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    RECEIVED | | ui 1200. jeommonweaLnitor Kewrucky CLERK SUPREME COURT curethifouwr }cASENO BOSC 213 HON. ANDREW BESHEAR, in his fiat capacity PETITIONERS «as Governor of the Commonwealth of Kentucky, ERIC FRIEDLANDER, in his official capacity as Secretary of the Kentucky Cabinet for Health andl Family Services, DR. STEVEN STACK, in his official capacity as Commissioner of the Kentucky Department for Public Health, KENTUCKY CABINET FOR HEALTH AND FAMILY SERIVCES ‘THE KENTUCKY DEPARTMENT FOR PUBLIC HEALTH HON. GLENN E. ACRI Judge, Kentueky Court of Appeals, ‘and HON. RICHARD A. BRUEGGEMANN, Iudge, $2 Judicial Circuit, Boone Circuit Court, HON. BRIAN PRIVETT, Judge, 14" Judicial Cireuit, Seott Circuit Court, RESPONDENTS FLORENCE SPEEDWAY, INC, RIDGEWAY PROPERTIES, LLC, iba BEAN'S CAFE & BAKERY, LITTLE LINKS TO LEARNING, LLC, RYAN QUARLES, in his official capacity as Commissioner of Agriculture, EVANS ORCHARD AND CIDER MILL, L WEDCO DISTRICT HEALTH DEPARTMENT, CRYSTAL MILLER, and HON. DANIEL J. CAMERON, in his official Capacity as Attorney General REAL PARTIES IN INTEREST ORIGINAL PROCEEDING FOR RELIEF IN THE NATURE OF A WRIT OF MANDAMUS TO CR 76.36 AND CR 81 DIRECTED TO THE HONORABLE GLENN E. ACREE, PRESIDING JUDGE IN ANDY BESHEAR, et al ». HON. RICHARD A. BRUEGGEMAN, et al, NO. 2020-CA-000834-A, AND ANDY BESHEAR, etal y. HON. BRIAN PRIVETT, etal, NO. 2020-CA-000849-OA, KENTUCKY COURT OF APPEALS, ‘AND NOTICE OF INTERMEDIAT! ‘TEMPORARY ORDER UNDER CR 76.36(4) :RTIFICATE OF SERVICE Uheteby certify that a tue and correct copy of this pleading was served this 14th day of July, 2020, by U.S, Mail upon the following: Hon. Glenn E, Acree Judge, Kentucky Court of Appeals Tae Building 125 Lisle Industrial Ave, Suite 140 Lexington, Kentucky 40511-2058, Respondent Hon. Richard A, Brueggemann Judge, Boone Circuit Court Boone County Justice Center {6025 Rogers Lane, Room Id Burlington, Kentucky 41005, Real Party in Interest Hon, Christopher Wiest 25 Town Center Boulevard, Suite 104 Crestview Hills, Kentucky 41017 Counsel for Real Parties in Interest Florence Speedway, Inc, Ridgeway Properties, LLC abla ‘Beans Café & Bakery, and Litle Links to Learning, LLC Hon. Brian Privett, Judge, Scott Circuit Court Scott County Justice Center 310 Main St. Paris, Kenueky 40361 Real Party in interest Joseph A. Bilby Kentucky Department of Agriculture 105 Corporate Drive Frankfort, KY 40601, Counsel for Real Party in Interest Ryan Quarles Jason M, Obermeyer 306 N. Hamilton Street, P.O. Box 1675 Georgetown, KY 40324 Counsel for Real Party in Interest Evans Orchard and Cider Mill, LLC WEDCO District Health Department 302 Oddvile Avenue Cynthiana, KY 41031, Real Party in iuerest, Crystal Miller WEDCO District Health Department 302 Oukville Avenve Cynthiana, KY 41031 Real Party in Iierest Barry L. Dunn Chad Meredith Breit, Nolan Aaron J Silleto Heather L, Becker Mare Manley Office of the Atomney General 700 Capital Avenue, Suite 118 Frankfort, Kentucky 40601 ‘Counsel for Real Party in Interest Daniel J. Cameron 5 faye INTR ‘The Commonwealth is ina life-and-death battle against COVID-19 ~ the gravest threat to public health in overa century. The stakes could not be higher to Kentuckians. Cases are escalating, with 576 new cases reported today in Kentucky, alone, Other states, such as Arizona ~ which has one and a half mes the population of Kentucky ~are routinely eporting thousands ‘of new cases each day and some of its hospitals requesting refiigerated trucks as their morgues ‘un out of space. Failing to recognize the severity ofthe bate, and that cach dey our actions or inactions can esti aditional death, on July 13, 2020, Respondent, Kentucky Court of Appeals Judge Glenn E. Acre, entered an Onder denying Petitioners intermediate ref under CR 76.3644) fom two temporary restraining orders entered by state circuit courts, The eror ofthe creat courts is spparent on its face: they dd not apply a single case or statute when determining the Governor's executive ones violated the law, These cteuit curt orders dangerously impair and impede the Pet joners' ability to respond to the COVID-19 pandemic by allowing S48 businesses to operate without following any requirements or guidance to protect anyone from COVID-19, and by allowing daycares actoss Kentucky to 28 children ina room ata time an unsafe number — ‘when COVID-[9 is endangering an increasing number of Kentucky children, Ignoring precedent fc n this Cour andthe plain ext of the Civil Rules, Respondent erroneously concloded that Petitioners have an adequate remedy by appeal because, eventually, the appellate process can restore Petiones” public health onder. But the Governor does not represent merely himself; he epresents the people ofthe Commonwealth, who elected him. And «delayed juical holding vindicating the Governors setons sno remedy a al for hose Kentuckians who may become sick, who may spread the disease to others, oF who may die while the restraining orders remain in effect. The death of additional Kentuckians cannot be emeiied ‘through later hearings or decisions ‘his Petition institutes an original ation inthis Court by which Petitioners ask tis Court fora writ of mandamus compelling Respondent to order the circuit courts to dissolve their restraining onders. Petitioners also request an emergency temporary oréerporsuant 10 CR 76.36(4) granting them intermediate elit from the Order because the people of Kentucky and «specially the cildien in now-unsafe daycare, the dedicated caretakers employed in those and third-highest daily number of new cases since the emergency {Hone p_sm_au_=1VV3)HIMRSXZIIWISMUIKKTSWLCEW Cast rie ay 1, 2020 Executive Order 2020- 257, Ma. 2, 2025, avalale at ps/goveraor hs. gowalachmens/0200825 Executive Onder 2020- 257 Healthy atom pu (st vised ly 1,202, " Gov. Beshear Urges Viglance as Kentcky Toke First Reopening Step, Api.26, 2020, naps goWPags/ Activity sire ape ?aeGovernrBeshearpid45 (ast vise Jy 13, 2020, ® Aaa at tpsfgowsiteases 3 amazon conch QBSZSBay6ly 5-11 202082 20CHES2001dor:20Ntnnae Requirements 20% 0A CEs 20013 pl (lst vst July 14,2020 Kycovdl9 ky 00 (st vised Jay 13, 202) "Son. Bester: Increasing Cats Requires Kentuctians to Wear Face Coverings, ly 9, 2020, Iupsimenteky govPapeu Activity sam