COMMONWEALTH OF KENTUCKY

COURT OF APPEALS
ACTION NO. 2021-CA-0702
ANDY BESHEAR, in his capacity as Governor, et. al. MOVANTS
v.
RIDGEWAY PROPERTIES, LLC, et. al. RESPONDENTS

RESPONDENT RIDGEWAY PROPERTIES, LLC’s COMBINED MEMORANDUM IN

OPPOSITION TO MOVANTS EMERGENCY MOTION UNDER C.R. 65.08(7) AND
C.R. 65.08 MOTION FOR RELIEF1

__________________________________
Christopher Wiest (KBA 90725)
25 Town Center Blvd, STE 104
Crestview Hills, KY 41017
513-257-1895 (v)
chris@cwiestlaw.com

Thomas B. Bruns (KBA 84985)

4750 Ashwood Drive, STE 200
Cincinnati, OH 45241
tbruns@bcvalaw.com

Zach Gottesman (86288)

404 East 12 St., First Floor
Cincinnati, OH 45202
zg@zgottesmanlaw.com

Counsel for Respondent Ridgeway

Properties, LLC

1
Per a discussion with the Clerk of the Court of Appeals on June 22, 2021, Respondent’s counsel
confirmed that this combined reply to both motions, submitted by electronic mail, was
permissible.
1
 CERTIFICATE OF SERVICE

I certify that I have served a copy of the foregoing (including all exhibits) upon Counsel for the
Governor (Ms. Cubbage, Mr. Mayo, Mr. Payne, Mr. Farris, and Ms. Tipton) by electronic mail at
amy.cubbage@ky.gov, travis.mayo@ky.gov, taylor.payne@ky.gov, marc.farris@ky.gov, and
larac.tipton@ky.com, as well as by U.S. mail at 700 Capitol Ave., Suite 106, Frankfort, KY
40601, Counsel for Secretary Friedlander and Dr. Stack (Mr. Duke and Mr. Lovely) by
electronic mail at WesleyWDuke@ky.gov, and davidt.lovely@ky.gov, as well as by U.S. mail at
275 East Main Street, 5W-A, Frankfort, KY 40621, Counsel for the Kentucky Attorney General
at (Mr. Dunn, Mr. Meredith, Mr. Nolan, Mr. Silletto, Ms. Becker, and Mr. Manley), by
electronic mail at barry.dunn@ky.gov, chad.meredith@ky.gov, Brett.Nolan@ky.gov,
Aaron.Silletto@ky.gov, Heather.Becker@ky.gov, Mark.Manley@ky.gov as well as by U.S. Mail
at 700 Capitol Ave., Suite 118, Frankfort, KY 40621, and by U.S. mail only upon Hon. Richard
Brueggemann, 6025 Rogers Lane, Room 141, Burlington, KY 41005, all this 1 st day of July,
2021.

__________________________________
Christopher Wiest (KBA 90725)

2
 I. RESPONSE TO EMERGENCY MOTION FOR RELIEF
Auditioning, perhaps, for the Penguin/Random House “Best Works of Literary Fiction,”

Movants (who we collectively will call the “Governor Defendants” for purposes of this response)

spin a tale reminiscent of Chicken Little. This conclusion becomes apparent when considering

the rampant misrepresentations of fact, law, and even the basic procedural posture of this case,

all the while crying: “emergency!” Another blatant giveaway that the Governor Defendants’

motions mostly are works of fiction is that Movants abandoned their previous mantra that

without rubberstamping the Governor Defendants’ dictatorial powers, the public’s health will

suffer catastrophic consequences (and, given increasing vaccination rates,2 extraordinarily low

COVID-19 case counts,3 Movants’ own easing of restrictions,4 and the Kentucky Supreme

Court’s resumption of court proceedings,5 there is little doubt why). Instead, the Governor

Defendants now claim that Governor Beshear is subject to conflicting orders (as explained below

he is not), argue that the Boone Circuit Court order is a collateral attack on the Franklin Circuit

Court order (as explained below it is not), and otherwise claim a new parade of horribles they

failed to substantiate or even raise in the court below.

As this Court noted in its recent order recommending transfer of this case, many of these

issues have been argued already in the Kentucky Supreme Court, in similar (but not identical

cases) on June 10, 2021, and that Court is likely in the best position to assess the core legal

2
https://data.news-leader.com/covid-19-vaccine-tracker/kentucky/21/ (last visited 6/23/2021);
https://chfs.ky.gov/CV19Vax/StatewideVaccineDemographics06212021.pdf (last visited
6/23/2021).
3
https://chfs.ky.gov/agencies/dph/cv19maps/incidencemap06222021.pdf (last visited 6/23/2021);
https://chfs.ky.gov/agencies/dph/covid19/COVID19DailyReport.pdf (last visited 6/23/2021).
4
https://kentucky.gov/Pages/Activity-stream.aspx?n=GovernorBeshear&prId=775 (last visited
6/23/2021).
5
https://kycourts.gov/Courts/Supreme-Court/Supreme%20Court%20Orders/202117.pdf (last
visited 6/23/2021).
1
questions, namely the constitutionality of various pieces of recently enacted legislation. Indeed,

it is likely that the Justices of the Kentucky Supreme Court, following recent oral argument, are

now working through the process of drafting decision(s), and thus that Court is undoubtedly in

the best position to assess whether to grant the Governor Defendants’ motions. Thus, we submit

that transfer of the Governor Defendants’ 65.08 Motions to that Court might also be in order.

A. Standard of Review

The standard of review in this case, as with all requests for an emergency stay, is an

abuse of discretion. Boone Creek Props., LLC v. Lexington-Fayette Urban County Bd. of

Adjustment, 442 S.W.3d 36 (2014). Such relief is granted only “upon a showing of

‘extraordinary cause.’" Id. at 38. "Unless a trial court has abused that discretion, this Court has

no power to set aside the order below." Id. “Accordingly we give considerable deference to the

circuit court's evaluation of the dispute, the issues involved, the weighing of the equities, and

whether an injunction is proper under the particular circumstances at hand.” Id. And, moreover,

to the extent the Governor attacks the Circuit Court’s factual findings, CR 52.01 provides that

"[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to

the opportunity of the trial court to judge the credibility of the witnesses."

B. The Governor Defendants’ challenges to the General Assembly’s enactments are

unlikely to succeed

The Kentucky Supreme Court is likely to uphold the challenged 2021 legislation

including SB1, SB2, HB1, HJR 77, or substantial portions of them, notwithstanding the

challenges. That is because the analysis of these issues always begins with the presumption that

legislative acts are constitutional. Cain v. Lodestar Energy, Inc., 302 S.W.3d 39, 43 (Ky. 2009).

“It is an axiomatic rule of statutory interpretation that when this Court considers the

constitutionality of a statute, we must draw all fair and reasonable inferences in favor of

2
upholding the validity of the statute.” Caneyville Volunteer Fire Dep't. v. Green's Motorcycle

Salvage, Inc., 286 S.W.3d 790, 806 (Ky. 2009). “In Kentucky, a statute carries with it the

presumption of constitutionality; therefore, when we consider it, ‘we are 'obligated to give it, if

possible, an interpretation which upholds its constitutional validity.’'" Id. “To the extent that

there is reasonable doubt as to a statute's constitutionality, all presumptions will be in favor of

upholding the statute, deferring to the ‘voice of the people as expressed through the legislative

department of government.’" Id. “A constitutional infringement must be ‘clear, complete and

unmistakable’ in order to render the statute unconstitutional.” Id.

C. The Governor himself can prevent the harm he alleges. Consequently, he has not
substantiated, and cannot substantiate, his claims of irreparable harm

We would be remiss in not pointing out that the Governor has a tool available to him to

avoid the harm he complains of: he can call the Kentucky General Assembly back into session

for the purpose of renewing the extension on Executive Order 2020-215. See, also, Ky. Const. §

80. As a state representative testified below, 2021 HJR 77 took only one day to pass and thus a

further extension is likewise feasible. (Tr. 25-26). One might, of course, question why the

Governor has not already taken this lawful, legally required step, even if only as a precautionary

measure, if the situation is actually as dire as he claims. However, to pose the question is to

answer the question. Apparently, Chicken Little does not really believe the sky is falling.

This conclusion becomes clearer when considering that if the Kentucky Supreme Court finds the

subject bills constitutional, any extension of emergency declarations actually requires this step.

Consider: if federal programs require a valid declaration of continuing emergency (and it

is notable that the Governor has not cited a single provision that might suggest as much),

funding, potential clawbacks, and audits are likely part of that process, and thus the ultimate

determination of the legality of the legislation is likely to be operative. If, as the Governor

3
claims, funding truly is imperiled due to the status quo, constituting the “sky is falling”

emergency he claims, it actually is irresponsible of the Governor not to call the General

Assembly back in session in order to extend the declaration. Further, given the General

Assembly’s unique role in appropriations (Ky Const. § 230), it appears that the General

Assembly’s involvement is necessary in any event.

Perhaps the real reason that the Governor does not call the General Assembly back into

session is because federal law sets the repayment period and, as it turns out, there is nothing in

federal law that requires a declaration to be continuing in order to continue to receive funding.

See, also, 44 CFR § 206.32 (defining a disaster incident period).6 This conclusion is equally true

with the FEMA grant for vaccines that the Governor Defendants falsely claim is imperiled.7

The Governor Defendants’ assertions are particularly curious when FEMA itself notes

that costs are being covered nationwide, through September 30, 2021, for individual states’

COVID-19 related expenses, irrespective of any state declarations of ongoing emergency.8

Indeed, FEMA’s website has a complete explanation of the process, none of which requires an

ongoing emergency declaration under state law for federal funding to continue.9 Thus, according

to the Federal Government’s own sources on the subject of funding to the states for pandemic

associated costs, the sky is not actually falling.

6
https://www.fema.gov/disaster/4497 (last visited 6/24/2021; setting Kentucky disaster period
with the incident period from Jan 20, 2020 and continuing);
https://www.federalregister.gov/documents/2020/05/26/2020-11177/kentucky-major-disaster-
and-related-determinations (last visited 6/24/2021; original Kentucky disaster declaration);
https://www.federalregister.gov/documents/2021/05/03/2021-09145/kentucky-amendment-no-3-
to-notice-of-a-major-disaster-declaration (last visited 6/24/2021; amended disaster declaration).
7
https://www.fema.gov/sites/default/files/documents/fema_pappg-v4-updated-links_policy_6-1-
2020.pdf (last visited at 6/23/2021) at pp. 26-28 (outlining 4-year reimbursement period).
8
https://www.fema.gov/press-release/20210203/fema-statement-100-cost-share (last visited
6/24/2021).
9
https://www.fema.gov/disaster/how-declared (last visited 6/24/2021).
4
 All of this goes to the equitable stay – which has the effect of delaying implementation of

duly passed legislation by the people’s representatives -- that the Governor Defendants seek in

this case. The ability of the Governor himself to avoid the harm he says is impending, and his

apparent refusal to engage in this self-help, raises the equitable doctrine of refusing a stay for one

who has “slept on his rights.” Akers v. Cushman Constr. Co., 487 S.W.2d 60, 63 (Ky. 1972).

