Will Suffer Irreparable Harm Absent A Stay, And The Public
Interest Favors A Stay Of The Permanent Injunction.

The public interest favored denial of a permanent injunction in order to maintain

the emergency measures that this Court unanimously upheld and that the Franklin Circuit

Court stressed in enjoining SB 1, SB 2, HB 1 and HJR 77.

In Beshear v. Acree, this Court addressed the equities regarding nearly identical

claims. The Court held that:

Even if some Plaintiffs arguably have established irreparable harm to their

businesses, that alone is insufficient to justify an injunction precluding
enforcement of emergency orders and regulations directed to the
protection of the health and safety of all Kentuckians. Applying our time-
honored injunction standard, the law and equities favor the Governor in
this matter.

Beshear v. Acree, 615 S.W.3d at 788. Later, the Court stated:

We conclude that the greater public interest lies instead with the public
health of the citizens of the Commonwealth as a whole. The global

47
 COVID-19 pandemic threatens not only the health and lives of
Kentuckians but also their own economic interests; the interests of the vast
majority take precedence over the individual business interests of any one
person or entity. While we recognize and appreciate that the Plaintiffs
allege injuries to entire industries in the state, such as the restaurant and
childcare industries, the interests of these industries simply cannot
outweigh the public health interests of the state as a whole.

The Governor's orders were, and continue to be, necessary to slow

the spread of COVID-19 and protect the health and safety of all Kentucky
citizens. This type of highly contagious etiological hazard is precisely the
type of emergency that requires a statewide response and properly serves
as a basis for the Governor's actions under KRS Chapter 39A. Because the
law and equities favor the Governor in this matter, it was an abuse of
discretion for the trial court to issue the temporary injunction.

Id. at 830.

The public interest remains the same. At issue is the Commonwealth’s ability to

continue the state of emergency so that it can continue to respond to and recover from the

pandemic – an issue laid bare by the spike in cases due to the Delta variant – and ensure

the receipt of federal funding to administer such essential public health programs as the

highly successful testing and vaccine campaigns.

Moreover, Movants are now subject to two conflicting statewide injunctions – the

latter of which nullifies the relief obtained by the former injunction. Confusing enough on

its own, that confusion is compounded by the fact that based on communications from its

counsel, Beans Café appears to believe the Boone Circuit injunction is retroactive,

applying to orders and enforcement actions commenced prior to the injunction and even

prior to the passage of HB 1, SB 1, SB 2 and HJR 77. Thus, the status of certain orders

and administrative proceedings is thrown into disarray by the Boone Circuit Court’s

decision. Under the Boone Circuit Court’s injunction, the state of emergency has ended,

which is the same result that the Court of Appeals prevented by staying the Scott Circuit

48
Court’s injunction that had the same effect. This Court should stay the Boone Circuit

Court’s judgment.

CONCLUSION

For the foregoing reasons, Movants respectfully ask the Court to suspend the

Boone Circuit Court’s permanent injunction pending appeal.

_________________________ _________________________
S. Travis Mayo Wesley W. Duke
Chief Deputy General Counsel Executive Director
Taylor Payne Office of Legal Services
Marc Farris David T. Lovely
Laura C. Tipton Deputy General Counsel
Deputy General Counsel Cabinet for Health and Family Services
Office of the Governor 275 East Main Street 5W-A
700 Capitol Avenue, Suite 106 Frankfort, KY 40621
Frankfort, KY 40601 (502) 564-7042
700 Capitol Avenue, Suite 106 wesleyw.duke@ky.gov
(502) 564-2611 davidt.lovely@ky.gov
travis.mayo@ky.gov
taylor.payne@ky.gov
marc.farris@ky.gov
laurac.tipton@ky.gov

Counsel for the Governor Counsel for Secretary Eric

Friedlander and Dr. Steven Stack

49
 APPENDIX

Exhibit A ...............Beshear v. Osborne, Franklin Circuit Court, Civil Action

No. 21-CI-00089, Order (Feb. 3 2021)

Exhibit B ...............Dairymen, Inc. v. F.T.C., 1982 WL 2140 (W.D. Ky. Aug. 5 (1981)

Exhibit C .................Ridgeway Properties, LLC v. Beshear, Boone Circuit Court,

Civil Action 21-CI-00678, Amended Judgment and Order (June 15, 2021)
EXHIBIT A
 COMMONWEALTH OF KENTUCKY

F485997F-74AC-4031-82B5-EDECE9BB6216 : 000001 of 000009

48TH JUDICIAL CIRCUIT
FRANKLIN CIRCUIT COURT
DIVISION I
CIVIL ACTION NO. 21-CI-00089

ANDY BESHEAR, in his official capacity as

Governor of the Commonwealth of Kentucky,

and

ERIC FRIEDLANDER, in his official capacity as

Secretary for the Cabinet for Health and Family Services PLAINTIFFS

v.

DAVID W. OSBORNE, in his official capacity as

Speaker of the Kentucky House of Representatives

BERTRAM ROBERT STIVERS II, in his official capacity as

President of the Kentucky Senate;

THE LEGISLATIVE RESEARCH COMMISSION; and

DANIEL J. CAMERON, in his official capacity as

Kentucky Attorney General DEFENDANTS

ORDER GRANTING PARTIAL RESTRAINING ORDER UNDER CR 65.03

CONCERNING HOUSE BILL 1,
and SETTING BRIEFING SCHEDULE AND HEARING

This action is before the Court on the motion of the Plaintiff, Governor Andy

Beshear, for a restraining order, or temporary injunction, pursuant to CR 65, to enjoin the

provisions of House Bill 1, Senate Bill 1, and Senate Bill 2, which were recently enacted

by the 2021 General Assembly over the Governor’s veto. This action was filed on February
OR : 000001 of 000009

2, 2021, and the Court set the matter for a status conference to address the motion for

injunctive relief filed by the Governor for February 3, 2021. The Defendants are House

1
Speaker David W. Osborne, Senate President Bertram Robert Stivers II, the Legislative

F485997F-74AC-4031-82B5-EDECE9BB6216 : 000002 of 000009

Research Commission, and Attorney General Daniel J. Cameron.

The Court conducted the status conference at the close of its motion hour docket on

Wednesday, February 2, 2021. The Governor was represented by Hon. Amy Cubbage,

General Counsel, along with Deputy General Counsels Travis Mayo, Taylor Payne, Marc

Farris and Laura Tipton. Secretary Friedlander was represented by Hon. Wesley Duke.

Speaker Osborne was represented by Hon. Eric Lycan. President Stivers was represented

by Hon. David Fleenor. The Legislative Research Commission was represented by Hon.

Greg Woolsey. Attorney General Cameron was represented by Hon. Victor Mattox, along

with Deputy Attorney General Barry Dunn and Deputy Attorney General Chad Meredith.

Counsel for the Governor summarized his request for injunctive relief. She

emphasized the Governor’s allegations that implementation of the challenged legislation

should be delayed until the constitutional validity of the bills can be adjudicated. As set

forth in the Governor’s Complaint, he alleges that the bills in question would seriously

undermine the effectiveness of the state’s response to the COVID-19 pandemic, and would

place the lives of many Kentuckians unnecessarily at risk. Counsel for the Defendants all

responded, and all parties appeared to be in agreement that the bills do not have retroactive

effect, and that accordingly the Executive Orders and Administrative Regulations

promulgated by the Governor remain in full force and effect for at least 30 days after the

final enactment of these Bills by overriding the Governor’s vetoes on February 2, 2021, at

least with regard to Senate Bill 1 (which places limits on the Governor’s power to issue
OR : 000002 of 000009

Executive Orders during an emergency under KRS Chapter 39A) and Senate Bill 2 (which

2
provides for increased legislative oversight and control over Emergency Administrative

F485997F-74AC-4031-82B5-EDECE9BB6216 : 000003 of 000009

Regulations issued by the Governor under KRS Chapter 13A).

A more difficult issue arises concerning the immediate implementation of House

Bill 1, which provides for allowing essentially all businesses, schools, non-profit

organizations and churches to make their own rules by adopting “an operating plan” that

complies with “guidance” published by the federal Center for Disease Control (CDC) “or

the executive branch, whichever is least restrictive.” House Bill 1 also has an emergency

clause which makes the legislation effective immediately upon final enactment. See House

Bill 1, Section 2.

Thus, House Bill 1, on its face, allows for thousands of Kentucky businesses,

schools, churches, local governments, and other agencies to make their own rules and adopt

their own policies that may be at variance with the duly promulgated Executive Orders and

Administrative Regulations, which have been enacted by the Governor to prevent disease

and death that is inevitable with the spread of COVID-19. The Governor has supplied a

letter from the CDC which states that its guidance “is not meant to be prescriptive or

interpreted as standards that can be regulated.” Letter from Robert Redfield, Director,

CDC, to Gov. Beshear, Jan. 11, 2021, attached as Exhibit B to the Complaint.

The Court is concerned that this portion of Section 1 of House Bill 1 could create

chaos and undermine any effective enforcement of public health standards to prevent the

spread of this deadly disease during this pandemic. Moreover, in the absence of injunctive

relief, it appears that these provisions of House Bill 1 could likely wreak havoc with public
OR : 000003 of 000009

health. Under the provisions of House Bill 1, it is likely that hundreds, or even thousands,

of individual operating plans could be adopted, with no meaningful oversight or review,

3
and with great variations as to the rules that would apply throughout the state. The

F485997F-74AC-4031-82B5-EDECE9BB6216 : 000004 of 000009

Governor’s power—indeed, duty—to effectively enforce any uniform public health

standards would be severely undermined, if not destroyed. As noted by the CDC, there is

a difference between “guidance” and “standards,” and between abstract advice and

enforceable regulation. Under House Bill 1, it appears likely that there will be no

enforceable standards governing the operation of businesses, schools, colleges, local

government or non-profit agencies. The Court finds that the Verified Complaint

demonstrates that there will be immediate and irreparable injury to the Governor’s right

and constitutional duty to adopt emergency measures to curb the spread of the COVID-19

virus and address the real, imminent and extreme public health crisis facing the public.