aspr?n-CovemorBeshearald-251 (ast Visite aly 1, 2020) Gov, Bester: Face Coverings Protect Onr Families, Eonony, Sly 10, 202, hupsimenucky govPages Acti seam aspx n=GovernoeBeshcrped=254 (lat visited uly 1,202) u ‘began ~ Kentucky is no longer in a plateau.” Comparing eases reported from June 29 to July 5 ‘with cases reported from July 6 to July 12, Kentucky has had a 48.7% increase in positive ‘This virus is impacting Kentuckians ofall ages, including children, As of July 13, $82 Kentucky children ages 0-9, an 1,175 Kentuckians ages 10-19 have tested positive for COVID- 19. On July 12, 11 children under the age of five tested positive oF COVID-19, including & Four-month-old." On July 10, the Commonwealth reported 22 cases of COVID-19 from. childcare facilities sine the emergeney began, consisting of 15 sta members and seven children, in 13 daycares. Il. The Boone And Scott Circuit Courts Issue TROs Against Petitioners, A Jinst the backdrop of this once-in generation pandemic, to circuit courts issued erroneous orders thatthe Court of Appeals ered in not halting. As part of the Boone Circuit ‘Cour lawsuit, Little Links alleges the June 15 guidance issued for daycare centers is arbitrary and capricious because it limits group inter jon to ten children and requires adulls 0 wear a face mask while inthe eildeare faiity Together, the Boone Circuit Plants allege the guidance violates Sections 1,2, 15,27, and 28 ofthe Kentucky Constitution, They also allege these orders volte KRS Chapter 134 Gow. Beshear Provides Updates on COVID-19, ey 11, 202, hpsentsky oP Activity sream aspen=GovernrBeshear pet3=286 (vse ily 13,2020) aa "KY COVID-19 Daily Summary 73/2020, Ketch Depart for Pubic Hest, valle at hupsuGhishy:govlgonces/dpeovd SICOVIDISDayRepot pt ast isi July 14, 2020) See Go Beshear Provides Update om COVID- 19, ay 13,2020, asia t pshentuck-gouPapes/Acsivity. nea aspe'n=GovtenoeBesear pe 1 ast visited ely 13,2000 Gon. Besar: Face Coverings Protect Our Families, Econom uly 1D, 2020, valle st hupsienusky gov/Pape/Actviy-sream supe n=GoveroeBeshcartpl=254 ax visited uly 1,2 D 2 because they were not issued by the process established for administrative regulations Plaintiffs allege these orders were issued without a basis under KRS 194.025 and KRS 39A.100. On June 24, they filed a motion fora restraining order and a temporary inj Petitioners filed their response on June 30. In an eleventh hour fling, the Attomey General ved (o intervene on June 30 and tendered a complaint. The circuit cour heard arguments of ‘counsel onthe motion for a resteaining order on July 1, 2020, No witnesses testified and no evidence was taken. On July 2, 2020, the court granted statewide restraining onder that, mong ‘other things, allows child care facilities to have 28 children in a room at one time (See Boone Circuit TRO) (atached as Exhibit 2) The order provided as follows 1, Defendants, Hon, Andrew Beshear, Governor, Secretary Eric Friedlander, De. Steven Stack, the Cabinet for Health and Family Services, and their officers, ‘agents, and altomeys and other persons in active concert or participation with them who receive actual notice ofthe restraining order by personal service oF therwise, ae hereby ENJOINED fiom enforcing the requirements in theit June 1, 2020" Requirements for Automobile Racing Tracks” tat probit fans, outside media, or guests or family members from attending events or races; they are also prohibited from enforcing footnote 1 of the June 29, 2020 “Requirements for Venues and Event Spaces” to dhe extent the footnote Is in conflict with this paragraph. Thus, automobile racetracks may operate at 50% capacity, assuming all individuals attending are able to maintain 6-foot social distancing between households Defendants, Governor Andrew Beshear, Secretary Eric Friedlander, Dr. Steven Stack, the Cabinet for Health and Family Services, and their officers, agents, and attorneys and other persons in active concert or participation with them who receive acual notice of the restraining order by personal service or otherwise, ae hereby ENJOINED from enforcing the requements in their June 8, 2020 “Requirements for Childeure Programs” as to the requirements that “All childcare programs will need to utilize a maximum group size often children per group" and “Children will remain in the same group often children all day without being combined with another classroom.” Childcare program shall be permitted the maximum group size of 28. he Aoray General ile his mtion the ight befor th ean and served an electronic copy on cou for ‘he Paitosrs at 1056 PM. Deriving Peon ofthe procedural right ole atesponse, the cour grad the ‘mao. an etoncous ang hat sat subj fs Psion. 3 aay Inthe Scot Circuit Cour ease, Plaintiff Evans Orchard and Cider Mil, LC, alleges the guidance issue for educational and cultura opportunities ad artrations, and the guidance for gatherings of up to filty (50), essentially closes down tee playing area, barnyard, and event barn, Pursuant to the Req sments for Venues and Event Spaces effective on June 29, Evans Orchard can operate their event venue at up to $0% capacity, and any dining service located in the venue must follow the Requirements for Restaurants and Burs2** Like the Plaintiffs in the Boone Cireuit action, the Scott Cieuit Pls fs specifically allege Petitioners’ emergeney orders violate Sections 2, 27, 28, and 29 of the Kentucky Constitution, They also allege these orders violate KRS Chapter 13A because they were not Issued by the process established for seiminisrative regulations, Seot Cireit Plaintiff ‘Commissioner Quarles alleges no harm, but instead relies upon some loose theory that in his role as advocate for Kentucky agribusinesses he somehow has standing to pursue an action herein. Plaintiffs sought temporary res ining order and a preliminary injunction and (Petitioners fled thei response on July 6, On July 3, the Attorney General moved to intervene ‘and tendeted a complaint and filed a motion fora temporary restraining order on July 5. The 5 See Requirements for Vena pd Event Spaces, vb a ipseskyatwerkky vast visited July 13, 2010), See Requirements for Restart swish a hipster hy. g0¥ (as Vist aly 13,2020), 2 1n2016 the Kentucky Supreme Court up the sue of santing for publi oil and determined in pre