Or, indeed, “he who seeks equity must do equity.” Id. Which is all to say that “the decision

should be against the party who has the weaker equity or the one who was in better position by

reasonable diligence or care to have averted the loss which now must be borne by the one or the

other.” Id.

The Governor Defendants also claim that there is some sort of tug and pull between the

Boone Circuit Court orders and those of the Franklin Circuit Court. But that is not true either:

the Boone Circuit Court enjoined the Governor 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…” (Amended Judgment).

The inclusion of the “against any person” language is dispositive of the Governor

Defendants’ argument in this regard. As it turns out, it does not end or even require the end of

the declaration of emergency in Executive Order 2020-215 – if it is merely to provide an ongoing

period of emergency or disaster relief and reimbursement, because it is not enforcing an order

“against any person within this Commonwealth.” The order clearly does not cause the harm that

the Governor Defendants claim.

In contrast, the Franklin Circuit Court order does not enjoin Governor Beshear, Secretary

Friedlander, or Dr. Stack to do anything. It instead enjoins the Attorney General and the

5
Legislative Research Commission from implementing or enforcing portions of HB1, SB1, and

SB2. The Boone Circuit Court order does not command either of those parties to implement or

enforce this legislation. Thus, there is no conflict.

We will address below the Governor Defendants’ erroneous arguments about collateral

attack. But one final point in terms of the purported “emergency:” the Governor Defendants

seek emergency relief under C.R. 65.08(7), which requires that the “movant will suffer

irreparable injury before the Court of Appeals may hear the motion.” There is no valid reason to

believe that is the case here, and the Governor Defendants provide none. Consequently, there is

not even a reason why the 65.08 motions cannot be submitted to a three-judge panel (unless

transferred to the Supreme Court for determination), who can all determine the cause on the

record.

Public health is not at stake – we know that because, as noted, the Governor Defendants

do not even argue as much, and the Governor himself lifted most of his restrictions. What

clearly is at stake now is the rule of the law, the General Assembly’s ability to legislate in

important fields, the Republican form of government in the Commonwealth and ultimately, the

public’s fragile confidence in the judiciary to see that the law is followed by everyone before it,

even a Governor. There simply is no “sky is falling” emergency that requires a single judge,

versus three judges, to determine the issues raised by Movants.

II. RESPONSE TO THE NON-EMERGENCY CR 65.08 MOTION

A. Response to the Governor Defendants’ Introduction

In the main C.R. 65.08 Motion, the Governor Defendants repeat a number of arguments

raised in the emergency motion – including the claims debunked above about the alleged

potential loss of federal relief. But they go further – they claim that the Boone Circuit Court’s

6
order extends beyond the relief sought by the Plaintiff in the case below. As noted above, that

simply is not true.

Plaintiff sought not only to lift the capacity, hours of operation, and face covering

restrictions, but also sought to prevent enforcement by the Governor, and those acting in concert

with him, of past violations of the Governor’s orders. Testimony below established, and the

Trial Court made findings of fact that, the Plaintiff created a 2021 HB1 plan upon passage of

2021 HB1, posted it as required by that section, and complied with it, but not the Governor’s

orders, after this change in the law. (Tr. 28-30). Testimony also established that enforcement

actions had been taken by the Governor, and others acting in concert with him, against the

business and its owner (Tr. 30-32).

Plaintiff moved for class certification not only for itself, but also on behalf of all other

Kentucky individuals and businesses adversely affected in the same way by the Governor’s

mandates. In opposition to the Plaintiff’s Motion, the Governor Defendants argued that class

certification was not necessary and the Court was empowered to and could issue statewide relief

without such certification (we have attached these pleadings for the Court’s reference). The

Governor Defendants thus invited any error of which they now complain. Tackett v.

Commonwealth, 445 S.W.3d 20, 28 (2004). In fact, and based on the Governor Defendants’

representations in their brief (which, if error, is invited error), the Boone Circuit Court agreed

that it could extend statewide relief. So it is not true, as the Governor Defendants now argue,

that the relief sought did not extend beyond the Plaintiff in the case.

The doctrine of judicial estoppel is an equitable principle designed to protect the integrity

of the judicial process by preventing a party from taking inconsistent positions in separate

judicial proceedings. Mefford v. Norton Hospitals, Inc., 507 S.W.3d 580, 584 (Ky. App. 2016)

7
(citing Colston Investment Co. v. Home Supply Co., 74 S.W.3d 759, 763 (Ky. App. 2001)). It

generally prevents a party from asserting a claim in a legal proceeding that is contrary to a claim

asserted by that party in a prior proceeding. Hisle v. Lexington-Fayette Urban County

Government, 258 S.W.3d 422, 434 (Ky. App. 2008). Judicial estoppel preserve[s] the integrity of

the courts by preventing a party from abusing the judicial process through cynical

gamesmanship.

Judicial estoppel is not reducible to a simple general formula. Generally, however, three

factors are considered: "(1) whether the party's later position is clearly inconsistent with its

earlier position; (2) whether the party succeeded in persuading a court to accept the earlier

position; and (3) whether the party seeking to assert an inconsistent position would derive an

unfair advantage or impose an unfair detriment on the opposing party if not estopped." Hisle, 258

S.W.3d at 434-35.

The Governor Defendants here took a position below that is clearly inconsistent with

their position now – namely that the Circuit Court could and had the power to issue statewide

relief without class certification being granted, succeeded in getting the Circuit Court to adopt

this position, and now seek to attempt an unfair advantage with their arguments that the Circuit

Court, in fact, could not issue such relief. This is a classic situation for the application of judicial

estoppel.

The Governor Defendants next claim that the unrebutted, well substantiated and

supported expert testimony, and other evidence proffered below, really are just “dangerous and

debunked conspiracy theories, unsupported by evidence.” Unfortunately for the Governor

Defendants, saying so does not make it so. The Governor Defendants had full opportunity to

rebut Plaintiff’s evidence, and they even called Dr. Steven Stack who could have tried to prove

8
why Plaintiff’s experts were merely peddling “debunked theories.” That they failed to even

attempt to do so through Dr. Stack is all this Court needs to know (as it turns out, in a not

insubstantial way, Dr. Stack agreed with aspects of the testimony of Plaintiffs’ experts – one

supposes he is also peddling debunked theories under the Governor Defendants view).10

We address below the Governor Defendants’ incorrect assertions about Beshear v. Acree,

615 S.W.3d 780 (Ky. 2020), but suffice to say, the Supreme Court in Acree noted that the

legislature could rescind the Governor’s emergency powers and emergency declaration, and that

is exactly what occurred here. Id. at 811. Simply put, there is nothing about Acree that supports

the Governor Defendants’ current arguments.

B. Response to the Governor Defendants’ Factual and Procedural Background

The gist of the Governor Defendants’ arguments begins and ends with their devoid-of-any-

analysis assertion that the General Assembly actually cannot pass legislation in the area of

emergency response (we address this at length below). Instead, they claim that only the

Governor, as a matter of state constitutional law, gets to determine what constitutes an

10
The Governor Defendants also take issue, in a footnote no less, with an alleged failure by the
Circuit Court to recuse. This is a shameful and baseless attack on the Circuit Court, made all the
more shameful by the fact that the Circuit Court addressed the issue, made appropriate
disclosures, which revealed recusal was not required, explicitly invited Counsel for the Governor
Defendants to state their views on recusal, indicated that the Court would take no offense if they
did so and likely would recuse merely to avoid any issues, but these same Counsel expressed
their view that they were not seeking recusal and that it was not appropriate in any event. (Tr. 7-
12). Therefore, the Governor Defendants’ statements are nothing more than false statements
about the Circuit Court and its integrity. There was no basis for recusal whatsoever under Canon
2, Rule 2.11. We know this, in part, because the Governor Defendants fail to cite which portion
of Rule 2.11 the Circuit Court allegedly violated. Certainly, the Governor Defendants failed to
preserve any issue under Abbott, Inc. v. Guirguis, 2021 Ky. LEXIS 19, --- S.W.3d --- (Ky. 2021),
by failing to file the affidavit required by the Kentucky Supreme Court. Once again, and to the
extent there even was any error, it was invited error, and the Governor Defendants waived any
argument on this score. Tackett, 445 S.W.3d 20, 28. And judicial estoppel applies. Hisle, 258
S.W.3d at 434-35.
9
emergency, whether one exits, how long it lasts, and what the response is, all without any

meaningful limitation on that power. If those baseless assertions were true, surely the Governor

Defendants would have taken that same position in Acree, instead of arguing the Governor was

lawfully exercising power delegated by the General Assembly. In fact, the Kentucky Supreme

Court in Acree specifically held:

The duration of the state of emergency, at least the one at issue in this case, is also limited by
the aforementioned 2020 Senate Bill 150, Section 3, which requires the Governor to state
when the emergency has ceased but, in any event, allows the General Assembly to make the
determination itself if the Governor has not declared an end to the emergency "before the
first day of the next regular session of the General Assembly." The enunciation of criteria for
use of the emergency powers, the timely, public notice provided for all orders and regulations
promulgated by the Governor and the time limit on the duration of the emergency and
accompanying powers all combine to render KRS Chapter 39A constitutional to the extent
legislative powers are delegated.

Id. at 811-812.

As noted, we will address, below, the entirety of the Governor Defendants’ arguments about

the import of Acree, the passage of legislation by the General Assembly, the import of the

Franklin Circuit Court action and orders, and the assertion of “collateral attack,” but suffice to

say, these contentions are baseless, dangerous and anti-democratic.

The Governor Defendants start by attacking the Plaintiffs experts, which the Circuit Court

credited. In the end, the “nits” they pick at are meaningless (as also explained in detail below),

because the experts’ testimony was clear, the Circuit Court was entitled to credit this testimony,

and properly did so.

In particular, the impacts upon businesses, including to their goodwill alone, when weighed

against lawful public health orders and unrebutted medical testimony as to their necessity for the

public health, do not warrant the issuance of an injunction. Acree clearly says as much. 615

S.W.3d 780, 830.

10
 But that is not the evidence of record here. Yes, the harm to businesses, and indeed

industries, continues. Mr. Hayhoe testified to this. (Tr. 28-32). But, evidence from Dr.

Rutherford established that the Governor’s restrictions were not effective, and unquestionably

caused secondary public health harms. (Tr. 40-69). This testimony was based upon what we

currently know and have come to know about COVID-19. (Tr. 40-69). Dr. Rutherford also

testified that both those having immunity from contracting COVID-19, and those who have

become immune through immunizations, have long lasting immunity. (Tr. 57-58). Her

testimony also established that capacity restrictions and hours of operation restrictions do not

have a material effect on the spread of COVID-19. (Tr. 40-69). However, these interventions

and mandates have caused severe secondary public health effects including drug overdoses,

isolation from family members in nursing homes, depression, and other negative public health

consequences. (Tr. 66-69).