The Court finds that the public interest requires that the effectiveness of those portions of

House Bill 1 (Section 1, paragraphs 1(a), (b), and (c)) should be delayed until the parties

can fully brief those issues, and the Court can conduct a full hearing on the merits.

The Court specifically reserves ruling on the Governor’s motion for injunctive

relief on all other issues, pending full briefing and a hearing on the merits of that motion.

But with regard to House Bill 1, Section 1(1)(a)(b) and (c),1 the Court finds that the public

interest demands immediate issuance of a Restraining Order under CR 65.03 to delay the

implementation of that portion of House Bill 1 pending a full hearing. As noted in the

Governor’s veto message, there is a serious question as to whether those provisions of

House Bill 1 are void for vagueness and whether they constitute an improper delegation of

legislative power. See, e.g., Butler v. United Cerebral Palsy of Northern Kentucky, 352.
OR : 000004 of 000009

1
This Order does not restrain the implementation of paragraphs (2)(3)(4) and (5) of House Bill 1, which
deal with unemployment insurance contributions, court orders regarding child visitation, long term and
personal care visitation, and family visitation in long term care facilities.

4
S.W.2d 203 (Ky. 1964), Schecter Poultry Corp. v. United States, 295 U.S. 495 (1935). The

F485997F-74AC-4031-82B5-EDECE9BB6216 : 000005 of 000009

Court finds that the Governor has presented a substantial legal issue on the merits of those

questions regarding House Bill 1, that the public interest demands a delay in

implementation of that portion of the legislation, that immediate implementation of that

portion of House Bill 1 would pose a clear and present danger to public health and would

undermine any effective public health strategy to contain COVID19, and that the balance

of the equities and public interest weigh heavily in favor of issuance of a temporary

restraining order on this limited point. Maupin v. Stansbury, 575 S.W.2d 695 (Ky. App.

1978).

Accordingly, for the reasons stated above, IT IS ORDERED:

1. The enforcement and implementation of House Bill 1, Section

1(1)(a)(b) and (c), is RESTRAINED AND ENJOINED pursuant to

CR 65.03, pending a ruling on the merits of the Plaintiff’s motion for a

temporary injunction. This Restraining Order shall remain in effect for

a period of thirty (30) days unless extended by Order of this Court after

full briefing and a hearing on the merits;

2. The Court RESERVES ruling on the Plaintiff’s motion for temporary

injunction under CR 65.04, pending full briefing and a hearing, as set

forth below;

3. The parties are directed to meet and confer to attempt to resolve the legal

disputes that are addressed in the Complaint;

OR : 000005 of 000009

4. The Court recognizes the special appearances made by counsel for

Speaker Osborne, President Stivers, and the LRC, and reserves their

5
 rights to assert legislative immunity under the Kentucky Constitution.

F485997F-74AC-4031-82B5-EDECE9BB6216 : 000006 of 000009

The Court further take judicial notice of its prior rulings dismissing the

Speaker and the Senate President from similar litigation, and urges the

parties to reach agreement concerning their participation as defendants.

The Court will grant any motion by Speaker Osborne and/or President

Stivers to participate as amicus curiae in the event they are dismissed as

parties;

5. To the extent that LRC may seek dismissal as a defendant by asserting

legislative immunity under Section 43 of the Kentucky Constitution or

other applicable law, the Court requests that counsel for LRC address

the applicability of Legislative Research Commission v. Brown, 664

S.W.2d 907 (Ky. 1984);

6. The Court also notes counsel for the Attorney General, at the status

conference, raised the issue of whether the Governor has standing to

assert these claims, whether there is a justiciable case or controversy

presented by the Complaint, and whether the Governor is seeking an

advisory opinion. The Court will reserve final ruling on all these issues

until they are fully briefed and a hearing is conducted, but the Court

makes a preliminary finding that there are at least some issues, including

the limits on the Governor’s power to enact executive orders in an

emergency, the role of the Attorney General in approving the

OR : 000006 of 000009

Governor’s executive actions, the role of the legislature in making

binding determinations on the validity of administrative regulations, the

6
 application of the separation of powers provisions of the Kentucky

F485997F-74AC-4031-82B5-EDECE9BB6216 : 000007 of 000009

Constitution (Sections 27 and 28), whether House Bill 1 is void for

vagueness, and whether House Bill 1 is an improper delegation of

legislative power, that appear to present justiciable issues;

7. The Court directs that any defendants who oppose the Plaintiff’s motion

for a temporary injunction under CR 65.04 shall file a memorandum of

law in opposition by Friday, February 12, 2021;

8. The Governor may file a Reply Brief in support of his motion for a

temporary injunction by Wednesday, February 17, 2021;

9. The Court will conduct a hearing on the motion for temporary injunction

at 9:00 a.m. on Thursday, February 18, 2021;

10. The Court further directs any party who intends to provide expert

testimony in the fields of public health, epidemiology, or related

relevant fields of expertise, at the hearing on the motion, shall provide

an Expert Report, with a summary of the expert’s opinions, and the facts

on which they are based, plus all other information required by Rule

26.02(4). This information shall be disclosed to opposing counsel by

Monday, February 15, 2021;

11. Any Defendant seeking to dissolve the Restraining Order issued herein

shall file a motion to dissolve on or before February 12, 2021, and that

motion shall also be heard on February 18, 2021 at 9:00 a.m.;

OR : 000007 of 000009

7
12. The Restraining Order issued herein shall remain in effect for a period

F485997F-74AC-4031-82B5-EDECE9BB6216 : 000008 of 000009

of thirty (30) days, or until the Court issues its ruling on the motion for

a temporary injunction, whichever is later;

13. No bond shall be required pursuant to CR 81A; and

14. This Restraining Order shall be in effect immediately upon its entry, as

indicated by the electronic signature of the undersigned judge. It shall

be binding on the Defendants, and all others who have notice of its

provisions, or who are acting in concert with the Defendants.

So ORDERED, this 3rd day of February, 2021.

_____________________________
PHILLIP J. SHEPHERD, JUDGE
Franklin Circuit Court, Division I

OR : 000008 of 000009

8
DISTRIBUTION:

F485997F-74AC-4031-82B5-EDECE9BB6216 : 000009 of 000009

Amy Cubbage
S. Travis Mayo
Taylor Payne
Laura Tipton
Marc Farris
Office of the Governor
700 Capital Avenue, Suite 106
Frankfort, Kentucky 40601

Wesley W. Duke
LeeAnne Applegate
Cabinet for Health and Family Services
Office of Legal Counsel
275 East Main Street Suite 5W-A
Frankfort, Kentucky 40621

Barry L. Dunn
Victor B. Maddox
Chad Meredith
Office of the Attorney General
700 Capital Avenue, Suite 118
Frankfort, Kentucky 40601

David E. Fleenor
Office of the Senate President
Capitol Annex, Room 236
702 Capitol Avenue
Frankfort, Kentucky 40601

Eric Lycans
Office of the Speaker of the House
Capitol Annex, Room 332
702 Capitol Avenue
Frankfort, Kentucky 40601

Greg Woolsey
Legislative Research Commission
State Capitol, Room 316
Frankfort, Kentucky 40601
OR : 000009 of 000009

9
EXHIBIT B
Dairymen, Inc. v. F.T.C., Not Reported in F.Supp. (1981)
1981 WL 2140, 1981-2 Trade Cases P 64,294

Plaintiff argues that the reservation of rights contained in

the latter clause prevents the application of the doctrine of
1981 WL 2140
res judicata, since it means there was no “final judgment”
United States District Court; W.D. Kentucky,
as required by Montana v. United States, 440 U. S. 147
at Louisville.
(1979). We believe that a vigorous legal system is not
entirely comfortable with such emphasis on technicality.
Dairymen, Inc.
It seems clear to this reader that the order was final as
v. to plaintiff's claim that administrative proceedings should
Federal Trade Commission, et al. be interrupted and enjoined, although plaintiff's argument
regarding exemption could be presented at the appropriate
Civil Action No. C 81-0169 L (A) time, following exhaustion of administrative remedies.
|
Dated August 5, 1981
[Collateral Estoppel]
ALLEN, Ch. J.
At any rate, it appears that considerations of collateral
estoppel are applicable. There is no question that ripeness
Memorandum Opinion concerns contributed to Judge Ballantine's decision. In ruling
that plaintiff could not show a substantial likelihood of
*1 Defendants have begun an administrative adjudicative
success on the merits, the opinion stated:
proceeding against plaintiff due to circumstances which
The parties conceded at the hearing that the issues raised in the
implicate antitrust considerations. It is plaintiff's belief that
motion to dismiss are of “first impression” and involve “close
certain statutory exemptions granted agricultural cooperatives
questions.” Since it is far from clear whether jurisdictional
prohibit defendant from proceeding with its administrative
defects are present, the FTC may well decide that discovery
action.
is necessary to resolve the issues raised.

Early this year, plaintiff filed an action against defendant

The opinion also includes the following language, although it
in this Court, seeking an order enjoining defendant from
could be classified as mere dictum:
proceeding with discovery pending defendants' ruling on
It is significant that the relief sought here is not judicial review
plaintiff's motion to dismiss the administrative action.
of an agency decision, but rather a stay of the administrative
Dairymen, Inc. v. FTC, Civil Action No. 81-0014 L(B) (W.
discovery process pending a ruling on the motion to dismiss.
D. Ky. 1981). In an opinion which pointed out that plaintiff
However, at the hearing counsel for DI expressed an intention
could not satisfy the requirements for preliminary injunctive
to seek judicial review should the FTC decide against DI
relief, Judge Thomas A. Ballantine, Jr. denied relief and
on its motion for interlocutory review. The Court notes that
dismissed the case. Plaintiff then filed the present action,
judicial review in such a case would no doubt be precluded
seeking a declaration that defendant is without authority to
by the doctrine of exhaustion of administrative remedies, and
continue the administrative proceeding and an injunction
the absence of a “final agency action” as required by Section
restraining defendant from so continuing. Defendant has
10(c) of the Administrative Procedure Act. (citations omitted)
moved to dismiss on grounds of collateral estoppel or res
judicata.