tha eyond the testo standard of hag fly weenemabl intrest in he laws publicised a ‘somo Ta ight sue or nel to hve the over deleted hem hy the Genral Asenly. Sce Commonelth Ec Rel Bester. Connonseath x Rel Bevin, 49 $W 31395 (Ks. 2016), The Commissioner of Agricole has other, which Feo arged atthe eeu cou > atthe ly 6 hearing Potions epposdAuoraey General's main 0 inteven, arguing thal he sary provisions the Atorney General ead ue i is motos ono ll his attention, The it cour summaily Aisassed Ptiiones arguments nd orally arnt the Atonsy Geers mein, without afading Pens the ‘opparuniy to Mea response 4 nextday, the circuit court heard arguments of counsel on the motion fora restraining onder. No witnesses testified and no evidence was taken. On July 9, 2020, 72 hours after arguments the ly erroneously granted Plaintiffs’ motion, bu issued a statewide restraining ‘order going beyond any ask of the Paints as follo 1. Defendants Governor Andrew Beshear, Seretary Eri Friedlander, Dr. Steven ‘Stack, the Cabinet for Health and Family Services, the Kentucky Department for Public Health, the WEDCO District Health Department, and Crystal Miller, and all oftheir employees, atiomeys, and agents, are ENJOINED from enforcing any Executive Order, Secretary's Order, or oer order or guidance ‘issued pursuant to KRS Chapter 39A related tothe emergency declared by the Governor on March 6, 2020, against Evans Orchard & Cider Mill, LLC oF any of the 548 agritourism businesses in Kentucky currently registered with the Deparment of Agricultural; 2, Prior to issuing or enforcing any Executive Order, Soeetary's Order, or other order or guidance issued pursuant 1 KRS Chapter 39A related co the emergency declared by the Governor on March 6, 2020, the Governor or other person authorized by the Governor shall specifically state the emergency that equites the order; the location ofthe emergeney, and the name ofthe local emergency management agency that has determined tat the emergency fs beyond its capabilities] (See Scott Cireuit TRO) (attached hereto as Exhibit 3), The Court did not provide any factual findings, legal standard or analysis in the order. IIL. Respondent Honorable Judge Acree Denies Petitioners Intermediate Relief Ptitioners filed petitions for writs of mandamus and wits of prohibition relating to the Boone and Scott Circuit Cours’ arbitrary and erroneous temporary restraining orders (TROs). Petitioners argued thatthe TROs are clear error, because itis plain under the law that the Governor and his designees have broad authority to issue executive orders to address statewide emergencies such asthe COVID-19 pandemic. Petitioners ‘umher argued thatthe circuit courts failed 10 apply the plain and unambiguous language of KRS Chapter 39A, the emergency response sistues, and granted the TROs despite the Plaintiffs failure to demonstrate any immediate and ietparable injury. Petitioners, in contrast, emphasized the ineparable injury eaused by the TROs ~ handeuffing Petitioners’ ability to respond effectively and efficiently tothe ongoing public health emergency, dangerously eliminating capacity restctons tht were carefully isued based ‘on the guidance of pubic health official, withthe inevitable result of increased cases of COVID-19 in the Commonvsealth, increased deaths from COVID-19 inthe Commonweal, and futher damage tothe state economy. ‘Within the potions, Petitioners sought intermediate elie pursuant to CR 7636(4) Ina consolidated Order addressing oth cases, Respondent denied intermediate relief, Respondent reached that result without reaching the merits of Petitioners” arguments, instead nes i the decision onan allege flue by Petitioners to show that there is no adequate remedy by appeal or otherwise, According to Respondent, Petitioners should have moved 6 dissolve the TROS inthe eteuit eourts—despite the fact that such motions would have been fate and wasted precious time inthe fight against a disease that is capable of increasing at an exponential rate, Additionally, Respondent noted the temporary nature of TROs andthe circuit courts” ability to correct any errors in hearings onthe pending metions for preliinary ijunctions. In doing so, Respondent failed to acknowledge the harm to those Kentuckians who are contracting the disease every day that the TROs remain in effect, Petitioners now seck a writ of mandamus and in this Court, along with imermediate relief under CR 76.3644). LEGAL STANDARDS ‘A wit is “an established remedy to oblige inferior courts and magistrates 1 do that justice which they are in duy, and by visu of theie office, bound to do.” Virginia v. Rives, 100 US. 313,321 24 (1879). One is “appropriately ised when there has been “clear abuse of| discretion." Schlagenfany'v. Holder, 319 U.S. 104, 110 (1964). Under Kentucky la, an appellate court has discretion to grant a wet where a lower court is: (1) acting ors out o act erroneously: (2) there exists no adequate remedy by appeal or ‘otherise, and (3) great injustice and ireparabe injury wil result if the petition isnot ranted. Hoskins, 150 S.W.34 at 10, The petitioner must show that great nd ereparable harm will result, and there is no adequate remedy by appeal. Conmonveltl, Cabinet for Heath nd Family Sere Chauvin, 16 S.W-34 279, 283 (Ky. 2010), Kentucky's highest courts have “described ‘iereparable injury’ in various ways, including ‘something of a ruinous nature, (Bender v, Zaton, 343 S.W.24 799, 801(Ky. 1961)], and “incalculable damage to the applicant... either tothe liberty oF his person, ot his property rights, or other fa reaching and conjectural consequences." Litteralv. Woods, 4 S.W.24 395, 397 (1928) (emphasis added)” Powell. Graham, 185 S.W-34 624, 629 (Ky. 2006). In applying this test, the Court assumes the psitione's allegations as true, ld “TA original action inthe Supreme Court agains the Cour of Appeal is allowed where the Court of Appeals is charged with hearing an orginal ation but has aot yet issued final ruling on the mater” Russe Cy. Kentucky Hosp, Dist, Health Facilities Corp. v. Ephraim MeDowell Health, Ine, 152 S.W.34 230,236 (Ky. 2004); see CR 76.36(1) (Original proceeding i an appellate court may be prosecuted only aguinst a judge or agency whose decisions may be reviewed as a matter of right by that appellate court”). Ia Appalachian Racing, LLC v. Commonvealth, the Supreme Court of Kentucky soundly held that an appellate court may’ issue a writ to prevent a citeuit court from enforcing a restraining order that improperly restrains the executive power. 