Steve Petty, an engineer, epidemiologist, and Certified Industrial Hygienist with an

expertise in PPE, who also happens to be an expert witness involved in ongoing litigation over

Monsanto and its Roundup herbicide, testified about the emerging science behind COVID-19,

including the crucial fact that rather than from droplets, its spread is almost exclusively from

aerosols (the “little guys”). (Tr. 86-102). In light of this scientific knowledge, it explains why

almost all masks (other than properly fitted N95 masks), six-foot social distancing, and other

interventions simply did not, and do not, work. (Tr. 102-144). Mr. Petty also testified to the

Industrial Hygiene hierarchies of control which reflect that dilution, destruction, and/or

containment are far, far preferable for aerosolized virus control rather than PPE, which most

mandate compliant masks are not. (Tr. 102-144). In fact, the best thing to do to control COVID-

19 is to increase ventilation, and let the fresh air in. (Tr. 86-144). Mr. Petty’s testimony, data,

11
and methodologies were questioned at length, but the sum and substance of his testimony was

that typical mask wearing and distancing rules were and are completely ineffective at stopping

the spread of COVID-19. (Tr. 86-144).

For his part, Dr. Stack confirmed that we now know aerosols (as opposed to droplets) drove

the spread of COVID-19. (Tr. 171, 227, 279). He also testified that COVID-19 vaccines are

highly effective and every adult Kentuckian who has wanted to receive one has had the

opportunity to do so. (Tr. 238). In terms of children, who have not yet had the opportunity to

obtain a vaccine, only two deaths under the age of 19 have been reported in Kentucky for the

entire period of the pandemic. (Tr. 232). Dr. Stack also confirmed Mr. Petty’s testimony about

non-N95 masks and that even a 3% leakage rate (which almost always exists) means such masks

are useless at stopping a virus spread through aerosols. (Tr. 278-279). And, finally, Dr. Stack

confirmed that there is no material risk difference between patrons seated back-to-back in

restaurants, but 3 feet apart, and patrons seated closer than 3 feet apart, but between the

plexiglass partitions permitted under the Governor’s Healthy at Work requirements. (Tr. 228-

229).

That then leads us to the last portion of the Governor Defendants’ contentions in the

“Factual Background” portion of their motions regarding the Amended Judgment and what the

Governor contends were issues concerning the Brewed business.

The Boone Circuit Court entered statewide declaratory relief and indicated that it did not

need to certify a class (in part because the Governor argued it did not need to in order to extend

statewide relief). However, it was at least arguable that the injunction language could be read a

couple of ways – as both extending statewide and not doing so. Specifically, the undersigned

were contacted by the Northern Kentucky Restaurant Association concerning this matter before

12
the case came to trial, and were informed that there are and remain dozens of cases pending

before Kentucky’s ABC Commission concerning alleged violations of the Governor’s orders,

each of which are in contravention of the General Assembly’s 2021 legislation, including 2021

RS SB1 and 2021 RS HB1. Then, after the Boone Circuit Court entered judgment, the

undersigned again was contacted by the Association regarding the ABC and its continued

enforcement of past violations, and all in contravention of existing Kentucky law.

So, two things happened. The undersigned sent to ABC a copy of the Circuit Court’s

Order, containing language extending declaratory relief statewide, but without any particular

mention of any particular business, and received back a message that the ABC would not comply

with the Boone County Order because, according to the ABC, the Order did not extend beyond

Boone County and the Plaintiff in this case, even though the Circuit Court declared rights on a

statewide basis. That then prompted the motion for clarification which resulted in the Amended

Judgment.

As an aside, these ongoing enforcement actions, and the threat of enforcement relative to

the Plaintiff for its own violations of the Governor’s orders (but compliance with 2021 RS HB1)

render this case live, and not moot (rebutting yet another false assertion of the Governor

Defendants). Delahanty v. Commonwealth, 558 S.W.3d 489, 510 (Ky. 2018) (case with

continued threat of harm or enforcement not moot); Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014)

(public interest exception applied to mootness where the case was important, and affected a

number of other pending cases).

C. Legal Standard and the Failure of the Governor Defendants to satisfy C.R. 68.05(3).

At the outset, we agree with the Governor Defendants that they have the burden to prove:

(1) that they are likely to succeed on the merits of this appeal; (2) that unless a stay is granted

13
they will suffer irreparable injury; (3) that no substantial harm will come to other interested

parties; and (4) that a stay will do no harm to the public. Reed v. Rhodes, 549 F.2d 1046, 1047-

1048 (6th Cir. 1976). We disagree, however, that the Governor Defendants have come anywhere

close to meeting this burden as to any single factor, much less demonstrating all four required for

a stay.

Procedurally, the Governor Defendants are required to move for a stay first in the Circuit

Court. C.R. 68.05(3). The Governor Defendants argue that a request to the Circuit Court is

“impractical,” and “futile,” because there is not sufficient time to wait until the next Motion

hour, which is July 6, 2021. But, the Governor Defendants fail to explain: (i) why they did not

raise the arguments regarding alleged irreparable harm to the Boone Circuit Court when they had

the opportunity to do so, including in response to Plaintiff’s motion to clarify the judgment; or

(ii) why they failed to move that Court for relief, in the interim, on the basis of these apparently

new claims of irreparable harm. Simply put, there is nothing impractical about having to do any

of this and, yes, the rules do apply to the Governor Defendants despite their failure to abide by

them.

Before proceeding to analyze the further arguments raised by the Governor Defendants, it

is important to set forth the standard of review in this matter. An appellate court “may not

disturb a trial court’s decision on a temporary injunction unless the trial court’s decision is a

clear abuse of discretion.” Commw. ex. rel. Conway v. Thompson, 300 S.W.3d 152, 162 (Ky

2009). No abuse of discretion exists unless “the judge’s decision is ‘arbitrary, unreasonable,

unfair, or unsupported by sound legal principles.”’ SM Newco Paducah LLC v. Kentucky Oaks

Mall Co., 499 SW3d 275, 278 (Ky 2016). Absent this clear showing, an appellate court “‘has no

power’” to set aside an injunction. Boone Creek Props, LLC v Lexington Fayette Urban Cty Bd

14
of Adjustment, 442 SW3d 36, 38 (Ky 2014) (quoting Maupin v. Stansbury, 575 SW2d 695, 698

(Ky App 1978)).

“Accordingly we give considerable deference to the circuit court's evaluation of the

dispute, the issues involved, the weighing of the equities, and whether an injunction is proper

under the particular circumstances at hand.” Id. Moreover, to the extent the Governor

Defendants attack the Circuit Court’s factual findings, CR 52.01 provides that "[f]indings of fact

shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of

the trial court to judge the credibility of the witnesses." Id.

D. The Boone Circuit Court had authority to enter statewide injunctive relief, and the
Governor himself specifically invited any error he now complains of, when he
specifically argued in opposition to a Class Certification Motion that Class
Certification was not necessary and the Circuit Court could enter statewide relief

1. There is no collateral attack on the Franklin Circuit Court order, nor can there be, when
this Plaintiff was not a party to that action. Moreover, the Franklin Circuit Court action is
a nullity, as there is no actual case and controversy in that matter

Much of the Governor Defendants’ motions are predicated upon the erroneous assertion

that the orders issued by the Franklin County Circuit Court are somehow binding upon the

Boone Circuit Court, this Plaintiff, or others who are not parties to that action. Dispelling that

misconception, as a first step, is necessary to resolve the remaining arguments raised by the

Governor Defendants.

It is true that the Franklin Circuit Court entered an order purporting to enjoin various

pieces of legislation. It is also true that the Attorney General has appealed that order, but only on

jurisdictional grounds. However, it is well settled law that a Circuit Court – or any tribunal –

that lacks jurisdiction is not empowered to hear the case. As a result, any orders it enters are

nullities. Johnson v. Commonwealth, 17 S.W.3d 109, 113-114 (2000). Such is the case with the

Franklin Circuit Court action.

15
 In particular, the Governor very publicly takes the position that he need not comply with

House Bill 1, Senate Bill 1, or Senate Bill 2, and he refuses to comply with them. He issued

directives to other governmental bodies, including the Labor Cabinet and local Health

Departments, to continue to enforce his mandates, and they are doing so. To that end, the

Governor filed an action in the Franklin Circuit Court against the Attorney General, Senate

President, LRC, and House Speaker, in order to have these pieces of legislation, which became

law after his vetoes were overridden, declared unconstitutional. Significantly, he did not seek

class certification, nor has class status been granted. And, the Plaintiff here is not a party to that

matter.

Moreover, none of the Defendants named in the Governor’s lawsuit hold offices entitling

them to enforce the challenged statutes – ironically, only Governor Beshear enforces those

statutes. As a consequence, any orders issued by the Franklin Circuit Court in that action are

nullities as a matter of law. Commonwealth v. Hughes, 873 S.W.2d 828, 830 (1994) (“This Court

has repeatedly reaffirmed the proposition that it has no jurisdiction to decide issues which do not

derive from an actual case or controversy,” citing Ky. Const. § 110); In Re; Constitutionality of

House Bill No. 222, Ky., 262 Ky. 437, 90 S.W.2d 692 (1936) ("Power to render advisory

opinions conflicts with Kentucky Constitution Section 110 and thus cannot be exercised by the

Court"); Philpot v. Patton, Ky., 837 S.W.2d 491, 493 (1992), ("our courts do not function to give

advisory opinions, even on important public issues, unless there is an actual case or

controversy.").

That then brings us to the language of the Franklin Circuit Court’s order purporting to

“enjoin legislation”. “A restraining order granting injunctive relief against the enforcement of a

statute or ordinance is to be directed against the acts of those specific public officials charged

16
with enforcing the statute to enjoin their threatened enforcement.” Akers v. Floyd County Fiscal

Court, Ky., 556 S.W.2d 146 (1977); Commonwealth v. Mountain Truckers Ass'n, Inc., 683

S.W.2d 260, 263 (Ky.App. 1984). In fact, and rather than be binding on the Boone Circuit

Court, the Franklin Circuit Court’s action of directing an injunction against legislation, rather

than officials who enforce the legislation, raises significant and troubling constitutional questions

involving the separation of powers. Morgan v. Getter, 441 S.W.3d 94, 99 (2014); Delahanty v.

Commonwealth, 558 S.W.3d 489, 506 (Ky. App. 2018).

Likewise, no orders from the Franklin Circuit Court action can bind non-parties to that

case, such as Plaintiff, under ancient bedrock Kentucky law. Singleton v. Singleton, 47 Ky. 340

(1848); Combs v. Jones, 244 Ky. 512 (1932). The Governor Defendants’ erroneous contention

to the contrary is further belied by the fact that circuit courts have co-equal powers (one circuit

cannot bind another) and the Franklin Circuit Court lacks personal jurisdiction over Plaintiff

herein (circuit courts cannot bind parties over whom they lack jurisdiction). Finally, a(nother)

“trial court’s decision has ‘no precedential value.’” Bell v. CHFS, Dep’t for Cmty. Based Srvcs.,

423 S.W.3d 742, 751 (Ky. 2014).

The United States Supreme Court has weighed in on this principle: "The law does not

impose upon any person absolutely entitled to a hearing the burden of voluntary intervention in a

suit to which he is a stranger … Unless duly summoned to appear in a legal proceeding, a person

not a privy may rest assured that a judgment recovered therein will not affect his legal rights."

