COMMONWEALTH OF KENTUCKY JUDGE AUDRA J. ECKERLE JEFFERSON CIRCUIT COURT NO. 200104653 DIVISION SEVEN LOUISVILLE - JEFFERSON COUNTY METRO GOVERNMENT, ET AL. PLAINTIFFS and ROBERT SCHROEDER INTERVENING PLAINTIFF vs. FINDINGS OF FACT, CONCLUSIONS OF LAW, and ORDER: LOUISVILLE METRO COUNCIL, ET AL. DEFENDANTS This matter is before the Court upon motion by Plaintiffs/Petitioners, Louisville — Jefferson County Metro Government, for itself and on behalf of its Cabinets, Divisions, Departments, Officers, and Employees (hereinafter, collectively, “Metro Government’), for a temporary restraining order preventing Defendants, Louisville Metro Council and the individual members of the Louisville Metro Council (hereinafter, collectively, “Metro Council”), from taking sworn, public testimony from Metro Government's Chief of Public Safety, Amy Hess (hereinafter, “Hess"), and Intervening Plaintiff, Metro Government's Interim Louisville Police Chief, Robert Schroeder (hereinafter, “Schroeder’). In addition to briefing, the Court held a remote hearing on August 24, 2020. Messrs. David J Guamieri, Stephen G. Amato, and Jason R. Hollon, and Ms. Cynthia L. Effingerappeared telephonically for Metro Government. Mr. Joseph C. Klausing appeared telephonically for Schroeder. Messrs. Jonathan S. Ricketts and Christopher Bush appeared telephonically for Metro Council. Mr. Michael Abate appeared telephonically for Kentucky Press Association, which the Court had granted leave to participate as ‘Amicus Curiae. Given the global coronavirus pandemic, all parties agreed to proceed telephonically and waived any perceived entitlement to appear in person. At the conclusion of the hearing, the parties requested the opportunity to file additional briefs, and the Court granted the request. Having now thoroughly reviewed and carefully considered all pleadings, arguments, and applicable laws, the Court provides the following written Findings of Fact and Conclusions of Law. FINDINGS OF FACT and CONCLUSIONS OF LAW ‘As counsel for all parties know, a hearing as to whether to grant a temporary restraining order or temporary injunction is not a trial on the merits. It is an extraordinary remedy that may be used to seek relief prior to a trial or judgment. Kentucky's Rule of Civil Procedure 65.04 sets out the substantive elements for temporary injunctive relief by providing that a temporary order may be granted while the underlying matter is pending “only” where it is “clearly shown” that one’s rights will suffer “immediate and irreparable injury” pending trial or final judgment. (Emphasis added.) “The purpose of these requirements is to ensure that the injunction issues only where absolutely necessary to preserve a party's rights pending the trial of the merits.” Maupin v. Stansbury, 575 S.W.2d 695, 698 (Ky. App. 1978) (emphasis added). Plaintif/petitioner must meet all three prongs of the legal test to obtain a temporaryinjunction. All three are “mandatory prerequisite[s] to the issuance of any injunction.” Id, at 699 (emphasis added), The first required element is a showing of irreparable injury. “Itreparable injury” means an aggrieved party has suffered harm such that it cannot be made whole through money damages. Cyprus Mountain Coal Corp. v. Brewer, 828 S.W.2d 642 (Ky. 1992). In regular litigation and Court disputes, injunctions are not normally warranted. An exception can occur where there is a specific parcel of land at issue or a particular piece of art or unique item at stake. Here, Metro Government has not established it will be irreparably harmed. Hess and Schroeder can testify before Metro Council without subjecting themselves or government to any harm, as long as they uphold their oath and testify truthfully, which the Court assumes they will. Testifying does not generally cause irreparable injury, and the issuance of subpoenas does not automatically violate rights, particularly where, as here, no party has challenged Metro Council's authority to subpoena witnesses. Metro Government has admitted as much, as it has agreed to allow this same testimony before Metro Council, as long as it is not made public. However, it must also concede that it will authorize both witnesses to testify in public in a federal lawsuit in the future if the litigation continues. Indeed, it is not requesting a permanent injunction. Requiring Hess and Schroeder to offer truthful, sworn testimony in a few weeks versus a few months does not arise to the level of injury required to justify extraordinary relief. Timing, in and of itself, does not constitute a sufficient injury. This fact is especially true where, as in this case, the anticipated testimony will address past facts, and not future strategies.A Court abuses its discretion when it grants equitable or extraordinary relief when “the remedy at law is sufficient to furnish the injured party full relief to which he is entitled in the circumstances.” Brewer, 828 S.W.2d at 645. Any potential harm to Hess and Schroeder is only remote and speculative. Thus, Metro