504 S.W.3d | (Ky. 2016), “A rest ing order may be granted atthe commencement ofan action, or during the pendeney thereof... ondy f(a) it elearly appears fom specific fats shown by verified complaint or affidavit that the applicants rights are being or wil be violated by the adverse party and the applicant wl suffer inmediate an ireparable injury, loss oF damage before the adverse party or his storey canbe heard in opposition, and (b) the applicant's attorney cents to the cout in writing the efforts, if any, whieh have been made to give noice andthe reasons supporting his claims that noice should not be required.” CR 65.03(1) (emphasis added). The ‘elie san “extraodinary remedy that “should not sve excep o maintain the status quo o it is clearly shown that irreparable injury is imminent." Oscar Ewing, Inc. v, Melion, 309 $.W.2d 760, 762 (Ky. 1958). Accondingly, fora rial court o issue a temporary restraining onder, plainiffs must establish cleaty that hee rights have been violated and they will suffer immediate, ineparable harm i the motion isnot granted, Plsnifsfiled to meet their burden in the circuit coun, ARGUME! ‘The Court of Appeals commited clear error by sefusing to dissolve temporary restraining orders entered by the circuit cours without any basis under the law, These orders dangerously ipair an impede the Petitioners bility to respond to the COVID-19 pandemic by allowing 548 agritourism businesses to operate without following any requirements or guidance to protect “anyone ftom COVID-19, and by allowing daycare aeross Kentucky to have 28 children ina room ata time when COVID-19 is increasingly endangering Kentucky children.. Every day the ‘TROs are in effect, they present a isk to the health ofthe children who attend overerowded daycares, the dedicated workers who care for those children, and the thousands of Kentuckians ‘employed by agritourism businesses. Yet the Court of Appeals this concer, ly cast, asserting — erroneously ~ that proceeding through the normal appellate process will allow Petitioners an adequate remedy. Petitioners also appreciate that the relief they seek from this Court is extraordinary, but this an extraordinary ease. Not surprising other high courts have granted similarly extraordinary relief to ensure that governors eros the country have the power to protet public health, See, eg. Elthorn Baptist Church v Brown, 366 Or. 506 (2020) (granting wit of ‘mandamus sought by Governor of Oregon and ordering circuit cout to dissolve injunction). See also South Bay United Pentecostal Church x. Newsom, 140 S.Ct. 1613 (2020) Gssing unas published opinion declining to enjoin public health orders issued by Governor of Califoenia); Kentucky's highest court mas do the same. Petitioners ask the Court to issue an immediate order restoring the Governor's power to protect public health duving the pendency of these appeals and, ultimately, to ssue a writ of mandamus to the lower cours that will dissolve the TROs. 1. The Court of Appeals’ Decision is Rife With Errors. Petitioners intially sought relief by wrt fom the Cour of Appeals, asking that Coust 10 dissolve the dangerous TROS that are putting Kentuckians at risk, After expedited briefing, on July 13, 2020, Respondent issued a 25-page opinion that misconstrues this Court's ease aw, smisapplies the Ci Rules, misrepresents Petitioners” arguments, and ultimately fails to tke seriously the conerete, ongoing harm caused by the TROs. A wrt of mandamus should issue to correct these errors, Respondent's Opisin ieorectly applied this Cou opinion in Appalachian Racing, LLC v. Commonwealth, $04 S.W-34 1 (Ky. 2016), dismissing the analysis in that case as having “glossed over the issue ofan adequate remedy,” and misinterpreting that case as holding that a ‘wrt can only issue when “there [is] no executive action subject to judicial review.” Slip Op. 18- 19, Inoxber words the Cour of Appeals held that, contrary to CR 76.36 no writ can sue when ‘vbarenful TRO is in effect. “The Court of Appeals was wrong. Appalachian Racing plainly holds that appellate courts ‘may issue a writ to prevent ctcit cour from enforcing is restraining order that improperly restans the executive power. 04 S.W.3 at 1. That is presse the ease hee. Asst forth mor ally below, the Court of Appeals then proceeded to misapply the stand fora wet, The Cou held that it could not iss a writ because the “Court does not have the full record before it." ip Op. 23. But that argument counsels in favor of the writ, ‘because neither did the ciruit courts have the “full ecord” when they issued their dangerous ‘orders countermanding the public health guidance. The absence of a fll ecord sso didnot stop the Court of Appeals fom Finding facts ~ including that the“wiscom” ofthe people, rather than the public health orders of Petitioners — were responsible for bending the curve. Slip Op. 24-2: ‘The Court of Appeals attributed Petitioners urgency in seeking to dissolve the TROs by ‘wit t“eynicism.” Slip Op. 21. But Petitioners ae nat driven by eynicism; indeed, the opposite istru, Petitonors sek rliefhy emergency order and writ because, forthe Kentuckians who may be infected by the disease while the cout system waits to resolve these eases, day tly 8 fut ‘Mos egregiously the Court of Appeals simply ignored the harm caused by the TROs ‘when it suggested that Petitioners could achieve relief they seek through a normal appeal Respondent cme ignored the Kentuckians who are pt at isk igh now by the TROs, This ruling eliminates medically and scientifically based public healt protocols that stop the spread ofthe coronavirus. The Cours order will allow agitourism businesses to avoid all public health ‘measures enacted by executive order cub the spread of COVID-19 in Kentucky related to faciity capacity, social distancing, hygiene and sanitation, andthe wearing of protective face coverings while Poiioners wait for thei opportunity to appeal sso allows dayeate facilities in Kentucky to have groups of 28 children in a room atone time. Not ay does it eliminate the protections Petitioners pot in