Martin v. Wilks, 490 U.S. 755, 763 (1989), citing Chase National Bank v. Norwalk, 291 U.S. 431

(1934). Thus, “[t]he parties to a lawsuit presumably know better than anyone else the nature and

scope of relief sought in the action, and at whose expense such relief might be granted. It makes

sense, therefore, to place on them a burden of bringing in additional parties where such a step is

17
indicated, rather than placing on potential additional parties a duty to intervene when they

acquire knowledge of the lawsuit.” Id. “The linchpin of the ‘impermissible collateral attack’

doctrine -- the attribution of preclusive effect to a failure to intervene -- is therefore quite

inconsistent with Rule 19 and Rule 24.” Id. at 765.

In Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152 (Ky. 2009), the

Kentucky Supreme Court considered sequential orders issued by different circuit courts in

separate but “strikingly similar” cases. Id. at 159. The Court upheld the second order, prohibited

enforcement of the first order, and said that only the General Assembly could prevent the

possibility of inconsistent orders by different circuit judges. Id. at 163 n.30, 176. Here, the

Governor Defendants’ collateral-attack argument likewise fails, since Plaintiff has no need to

attack—collaterally or otherwise—an order that is not binding on it or on the Boone Circuit

Court. In fact, according to no less an authority than the Kentucky Supreme Court, each circuit

court has “co-equal abilities and powers.” Thompson, 300 S.W.3d at 163. Therefore, no circuit

court can bind another, as Judge Shepherd himself correctly acknowledged during a hearing in

the Governor’s separate lawsuit: “I’ve never been of the view that any Circuit Court can enjoin a

proceeding in another court. [T]here’s a whole host of context[s] in which these issues can arise

and certainly they can be litigated in any venue where a controversy arises.”

Moreover, it is long settled in Kentucky that an “injunction operates in personam only.”

McCauly v. Gwens, 31 Ky 261 265 (1833). Indeed, the “first prerequisite to obtaining a binding

injunction is that the court must have valid in personam jurisdiction over the [parties to be

bound].” 11A Fed Prac & Proc Civ § 2956 (3d ed) (Wright & Miller). Once again, because

Judge Shepherd lacked personal jurisdiction over the Plaintiff herein, it is not bound by his

preliminary order. Civil Rule 65.02 confirms this long-standing rule. It provides that an

18
injunction “shall be binding upon the parties to the action, their officers, agents, and attorneys;

and upon other persons in active concert or participation with them who receive actual notice” of

the injunction. CR 65.02(2).

In light of the above, Judge Shepherd could not have bound Plaintiff herein even if the

Governor had asked him to. See Wright & Miller § 2956 (“[P]ersons who are not actual parties

to the action or in privity with any parties may not be brought within the effect of a decree

merely by naming them in the order”).

Here, the General Assembly recently issued a new statute on venue (2021 H.B. 3) that,

far from eliminating the possibility of inconsistent circuit court orders, now encourages

constitutional challenges across the Commonwealth. The very purpose of the law was to prevent

the Franklin Circuit Court from ruling on every important constitutional challenge. The General

Assembly obviously sees value in having different courts address constitutional issues. And,

consistent with that view, Thompson considered competing judicial orders and ultimately

approved of and upheld the later issued order. This necessarily means that the order first issued

did not bind the second court.

Unlike the Franklin Circuit Court action, the Boone Circuit Court had both personal

jurisdiction over these parties and subject matter jurisdiction. As such, that Court was “duty

bound” to hear Plaintiff’s case. See Supp v St Charles, 291 S.W.3d 720, 725 (Ky App 2009) (“A

court is duty bound to hear cases within its vested jurisdiction”). Moreover, the cases cited by

the Governor Defendants simply do not support their argument to the contrary.

In Duff v Hagins, the Court considered a property dispute arising out of an old Judgment that

had resolved title, in the parties’ predecessors in interest, to the same property. 143 S W 378,

379 (Ky 1912). In other words, it potentially involved a collateral attack because the same

19
parties or their privies were involved in both cases. Similarly, the two other cases cited by the

Governor Defendants involved conflicting judgments about the same parties’ interests in estates.

See Strother v. Day, 279 S.W.2d 785, 786-787 (Ky 1955); Louisville & N R Co v. Bays Admx,

295 S.W. 452, 452-453 (1927). Again, Plaintiff herein is not a party to the Franklin Circuit

Court action.

The fact that the Governor and Secretary Freidlander are parties to the Franklin Circuit Court

action is irrelevant. Again, the question is whether the party the Governor seeks to bind and

foreclose from litigating in a different Court is a party – the Plaintiff herein – and it is not.

To accept the Governor Defendants’ argument in this regard is to violate the Kentucky

Constitution. Section 14 is clear that: “All courts shall be open, and every person for an injury

done him in his lands, goods, person or reputation, shall have remedy by due course of law, and

right and justice administered without sale, denial or delay.” Here, the Governor Defendants

seek to rewrite this section, to add an asterisk to that section that says when the Governor is a

party to litigation he initiates by being the first to rush to the courthouse, any judgment he

obtains ipso facto applies to four million other Kentuckians preventing them from challenging

him on the same or similar issues. Can the Governor unilaterally rewrite Kentucky’s

Constitution? Once again, to raise such a question is to answer such question.

Next, the Governor Defendants take issue with the Boone Circuit Court for not ruling in

their favor on the constitutional arguments they raised– but they cite not a single case before this

Court that would support the argument that 21 RS HB1, SB1, SB2, and/or HJR 77 are

unconstitutional. They also appear to take issue with the extent, or purported lack thereof, of

discussion the Boone Circuit Court employed in overruling the Governor Defendants’

counterclaims seeking to have these pieces of legislation struck down. However, the parties fully

20
briefed these issues below, the Boone Circuit Court read and analyzed the briefs (and stated on

the record that it had done so), and that Court clearly considered the arguments made by the

Governor Defendants – it just rejected those arguments.

Rather than restating all of the extensive briefing submitted below, we attach Plaintiff’s

Brief regarding the Governor’s counterclaims, and incorporate them by reference. The Court

indicated on the record it had read every brief filed in the case. (Tr. 286-287). The Boone Circuit

Court was entitled to, and clearly did, rely upon this briefing.

What bears repeating is that any analysis begins with the presumption that legislative acts

are constitutional. Cain v. Lodestar Energy, Inc., 302 S.W.3d 39, 43 (Ky. 2009). “It is an

axiomatic rule of statutory interpretation that when this Court considers the constitutionality of a

statute, we must draw all fair and reasonable inferences in favor of upholding the validity of the

statute.” Caneyville Volunteer Fire Dep't. v. Green's Motorcycle Salvage, Inc., 286 S.W.3d 790,

806 (Ky. 2009). “In Kentucky, a statute carries with it the presumption of constitutionality;

therefore, when we consider it, ‘we are 'obligated to give it, if possible, an interpretation which

upholds its constitutional validity.’'" Id. “To the extent that there is reasonable doubt as to a

statute's constitutionality, all presumptions will be in favor of upholding the statute, deferring to

the ‘voice of the people as expressed through the legislative department of government.’" Id. “A

constitutional infringement must be ‘clear, complete and unmistakable’ in order to render the

statute unconstitutional.” Id. In other words, the burden is on the Governor Defendants to

establish unconstitutionality beyond a reasonable doubt and, to the extent any statute is arguably

unconstitutional or arguably not, it must be determined to be constitutional.

The Boone Circuit Court found the Governor Defendants did not meet their burden. It is

not surprising to see why. First, the Governor Defendants began with a contention that 21 RS

21
HB1, 21 RS SB1, 21 RS SB2, and 21 RS HJR 77 all violate Kentucky’s Separation of Powers

(contained in Sections 27 and 28 of the Kentucky Constitution). This is patently incorrect. First,

the text of those sections:

Section 27 of the Kentucky Constitution provides:

The powers of the government of the Commonwealth of Kentucky shall be divided into
three distinct departments, and each of them be confined to a separate body of
magistracy, to wit: Those which are legislative, to one; those which are executive, to
another; and those which are judicial, to another.

Section 28 of the Kentucky Constitution provides:

No person or collection of persons, being of one of those departments, shall exercise any
power properly belonging to either of the others, except in the instances hereinafter
expressly directed or permitted.

The Governor Defendants then asserted a beyond tortured reading of Beshear v. Acree,

615 S.W.3d 780 (Ky. 2020), a reading the unanimous Court in Acree would unquestionably

reject. First, the Kentucky Supreme Court was clear in Acree that "[t]he legislative power we

understand to be the authority under the constitution to make the laws, and to alter and repeal

them." Id., citing Beshear v. Bevin, 575 S.W.3d 673, 682 (Ky. 2019). Indeed, the Acree Court

was clear that “that making laws for the Commonwealth is the prerogative of the legislature.”

615 S.W.3d 780, 809. And the Governor? His obligation is to "take care that the laws be

faithfully executed." Ky. Const. § 81. Here, the Boone Circuit Court agreed, and properly

rejected the Governor Defendants’ attempt to upend this constitutional balance.

2. The Governor Defendants invited the error they now complain of when they told the
Boone Circuit Court, in opposing Plaintiff’s Class Action Certification Motion, that the
Court could enter statewide relief, and judicial estoppel now applies

Plaintiff moved for class certification not only for itself, but on behalf of all other Kentucky

individuals and businesses who were adversely affected in the same way by the Governor’s

22
mandates. In response, the Governor Defendants argued that class certification was not

necessary (we have attached these pleadings for the Court’s reference). The Governor

Defendants thus invited any error they now complain of in relation to extension of relief

statewide. Tackett v. Commonwealth, 445 S.W.3d 20, 28 (2004). And judicial estoppel applies.

Hisle, 258 S.W.3d at 434-35.

E. Beshear v. Acree does not preclude relief. Rather, that case supports relief and
observed that the General Assembly could change the law, which it did. Further,
the 2021 legislation (21 RS HB1, 21 RS SB1, 21 RS SB2, and 21 RS HJR 77) is
constituional

1. Beshear v. Acree does not preclude relief to Plaintiff; rather, it warrants it.

The Court in Beshear v. Acree observed that “[u]ltimately, the Governor's power to

declare a state of emergency is controlled by KRS 39A.100 and, in this case, KRS 39A.010…”

615 S.W.3d 780, at 804. The question immediately arises then: how can the Governor’s power

to declare a state of emergency be controlled by a statute if, as he now contends, doing so

violates the separation of powers. Again, to ask this question is to answer it.

In Acree, the Supreme Court also observed that “The Governor maintains that in

responding to the COVID-19 pandemic he has exercised executive powers derived from the

Kentucky Constitution and that KRS Chapter 39A simply ‘recognizes, defines, and constrains’

executive authority to direct an emergency response.” Id. at 805. Now, as noted, the Governor

Defendants go further: statutory enactments have no bearing on the Governor’s powers during a

self-declared emergency.