*2 It is clear that the issue of significance in C 81-0014 was

After the opinion and order were entered in C 81-0014, the
whether this Court has authority to halt agency proceedings
parties agreed to an amendment of the order, such that it reads,
prior to final action on the basis of a contested claim of lack
in part, as follows:
of jurisdiction to proceed. That issue was decided adverse to
(3) This action be and it hereby is dismissed with prejudice;
plaintiff. While the posture of the administrative action may
provided, however, that the dismissal is without prejudice to
have changed slightly since entry of that opinion, all operative
the merits of plaintiff's claim of exemption under the antitrust
facts remain the same. We are of the opinion that principles
laws.
of collateral estoppel bar the present action, and it must be
dismissed.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 1

Dairymen, Inc. v. F.T.C., Not Reported in F.Supp. (1981)
1981 WL 2140, 1981-2 Trade Cases P 64,294

Plaintiff concedes that the exemption granted it does not

extend to predatory behavior, and factual investigation would
be necessary in order to determine predation.
[Lack of Final Agency Action]
A judgment in conformity herewith has this day been entered.
In the interest of judicial economy, however, we express the
alternative opinion that the matter must be dismissed for lack
of jurisdiction due to lack of final agency action. While we All Citations
do not quarrel with the principle that there exists an exception
to the requirement of final agency action when the agency is Not Reported in F.Supp., 1981 WL 2140, 1981-2 Trade Cases
operating beyond its jurisdiction, this case does not present P 64,294
the opportunity to decide this issue on legal grounds alone.

End of Document © 2021 Thomson Reuters. No claim to original U.S.

Government Works.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 2

EXHIBIT C
 COMMONWEALTH OF KENTUCKY

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000001 of 000030

BOONE CIRCUIT COURT
DIVISION I
CASE NO. 20-CI-00678

RIDGEWAY PROPERTIES, LLC

dba Beans Café & Bakery PLAINTIFF

AND

COMMONWEALTH OF KENTUCKY, INTERVENING

ex rel. ATTORNEY GENERAL DANIEL CAMERON PLAINTIFF

VS.

HON. ANDREW BESHEAR, GOVERNOR,

COMMONWEALTH OF KENTUCKY, et al., DEFENDANTS

AMENDED JUDGMENT AND ORDER

This matter is before the Court for final adjudication. But it comes thus in a bit of a

tangle. Despite its recent vintage, this case has an appellate and procedural history that is both

extensive and unusual.1 The Court conducted an evidentiary hearing on May 17, 2021, and

1
On July 2, 2020, this Court entered a Temporary Injunction against Governor Beshear and other executive agencies
enjoining the enforcement of certain orders issued in the wake of the Governor’s declaration of emergency. That
same day, the Court also allowed Attorney General Daniel Cameron to intervene as Plaintiff on behalf of the people
of the Commonwealth of Kentucky, who sought a wider injunction against all of the Governor’s orders as offensive
to their constitutional rights. Following this Court’s initial Order enjoining enforcement, Governor Beshear and
other executive agencies petitioned the Kentucky Court of Appeals for a writ of prohibition to prohibit the grant of
such relief. That case was captioned, Hon. Andrew Beshear, et al., v. Hon. Richard A. Brueggemann, et al., Ky. Ct.
App. No. 2020-CA-834-OA. On July 13, 2020, in an opinion by the Hon. Glenn Acree, the Kentucky Court of
Appeals denied the writ. Defendants then filed an original action in the Kentucky Supreme Court, petitioning that it
mandate Judge Acree to prohibit this Court from acting, or otherwise for the higher court to directly prohibit this
Court from acting. That case was captioned, Hon. Andrew Beshear, et al., v. Hon. Glenn E. Acree, et al., Ky. S. Ct.
2020-SC-313-OA.
On July 16, 2020, this Court held an evidentiary hearing on whether further temporary injunctions should
issue. At the conclusion of that hearing, this Court stated that it was granting the full relief sought by Plaintiffs and
Intervening Plaintiff, ex rel. Attorney General Daniel Cameron, and that an order with its findings and conclusions
OO : 000001 of 000030

would be entered in due course. In an Order entered July 17, 2020, the Kentucky Supreme Court directed this Court
to proceed and issue the findings of fact and conclusions of law it found appropriate. However, the Supreme Court
also stayed all injunctions previously imposed in the matter and prohibited the issuance of any new injunctive relief
“until the full record of proceedings below is reviewed . . . and [the Kentucky Supreme Court] issues a final order.”
On July 20, 2020, this Court entered an Order with findings and conclusions that all of the emergency
orders issued by the governor and executive agencies violated the constitutional rights of Kentuckians and that, but
for the Kentucky Supreme Court’s July 17, 2020 Order, would have been enjoined during the pendency of this
action. The Kentucky Supreme Court then considered the matter as on appeal in the case captioned as a writ.
1
pursuant to an agreed briefing schedule, took all remaining matters under submission on May 25,

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000002 of 000030

2021.

PROCEDURAL AND FACTUAL BACKGROUND

On March 6, 2020, Governor Beshear declared that the 2019 coronavirus2 constituted an

emergency in the Commonwealth, invoking KRS Chapter 39A, and began issuing a string of

executive orders. Among these, he ordered the closure of all businesses except for specific

pursuits that he deemed essential for life.3 Through the Cabinet for Health and Family Services

(“CHFS”), he ordered the closure of churches and houses of worship.4 Following his directives,

CHFS prohibited individuals from meeting together in certain types of mass gatherings, later

allowing meetings only in numbers not exceeding ten persons.5 The Governor prohibited

citizens from peaceably assembling for the purpose of petitioning a redress of these grievances

but allowed and even joined assemblies for other causes.6 He had prohibited travel, with limited

exceptions, and decreed those daring to travel across state lines in violation of his order must

quarantine for 14 days.7 He ordered all citizens to remain at home unless engaged in a pursuit

deemed by the government to be essential for life.8 The CHFS ordered hospitals and doctors to

cease providing any health care, including surgeries, unless said treatment was deemed emergent

Additionally, due to dismissals on side of both Plaintiffs and Defendants, this case is no longer captioned as
Kentucky Speedway, Inc., et al., v. Northern Kentucky Independent Health District, et al.
2
Known as SARS-COV-2, commonly referred to as “Covid-19.”
3
Ky. Exec. Order No. 2020-246, Gov.’s Resp., p. 4, Available at https://governor.ky.gov/attachments/
20200322_Executive-Order_2020-246_Retail.pdf .
4
Id. CHFS Order, Mar. 19, 2020, Gov.’s Resp., p. 4, available at
https://governor.ky.gov/attachments/20200319_Order_Mass-Gatherings.pdf .
5
Order of CFHS Re: Mass Gatherings, available at https://governor.ky.gov/attachments/20200319_Order_Mass-
Gatherings.pdf. See also, Gov. Beshear Updates Kentuckians on the Fight to Defeat COVID-19, available at
https://kentucky.gov/Pages/Activity-stream.aspx?n=GovernorBeshear&prId=168.
OO : 000002 of 000030

6
Testimony of Dr. Stack, V.R. 07/16/2020, circa 07:42:00; and Exh. 31 to July 16, 2020 hearing.
7
Ky. Exec. Order No. 2020-258, Available at https://governor.ky.gov/attachments/20200330_Executive-
Order_2020-258_Out-of-State-Travel.pdf ;See also Ky. Exec. Order No. 2020-266. Available at
https://governor.ky.gov/attachments/20200402_Executive-Order_2020-266_State-of-Emergency.pdf ; and Ky. Exec.
Order No. 2020-315, available at https://governor.ky.gov/attachments/20200506_Executive-Order_2020-
315_Travel.pdf.
8
https://kentucky.gov/Pages/Activity-stream.aspx?n=GovernorBeshear&prId=10.
2
(that is, likely to result in serious, irreparable harm if not provided within 24 hours), thereby

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000003 of 000030

prohibiting the people from access to procedures such as cancer-screenings, dental care and

physical therapy.9 The Governor ordered everyone in Kentucky to wear masks and threatened

fines and penalties for violations.10

At first, the Governor indicated the emergency would last for just two weeks11—fourteen

days to flatten the curve. But fourteen months later, the Governor insists his wielding of broad

emergency powers must continue. At the hearing on May 17, 2021, the Commissioner of Public

Health and Governor’s health advisor, Dr. Steven Stack, testified that he could not specify an

incidence rate or any precise conditions that would have to be in place in order to end the state of

emergency and remove all the mandates.12 That, he said, was something only the Governor

could answer.13

In July 2020, for purposes of CR 65.04, this Court found the Governor’s orders

constitutionally offensive on grounds that KRS Chapter 39A attempted to delegate functions

constitutionally reserved to the legislative branch, and also for violating the inherent and

unalienable rights of Kentucky’s citizens. In Beshear v. Acree, 615 S.W.3d 780 (Ky. 2020),14

the Kentucky Supreme Court reversed this Court’s grant of temporary injunctive relief and held

the delegation under KRS Chapter 39A to be constitutional.15 The Kentucky Supreme Court

9
See Ky. Exec. Order No. 2020-323, Available at
https://governor.ky.gov/attachments/20200323_Directive_Elective-Procedures.pdf.
10
Ky. Exec. Order No. 2020-586, available at https://governor.ky.gov/attachments/20200709_Executive-
Order_State-of-Emergency.pdf.
11
See Com. ex rel. Resp., p. 2, fn. 3, citing “Gov. Beshear Tightens
Restrictions,” https://kentucky.gov/Pages/Activity-stream.aspx?n=GovernorBeshear&prId=104, quoting the
OO : 000003 of 000030