place, butt attempts to invade the Governors discretion where the tw allows him the process of his choice to shield the Commanweath from COVID-19, and purports to require Petitioners to take addtional steps not found anywhere in the law before enacting emergency public health orders, The harm caused by the Court of Appeals’ decision to allow the TROs to remain in effect will be immediate, it wll be ruinous, and i wil be Inreparable. For this reason, Petitioners do not have an adequate remedy but for this Cours issuance ofthe requested wii TI. The Court of Appeals Brred By Failing to Grant Emergency Relief Because the Boone and Scott Circuit Courts Committed Clear Error of Lav In Granting ‘Temporary Restraining Orders Against the Emergency Public Health Orders. The Court of Appeals did not adiess he legal analysis applied by either the Boone or Sot Circuit Cours wen they issued restaning orders against the emergency public health mesures «enacted by the Governor o cub the spreal of COVID- 19.11 had, it would have foun both courts commited clear error by disregarding longstanding precedent ofthe Kentucky Supreme ‘Court and the plain language of KRS Chapter 39A. a ‘The Boone Cireuit Court Erred in Allowing Daycare Facilities to have Groups of 28 Children in One Room. ‘The Boone Cireuit Court didnot rely upon a single case to address the issue of whether Plains demonstrated a substantial question onthe merit, Tis would be toubling even in an ‘ordinary case, let alone a ease seeking to retain the Governor's emergency authority during a slobal pandemic. Instead, the cust stated that “tis unclear what criteria is being wed t0 establish which businesses may survive versus those that must shutter.” (Order, p. 10, Exhibit 2.) lethen reli onthe memoranda ofthe Auomey General ~ who had moved 10 intervene only the night before —to conclude that the orders allowed reduced capacity at movie theaters, permitted horse aces (though without fans), but id not allow Fans to attend a races. (i) The cout also seemed to ely onthe general assertion by the Attorney General that the orders were “constitutionally suspect." (I) The court then concluded that whether to attend any ofthese vents isa value judgment best eto individaals. (dL) The court appears to have manofectared an equal protection claim wheee Plaifs di ot assert one, Withotta single mention ofthe law, the cour took the drastic and extraordinary measure to enjoin public health measures enacted to curb the spread ofa deadly vies tat has aleady claimed over 135,000 lives in this county. “The one case the cour relies on albeit it to address the ierepaable injury prong, is ‘Underhilv. Murpy, 78 S.W. 482,483 (Ky, 1904). The court cited the ease forthe proposition that Plaintifts have a valuable property’ eight to cary on their business. (Order, p. 8, Ex. 2,) To the extent this ease informed the court's opinion as to whether a substantial question existed the court is wrong. Consideration of cases addressing the coasttutionality of pubic heath laws as they impsct economic and business interests reveals tha he cour clearly ered regardless of ‘whether its analysis rested on equal protection or substantive due process concems. ‘A law “involving the regulation of economic matters or matters of social welfare ‘comports with both due process and equal protection requirements iit is rationally related to & legitimate state objective." Wynn v. [bold Ine, 969 8.W.2d 695, 696 (Ky. 1998). A “classification willbe upheld if the classification is not arbitrary, or it is founded upon any substantial distinction suggesting the necessity or propriety ofthe classification.” Id. (citations ‘omitted. This is especially true in the ease of public health regulations of economic or business interests, rather than fundamental rights. See Stephens v: State Farm Mut Ins. Co, 894 S.W.2d (624, 627 (Ky, 1995) ("When economie and businesses rights ae involved, rather than fundamental right, substantive due process requies that state be rationally related toa legitimate state objective"): Babbie Preece Facil. v. Com, Dep't of Charitable Gaming, 71 S.W.31 9, 103 (Ky. App. 2001) (no fundamental right exist o operat business; Reynolds Enters, In. v:Kenteky Bd. of Embalmers and Funeral Dis, 382 8.W.3447,50(Ky. App. 2012) (economic or business-related ight i not considered fundamental) Kentucky courts recognize thatthe police power oes "wide latitude” o pass Is tha promot “the heath safety, moras or general welfare of the people.” US Mining and Exploration Nat, Res. Co City of Beatie, $48 SW.24 833, 834 (Ky. 1977). The sate “poner to promote and safeguard public health ranks tthe op If the right of an individual runs afoul of the exercise ofthis power, the right ofthe individual must ye.” Frederick v, Air Poltion Control Dist of Jefferson County, 783 8.W.24 391,394 (1990) (citation omit). Because there is “no broad field of police power than that of public health)” even “private property may become of public interest” in order to potet the public health, Adams, nev Louisville & Feferson County Ba. of Heath, 439 8.W.24 586,589 (Ky 1969). Such power has prevsiled even inthe instance ofa law requiring the forced fluoridation ofthe water supply in Pulaski County. See Graybeal v. McNevin, 439 8.W 24 323, 331 (Ky. 1969) (elying on Jacobson v, Massachusets, [97 US. 11 (1905), to overturn a lower courts enjoinment of law ‘and ind that it not violate Section 2 ofthe Kentucky Constitution, Rational basis review requires the presumption of a law's constitutionality Seu v. Bevin, 584 S.W 3d 771,775 (Ky. App. 2019). “In onder to pass rational basis seruiny, “need not be supported by scientific studies or empirical data; nor need they be effective in practice." a. (citation omitted). “Rather, fi} s enough that there isan evil at and for correction, andl tht it might be thought tha! the particular legislative measure was a rational way to correct tl (citation omitted “Tho orders challenged here aze similar to the smoking ban ordinance that this Court alesse in Lexingion Fayette County Food and Beverage Asn Lesington-Fayette Urban County Government, 131 8.W.3d 745, 782 (Ky. 2008), There, Plaintiffs asserted thatthe continance infinged on their constitutional propery rights because the ordnance “dictates the character oftheir