In rejecting any future imperial designs by the Governor, the Kentucky Supreme Court in

Acree specifically observed that “[t]he duration of the state of emergency, at least the one at

issue in this case, is also limited by the aforementioned 2020 Senate Bill 150, Section 3, which

requires the Governor to state when the emergency has ceased but, in any event, allows the

23
General Assembly to make the determination itself if the Governor has not declared an end to the

emergency "before the first day of the next regular session of the General Assembly." Id. at 812.

It seems rather obvious then, and should even be obvious to the Governor Defendants, why

would the Kentucky Supreme Court state that the General Assembly has the power to make the

determination concerning the end of the emergency if, in fact, the General Assembly had no

constitutional power to do so? Again, to ask the question is to answer it.

To further drive this point home, the Kentucky Supreme Court distinguished its holding

in Acree from a recent opinion in a Michigan case and observed that “[o]ur case differs from the

Michigan case in several important ways but most notably our Governor does not have

emergency powers of indefinite duration.” Id. at 812. In fact, the Court noted that the General

Assembly can amend or revoke “the emergency powers granted the Governor.” Id. at 812-813.

(emphasis added). So now, with the General Assembly having exercised its constitutional

authority, even overriding several vetoes, and taken action to do just what the unanimous Court

in Acree said it could do, and not merely as to COVID-19 but instead to limit any emergency

response to 30 days generally, the Governor Defendants want to upend that holding through a

motion and order in a lower court.

At bottom, the Governor Defendants conflate executive power (i.e. carrying out policies

duly enacted by the legislative branch, as limited by that branch, which was what Acree said the

Governor had the ability to do), with absolute dictatorial power unconstrained by the other two

co-equal branches of government. For their part, the Governor Defendants argue that it is the

General Assembly which is seeking to control the exercise of executive powers – but that is not

so. The General Assembly gave the Governor broad emergency response powers for 30 days.

Then, at the end of those 30 days, if the Governor does nothing else, those powers end. He does

24
not need to call the General Assembly back into session because, if he does not do so, his orders

end on their own terms.

Simply put, what the Governor Defendants can’t take is that they lost a policy dispute.

This becomes crystal clear when reflecting on the numerous Kentucky Supreme Court cases that

have uniformly held that “[s]haping public policy is the exclusive domain of the General

Assembly,” and "[t]he establishment of public policy is granted to the legislature alone. It is

beyond the power of a court to vitiate an act of the legislature on the grounds that public policy

promulgated therein is contrary to what the court [or the Governor and his appointees] considers

to be in the public interest." Caneyville Volunteer Fire Dep't v. Green's Motorcycle Salvage,

Inc., 286 S.W.3d 790, 907 (Ky. 2009), quoting Commonwealth v. Wilkinson, 828 S.W.2d 610,

614, 39 3 Ky. L. Summary 12 (Ky. 1992). Again, the Governor Defendants’ counterclaims

reflect what is, at bottom, a policy dispute; the Governor merely disagrees with the policy set by

the legislative branch as reflected in duly enacted legislation.

In like manner, the Governor Defendants’ contention that because the Governor is the

Chief Magistrate, he is able to exert absolute, unchecked, power, fares no better. Such an

argument also runs afoul of separation of powers, and conflicts with bedrock Kentucky law set

forth in Brown v. Barkley, 628 S.W.2d 616 (1982), where the Court expressly found that the

General Assembly had “the prerogative of withholding executive powers from him,” that “under

our Constitution the General Assembly has all powers not denied to it or vested elsewhere by the

Constitution,” that “if it be postulated that the chief executive does possess implied or ‘inherent’

powers, they would be subordinate to statute,” that “the executive branch exists principally to do

[the legislative branch’s] bidding,” and that the Governor’s powers “are only what the General

Assembly chooses to give him.” Id. at 622-623.

25
 Indeed, in Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 915 (Ky.

1984), the Court was clear that “the delegating authority must have the right to withdraw the

delegation,”. Here, the General Assembly has done exactly that. Thus, “each branch of

government is to do what the General Assembly has directed.” Id. at 926.

And, again, in what is considered the seminal case involving separation of powers in the

Commonwealth, Brown, 628 S.W.2d 616, 621, Kentucky’s Supreme Court was clear that, as to

any implied or inherent powers, any such power is “subservient to the overriding authority of the

legislature.” As to the other office holders, including the Attorney General, the law was likewise

explained in Barkley:

If the officers named in Const. Sec. 91 came into the world so naked of authority, one
might well ask why they were not made appointive or, indeed, not mentioned at all. The
answer, we think, though it may not have been articulated by the framers of the
Constitution in their debates, is that these independent executive offices provide
convenient receptacles for the diffusion of executive power. As the Governor is the
"supreme executive power," it is not possible for the General Assembly to create another
executive officer or officers who will not be subject to that supremacy, but it definitely
has the prerogative of withholding executive powers from him by assigning them to these
constitutional officers who are not amenable to his supervision and control.
The Brown Court likewise addressed and dispensed with the “Supreme Executive Power”

argument raised here and held:

Whether the Governor, in the exercise of his authority as the "supreme executive power
of the Commonwealth" (Const. Sec. 69), can do the same thing in the absence of
legislative authority is another matter. Though we are satisfied that the transfer of an
existing, legislatively-created function from one executive agency or department to
another is essentially an executive action, like the reassignment of troops or battle
missions from one military command to another, and is not an exercise of legislative
power by the chief executive, we do not believe that the chief executive has the power to
do it without legislative sanction unless it is necessary in order for him to carry out a law
or laws that the legislature has created without prescribing in sufficient detail how they
are to be executed.
Indeed, Brown expanded on the Section 81 powers of the Governor, but was clear that:

26
 the General Assembly has all powers not denied to it or vested elsewhere by the
Constitution. We do not doubt that if the General Assembly should pass a law that
requires implementation, and appropriate funds for that purpose but omit specifying the
manner in which it is to be carried out, the chief executive would be required to carry it
out and have the right to choose the means by which to do it. That would not be so
because of any implied or inherent power, however, but because it would be within the
scope of authority and duty expressly conferred upon him by Const. Sec. 81.
Id. at 623.
Unquestionably, the Governor’s powers, in Section 81, are limited to carrying out

statutory enactments, not, as he argues in this case, carrying out his own preferred policies in

contravention of those statutory enactments. Thus, “[t]his means, we think, that when the

General Assembly has placed a function, power or duty in one place there is no authority in the

Governor to move it elsewhere unless the General Assembly gives him that authority.” Id. at

623.

Addressing the Constitutional interplay between Kentucky’s separate branches of

government, the Brown Court explained:

It is interesting as well as instructive to consider the constitutional contrast between the

executive and judicial branches in their respective relationships to the legislative branch.
Whereas the judicial branch must be and is largely independent of intrusion by the
legislative branch, the executive branch exists principally to do its bidding. The real
power of the executive branch springs directly from the long periods between legislative
sessions, during which interims the legislature customarily has left broad discretionary
powers to the chief executive. It is ironic, but a historic fact of life, that in the past most
chief executives have used this very power, given to them by the legislature, to influence
the actions of individual legislators and thus exercise control over the legislative process
itself. To put it mildly, it was not meant to be that way. It has been that way, however, for
the simple reason that the legislature, either by choice or necessity, has conferred upon
the executive branch more authority than was consistent with its own independence.
Practically speaking, except for those conferred upon him specifically by the
Constitution, his powers, like those of the executive officers created by Const. Sec. 91,
are only what the General Assembly chooses to give him.

Id. (emphasis added).

The Court concluded:

27
 To round out this analysis of the respective powers and duties of the Governor, the
General Assembly, and the officers established by Const. Sec. 91, we need to consider
the relationship between the Governor and the Const. Sec. 91 officers. That the Const.
Sec. 91 officers are to be elected by the people suggests that, whatever their duties, they
are not answerable to the supervision of anyone else. This inference finds support in that
provision of our Constitution (Sec. 78) which empowers the Governor to require
information in writing from the officers of the executive branch upon any subject relating
to the duties of their offices. Had the framers of the Constitution intended the Governor to
have any further authority over these officers, Sec. 78 would have been unnecessary and,
indeed, an anomaly.
Id.
This uniform, longstanding jurisprudence from Kentucky’s highest court puts to bed the

Governor Defendants’ claim that the Governor is entitled to do whatever he wishes because he

says there is an emergency, or that any emergency response power is inherently executive.

While it is true that a response to a properly declared emergency, including the deployment of

state personnel and resources, is inherently executive because the executive branch carries out

the laws (including those relating to emergency response) –it is only true if the response is within

the authority granted to the Governor by the General Assembly, as the Supreme Court in Acree

recognized. In contrast, the position of the Governor Defendants regarding unlimited authority,

detached from any legislative role, is inherently unfounded and advances a terrifyingly

undemocratic argument.

While Acree upheld the Governor’s lawful exercise of power delegated by the General

Assembly, the Kentucky Supreme Court has also dealt with the issue, as here, of a Governor

acting contrary to legislative enactments. Fletcher v. Office of the AG. ex rel. Stumbo, 163

S.W.3d 852 (2005). In Fletcher, as here, the Governor claimed that emergency and exigency

gave rise to the need to take action. There, the Kentucky Supreme Court was clear: “[w]e reject

the proposition that a Governor can unilaterally declare an emergency and [do what he wishes] to

28
resolve it.” Id. at 871. The Court in Fletcher was also clear that it was constitutionally

intolerable to refuse to follow the law simply because an emergency existed that necessitated it:

The Solicitor General lastly grounds support of the seizure upon nebulous, inherent
powers never expressly granted but said to have accrued to the office from the customs
and claims of preceding administrations. The plea is for a resulting power to deal with a
crisis or an emergency according to the necessities of the case, the unarticulated
assumption being that necessity knows no law. Id.

Rejecting this blatantly undemocratic, unconstitutional argument, the Fletcher Court

stated:

The appeal, however, that we declare the existence of inherent powers ex necessitate to
meet an emergency asks us to do what many think would be wise, although it is
something the forefathers omitted. They knew what emergencies were, knew the
pressures they engender for authoritative action, knew, too, how they afford a ready
pretext for usurpation. We may also suspect that they suspected that emergency powers
would tend to kindle emergencies. Id.

Emergency powers are consistent with free government only when their control is lodged
elsewhere than in the Executive who exercises them. Id.

With all its defects, delays and inconveniences, men have discovered no technique for
long preserving free government except that the Executive be under the law, and that the
law be made by parliamentary deliberations. Id., citing Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 649-650 (Jackson, J. concurring) (1952).

The Supreme Court of Kentucky cogently observed in Fletcher that “[t]he Governor possesses

no ‘emergency’ or ‘inherent’ powers to [take action not authorized by the General Assembly].”

Id. at 871. That was true then. It is true now. A true separation of powers and Republican form

of Government cannot exist where this law is not followed and respected.