Governor as stating, “Kentucky—these next two weeks are about us . . . doing everything we can to blunt the curve”
(last accessed May 30, 2021).
12
V.R. 05/17/2021, circa 03:28:00; 03:47:00
13
Id.; 04:06:30.
14
See footnote 1, explaining that although Acree commenced as a separate original action on petition for a writ in
response to denial of a writ, it also effectively resulted in an appeal of this Court’s preliminary orders.
15
Id., at 805-813.
3
further held that the challenged orders were not unconstitutionally arbitrary under §§ 1 and 2 of

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000004 of 000030

Kentucky’s Constitution,16 except for an order which had prohibited family members from

sitting together on outdoor stadium seating at race-tracks.17 As to the latter, because the

Governor had revised that order to remove the offending prohibition, the Kentucky Supreme

Court found it to be moot.18

The landscape currently, however, has changed. Now, it is Defendants who seek to

invalidate certain portions of KRS Chapter 39A on constitutional grounds. Plaintiff and

Intervening Plaintiff assert that the Governor’s continuing orders violate those Kentucky

Statutes. During the 2021 legislative session, the General Assembly amended KRS Chapter 39A

to limit the extent and duration of its legislative delegation to the Governor. The specific

legislation at issue includes Senate Bill 1 (2021 RS SB1), Senate Bill 2 (2021 RS SB2), House

Bill 1 (2021 RS HB1), and House Joint Resolution 77 (2021 RS HJR 77) (all collectively

referred to hereinafter as the “New Legislation” or the “Acts”). The Governor vetoed each of

these measures, after which the General Assembly overrode his veto with votes of overwhelming

majorities.19 All of the New Legislation contained severability clauses, and also emergency

clauses resulting in the Acts going into effect immediately.

Senate Bill 1 amended Chapter 39A in several ways. Section 2 amends KRS 39A.090 to

impose a 30-day limit on the duration of any executive orders or administrative regulations that

purport to restrict in-person meetings or social gatherings, or thereby impairs the operation of

churches, places of worship, schools, private businesses, local governments, nonprofit OO : 000004 of 000030

16
Id., at 815-829; the Court specifically addressed the economic rights of Plaintiffs but did not address in its analysis
the rights under Section 1 of the citizens at large who are represented by the Commonwealth, ex rel. Attorney
General Daniel Cameron .
17
Id., at 825.
18
Id.
19
For example, Senate Bill 1 overrode the Governor’s veto by vote of 69-20 in the house, and 29-8 in the Senate;
and Senate Bill 2 overrode the Governor’s veto in the House 72-22, and 29-8 in the Senate.
4
organizations, and other political, religious or social gatherings. After 30 days, the rules imposed

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000005 of 000030

by executive order will expire unless the General Assembly shall vote to extend it.20 Section 3 of

Senate Bill 1 requires reporting on the use of any public funds in connection with an emergency

order.21 Section 4 limits the delegation that would allow the Governor to suspend statutes or

regulations by requiring that he specifically identify the law being suspended, and also

conditions any suspension of law on the written approval of the Attorney General.22

One of the provisions in Senate Bill 2 requires the Cabinet for Health and Family

Services to follow the procedures for promulgating regulations (rather than allowing it to merely

issue rules) concerning the exercise of its authority relating to the invasion of infectious or

contagious disease.23 It also imposes a 30-day limit similar to that in Senate Bill 1.

House Bill 1 provides that any business or other organization, be it for-profit or nonprofit,

as well as local government, including schools and school districts, “may remain open and fully

operational for in-person services,” so long as the business or organization adopts a plan that

follows either the Governor’s order or guidance issued by the Center for Disease Control

(“CDC”).24 In other words, it allows the organization to choose the least restrictive option.

House Joint Resolution 77 expressed approval of 56 of the executive’s orders and

regulations, 24 of which it provided shall continue for 90 additional days, and 32 of which it

extended for 30 additional days.25 Otherwise, it provided that “[a]ll COVID-19 related executive

orders, administrative regulations, other directives issued by the Governor or pursuant to his

authority, or agencies or boards under the Governor’s authority, not specifically extended by this OO : 000005 of 000030

20
2021 Ky. Acts ch. 6 § 2.
21
Id., at § 3.
22
Id., at § 4.
23
2021 Ky. Acts ch. 7 § 4.
24
2021 Ky. Acts ch. 3 § 1.
25
2021 Ky. Acts ch. 168, §§ 2, 3.
5
Act are of no further force or effect as of the effective date of this Act.”26 Among the

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000006 of 000030

Governor’s orders that the General Assembly expressly did not extend was his decree that all

Kentuckians wear a mask.

ARGUMENTS PRESENTED27

Based on the New Legislation, Plaintiff and Intervening Plaintiff seek a declaration that

all of the Governor’s emergency orders in conflict with the Acts are void as a matter of law, and

also seek a permanent injunction compelling Defendants to comply. Further, they point to

existing data from various states to show that the Governor’s mandates have had no appreciable

effect on fighting the coronavirus and that there is no justification in fact for the same to

continue.

Plaintiff presented testimony from Richard Hayhoe, owner of Ridgeway Properties, LLC,

to show he is suffering continuing harm. Plaintiff, as to his business, argues the data shows there

to be neither any need nor rational basis for certain measures the Governor continues to order

and impose, including the mask mandate, social distancing, capacity limitations, and time

limitations for serving customers. Plaintiff also presented testimony from Dr. Molly Rutherford

and Stephen E. Petty, P.E., CIH., who testified as an expert as a certified industrial hygienist.

On the other side, Defendants filed a cross-motion for summary judgment asking the

Court to declare the New Legislation unconstitutional. Defendants argue that the Governor

cannot be in violation of the New Legislation because he obtained an injunction from the

Franklin Circuit to enjoin application of those Acts and, thus, the Governor’s orders remain in

effect. Defendants also insist that, even without the ruling in Franklin Circuit, the Governor
OO : 000006 of 000030

26
Id., at § 1.
27
Many arguments were presented and, although not recited, were considered. Some arguments or evidence
presented may be recited only in the analysis portion of this Order.
6
cannot be limited by the New Legislation. According to Defendants, the result is an

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000007 of 000030

unconstitutional encroachment by the legislative branch.28 Defendants presented testimony of

Dr. Steven Stack, the Commissioner of Public Health and Governor’s health advisor.

Defendants also argue that the harms alleged by Plaintiffs are either non-existent, moot,

or have already been decreed by the Kentucky Supreme Court as insufficient to warrant

injunctive relief, and that the same is the law of the case. They further point out that the

Governor’s emergency orders have undergone numerous revisions and that, under his current

stated intention, both the capacity limitations on businesses will be removed, and the mask

mandate imposed on all Kentuckians lifted, on June 11, 2021—but not in all settings.

Contra the arguments presented by Defendants, ex rel. Attorney General Daniel

Cameron, as Intervening Plaintiff on behalf of the people of the Commonwealth, insists that the

decision in the Franklin Circuit does not effect this case, that the law of the case from Acree does

not apply to the relief sought and, consequently, that this Court should not delay to reach the

merits of the claims and constitutional questions before it. Intervening Plaintiff argues the

General Assembly passed the Acts as part of its legislative powers and, because the same are

constitutionally sound, urges this Court to deny Defendants’ cross-motion and to order

Defendants to comply with the New Legislation.

ANALYSIS

No one in the civil realm, however high their office, is above the law. It was for this

principle that English Barons assembled at Runnemede meadow and, on June 15, 1215, forced

King John to sign the Magna Carta, within which he avowed the Crown would abide thereby in
OO : 000007 of 000030

28
Defendants’ specific arguments on this as to each of the Acts will be more fully addressed in the analysis section
of this Order below.
7
perpetuity.29 Even after he signed, the Barons refused allegiance until he formally affixed upon

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000008 of 000030

it the Seal of England. The great charter of Kentucky is its Constitution. And its guarantees are

sealed by an oath, one that applies to all offices in all branches. Before a person may take any

office, regardless of whether the person is elected or appointed, the individual, among other

avowals, must formally declare:

I do solemnly swear (or affirm . . .) that I will support the Constitution of the
United States and the Constitution of this Commonwealth, and be faithful and
true . . . so help me God.30

The Constitution places limits on what government may do to (and for) its citizens. All

the laws enacted by the General Assembly, and all laws enforced by the executive, are subject to

those limits. The result, as John Adams put it, is a government of laws, not men. No branch, not

even all branches acting in concert, can legitimately change any provision of the Constitution.

Only by direct vote or convention of the people—whose rights the Constitution exists to

protect—can any change occur.31 The text and meaning of the Constitution is fixed, as its

framers make clear in § 26:

To guard against transgression of the high powers which we have delegated,

We Declare that every thing in this Bill of Rights is 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.32

Words mean things, and the meaning of the words in our Constitution is clear. The

legislature alone enacts the laws. “The legislative power shall be vested in a House of

Representatives and a Senate . . . .”33 The executive carries out the law. “The supreme executive

See, generally, Magna Carta, § 1 (“We furthermore grant and give to all the freemen of our realm for ourselves
OO : 000008 of 000030

29

and our heirs in perpetuity the liberties written below to have and to hold to them and their heirs from us and our
heirs in perpetuity”), quoted from National Archives, Magna Carta Translation,
https://www.archives.gov/exhibits/featured-documents/magna-carta/translation.html, last accessed, May 29, 2021.
30
KY. CONST. § 228.
31
KY. CONST. §§ 256, 258.
32
KY. CONST. § 26.
33
Ky. Const. § 29.
8
power of the Commonwealth shall be vested in . . . the ‘Governor . . .” who “shall take care that

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000009 of 000030

the laws are faithfully executed.”34 And the judicial branch adjudicates controversies according

to the law.35 No branch “shall exercise any power properly belonging to either of the others,

except in the instances . . . expressly directed or permitted [within the text of the Constitution].”36

All parties to this action agree on one point, namely, that the Constitution has been

violated. The only dispute, when boiled down, is by which it is being transgressed.