business under the guise of promoting public health and tat certain businesses ‘which atract large numbers of smokers may suffer economic harm and be forced to close.” I In {our paragraphs, the Supreme Court dismissed the claim, finding first that “along history of| ‘Kentucky precedent... is contrary to the(se) arguments.” Id. The Court held that “the constitutional limitations upon the exercise” of police power concerning public health “come down toa question of reasonbiity." ld. (eting Adams, In.» Louse and Jefferson County Ba. of Health, 439 S.W-24 586, 590 (Ky. 1969) The Supreme Court held the smoking ban ordinance was reasonable, finding that “both federal and state counts have determined ‘humerous times that where public interest is involved it is to be preferred over property interests even to the extent of destruction if necessary." ld. (cting Mensbuack Scrap Iron Co. x. City of Ashland, 235 Ky. 265, 30 8.W-24 968 (1930). Here, he challenged executive orders impose public health measures that do not implicate fundamental rights, bat by Plains’ own claims, only the economic interests of their businesses. The orders protect the public's health by imposing measures ecommended by the CDC and public health officials, such as social distancing, hygiene and sanitation, reduced size of groups o limit contac allo prevent the spread of COVID-19, As suc rational bass oview requires a presumption of constitutional thatthe Boone Ciceit Cour fled wo grant. The court filed to consider the rational basis for which the emergency measures were enacied to cut the spread of COVID-19 by promoting social istancing of six fet betwen individuals an disinfecting high touch surfaces where the vius «an live. Moreover, to the extent the court's rationale is couched in equal protection, the cout filed 0 appreciate the similarity of lasfeation between hors races and auto races. As the court acknowledged, just lke ato races, no Fans were allowed tthe horse races that ran eater this summer Ex. 2 . 10), This elasiication makes sense a the events are similar. Movie {heaters were allowed at 33% capacity, but they involve significantly fewer people who are neither moving around, conversing, or speaking to one another during the event. Treating @ movie theater differently than an auto race for purposes of enacting public health measures during a global pandemic is reasonable, The cout’s complete failure to address any ofthis and instead res its decision on its own conclusion, grounded nowhere ia the law tat these decisions ‘should be left tothe citizens is completely eroncous 2s B. The Scott Circuit Court Erred By Enjoining Enforcement of Public Health Measures as They Apply to 548 Businesses Without Any Analysis and By Requiring the Governor to Take Additional Steps for Emergency Public Health Orders Not Required Under Law. The Scott Circuit Cour’s order was bereft of any legal analysis whatsoever. Despite this, it enjoined prior orders limiting capacity at Evan's Orchard and prohibiting the sharing of food, Aris, napkins and utensils at mass gatherings, a well as future executive orders ofthe Governor. Under the circuit cours abitrary and erroneous Order, there ae na restrictions ‘whatsoever on $88 agitourism businesses, including disileies, farmer's markets, university fares ad agriculture centers, and even the Appalachian Wireless ren (formerly the East Kentucky Expo Center), whieh holds 7.000 people. There are no requirements for social distancing, for hygiene o for Face coverings. Infact, everyone can share food and drinks. ‘The Seat Circuit Cours orders even more unclear than the Boone Circuit Court order st what lai sis substantial question. As eaplined sbuve it Argun ICA), public heath measures regulating oy businsses and economic interests ~as these do —axe presumed constitutional and need only survive the low standaed of rational basis review, For reasons also ‘laborated on above, the challenged pubic heath measures here havea reasonable relationship to curbing the spread of COVID-19. As such they are constitutional ‘Based on the Scott Cireuit Court's order enjoining future orders ofthe Governor, the Cour als ered by fang to adhere co the plain language of KRS Chapter 39. In particular the Cour entered an order requting the Governor, before issuance of any onder under KRS Chapter 39A, to state the emergency requiring the order, the location ofthe emergency, and the name of the local emergency management agency that has determined thatthe emergency is beyond its capabilities. Such a restraint on the Governoe’s emergency authority during a global pandemic is ‘clear error in application of the law. KRS Chapter 39A provides the state's comprehensive response to emergencies, disasters ‘nd catastrophes such as a global pandemic like COVID-19, that threaten the heath, safety and lives of Kentucky citizens. KRS 394.010. Indeed, pursuant to KRS 39A.100, the Governor may ‘eclar a state of emergency for any occurence contemplated under KRS 39A.010, 394.02 39A.030, The language of KRS 39.010 expressly authorizes the Governor o declare sate of emergency “Yo provide for adequate assessment and mitigation of, preparation for, response to, and recovery from, the drets to bli safety and the harmful effets or destruction resulting from all major hazatds” KRS 39.010. These hazards include “mess-csualty or moss-fiality emergencies (or other. biological or] etiological hazards.” Id (emphasis added). Thus, not only does KRS Chapter 394 provide for the declaration ofa stat of emsrgeney to respond t0 COVID-19, bu it ecognizes a sate of emergency may emi in ode 1 eeover fom the effects of COVID-19. (Overlooking this specifically delegated authority to declare an emergency as to any situation contemplated by KRS 39A.010, 020 or 030, it appears the Court focused on one napsafwwn. whlehowse govtifings-sttementspresient- donald rump-aponvet-keracty-dsaser- ection (st vis Sly 13, 2030, 2 Once the Governor declares a state of emergency, be then has the power to: (@) To enforce all laws, and administrative regulations relating to disaster and ‘emergency response and to assume direct operational control of all disaster and emergency response forces and activities in the Conmonwealth; (©) To requir state agencies and to request local governments, local agencies, and special districts to respond to the emergency of disaster in the manner directed: (©) To seize, take, or condemn property, excluding firearms and ammunition, components of firearms and ammunition, of a combination thereof, for the protection ofthe public... (hy) To prokibit or limit the sale oF consumption of goods, excluding firearms and animunition, components of firearms and ammunition, or 3 combination thereof, ot ‘commodities forthe duration ofthe emergency’ (Except as prohibited by this section or other ln, to perform and exerese other funtion, powers, and duties desmed necessary o promote and secure the sulety ain! protection ofthe ebilan population KRS 59A,100(1 a, (©). (C).