Now, let us take each bill in turn. First, 21 RS SB1. The Governor Defendants’

contention is that the legislature cannot confer upon itself the ability to determine the length of

emergency orders or to end them. Once again, the Supreme Court in Acree rejected this

argument as it made clear that “[t]he duration of the state of emergency, at least the one at issue

in this case, is also limited by the aforementioned 2020 Senate Bill 150, Section 3, which

29
requires the Governor to state when the emergency has ceased but, in any event, allows the

General Assembly to make the determination itself if the Governor has not declared an end to the

emergency "before the first day of the next regular session of the General Assembly." 615

S.W.3d 780 at 812.

Likewise, the observation from the Kentucky Supreme Court in Surrogate Parenting

Associates, Inc. v. Commonwealth, 704 S.W.2d 209 (1986) is applicable. “If there are social and

ethical problems in the solutions science offers, these are problems of public policy that belong

in the legislative domain, not in the judicial [or the executive], under our constitutional doctrine

of separation of powers.” Id. at 213. Indeed, “our Kentucky Constitution empowers the

legislative branch, but not the judicial branch, of government to articulate public policy

regarding health and welfare.” Id.

Then there is Pennsylvania, which has a Constitution extraordinarily similar to that of

Kentucky, and about which Kentucky’s Supreme Court has stated that “[d]ecisions of the

Pennsylvania Supreme Court interpreting like clauses in the Pennsylvania Constitution are

uniquely persuasive in interpreting our own.” Commonwealth v. Wasson, 842 S.W.2d 487, 492

(1992).

The Pennsylvania Supreme Court held (without dissent) that the emergency response law,

which included the ability of the General Assembly of Pennsylvania to end any emergency

declaration by joint resolution (which the Court found to be a necessary feature to upholding the

statute against a constitutional challenge), is constitutional. Friends of Devito v. Wolf, 227 A.3d

872, 885-886 (Pa 2020); see, also, Wolf v. Scarnati, 233 A.3d 679 (Pa 2020) (finding the scheme

constitutional, but finding the resolutions had to be presented to the Pennsylvania Governor but

were not – while here, of course, there is no doubt that the resolutions ending, or extending, the

30
emergency would be presented to the Governor – in fact, 21 RS HJR 77 was presented to

Governor Beshear, vetoed, and that veto overridden).

Next is Michigan. In Acree, the Kentucky Supreme Court cited with approval Chief

Justice McCormack’s opinion in Midwest Inst. of Health, PLLC v. Governor of Mich. (In re

Certified Questions from the United States Dist. Court), 2020 Mich. LEXIS 1758 (2020). Chief

Justice McCormack observed that “[t]he Legislature might revisit its longstanding decision to

have passed the EMA. If the Legislature saw fit, it could repeal the statute. Or, the Legislature

might amend the law to alter its standards or limit its scope. Changing the statute provides a

ready mechanism for legislative balance.” That is exactly what Kentucky’s legislature has done.

And, Chief Justice McCormack “agree[d] with the majority that the Governor's executive orders

issued after April 30, 2020, were not valid under the EMA.”

Under the Michigan EMA, the majority (and the entire court, which joined in that part of

the decision), noted that:

Furthermore, and contrary to the Governor's argument, the 28-day limitation in the EMA
does not amount to an impermissible "legislative veto." Once again, MCL 30.403(3) and
(4) provide that "[a]fter 28 days, the governor shall issue an executive order or
proclamation declaring the state of [emergency/disaster] terminated, unless a request by
the governor for an extension of the state of [emergency/disaster] for a specific number of
days is approved by resolution of both houses of the legislature." These provisions
impose nothing more than a durational limitation on the Governor's authority. The
Governor's declaration of a state of emergency or state of disaster may only endure
for 28 days absent legislative approval of an extension. So, if the Legislature does
nothing, as it did here, the Governor is obligated to terminate the state of emergency
or state of disaster after 28 days. A durational limitation is not the equivalent of a
veto. Id. (emphasis added).

And, again, the Kentucky Supreme Court in Acree cited with approval Chief Justice

McCormack’s opinion, which joined in the above language. Nor was this a problem, as the

31
Governor Defendants argue was the case in Brown, 664 S.W.2d 907,11 of a subcommittee

exercising legislative authority. The bottom line, as with the case in Michigan, is that there is a

durational limit on executive orders under 21 RS SB1. Notably, the Wisconsin Supreme Court

also upheld similar durational limitations. Fabick v. Evers, 2021 WI 28 (2021).

Finally, the Governor Defendants argue that the Governor has implicit constitutional

powers as Commander in Chief to do whatever he wants in an emergency only he gets to define,

that only he gets to end, even when his actions are contrary to legislative enactments. Of course,

we deal here not with the deployment of the militia to quell an insurrection, but instead the use of

orders that, according to the Governor, have the force of law and direct standards of conduct for

every aspect of life of every member of the general public.

But even the case that the Governor Defendants cite for this proposition, Franks v. Smith,

142 Ky. 232 (1911) cannot be read as expansively as they suggest. First, Franks was clear that

the Governor “is the chief civil officer of the Commonwealth and is charged with the duty of

taking care that the laws of the State are faithfully executed.” Id. at 238. Here, the argument is

not that the laws be faithfully executed, but that the Governor can disregard the law in favor of

his own claim to unlimited power to respond to COVID-19. One can search Franks in vain for

any suggestion that the Governor can disregard legislative enactments, or that the same are not

applicable to him because he is the Commander in Chief.

In part, Franks came out the way it did because the Court observed that “[i]t will be

observed that there is no limitation either in the Constitution or statute upon the power vested in

11
This case is also not akin to Ins v. Chadha, 462 U.S. 919 (1983), another case cited by the
Governor Defendants, in which the legislature set forth a statutory scheme related to
immigration, the executive carried it out according to its terms, and then the legislature overrode
individual applications of the law as opposed to general enactments. Here, the law is plain and
clear: 30-day limits on the use of emergency powers.
32
the Governor to order into active service the militia of the State or to direct into what locality

they shall go or operate.” Id. This language – particularly the part about statutory limitations --

would be superfluous if the legislature did not have the power to confine or constrain the

Governor.

But Franks also observed that “[t]he supremacy and authority of the law at all times and

places must be asserted and maintained at all hazard and at whatever cost.” Id. at 241. This

language would be unnecessary if the Governor, as Commander in Chief, could do whatever he

wanted as he would be “the law.” And, to make the point clear that even when acting as

Commander-in-Chief, the Governor’s duty is to follow the law because he is not “the law”, the

Franks Court observed:

Having this view of the power and duty of the Governor, it must nevertheless be kept in
mind that in its exercise he acts in his capacity as a civil officer of the State and not as
commander-in-chief of its army. As the chief civil magistrate of the State, he calls out
and must direct in accordance with law the movements and operations of the military
forces. "The military shall be at all times and in all cases in strict subordination to the
civil power." It is so written in section 22 of the Bill of Rights. We have not, and cannot
have, in this state a military force that is not and will not be subordinate to the civil
authorities. The military cannot in any State of case take the initiative or assume to do
anything independent of the civil authorities. Ours is a government of civil, not military,
forces. The militia in active service and in every emergency that arises in such service is
subordinate to the civil power. The soldier and the citizen stand alike under the law. Both
must obey its commands and be obedient to its mandates. Id. at 242.

The Kentucky Court of Appeals in Franks observed that “[i]t follows from these

considerations that we are not disposed to agree with the doctrine announced by the Supreme Court of

Colorado in In re Moyer, 35 Colo. 159, 12 L. R. A., N. S., 979, 85 P. 190, that in certain emergencies the

civil law may be suspended by military orders.” Id. Indeed, the Franks Court held:

We are not willing to concede that in any exigency that may arise the military is superior
to the civil authorities. We do not apprehend that any conditions could come up that
would justify us in so holding. Nor do we believe that the time will ever come when the
military forces of the State, acting under and in obedience to the civil laws of the State
will not be able to control under the authority conferred by these laws any situation that
may present itself. Id.

33
So much for the Governor Defendants’ arguments about Franks permitting the Governor to

disregard the law, or permitting him to use his alleged powers as Commander in Chief to declare

an indefinite public health emergency, and then disregard legislative enactments he finds

inconvenient to his imperial aims. Franks stands for the exact opposite proposition.

There is simply no separation of powers issues with 21 RS SB1, 21 RS HB 1, 21 RS SB2,

or 21 HJR 77. The legislature enacted laws that set forth legislative policy. In 21 RS SB1 and

21 RS SB2 as to KRS Chapter 214, they placed durational limits on emergency orders (we will

address the statutory suspension issue below); in 21 RS HB 1, they enacted substantive standards

for businesses offering in person services; and, in 21 HJR 77, they ended the emergencies as

permitted under 20 RS SB 150 and 21 RS SB1.

These were all the product of policy judgments properly made by the branch of

government vested with the authority to decide public policy. Without a doubt, the Governor

Defendants disagree with these policy choices. Legally, so what? Unanimous Kentucky

Supreme Court cases hold that “[s]haping public policy is the exclusive domain of the General

Assembly,” and "[t]he establishment of public policy is granted to the legislature alone. It is

beyond the power of a court to vitiate an act of the legislature on the grounds that public policy

promulgated therein is contrary to what the court [or the Governor and his appointees] considers

to be in the public interest." Caneyville Volunteer Fire Dep't, 286 S.W.3d 790, 907, quoting

Wilkinson, 828 S.W.2d 610, 614.

The Kentucky Supreme Court’s final observation in Fletcher is appropriate to mention

when considering the Governor’s dictatorial ambitions:

Some truths are so basic that, like the air around us, they are easily overlooked. Much of
the Constitution is concerned with setting forth the form of our government, and the
courts have traditionally invalidated measures deviating from that form. The result may

34
 appear "formalistic" in a given case to partisans of the measure at issue, because such
measures are typically the product of the era's perceived necessity. But the Constitution
protects us from our own best intentions: It divides power . . . among branches of
government precisely so that we may resist the temptation to concentrate power in one
location as an expedient solution to the crisis of the day.

163 S.W.3d 852 at 872, citing New York v. United States, 505 U.S. 144, 187 (1992).

2. The Governor Defendants advance claims that, if accepted, constitute federal

constitutional violations

Article IV, Section 4, of the United States Constitution provides, in relevant part:

The United States shall guarantee to every State in this Union a Republican Form of
Government, and shall protect each of them against Invasion.

Here, the Governor Defendants contend that the General Assembly cannot legislate in an

entire area of public policy: what constitutes a public health emergency, what is a proper

response, how long can that response last and even how long can the emergency declaration last.

Although Article IV cases are few and far between, that likely speaks to the fact few public

officials have truly threatened the Republican form of government guaranteed by this clause.

The United States Supreme Court has held this clause to involve “the right of the people to

choose their own officers for governmental administration, and pass their own laws in virtue of

the legislative power reposed in representative bodies, whose legitimate acts may be said to be

those of the people themselves.” In re Duncan, 139 U.S. 449, 461 (1891).

Once again, and in light of this language, it is not surprising that Article IV claims rarely

present themselves. Then again, how many times has it been the case that one man got to decide

how people conducted every aspect of their public and private lives, including whether they

could go to church on Easter Sunday, gather to engage in political protest in traditional public

forums, sit in a restaurant, send their children to school or even go to their kid’s football game?