A. Law-of-the-Case and Comity

Under the law-of-the-case doctrine, trial courts are not permitted to reopen questions of

law that have been decided by an appellate court in the very same case. “A final decision of [an

appellate court], whether right or wrong, is the law of the case and is conclusive . . . .”37

Nevertheless, the law-of-the-case rule is not without exceptions. An exception exists in the

“limited situation where the controlling law changes after reversal . . . but prior to a subsequent

re-trial.”38 Further, the law-of-the-case doctrine applies to questions of law actually decided, and

not dicta.39 And the doctrine applies only to determinations made based upon law and not

questions of fact.40

In Acree, the Kentucky Supreme Court held that the legislature can delegate to the

Governor emergency rulemaking authority under 39A.41 That determination is the law of this

case. However, Plaintiff and Intervening Plaintiff seek relief based upon intervening changes in

34
KY. CONST. §§ 69, 81.
35
KY. CONST. § 109.
36
KY. CONST. § 28.
OO : 000009 of 000030

37
Ragland v. DiGiuro, 352 S.W.3d 908, 914–15 (Ky. App. 2010); quoting, Williamson v. Commonwealth, 767
S.W.2d 323, 325 (Ky.1989) (emphasis original).
38
St. Clair v. Commonwealth, 451 S.W.3d 597, 612–13 (Ky. 2014); accord, Brown v. Commonwealth, 313 S.W.3d
577, 610 (Ky. 2010), Sherley v. Commonwealth, 889 S.W.2d 794 (Ky. 1994).
39
Johnson, True & Guarnieri, LLP, 538 S.W.3d 901, 918 (Ky. App. 2017).
40
Inman v. Inman, 648 S.W.2d 847, 849 (Ky. 1982).
41
Acree, 615 S.W.3d, at 805-13.
9
the law since Acree was decided. In short, they contend that, by those changes, the legislature

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000010 of 000030

has limited some of the power previously granted. Plaintiff and Intervening Plaintiff insist that if

the General Assembly can delegate that power, it can also limit the extent of its delegation or

revoke it entirely. Although the Court found the Defendants’ arguments concerning the law-of-

the-case a difficult question, it is persuaded that it does not apply to the issues remaining for

decision. In addition to the reasons recited herein, the Court is persuaded otherwise by the

arguments presented in ex rel. Attorney General Daniel Cameron’s Post Hearing Reply.42

Although Plaintiff was a party plaintiff at the time Acree was decided, the law has nonetheless

changed, new facts are presented, and the matter is before this Court for final judgment, not

temporary relief.

Plaintiff presents evidence of new facts not offered or considered at the preliminary

injunction hearing. Intervening Plaintiff provides factual data not existing in July 2020 and

concerning which this Court can take judicial notice. The essential questions here are, first,

whether the Acts are constitutional. And, if so, in light of the New Legislation and new facts,

whether the Governor may continue to impose emergency orders that exceed the limits expressly

set under the new law. Defendants argue that the Court may not address that question, entertain

permanent injunctive relief, or address the merits in any manner inconsistent with the result

reached in the Franklin Circuit.

42
See pp. 1-9. However, the Court does correct a statement in the Attorney General’s argument on page 9, which
OO : 000010 of 000030

states that the decision in Acree “in no way precludes another Plaintiff, with different facts, in an altogether different
legal landscape, from prevailing on its request for a permanent injunction.” The current Plaintiff was in fact a
Plaintiff at the time Acree was decided. However, this Court did not grant a temporary injunction to the current
Plaintiff on the economic grounds presented by it but, rather, on the grounds presented by ex rel. Attorney General
Cameron on behalf of all Kentucky citizens. In fact, this Court expressly held that Plaintiff did not show likelihood
that it would suffer irreparable harm in the same way the other Plaintiffs had and that it was not granting injunctive
relief on that basis. Consequently, the discussion in Acree concerning irreparable harm does not apply.
Furthermore, this is on for final judgment and the elements required for temporary injunctive relief do not apply.
10
 Defendants also assert that the Court should not resolve this matter because the Franklin

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000011 of 000030

Circuit has enjoined enforcement or enjoined the applicability of the New Legislation. Relating

to this, the parties have presented arguments as to standing, ripeness and whether there was lack

of controversy in Franklin Circuit where, purportedly, the party seeking the injunction is also the

person that would be enjoined. But those arguments turn solely on the case in Franklin Circuit.

The matter that is or was before the Franklin Circuit is different from the controversies presented

here. And this Court does not agree that it should prevent final resolution on the merits in this

case. Again, the Court agrees with the position espoused by ex rel. Attorney General Cameron

that there is no basis for displacing the claims and controversies here.43 “All courts shall be

open, and every person for an injury done him . . . shall have remedy by due course of law, and

right and justice administered without . . . denial or delay.”44

As this Court sees it, Defendants’ arguments concerning the Franklin Circuit are more

closely related to comity than jurisdiction or ripeness. Under the rules of comity, where two

identical actions are brought in separate courts that could result in conflicting judgments with

“calamitous results,” the court with the latter suit is counseled to defer.45 However, comity only

applies where all the parties are identical, and the cause of action in the first suit is identical with

that in the second suit.46 Here, the parties are not identical. Second, the cause of action differs

as to the nature of the controversy. Third, there is evidence presented in this case that has not

been presented in the other case, or the evidence otherwise differs. Moreover, there are already

different decisions in at least two other circuits involving questions relating somewhat to that OO : 000011 of 000030

43
See Com. ex rel. Attorney General Daniel Cameron’s Resp., p. 13, quoting Baze v. Commonwealth, 276 S.W.3d
761, 767 (Ky. 2008), Bell v. Cabinet for Health & Family Servs., Dep’t for Cmty. Based Servs., 423 S.W.3d 742,
751 (Ky. 2014).
44
KY. CONST. § 14.
45
Delaney v. Alcorn, 301 Ky. 802, 805-806 (Ky. 1946).
46
Riddle v. Howard, 357 S.W.2d 705, 708 (Ky. 1962).
11
presented here. It is not uncommon for decisions among circuits to differ, especially on

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000012 of 000030

questions of first impression. And here, the parties are ploughing new ground.

Moreover, there are already conflicting rulings in Franklin and Scott Counties.

Ultimately, the conflicting circuit decisions will be resolved on appeal—something that can be

expedited as the history in this case demonstrates. Delaying decision here would deprive the

litigants in this case from presenting their arguments on the facts and law presented here.

Defendants contend that this can be remedied by allowing Plaintiff to file an amicus brief with

the appellate tribunal in those other cases. But that is not equivalent to having one’s own case

heard. Nor does that allow for the presentation of evidence by the Plaintiff here.

B. Impact of Governor’s Emergency Decrees

Plaintiff presented evidence of the injury it is suffering. Plaintiff, along with Intervening

Plaintiff, also presented evidence that there is no scientific basis for many of the Governor’s

orders at issue. Based upon the data presented, they argue that the measures imposed in

Kentucky have had no appreciable effect when compared to other states.

Richard Hayhoe, owner of Beans Café & Bakery, testified47 that as a result of the

capacity restrictions ordered by the Governor, he lost two-thirds of his restaurant’s seating

capacity. According to Hayhoe, the mandates have put his business in a precarious financial

condition. Additionally, the Northern Kentucky Independent Health District cited Plaintiff for

violating the Governor’s mask mandate, for which Hayhoe was later criminally charged.

Hayhoe testified that he was not afforded any opportunity to defend against the allegations. He

said that, had he been able to, he would have explained that the person not wearing a mask had a
OO : 000012 of 000030

health exemption.

47
V.R. 05/17/2021, circa 10:31:30 a.m.
12
 After passage of the New Legislation, Hayhoe’s business opted to develop a compliance

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000013 of 000030

plan based upon CDC guidance in lieu of the Governor’s mandates. The former, according to

Hayhoe, are less restrictive. Hayhoe testified that he fears enforcement actions may still be

brought against him even though as yet, that has not occurred following the passage of the Acts.

1. Analysis of Effectiveness of Various Mandates on Covid-19

Dr. Mary (“Molly”) Rutherford testified48 as an expert in medicine in public health.

Although Defendants objected to her qualifications, the Court found her education, background

and experience sufficient. Dr. Rutherford obtained her master’s degree in public health at John

Hopkins University, with a focus on epidemiology. She worked for Dr. Fauci for a total of nine

years, the first six at National Institute of Allergy and Infectious Diseases, and the latter three at

the National Institute of Health. She co-authored an international, peer reviewed article titled,

“Multi-treatment of Early Ambulatory High Risk SARS/COV-2 Infection.”49 She testified that

she has treated nearly 100 patients for Covid-19 in her family practice. Dr. Rutherford is board

certified in addiction medicine, and is the past Chair and a current board member of the

American Academy of Family Physicians.

Dr. Rutherford pointed to several published articles during her testimony. One analyzed

the effect that government mandates have had on the infection rates, hospitalizations and deaths

from Covid-19 by comparing data from countries that imposed strict lockdowns against those

that did nothing.50 Among its conclusions, the study found that “government actions such as

border closures, full lockdowns and a high rate of COVID-19 testing, were not associated with OO : 000013 of 000030

48
V.R. 05/17/2021, circa 10:46:30.
49
Plaintiff’s Exh. 16.
50
Plaintiff’s Exh. 17; Rabail Chaundhry, George Dranitsaris, et al., A country level analysis measuring the impact of
government actions, country preparedness and socioeconomic factors on Covid-19 mortality and related health
outcomes, EClinicalMedicine 25 (2020) 100464 (21 Jul. 2020).
13
statistically significant reductions in the number of critical cases or overall mortality.”51

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000014 of 000030

Similarly, a later study likewise found that the “[s]tringency of measures settled to fight

pandemia, including lockdown, did not appear to be linked with the death rate.”52

Another study opined that, even if cases are reduced in the short-term, interventions

actually lead to more deaths overall.53 According to the researchers’ findings, and Dr.