() ). The language of KRS 39A,090 furter provides that the Governor may make, issue or rescind any exceutve order to cart out this authority. The sates «to not require the Governor to idetiy the locality or state the specific emergency after he declares te state of emergeney. To do so would be coatray tothe purpose of KRS Chapter 394 to provide a comprehensive statewide response alter the declaration of astat of emergency. Here, under the plain language of KRS 39.010, 020, 090, and 100, dhe Governor has the tatuory authority to limit the capacity of publi facing businesses and require those businesses ‘o enact sanitation and hygiene measures in response to an emergency presented by vias that spreads person-to-person by contact and respiratory droplets. He is not required to follow the ctroncous requirements placed upon him by the Scott Circuit Court's order. By purporting to restrict the Governor's prior orders and place these restictions on his prospective authority under the state of emergency, the Scott Ctcuit Court clearly erred, TIL. There Exists No Adequate Remedy By Appeal. Potitoners have no adequate remedy by appeal The hart to Petitioners and the public accumulates everyday the TROS remain in effect. Again, 548 agrtourism businesses can now operate without any measures in place to protect anyone, and daycare can have 28 childzen in ‘ne room ~ al at time when cases of COVID-19 are increasing. Nor can Plaintiffs challenge the Cour of Appeals’ wrongful Order refusing to dissolve those TROs, because its denial of reliefs not an appealable order. See Russell Ci, Kentucky Hosp. Dist. Heath Facies Corp, 152 S.W.2d a 237. An while Petitioners sought an expedited procedure before the Coust of [Appeals on the mets of the wit no sch procedure has been ordered, Nor should tbe ‘expected, hase onthe Court of Appeals reasoning. ‘The Court of Appeals fuluee 1 at promptly cmmpoundls the injures to Petitioners and to the people ofthe Commonwealth that the Circuit Cours inflicted when they entered the ‘TROs, Pottioners sought review inthe Court of Appeals because, as set forth above, every day that the Cieuit Counts’ erroneous and dangerous TROS are in effect, COVID-19 is spreading in ‘the childcare and agribusiness facilities covered by the TROs. Those Kentuckians are getting sick and spreading the visto others. Kentuckians are dying. ‘The Court of Appeals dismissed the urgency of the petition because “attempts to bypass the CR 65 procedures have proven to ‘slow down the administration of justice..." Slip Op. 22 (quoting Cos v. Braden, 266 8.W.3d 792, 795 (Ky. 2008)). That Coun’s conclusory assertions about juicial economy simply fail to respond to the very eal concerns that lifting the restrictions imposed by the Executive Orders will spread the disease now, while the judicial 30 proces is pending. Put simply, the goal of lessening the burdens on courts ~ however admirable ~ must give way in matters oie and death Moreover even ifthe Court of Appeals is comect that the ultimate resolution of these «cases willbe delayed by the Petition, that should not stop appellate cout fom issuing writs to preserve health and life where, as here, a ercuit court has put people at isk, This Court should restore the status quo while these cases proceed Sikingly, the Court of Appeals dismissed these serous concerns outight: “They say it “would be fate” to challenge the restraining orders by mor 110 dissolve them, orto present a defense at subsequent hearings. Our jurisprudence rejects the cynicism ofthis argument.” lip p.21. But Petitioners are not driven by cynicism; indsed, the opposite is true, Petitioners sought elit by writ because, forthe Kentuckians who will be infected bythe disease while the court system waits to resolve these cases, delay truly is futile, This wit like the writ to the Court lf Appeals, seeks to restore the sa ss qo ofthe Exccutive Orders, which have already saved so ‘many lives so that~at least during the pendeney ofthese action ~ the children who attend Aayeare the dedicated caretakers who look after them, and the hundreds of Kentuckians who work atthe $00 agribusiness affected by the TROs are sae. That isnot to mention the hundreds, ifnot thousands, of ether Kentuckians who could be affected by the exponential s10wth of COVID-19 that the TROs invite ‘Tae Court of Appeals aso failed to acknowledge that, unlike in many TRO, Petitioners wer already heard by the Circuit Courts. There s simply no reason think thatthe Circuit ‘Court will change their mind after hearing the same arguments a second time, But even if there were the proper course for the Court of Appeals was to restore the status quo pending such hearings by dissolving the TROs. The Court of Appeals’ failure to do so endangers lives. a ‘The Court of Appeals also incoretly concluded that an incomplete factual record favored the TROs, wing, “[he second negative is tha tis Court does nt have the fl econ before it" Slip Op. 23. But that argument iseniely backwards. First, executive ations under emergency powers are entitled to deference bythe cours ~ deference that the Circuit Courts refused to pay. That rendered the Circuit Cours rulings erroneous, and the Court of Appeals should have stepped into restore the status quo, pending development ofthe Factual record, Put Aitferenty: absent a factual rocord, the Goveenoe'semergeney power should not be second guessed by the courts. Second, the Petitioners presented abundant scientific evidence in support oftheir positon, both to the Circuit Court and to the Court of Appeals. Yet the Court of Appeals refused to consider