Ultimately, if this, or any other Court, were to hold that the General Assembly cannot pass laws

35
in an area of public policy constitutionally authorized to the General Assembly, because one

man, the Governor, holds the unfettered, absolute, dictatorial like right to rule, a violation of

Article IV occurs. C.f. New York v. United States, 505 U.S. 144, 183-186 (1992). Granting the

Governor’s request for a stay here raises similar concerns.

F. Plaintiff had and has standing to seek relief for itself, and for others similarly
situated. Plaintiff did so, and the Governor Defendants invited any error they now
complain of where they specifically argued in opposition to a Class Certification
Motion that Class Certification was not necessary, and the Circuit Court could
enter statewide relief

There is no question but that at the time of the filing of the Amended Complaint, the

Plaintiff was harmed by the existence of the Governor’s orders – and the Governor Defendants

make no argument to the contrary. This fact conferred jurisdiction upon the Circuit Court. Hicks

v. United States Bank, N.A., 2012 Ky. App. Unpub. LEXIS 257 (Ky. App. 2012).

The Kentucky Supreme Court confirmed this in Cabinet for Health & Family Servs. v.

Sexton, 566 S.W.3d 185, 196 (Ky. 2018). “So, at bottom, for a party to sue in Kentucky, the

initiating party must have the requisite constitutional standing to do so, defined by three

requirements: (1) injury, (2) causation, and (3) redressability.” Id. The terms “initiating party”

reflect the notion that standing is determined at the time a case is filed, not later (admittedly,

mootness doctrines apply after initial filing to discern whether a case continues to be live).

But this case is not moot. Mr. Hayhoe testified that from March, 2021 (following the

passage of 2021 RS HB1) to the date of the hearing, he complied with House Bill 1, instead of

the Governor’s edicts. (Tr. 27-33; 37). He also testified that he previously faced enforcement

for non-compliance with the Governor’s edicts, including loss of his food service license and

even criminal charges. Id.

36
 Violations of the Governor’s orders are (or at least were, at the time) Class A

misdemeanors. K.R.S. 39A.990. The statute of limitations of one year has not yet passed.

K.R.S. 500.050. Moreover, Kentucky law allows for prosecution regardless of whether the order

was rescinded. K.R.S. 446.110 (“No new law shall be construed to repeal a former law as to any

offense committed against a former law, nor as to any act done … or in any way whatever to

affect any such offense or act so committed or done …”). See, also, Rodgers v. Commonwealth,

285 S.W.3d 740, 750-752 (Ky. 2009).

These facts render the matter not moot. Delahanty v. Commonwealth, 558 S.W.3d 489,

510 (Ky. 2018) (case with continued threat of harm or enforcement not moot); Morgan v. Getter,

441 S.W.3d 94 (Ky. 2014) (public interest exception applied to mootness where the case was

important, and affected a number of other pending cases).

It is worth pointing out that when it comes to the issue of mootness, like everything else

in this appeal, the burden is on the Governor Defendants. Coleman v. Rutledge, 2020 Ky. App.

Unpub. LEXIS 620 (Ky. App. 2020), citing Qaisi v. Alaeddin, 580 S.W.3d 891, 893 (Ky.App.

2019) (holding that a party seeking relief generally bears the burden of proof). See also 1A C.J.S.

Actions § 75 ("The burden of establishing mootness rests with [the] party asserting a case is

moot."). In support, they argue nothing other than the edicts expired.12 Yet, that is not

dispositive. There is still ongoing enforcement concerning the now expired mandates – Movants

admit as much, but then claim that parties (other than the named Plaintiff) must litigate with

12
Of course, not all of the Governor’s orders have expired.
https://apps.legislature.ky.gov/law/kar/902/002/212E.pdf (last visited 6/28/2021);
https://chfs.ky.gov/agencies/dph/covid19/June%2011%20Face%20Covering%20Order.pdf (last
visited 6/28/2021).
37
executive branch officials the validity of legislation in each and every enforcement case they

bring, versus one case.

Plaintiff moved for class certification not only for itself, but on behalf of all other Kentucky

individuals and businesses who were adversely affected in the same way by the Governor’s

mandates, and the Governor Defendants argued that class certification was not necessary in

Opposition to that Motion (we have attached these pleadings for the Court’s reference). The

Governor Defendants thus invited any error of which they now complain. Tackett v.

Commonwealth, 445 S.W.3d 20, 28 (2004). The Circuit Court agreed, based on the

representations in the Governor Defendants’ brief (which, if this is error, is invited error) that it

could extend statewide relief.

The Governor Defendants finally argue that somehow the injunction that the Governor

Defendants cease enforcing illegal emergency orders against the Plaintiffs and others is

somehow a “follow the law” injunction, citing 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). McCloud involved a

claim where the violations of law had ceased and there was no threat of future violations shown.

The Court there observed that “in the absence of an ongoing violation of this statute” an

injunction could not issue. Here, as noted, there was a showing of past and current violations of

the law, and an ongoing threat of future violations of the law. How do we know that? Well, in

part, the Governor Defendants’ own motion reflect their understanding that they are not

operating in compliance with the statutory law passed by the General Assembly.

Here, the injunction was not a injunction to obey the law, but to stop enforcing the

Governor’s now-illegal orders against the Plaintiff and other members of the public. That isn’t a

general obey the law injunction, but rather a stop-violating-the-law injunction. And such a

38
injunction, to halt ongoing violations of the law, are clearly appropriate and lawful. Boone

Creek Props., LLC, 442 S.W.3d 36.

G. The Boone Circuit Court’s Decision and Order is supported by competent, credible
evidence and its findings, based upon that evidence, are entitled to deference

The Governor Defendants attack the Boone Circuit Court’s findings of fact by claiming

the arguments they advanced below are the equivalent to actual proof entitled to absolute

deference, which cannot be challenged by duly qualified experts rendering opinions supported by

fact and evidence. This is not the law as to competent, admissible evidence, and it certainly is

not the standard of review. Pursuant to CR 52.01, "[f]indings of fact shall not be set aside unless

clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the

credibility of the witnesses." Boone Creek Props., LLC, 442 S.W.3d 36, 39-40. With that in

mind, it is important to look to the actual evidence presented below.

Dr. Molly Rutherford, MD, MPH

Dr. Molly Rutherford testified as Plaintiffs’ first expert. She has a undergraduate biology

degree from Virginia Tech. (Tr. 40). She also has a Masters in Public Health with focus in

epidemiology from Johns Hopkins University (Tr. 40). She then worked as a biologist and

policy analyst for National Institute of Allergy & Infectious Diseases from 1993 - 1999 (Tr. 41).

In that capacity, she worked for Dr. Anthony Fauci and briefed him prior to his hearings on

Capitol Hill, among other things (Tr. 41).

Dr. Rutherford then began medical school in 1999, completing her M.D. from Eastern

Virginia in 2003, and she is a licensed physician in Kentucky and Indiana. (Tr. 42). She

published research on COVID-19 treatment and has also published as the President of Kentucky

Academy of Family Physicians, which is the professional group of family physicians from

around the state. (Tr. 42). She has been engaged in the active practice of family practice of

39
medicine since 2003. (Tr. 49). She is board certified in family medicine. (Tr. 49). And she

remains active in the public health arena (Tr. 49).

As part of her practice, she maintains current on emerging public health issues in her

practice, including trends with infectious disease and other illnesses, and has actually treated

approximately 100 COVID-19 patients. (Tr. 50-51). She has also published, as a co-author, an

international peer reviewed study in COVID-19 treatment in December, 2020. (Ex. 16, Tr. 51).

She was proffered as, and accepted by the Court as, an expert in medicine and public health.

(Tr. 43, 53). Dr. Rutherford set forth in her testimony peer reviewed articles and other reliable

studies, along with her own education, training, and experience, that formed the basis of her

opinions. (Tr. 53-61, Exhibits 17-22).

Among the opinions she rendered, based on these studies, were that the interventions

employed in response to COVID-19, including distancing and other requirements, were effective

in reducing case rates in the short term, but ultimately increased total death rate, and, instead, the

more effective solutions should have been focused on vulnerable populations. (Tr. 57). She

noted that there is ongoing, effective immunity conferred by both vaccines, as well as infection

from COVID-19 and recovery from it, conferring natural immunity. (Tr. 57-58).

Dr. Rutherford testified that, based on the foregoing literature and her own education and

training and experience, that there is a lack of correlation between lockdown/distancing measures

and a resulting death rate. (Tr. 58-59). She further testified that as the pandemic went on, it

became clear that interventions, such as those from the Governor which were unprecedented and

not in accordance with established science known prior to pandemic (Tr. 61). Based on literature

and her own education and training and experience, she opined that the six-foot rule and the

hours of operation restrictions had no material effect in death rate. (Tr. 66). And based on these

40
same considerations, that the mask mandate was ineffective. (Tr. 66-67). She concluding by

testifying to serious secondary public health consequences to the Governor’s mandates from drug

overdoses, withdrawal from family members in nursing homes, depression, and other negative

public health consequences. (Tr. 66-69).

Steve Petty, CIH, CSP

Steve Petty is a Certified Industrial Hygienist (Tr. 85). He has served as an expert in

400+ cases on exposure, PPE, and warnings. (Tr. 86-89) (Exhibit 12, CV; Exhibit 13, Prior Case

Listing). He has an undergraduate and graduate degree in chemical engineering, trained in risk

assessment, written books on forensic engineering. (Tr. 87-88). He is a Certified Industrial

Hygienist, an exposure and warnings expert, a Certified Safety Professional, and an OSHA

expert (Tr. 88).

Mr. Petty is a Professional Engineer in Kentucky and several other states. (Tr. 88-89).

He also is a member of the American Industrial Hygiene Association. (Tr. 89-90). And he holds

9 patents related to heating, ventilation, and air conditioning. (Tr. 90). He frequently publishes

and presents on industrial hygiene issues. (Tr. 90). And, as noted, he has been accepted as an

expert in over 400 court cases. (Tr. 91-92).

He was accepted by the Court as an expert in industrial hygiene, and the Governor

Defendants did not lodge an objection to his designation in this field. (Tr. 92). His testimony

relied upon a presentation he prepared, which included citation to government and peer reviewed

studies he relied upon. (Tr. 93, Exhibit 14). He has decades of experience in the field. (Tr. 94-

95).

Mr. Petty explained that industrial hygiene is the science and art devoted to the

anticipation, recognition, evaluation, and control of environmental factors and stressors arising

41
from the workplace that may cause sickness or impaired health. (Tr. 96-97). His job is to

anticipate, recognize, and control things that could hurt people. (Tr. 97). And his work involves

knowing both toxicology and epidemiology. (Tr. 98).

The science behind his work begins with knowing the four pathways of exposure: 1.

Ventilation/inhalation through the lungs (breathing it in); 2. dermal through skin; 3. ingesting it

(eating or drinking); and 4. intravenous. (Tr. 100). For COVID-19, the exposure was inhalation.

(Tr. 100).

Contracting COVID-19, or any other disease, always depends on the concentration of the

dangerous substance (in this case the viral load) and the time period that one is exposed. (Tr.