Rutherford, the focus should have been only on those determined to be high risk, such as those

over 70 years of age. Plaintiff also presented an article that is still in manuscript form that, in

effect, challenges claims that government interventions saved any lives.54 This study concludes

that the “United Kingdom’s lockdown was both superfluous and ineffective,” and that

proponents of government interventions employ “circular logic.”55

Dr. Rutherford stated that, at first, she trusted Dr. Fauci and the CDC even though they

were pushing governments to impose measures, such as social distancing, that were not based

upon known science. However, Dr. Rutherford testified that in the following months, as a result

of their actions, she no longer trusts what they say. It isn’t just that the government lockdowns

did not help. Rather, she opined, the government’s actions have inflicted more harm and death.

She testified that there has been an increase in overdose deaths and pointed to specific cases

where she contends overdose deaths occurred as a direct consequence of the closure of facilities.

Finally, Dr. Rutherford also testified concerning Covid-19 data comparisons from various

states, using it to illustrate the lack of difference between states that imposed harsh lockdowns

Id., p. 5.
OO : 000014 of 000030

51
52
Plaintiff’s Exh. 20: Quentin De Larochelambert, Andy Marc, et al., Covid-19 Mortallity: A Matter of
Vulnerability Among Nations Facing Limited Margins of Adaption, Front. Public Health 8:604339 (19 Nov. 2020).
53
Plaintiff’s Exh. 18: Ken Rice, Ben Wynne, et al., Effect of school closures on mortality from coronavirus disease
2019: old and new predictions, BMJ 2020; 371:m3588 (7 Oct. 2020).
54
Plaintiff’s Exh. 21: Stefan Homburg and Christof Kuhbandner, Comment on Flaxman et al., Leibniz University
Hannover and University of Regensburg (christof.kuhbandner@ur.de).
55
Id.
14
from those that did not. In connection with this, Plaintiff presented a document identified as

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000015 of 000030

“Exhibit 26” containing a table of data comparisons. At the hearing, Defendants objected to

admission of that document on grounds of improper foundation, and lack of identification of

origin or sources. Because the testimony had occurred earlier in the day, and the witness had

already been excused, the Court indicated that it would rule following a review of the testimony.

Having done so, Defendant’s objection to Exhibit 26 is sustained.56 However, the objection

applied only to Exhibit 26, not her testimony, or the specific points of data contained therein on

which she expressed knowledge.

2. Validity of Social Distancing and Mask Mandates on Covid-19

Stephen E. Petty, P.E., CIH, testified57 as an expert and was accepted as such without

objection. Mr. Petty has served as an expert witness in approximately 400 cases relating to toxic

or infectious exposure, personal protective equipment (“PPE”), and as a warning expert. He also

served as an epidemiology expert for the plaintiffs in the Monsanto “Roundup” cases, and for

those in the Dupont C8 litigation. In connection with his service as an expert, he was deposed

nearly 100 times and has provided court testimony in approximately 20 trials. Mr. Petty holds

nine U.S. patents, has written a book comprising nearly 1,000 pages on forensics engineering, is

a certified industrial hygienist, and a recognized expert with the Occupational Safety and Health

Agency. Mr. Petty helped write the rules on risk assessment for the State of Ohio and has trained

Ohio’s risk assessors.

Mr. Petty explained that the field of his expertise is “to anticipate and recognize and

control things that could hurt people, everything from making them sick to killing them.”58 He
OO : 000015 of 000030

56
On cross-examination, Dr. Rutherford testified that she did not participate in compiling the document, could not
provide source citations to identify the source(s) of the data within the document, could not state who performed the
calculations contained in the document, and could not identify who chose which states to sample.
57
V.R. 05/17/2021, circa 11:45:40.
58
Id.
15
testified that, in this context, he has analyzed the use of masks and social distancing in

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000016 of 000030

connection with Covid-19. He testified that both the six-foot-distancing rule, and mask

mandates, are wholly ineffective at reducing the spread of this virus. Masks are worthless, he

explained, because they are not capable of filtering anything as small as Covid-19 aerosols. In

addition, masks are not respirators and lack the limited protections that respirators can provide.

The N-95 respirator, which he states is in the bottom class of what may be classified as a

respirator, is rated to filter 95% of all particles that are larger than .3 microns. However, a

Covid-19 particle, which is only between .09 to .12 micron, is much smaller. Mr. Petty further

explained that an N-95 will not even filter above .3 microns if it is not used in accordance with

industry standards. Among the requirements, respirators must be properly fitted to seal along the

face, and they also must be timely replaced. Mr. Petty stated that N-95 masks, which he said are

often utilized as surgical masks, are “not intended to keep infectious disease from either the

surgeon or from the patient infecting each other” but only to catch the “big droplets” from the

surgeon’s mouth.”59

According to Mr. Petty, masks have no standards, are not respirators, and do not even

qualify as protective equipment. In contrast, respirators have standards, including rules that state

respirators may not be worn by persons with facial hair, must be fitted to ensure a seal, and must

be timely replaced—or, as in higher end respirators, the cartridges must be replaced to prevent

saturation. In addition, standards for respirators also require users to obtain a medical clearance

because the breathing restriction can impair lung function or cause other problems for persons

having such limitations. Putting those persons in a respirator can harm their well-being.
OO : 000016 of 000030

59
Id.
16
 Concerning the effectiveness of respirators, Mr. Petty explained that it comes down to

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000017 of 000030

“big stuff” versus “small stuff.” Big stuff can be taken out by the body’s defenses, such as its

mucus tissue, where droplets can be caught and eliminated. The small stuff, however—like

aerosols—are more dangerous. Masks cannot filter the small stuff. According to Petty, because

Covid-19 particles are comprised of aerosols, it is really, really, small stuff. And, as he pointed

out, an N-95 is designed to filter larger particles. Even for particles as large as .3 micron, Mr.

Petty testified that an N-95’s effectiveness is in direct proportion to its seal. In fact, he stated it

becomes completely ineffective if 3% or more of the contact area with the face is not sealed.

Mr. Petty testified that masks leak, do not filter out the small stuff, cannot be sealed, are

commonly worn by persons with facial hair, and may be contaminated due to repetitive use and

the manner of use. He emphatically stated that mask wearing provides no benefit whatsoever,

either to the wearer or others.

He explained that the big droplets fall to the ground right away, the smaller droplets will

float longer, and aerosols will remain suspended for days or longer if the air is stirred. Mr. Petty

testified that the duration of time that particles remain suspended can be determined using

“Stoke’s Law.” Based on it, for particles the size of Covid-19 (.12 to .09 micron) to fall five feet

would take between 5 and 58 days in still air. Thus, particles are suspended in the air even from

previous days. And so, he asks, “If it takes days for the particles to fall, how in the world does a

six-foot rule have any meaning?”60

Mr. Petty acknowledged that both OSHA and CDC have recommended that people wear

masks. However, he called this “at best dishonest.”61 As an example on this, he pointed to CDC
OO : 000017 of 000030

guidance documents where, on page 1, it recommends wearing a mask; but then on page 6,

60
Id.
61
Id.
17
admits that “masks, do not provide . . . a reliable level of protection from . . . smaller airborne

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000018 of 000030

particles.”62 According to Mr. Petty, those agencies have smart individuals who know better.

Mr. Petty points out that, even before March 2020, it was known that Covid-19 particles are tiny

aerosols. And on this, he states that he insisted that fact early on. He also points to a more

recent letter by numerous medical researchers, physicians and experts with Ph.D.s, asking the

CDC to address the implications of Covid-19 aerosols. During Dr. Stack’s subsequent

testimony, he also acknowledged that Covid-19 is spread “by . . . airborne transmission that

could be aerosols . . . .”63

Finally, Mr. Petty pointed to another recent study by Ben Sheldon of Stanford University

out of Palo Alto. According to that study, “both the medical and non-medical face masks are

ineffective to block human-to-human transmission of viral and infectious diseases, such as

SARS, CoV-2 and COVID-19.”64 The Court finds the opinions expressed by Mr. Petty firmly

established in logic. The inescapable conclusion from his testimony is that ordering masks to

stop Covid-19 is like putting up chain-link fencing to keep out mosquitos. The six-foot-

distancing requirements fare no better.

3. Data Comparisons: Kentucky and Freer States

Plaintiff and Intervening Plaintiff argue the Governor’s orders have been shown to be

ineffectual and, therefore, cannot justify continued imposition on an emergency basis. They

compare Kentucky’s data with the data from states that purportedly imposed no mandates, such

as South Dakota, or states that imposed far less stringent mandates, such as Tennessee, Texas OO : 000018 of 000030

62
Id.
63
V.R. 05/17/2021, circa 02:05:45.
64
V.R. 05/17/2021, circa 11:45:40.
18
and Florida. At the hearing, and in the Attorney General’s Reply, the primary focus was on

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000019 of 000030

Florida. The Court can take judicial notice of the published data.65

As to the greater freedoms allowed by the Governor in Florida, Dr. Steven Stack agreed

that, “at varying times,” Florida “had much less stringent requirements” than those imposed in

Kentucky.66 He further acknowledged that Florida “opened up earlier than us, yes,

significantly.”67

The population of Florida is more than four times that of Kentucky, Florida’s being

21,538,187 and Kentucky’s 4,505,836.68 In addition, Florida has a higher percentage of its

population over age 65 than does Kentucky. In Florida, 20.9% of the people are over age 65,

whereas in Kentucky 16.9% are over age 65.69 Florida had 10,471 Covid-19 cases for every

100,000 people, and Kentucky had 10,197 per 100,000 people.70 The CDC reports that, in

Florida, for every 100,000 people, 167 died with Covid-19 and, in Kentucky, for every 100,000

people, 150 people died with Covid-19.71 That is a difference of a mere 0.017%, with

Kentucky’s number being slightly better.