Government has not carried its burden on the first, required element to show irreparable injury. Thus, the Court cannot further restrain Metro Council from taking testimony from public officials. Nonetheless, given the importance of the issues and the likelihood of an appeal regardless of which side prevailed here, the Court will also address the two remaining prongs Regarding the second element, in weighing the various equities involved, the Court finds that the balance does not favor Metro Government. As stated above, and as alll parties acknowledge, Metro Council has the authority to subpoena witnesses openly. Further, in all reasonable likelihood Hess and Schroeder will testify at some point publicly. They and Metro Government have not established a valid reason for this Court to grant a prolonged hiatus. More important, equity cannot allow a civil lawsuit before an appointed authority to trump elected government oversight of key, senior public officials, As this Court has stated previously in a prior case, “the Metro Council is actively investigating the Mayor to determine if his actions have been appropriate. How it holds the Mayor accountable or not is undoubtedly the public's business.” (See Courier Journal, Inc. v. Louisville Metro Council, 20C14152, Jefferson Circuit Court, July 30, 2020.) In this analysis, the Court must acknowledge equity for the public, which has a compelling interest here.Third, in evaluating Metro Government's complaint, the Court finds that) a substantial question has not been presented, Metro Council has the right to subpoena witnesses to testify publicly, and those witnesses do not have a right to insist that their testimony occur privately, shielded from public view. The Open Meetings Act requires that governments operate transparently. KRS 67C.103(14)(b)(2). The litigation exception to the Open Meetings Act is a very narrow one. It is confined “to matters commonly inherent to litigation, such as preparation, strategy, or tactics.” Floyd County Bd, of Educ. v. Ratliff, 955 S.W.2d 921, 923-24 (Ky. 1997). Courts are required to construe strictly any exception to prohibit “improper or unauthorized closed, executive or secret meetings.” Carter v. Smith, 368 SW.3d 414, 419 (Ky. 2012). In reality, every activity carries with it the potential of litigation. Were that risk alone sufficient reason to act clandestinely, no government operation would be open or subject to review, and the Open Meetings Act would be meaningless. In its enactment, the legislature meant the law to have purpose and teeth, and it required that general government meetings shall not occur in closed session. Further, the testimony sought here plainly addresses past actions or inactions, not future opinions. Metro Council seeks information about the law enforcement investigations that have already occurred and are completed involving the protests and riots, directives previously given by leadership to the police, and resources already used. Moreover, Metro Council is not a party to the federal litigation, and thus the exception cannot be used against it. See 93-OMD-119 (Attomey General finding that “the discussion of cases in which the public agency is not a party plaintiff or defendantmust be conducted in open and public sessions"); see also 97-OAG-001; OAG 91-141. Finally, the testimony is virtually inevitable, and it should proceed before it becomes irrelevant. For all of these reasons, the equities and the law do not favor granting a temporary injunction here. Metro Government has simply not met its burden to show that this Court should award extraordinary relief. It has not established any of the required three elements. It will not be irreparably harmed; the equities are not in its favor; and it has failed to present a substantial question. Because it maintains its remedies at law and will suffer no injury, temporary restraining and injunctive orders are not warranted and shall not issue. ORDER WHEREFORE, IT IS HEREBY ORDERED, that the motion of Plaintiffs/Petitioners, Louisville — Jefferson County Metro Government, for itself and on behalf of its Cabinets, Divisions, Departments, Officers, and Employees, for injunctive relief is denied, The Temporary Restraining Order is dissolved. There being no just cause for delay, this Order is final and appealable.cc: Mr. David J. Guarnieri Mr. Stephen G. Amato Mr. Jason R. Hollon McBrayer, P.L.L.C Counsel for Metro Government 201 E. Main Street, Suite 900 Lexington, KY 40507 Ms. Cynthia L. Effinger McBrayer, P.L.L.C. Counsel for Metro Government 500 W. Jefferson Street Louisville, KY 40202 Mr. Joseph C. Klausing O'Bryan, Brown & Toner, P.L.L.C. Counsel for Chief Schroeder 401 S. Fourth Street, Suite 2200 Louisville, KY 40202 Mr. Jonathan S. Ricketts Mr. Christopher Bush Ricketts Law Offices, P.L.L.C. Counsel for Metro Council 4055 Shelbyville Road Louisville, KY 40207 Mr. Michael P. Abate Kaplan Johnson Abate & Bird, L.L.P. Counsel for Kentucky Press Association 710 W. Main Street, Fourth Floor Louisville, KY 40202