101). Mr. Petty noted that, from an exposure perspective, personal protective equipment, or

PPE, is the least desirable or effective way to control. (Tr. 101).

With COVID-19, Mr. Petty testified that the real issue with spread is the spread through

aerosols (which he dubbed “the little guys”), and not, as people originally thought, droplets. (Tr.

102). And, he observed, that of COVID-19 is in fact present in mostly aerosol form, the six-foot

rule and masks are meaningless, or “as close to ineffective as you can get.” (Tr. 102). He also

observed that aerosols more problematic from a disease perspective because they infiltrate

deeper in lungs and then multiply and cause disease. (Tr. 102-103)

As it turns out, dilution and destruction of COVID-19 particles, from a engineering and CIH

perspective, is approximately one hundred times more effective than masks. (Tr. 103). In part,

that is employing the well-recognized Industrial Hygiene Hierarches of Control, starting with

engineering controls (ventilation, dilution, and destruction) which is best, then administrative

controls (how long someone can be in controlled area), and least effective is personal protective

equipment. (Tr. 103-104)

42
 Part of Mr. Petty’s testimony was that to have effective PPE, like respirators, the devices

need fit tested, medical clearance, and other requirements which masks do not meet. (Tr. 105).

The masks are ineffective because they leak, are uncomfortable, and people do not, as a general

matter, wear them properly. (Tr. 105). A N95 mask, however, is considered the bottom of the

barrel respirator because it can be sealed better than a cloth or medical mask. (Tr. 105). In fact,

OSHA regulations make clear that surgical masks are not respirators and should not be used as

such (Tr. 109).

For N-95 masks, respirators filter out, 95% of particles, down to .3 microns, but the problem

is that Sars CoV2 is 0.1 micron, which is smaller. (Tr. 110). And, absent fit testing, when you

breath, exhaling will circumvent a mask and cause the parties to escape and be projected. (Tr.

111). Steps must thus be taken for respirators to be effective that are not effective for masks.

(Tr. 111-113).

Mr. Petty testified that a recent (February, 2021) National Academy of Science Press study

by Edwards, demonstrated and measured COVID-19 spread and dispersion.13 (Tr. 114-115). The

study compared droplets (which are 5-10 microns or greater) and aerosols (which are less than 5

microns) and, as it turns out, determined 99.9% of what is being disbursed through breathing are

aerosols of COVID-19. (Tr. 116-117). The study also determined that even with convention

masking, these aerosols were transferred in excess of two meters. (Tr. 118). Mr. Petty noted that

that these results are consistent with other exposures he has seen throughout his career to small

particles like those found in asbestos or silica, because it is always the small particles that are

driving sickness or injury. (Tr. 118).

13
https://www.pnas.org/content/118/8/e2021830118 (last visited 7/1/2021).
43
 For these reasons, Mr. Petty determined that ventilation is critical, and that masks and six

foot distancing rules will not be effective for aerosol parties. (Tr. 121). Thus, when indoors,

engineering controls are best. (Tr. 123). Mr. Petty explained the basis for the six foot distancing

rule – a 1930 study on droplets – which is wholly ineffective for parties less than 5 microns like

most COVID-19 particles. (Tr. 124-126).

Mr. Petty also pointed out recent peer reviewed studies on facemask leakage, and aerosols,

which collectively demonstrated zero effectiveness for mask wearing. (Tr. 126-128). Mr. Petty

himself conducted test on particles and masks and determined, due to leakage, no effectiveness

from mask wearing. (Tr. 127-129). This is consistent with multiple studies on surgical masks

and the flu that concluded that masks are not effective (129-130). And he observed that Dr.

Fauci and others have recently submitted letters for the White House on the effect of aerosols

and their changes to our assumptions. (Tr. 130-134). He then concluded by laying out more

efficient and proven control technologies – namely increasing ventilation. (Tr. 136-138).

For his part, Dr. Stack confirmed that we now know aerosols (as opposed to droplets) are

driving the spread of COVID-19. (Tr. 171, 227, 279). He also testified that COVID-19 vaccines

are highly effective and every adult Kentuckian who has wanted to receive one has had the

opportunity to do so. (Tr. 238). In terms of children, who have not yet had the opportunity to

obtain the vaccine, only two deaths under the age of 19 have been reported in Kentucky for the

entire pandemic. (Tr. 232). Dr. Stack confirmed Mr. Petty’s testimony about the mask mandate,

that a 3% leakage rate for mandate compliant masks (which almost always exists) means such

masks are not effective at stopping a virus with an aerosol spread. (Tr. 278-279). And, finally,

Dr. Stack confirmed that there is no material difference concerning virus spread between people

in a restaurant seated back-to-back, and 3 feet apart, versus people sitting closer than 3 feet, but

44
between plexiglass partitions, which is permitted under the Governor’s Healthy at Work

requirements. (Tr. 228-229).

So when we look at harms in any injunction factor, is the continuation of ineffective

mandates, with serious secondary health effects, sufficient to override legislative directives? To

ask the question is to answer it.

The Governor Defendants take issue with the Circuit Court quoting Dr. Stack’s testimony

(accurately), and then raising questions about PCR cycle rates – but those questions did not

generate anything other than a sentence or two.

H. Plaintiff, and many other Kentucky businesses, will suffer irreparable harm if the
injunction is lifted; equally, millions of Kentuckians will suffer irreparable harm,
because lifting the injunction below is an affront to the rule of law, and will diminish
the public’s confidence in the judiciary

“The trial court's factual determination that irreparable harm would occur in the absence of

an injunction was not clearly erroneous and so is binding upon this Court in our review of [the

Governor’s] challenge to the injunction.” Boone Creek Props., LLC v. Lexington-Fayette Urban

County Bd. of Adjustment, 442 S.W.3d 36, 39-40 (2014), citing CR 52.01 ("[f]indings of fact

shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of

the trial court to judge the credibility of the witnesses.")

“We begin our consideration of that question with the self-evident notion that if a

governmental unit enacts a law, such as the [laws the Governor has challenged] in this case, and

[people] cannot promptly compel compliance by enjoining an ongoing violation, the power and

dignity of that governmental body is diminished.” Id. at 40. The affront to the dignity of the

people’s representatives, and the legislation they passed, is irreparable harm. The Governor

Defendants may claim it is no big deal that the executive branch willfully violates these laws and

45
destroyed any semblance of the constitutional separation of powers, but we submit that the

interests at issue are paramount.

The inability to enforce “laws and to promptly rectify a violation harms the government

by undermining its authority and jeopardizing the government's esteem in the eyes of the

populace.” Id. “For a representative government that draws its authority from the respect, good

will, and consent of the people, rather than by the force of its armed police and military, the

ability to promptly eliminate ongoing violations of laws enacted by the people's representatives

is essential to the ability to govern and maintain order in the community.” Id. “Its inability to do

so is injurious and harmful to the government and the community it serves.” Id. “Consequently,

the irreparable harm which would occur in this case in the absence of an injunction is the

genuine but intangible harm relating to the power and right” of the people to enforce executive

branch compliance with the law. Id.

Are we a nation of laws, or a nation of men? Does the Plaintiff have the ability to

restrain the Governor, and those acting in concert with him, from taking enforcement action

against him in violation of clearly constitutional law? Must other businesses and people, who

have endured months of executive branch decrees, continue to face enforcement for violations of

such decrees issued in contravention of duly enacted laws? What is at stake now isn’t the public

health – it is whether or not we have a Republican form of government. It is whether the

legislative branch can legislate. It is whether the courts will permit one man to undermine the

rule of law and representative democracy.

In point of fact, “the statute's enactment constitutes [the General Assembly’s” implied

finding that violations will harm the public and ought, if necessary, be restrained.” Id.

46
 If this Court enters a stay, make no mistake that irreparable harm will occur. Irreparable

harm to the small businesses facing enforcement actions for past violations (that the Governor

does not deny is continuing), irreparable harm to the public’s confidence in its judiciary as an

instrument of law rather than of will and executive branch fiats, and irreparable harm to the

Republican form of government in this Commonwealth.

I. The public interest weighs against a stay

The Governor Defendants also argue that the public interest favors a stay. Not so. As

observed in Boone Creek Props., LLC, 442 S.W.3d 36, 40, “the statute's enactment constitutes

[the General Assembly’s] implied finding that violations will harm the public and ought, if

necessary, be restrained.” Id.

Is it in the public interest to permit the executive branch to disregard constitutional, duly

passed legislation by Kentucky’s legislative branch? Is it in the public interest to permit the

executive branch to undermine the Republican form of government? Is it in the public interest to

continue a constitutional crisis created by these actions? Again, to ask these questions is to

answer them.

The public interest weighs against a stay, not in favor of it.

J. The Governor, Secretary Friedlander, and Dr. Stack are not subject to conflicting
orders

Finally, the Governor Defendants also claim, throughout their motions, that there is some

sort of tug and pull between the Boone Circuit Court orders and those of the Franklin Circuit

Court. But that is not true: the Boone Circuit Court enjoined the Governor 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

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contrary to, House Bill 1, Senate Bill 1, Senate Bill 2, and House Joint Resolution 77…”

(Amended Judgment).

The inclusion of the “against any person” language is an important caveat. As it turns

out, it does not end or even require the end of the declaration of emergency in Executive Order

2020-215 – if it is merely to provide an ongoing period of emergency or disaster relief and

reimbursement, because it is not enforcing an order “against any person within this

Commonwealth.” The order clearly does not cause the harm that the Governor Defendants

claim.

In contrast, the Franklin Circuit Court order does not enjoin Governor Beshear, Secretary

Friedlander, or Dr. Stack to do anything. It instead enjoins the Attorney General and the

Legislative Research Commission from implementing or enforcing portions of HB1, SB1, and

SB2. As noted, the Boone Circuit Court order does not command either of those parties to

implement or enforce this legislation. Thus, there is no conflict.

CONCLUSION
The Governor Defendants have the burden to show: (1) that they are likely to succeed on

the merits of this appeal; (2) that unless a stay is granted they will suffer irreparable injury; (3)

that no substantial harm will come to other interested parties; and (4) that a stay will do no harm

to the public. Reed v. Rhodes, 549 F.2d 1046, 1047-1048 (6th Cir. 1976). The Governor

Defendants failed to meet this burden in any single respect, much less in meeting all four factors.

This Court is vested with the solemn duty to ensure that claims (and dubious ones at that) of

“‘necessity’” do not trump “law.” Fletcher, 163 S.W.3d at 871. As such, their motions for C.R.

65.08 relief should be denied.

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 Respectfully Submitted,

__________________________________
Christopher Wiest (KBA 90725)
25 Town Center Blvd, STE 104
Crestview Hills, KY 41017

513-257-1895 (v)
chris@cwiestlaw.com

Thomas Bruns (KBA 84985)

4750 Ashwood Drive, STE 200
Cincinnati, OH 45241
tbruns@bcvalaw.com

Zach Gottesman (86288)

404 East 12 St., First Floor
Cincinnati, OH 45202
zg@zgottesmanlaw.com

Counsel for Respondent Ridgeway

Properties, LLC

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