However, Florida’s population is older. In fact, an additional 4% of Florida’s population

are over age 65 compared to Kentucky. When that fact is considered, Florida’s success and

survival rate is better than Kentucky’s. In Florida, deaths of persons with Coivd-19 who were at

65
See Attorney General’s Post Hear’g Reply, pp. 9-12; see also KRE 201(c), and Doe v. Golden & Walters, PLLC,
173 S.W.3d 260, 264 (Ky. App. 2005), holding a court can take judicial notice of a fact that is generally known and
“[c]apable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned.”
66
V.R. 05/17/2021, circa 03:58:38 p.m.
OO : 000019 of 000030

67
Id.
68
See U.S. Census Bureau data for 2020, available at: https://www.census.gov/quickfacts/fact; see also Att. Gen.
Reply, p. 10 for 2019 Census Data.
69
Id.
70
See CDC Covid Data Tracker, available at: https://covid.cdc.gov/covid-data-tracker/#cases_casesper100k; see
also, Att. Gen. Reply, p. 11.
71
Id.
19
age 65 and older represent 75.16% of the total persons who died of Covid-19 in that state.72

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000020 of 000030

Compare that to Kentucky, where persons who died with Covid-19 over the age of 65 represent

87.75% of all Covid-19 deaths.73 In any event, the data comparison demonstrate there to be no

emergency justification for continuing Governor Beshear’s orders.

4. Accuracy of CDC Case Counts

Dr. Stack testified as to the different methods by which cases are determined to be

positive for Covid-19. He also provided information on the polymerase chain reaction (“PCR”)

test and that, by government order, the cycle rates used in that testing may not be disclosed.

According to Dr. Stack, federal regulation prohibits labs from reporting to the public the number

of cycles it took to yield a positive result during the test.74 This is commonly referred to as

“cycle threshold” or “Ct” values.75 The Ct value is “the number of amplification cycles . . . at

which the diagnostic test result of the real-time PCR changes from negative (not detectable) to

positive (detectible).76 According to the guidance, the total number of cycles required to yield a

positive result “generally ranges from about 15 to 45 cycles.”77 The guidance provided by Dr.

Stack explains that, “[d]iagnostic laboratories should not include Ct values on laboratory reports

because it could be out of compliance with laboratory regulations and they should not be used to

inform patient management.”78

72
Compare CDC Covid Data Tracker, available at
https://www.cdc.gov/nchs/nvss/vsrr/covid_weekly/index.htm#SexAndAge, with https://covid.cdc.gov/covid-data-
tracker/#cases_casesper100k, and https://www.census.gov/quickfacts/fact.
OO : 000020 of 000030

73
Id.
74
V.R. 05/17/2021, at 03:50:00 p.m.; and 04:07:00.p.m
75
See Defendants’ Exh. A, at p. 31 of 34; Ct Values: What They Are and How They Can be Used; Vers. 1 APHL
(Nov. 9, 2020).
76
Id.
77
Id.
78
Id.
20
 In contrast, however, the CDC has recently indicated that Ct values should be limited at,

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000021 of 000030

or less than, 28 cycles when cataloguing “breakthrough infections,” i.e., infections occurring in

persons that have been fully vaccinated for Covid-19. For those cases, the CDC states that

“Clinical specimens for sequencing should have an RT-PCR Ct value ≤28.”79 This is, at the very

least, a curious difference. The CDC accepts Cycle thresholds for ordinary PCR testing for

sequencing even when amplified as high as 45 cycles. But for “breakthrough” cases, states it

should be no higher than 28. This invites many questions, such as why Ct values in Covid tests

should differ based upon whether or not the individual being tested has been vaccinated; and,

why a federal government agency has ordered labs to “not include Ct values on laboratory

reports . . . to inform patient management,” even though the CDC indicates that PCR Ct values

should be ≤28. These are important questions. Case counts have been the poster child for the

need to deprive people of their liberty.

C. Constitutionality of the Acts

Defendants point out that, under the New Legislation, the General Assembly did not

repeal the delegation it granted under Chapter 39A. Thus, Defendants argue, since the General

Assembly has maintained its delegation to the Governor, thereby allowing him to make rules

during an emergency, it cannot at the same time manage the Governor in how he goes about it.

That, they insist, would be engaging in executive functions by the legislature. According to

Defendants, because the New Legislation attempts to do so, it encroaches on the powers granted

to the executive branch under the Constitution.

As to House Bill 1, Defendants’ challenge is on grounds that it attempts to delegate

OO : 000021 of 000030

functions to the CDC. According to Defendants, House Bill 1 makes the CDC the interpretative

79
See CDC, COVID-19 vaccine breakthrough case investigation, Information for public health, clinical, and
reference laboratories, available at: https://www.cdc.gov/vaccines/covid-19/downloads/Information-for-
laboratories-COVID-vaccine-breakthrough-case-investigation.pdf (last accessed, June 7, 2021).
21
or determinative body of what measures should be imposed upon businesses. Defendants

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000022 of 000030

complain that House Bill 1 does not specify which of the CDC’s 100-plus guidance documents

are not to be Kentucky law. Defendants further assert that CDC guidance is conflicting and

difficult to navigate. Therefore, Defendants argue, because it makes CDC guidance the

regulatory standard, House Bill 1 violates §§ 1 and 2 of Kentucky’s Constitution for being

impermissibly arbitrary, vague, and unintelligible.

Dr. Stack testified that he, in consult with others in the executive branch, reviews the

guidance of the CDC and tailors the emergency orders that are imposed on Kentucky

businesses.80 According to Dr. Stack, CDC guidance would be too difficult for individual

businesses to navigate on their own.81 However, as Plaintiff points out, the emergency orders

issued by Defendants also contain references to CDC guidance. Initially Dr. Stack contended

that it would be impossible to enforce a company’s compliance plan if it was predicated on the

CDC guidance.82 But, on cross-examination, he conceded that enforcement based upon CDC

guidelines “should generally be doable.”83

It is true that the General Assembly may not legitimately delegate functions to the CDC,

or make it the interpretive or determinative body for Kentucky law. But House Bill 1 does not

delegate legislative function to the CDC. Rather, House Bill 1 uses CDC guidance as a limit on

the rule-making authority delegated to the Governor. It caps the extent or scope of rulemaking

that the Governor may impose by emergency decree. The Kentucky Supreme Court held that the

General Assembly may delegate rulemaking under KRS Chapter 39A. House Bill 1 sets a OO : 000022 of 000030

80
V.R. 05/17/2021, circa 02:18:00 p.m.
81
Id.
82
Id., circa 02:31:00 – 02:33:00 p.m.
83
V.R. 05/17/2021, circa 03:02:00 p.m.
22
boundary on that delegation by using CDC guidance as the foul-line. For the reasons Defendants

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000023 of 000030

point out, it is not likely much of a limit. But it is a limit nonetheless.

Whereas House Bill 1 limits executive decrees by their scope, or extent of their reach,

Senate Bills 1 and 2 limit their duration. Senate Bill 1 still allows the executive to restrict in-

person meetings or social gatherings, and to impair attendance at places of worship, schools,

businesses, and other organizations under Chapter 39A, but it limits any such orders to 30 days

“unless an extension, modification, or termination is approved by the General Assembly.”84

Senate Bill 2, § 22, contains a similar time limitation on administrative regulations. Defendants

argue that this violates §§ 36 and 42 of the Kentucky Constitution which mandates that the

General Assembly meet for only 30 days in odd years, and 60 days in even years. Further,

Defendants point to § 80 of the Constitution, which provides that the Governor “may” call an

extraordinary session. According to Defendants, because that provision gives the Governor

discretion to call a special session, it implies that, should he decide not to, he has authority to

decree whatever rules he deems necessary. This proposition, however, turns the Constitution’s

strict separation of powers into a meaningless formula.

In support of their proposition, Defendants present historical accounts of Kentucky’s

1890-91 Constitutional Convention. Specifically, they quote delegates to show the Convention

was called to constrain the General Assembly from meeting too often; that an ongoing legislature

makes the people “subject at times to very great abuses;”85 that without curbing the time during

which the General Assembly may legislate, they “might go on for several months and expend the

money of the people of Kentucky,”86 and that the result was “too much legislation.”87 None of
OO : 000023 of 000030

84
2021 Ky. Acts ch. 6 § 2.
85
Defendants’ Resp. and Cross-motion, p. 36, quoting Delegate DeHaven, 1890 Debates, at 206.
86
Id., quoting Delegate Cox, 1890 Debates, 1126-27.
87
Id.
23
this, however, proves that the people reined-in the legislature only to empower their governor to

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000024 of 000030

rule by mere decree in its stead. Indeed, that circumstance would be far worse than the first. The

quotes presented by Defendants support the oft repeated quote that “no one’s life, liberty, or

property is safe while the legislature is in session.”88 But the complaint it expresses is not

remedied by replacing legislation with executive rulemaking. As is so cleverly illustrated by the

old Schoolhouse Rock cartoon, “I’m Just a Bill,” it’s not easy to pass a law. It’s not supposed to

be. We have a bicameral legislature for a reason.

Defendants contend the Acts violate § 80 of the Constitution “[b]y forcing the Governor

to call a special session to extend emergency orders,” thereby “effectively [rewriting §§ 36 and

42] to allow the General Assembly to meet for 30 legislative days during odd-numbered years

and 60 legislature days in even numbered years, unless an emergency exists.”89 The Court

disagrees. The Acts do not provide any means for the General Assembly to reconvene itself by

virtue of its own legislation. It still requires a call from the Governor, and that call still remains

at his discretion. Section 80 of the Constitution provides that the Governor “may, on

extraordinary occasions, convene the General Assembly . . . . stating the subjects to be

considered, and no other shall be considered.” The Acts are consistent with this provision. The

following quote attributed to Delegate MacKoy perhaps best makes the point:

It is to be presumed, I think, when the Legislature is convened in special

session, that it is so called in pursuance of some emergency of some public
demand that is urgent, and that the Governor, knowing the wishes of the
people and understanding fully the emergency, will call the Legislature in
special session only when it is absolutely necessary that it shall be done.90 OO : 000024 of 000030

88
Author unknown.
89
Defendants’ Resp. and Cross-motion, p. 37 (italics in original).
90
Id., quoting Delegate MacKoy, 1890 Debates, at 1049.
24
 Before KRS Chapter 39A, if there was “some emergency” and the General Assembly was

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000025 of 000030

not then in normal session, the Governor had to call a special session and, as provided in § 80,

present “the subjects to be considered” for legislation. Under the New Legislation, if there is

“some emergency,” the Governor may declare an emergency and act on his own for up to 30

days. After that, the authority delegated expires unless the General Assembly shall approve an

extension. This does not square with Defendants’ position that executive power is being

usurped. As Delegate MacKoy remarked, a special session is “called in pursuance of some

emergency . . . that is urgent.” If a purported emergency that would extend beyond 30 days is

not sufficiently urgent to call a special session, then it is not sufficiently urgent to justify the

imposition of indefinite and open-ended rulemaking by executive decree. As John Adams

counseled, “The only maxim of a free government ought to be to trust no man living with power

to endanger the public liberty.”91

Defendants also attack § 4 of Senate Bill 1 because it requires the Governor to identify

with specificity the laws being suspended, and conditions the Governor’s emergency power to

suspend laws upon the written approval of the Attorney General. According to Defendants, that

is constitutionally offensive because it makes the action of the Governor depend upon a lesser

constitutional officer. However, § 15 of the Constitution commands that, “No power to suspend

laws shall be exercised unless by the General Assembly or its authority.” Clearly, if the

Governor can suspend laws, he can only do so “by the General Assembly or its authority.” In

Acree, the Kentucky Supreme Court held the General Assembly could delegate that authority.

Now the General Assembly has, “by its authority,” limited that delegation by the conditions set
OO : 000025 of 000030

out in Senate Bill 1.

91
John Adams, Bill of Rights Institute, https://billofrightsinstitute.org/founders/john-adams, last accessed May 29,
2021.
25
 Defendants also assert that, if the Governor’s emergency orders are not legislative in

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000026 of 000030

nature, or do not involve legislative power, then he has the authority under the Constitution to act

without regard to any delegation under KRS Chapter 39A. If the Governor’s emergency orders

were not engaging in legislative power, that would certainly be true. Legislative power is

defined in Black’s Law Dictionary as, “[t]he power to make laws and to alter them at discretion .

. . .”92 Legislative function means “[t]he duty to determine legislative policy”; “the duty to form

and determine future rights and duties.”93 And the definition of legislate includes, “[t]o bring

something into or out of existence by making laws; to attempt to control (something) by

legislation . . . .”94

Cleary, what has been ordered by the Governor’s emergency decrees constitute

legislation. Dr. Stack’s testimony demonstrates that he and others engage in a process of

collaboration and review of CDC guidelines and other documents, the purpose of which is to

impose rules on persons and businesses in Kentucky, and that in formulating these rules they

tailor them to apply uniformly across the Commonwealth.95 This is formulating policy. He

further testified that they have repeatedly amended and revised their orders, thus showing they

deem to have the power to make laws and alter them at discretion. Indeed, he described the

orders imposed as having a “breathtaking scope.”96

It is obvious from even a cursory review that the orders issued over the past fifteen

months “attempt to control” and seek “to form and determine future rights and duties” of

Kentucky citizens. These included ordering the closure of all businesses, except those the

Governor deemed essential. He ordered churches closed, prohibited social gatherings, including
OO : 000026 of 000030

92
BLACK’S LAW DICTIONARY, 7th ed., West Group, p. 911 (St. Paul MN: 1999) (defining “legislative power”).
93
Id. (defining “legislative function”).
94
Id., at 910 (defining “legislate”).
95
V.R. 05/17/2021, circa 02:18:00.
96
Id., at circa 03:02:00.
26
at weddings and funerals, prohibited travel, and through CHFS, even prohibited citizens from

FCC3FE8C-ACA7-4770-9E58-82374F8B04A9 : 000027 of 000030

receiving scheduled surgeries and access to medical care. And then there is the order that

everyone wear a mask. These are, undeniably, attempts to control, set policy, and determine

rights and duties of the citizenry. Except in those instances where the federal courts have

stepped in, Defendants assert authority to modify or re-impose these orders at their sole

discretion. Consider, for example, the recent modification of the mask mandate. It orders

persons who did not get vaccinated for Covid-19 to wear masks but lifts that requirement for

others. That is setting policy and determining future rights and duties.

At the hearing, Defendants took exception to the Attorney General’s characterization of

the Governor’s actions as a “lockdown,” and argued that prohibiting persons from entering those

restaurants is not the same as ordering that they be closed. But that doesn’t minimize the impact

on those who lost their businesses as a result, or those in nursing homes condemned to spend

their final hours alone, deprived of the comfort from loved ones (or even any real contact with

humanity), or those citizens who the Governor prohibited from celebrating their wedding day

with more than ten persons, or those he forced to bury their dead alone, without the consoling

presence of family and friends (and who likewise were deprived of paying their final respects),

or those persons who were barred from entering church to worship Almighty God during Holy

Week, and even Easter Sunday, or those persons who were denied access to health care,

including cancer-screenings, or those denied entry into government buildings (which they pay

for with their taxes) in order to obtain a necessary license, and who were forced to wait outside

for hours in the sweltering heat, or rain, purportedly to keep them from getting sick.
OO : 000027 of 000030

What the people have endured over the past fifteen months—to borrow a phrase from

United States District Judge Justin R. Walker—“is something this Court never expected to see

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outside the pages of a dystopian novel.”97 Yet, Defendants contend that the Governor’s rule by

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mere emergency decree must continue indefinitely, and independent of legislative limits. In

effect, Defendants seek declaratory judgment that the Constitution provides this broad power so

long as he utters the word, “emergency.” It does not. For this Court to accept Defendant’s

position would not be honoring its oath to support the Constitution; it would be tantamount to a

coup d’état against it.

To succeed on their claims that the New Legislation is unconstitutional, Defendants bear

a heavy burden. Statutes enacted by the General Assembly enjoy a “strong presumption of

constitutionality.”98 This is especially true here, since Defendants contend that the Acts are

unconstitutional on their face. “A facial challenge to a legislative Act is, of course, the most

difficult challenge to mount successfully.”99 In order to find legislation unconstitutional, “the

violation of the Constitution must be clear, complete and unmistakable.”100 Further, the party

“must establish that no set of circumstances exists under which the Act would be valid.”101 For

all of the foregoing reasons, this Court finds that Defendants have failed to meet their burden.

And for the same reasons, Plaintiff’s Motion, and the arguments of the Attorney General, are

well taken.

THEREFORE, JUDGMENT IS HEREBY ENTERED in favor of Plaintiff and the

people of Kentucky, ex rel. Attorney General Daniel Cameron, and DECLARATORY RELIEF

is GRANTED in that the Court finds and declares that all actions taken by Defendants, Hon.

Andrew Beshear, as Governor, Mr. Eric Friedlander, as acting Secretary of the Cabinet for OO : 000028 of 000030

97
On Fire Christian Center, Inc., v. Greg Fischer, et al. 3:20-CV-264-JRW, p. 3 (U.S. Dist. Ct., W. Dist. Ky., Apr.
11, 2020).
98
Wynn v. Ibold, Inc., 969 S.W.2d 695, 696 (Ky. 1998).
99
Williams v. Commonwealth, 213 S.W.3d 671, 681 (Ky. 2006), quoting, Rust v. Sullivan, 500 U.S. 173, 183 (1991).
100
Williams, 213 S.W.3d, at 681, quoting Kentucky Industrial Utility Customers, Inc. v. Kentucky Utilities Company,
983 S.W.2d 493, 499 (Ky.1998).
101
Williams, 213 S.W.3d, at 681, quoting Rust, 500 U.S., at 183.
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Health and Family Services, and Dr. Steven Stack, M.D., as Commissioner for the Kentucky

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Department of Public Health, and all emergency orders imposed by said Defendants, or that are

being continued by said Defendants, are unconstitutional, void and without any legal effect, to

the extent that the same are in conflict with, or are otherwise contrary to, House Bill 1, Senate

Bill 1, Senate Bill 2, and House Joint Resolution 77, as passed in the 2021 session of the General

Assembly.

IT IS FURTHER HEREBY ORDERED that Defendants, Hon. Andrew Beshear, as

Governor, Mr. Eric Friedlander, as acting Secretary of the Cabinet for Health and Family

Services, and Dr. Steven Stack, M.D., as Commissioner for the Kentucky Department of Public

Health, are ENJOINED from issuing or enforcing, against any person within this

Commonwealth, any emergency order, emergency decree, or emergency regulation to the extent

that the same are in conflict with, or are otherwise contrary to, House Bill 1, Senate Bill 1,

Senate Bill 2, and House Joint Resolution 77, as passed in the 2021 session of the General

Assembly. For purposes of clarity, this injunction shall be applicable to Defendants, their

officers, agents, and attorneys; and upon other persons in active concert with them who receive

actual notice of this Order by personal service or otherwise.

IT IS FURTHER HEREBY ORDERED that Plaintiff’s Motion for Class Certification

is DENIED, in that the result of the Declaratory Judgment and Injunction issued have the same

effect.

IT IS FURTHER HEREBY ORDERED that Defendants’ Cross-Motion for

Declaratory Judgment that the General Assembly violated the Constitution in passing House Bill
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1, Senate Bill 1, Senate Bill 2, and House Joint Resolution 77, is DENIED.

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 There being no just cause for delay in the entry of this Judgement, this Judgment is final

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and appealable.

The Clerk shall serve notice of entry hereof in accordance with CR 77.

IT IS SO ORDERED.

JUDGE RICHARD A. BRUEGGEMANN

BOONE CIRCUIT COURT

CC: ALL COUNSEL AND PARTIES OF RECORD.

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