any of that scien evidence ‘The Court of Appeals’ refusal to consider that evidence is patel stunning given that te Court proceeded o hold — without evidence ~ tht its owa ring was unlikely to case harm ‘because, even withthe TROS in effect, “Kentuckians remain capable of doing the wise and common-sense things necesary to keep each other safe inthe coming days, just a they have unt now." Slip Op. 25. The Cour als purported to divine from the record — without iting any source ~ thatthe “innate wisdom and common sense” ofthe people of Kentucky are “entitled to 1s much credit For” the success in fighting COVID-19 “as isthe leadership oftheir Governor and his advisors.” Slip Op. 24-25. Seuting aside the Cour of Appeals inconsistent application of its ‘wn standard, the Court of Appeals has already been proven wrong: some Kentucky dayeares have already expanded their class size, a permitted by the TROs, putting children and workers at risk TV, Great Injustice And Iereparable Injury Will Result If The Petition Is Not Granted. Petitioners entered the Emergency Orders at issue in this case o protect life by stopping the spread of COVID-19. The TROs interfere with those Executive Orders, As.a result, the 2 ‘TRO, andthe Cour of Appeals’ refusal to dissolve them, improperly interfere withthe Governor's executive powers ising the health of the people of Kentucky. [As this Court has held “a goverment’ inability to enforce its laws and to promptly rectify a violation harms the goverment by undermining its authority and jeopardizing the government’ esteem inthe eyes of the populace.” Boone Creek Properties, LLC v. Lexington: Fayette Urban Cry. Bd. of Adjustment, 42 S.W 34 36,40 (Ky. 2014). For this reason, this Court has held that “the required showing for issuance ofan injunetion i relaxed when an injunction is, sought by governmental entity to enforce its police powers. In such ease any alternative legal remedy is ignored and ireparable harm is presumed.” 1, (itation omitted). ‘The issue inthis case goes tothe heart of the Executive Branch's police powers: whether the Governor may exercise his power, confirmed by KRS Chapter 39A, to impose temporary restrictions to stop the spread ofa dealy disease. The TROs, and the Court of Appeals’ Onler refusing o set aside those TROs, hold that he cannot, Those Cours interference with the Executive Branch’s ations constitute imeparable harm, and this Court should issue a wrt 10 restore the Governor's ability to enfore his lawful police powers. At least one other state ‘Supreme Court has taken similar action where a lower court improperly sought enjoin a Governor's emergency orders issued in response to COVID-19. See Eikhorn Baptist Church. Brown, 366 Or, 506 (2020) (granting writ of mandamus and oxdering ctcuit cour to dissolve injunction). ‘The Court of Appeals’ Order also represents irreparable harm because there is no turing ‘back the spread of COVID-19 that is occurring as a result ofthe TROs. 2 In Texas, as of last week, more than 1,300 cases of COVID-19 were attributed to daycates A single daycare in Syracuse, New York, caused an outbreak that infected 16 people.” And Kentucky sat isk: As of July 10, the Commonwealth eported having 22 ewes of ‘COVID-19 associated with childcare facilities since the emergency began, consisting of 1S staff members and seven cildren In ts Orde, the Court of Appeals entirely failed to consider the injury caused by allowing the TROs to remain i effet, ining, “Pttoners"injsies ean be retitied in circuit court" Slip Op. 28. nother words, because Petitioners can appeal ate, they ae not Jmminemily harmed. That argument has no bassin Fat ori law. ‘These Petitioners donot just represent themselves: hey represent the people ofthe Commonwealth. The Court of Appeals” dismissive, one-sentence analysis does not reckon with the itreparable injury cased tothe public \when a coun purpors 1 interfere with the executive power. Boone Creek Properties, 442 S.W.3d at 40, And that analysis dacs not even pay the eaurtesy of lp service to the effect the “TROs will have onthe children in eronde dayeares, oF the workers who ae now Forced to labor in unsafe conditions st daycares or agribusiness facilities. A later appellate holding vindicating the Governor's ations will hardly “ett the harm to those inivials if they become sick, if they spread the disease to others or if they die Ata Spells and Kay Jones, Texas Coronaviras canes top 1309 om childcare faites lone, CNN Heath, ly 6,200, aalabl at hupe ww ens. com20N0N7HOeslWexse-coonavin-cse hice sida Me Lvs Jy (3, 2020), Se, eg Boh Dora, leas 16 sick afer coronavirus exposure at DeWitt home daycare Tak hie seria sas home sick ata. The (Syracuse) Post Stata uly 13,2020 avaible a hnpsisw syracuse condeoronavru/202007/a-ast-16-sikafer-coronairs-exposuatdewi-in-hone-day: retake this sroaly-tay-home sek atl Mm (st ist July 13,202) IM Gor Beshear: Face Coverings Protect Our Foils, Eonam uly 10,2020, bupssentucky gowPaged Actiy-sreim aspe?n-GverorBeshearid=24 (st vie uly 13,2020, M ‘The TROs and the order ofthe Court of Appeals ireparably injure the Petitioners and the public they are sworn to protect. This Court should grant the wait, V. Petitioners Are Entitled To A Temporary Order Granting Intermediate Relief From ‘The Restraining Order Because They Will Suffer Immediate And Irreparable Injury Before A Hearing May Be Held On The Petition. Pursuant to CR 76.36(4),a petitioner for a writ may move this Court on notice fora temporary orderon the ground that they will suffer immediate and ireparable injury before a hearing may be held onthe petition, Petitioners easly moet this standard In enjoining Petitioners from enforcing exis ing emergency orders, including emergency ‘orders designed to protect our children and childcare workers, or issuing new emergency orders ‘against agritourism businesses or any entity, the eireuit courts’ temporary restraining orders will lead 1o inereased spread of COVID-19 in the Cos vonwealth, Notably, the incubation pest for the coronavirus may extend toas long as 14 days." The Scott Citeuit Court has not seta hearing fora motion fora preliminary injunction. Without emergency intermediate relief from this Court, the damage caused by the temporary restraining order may not be undone. And, again, the damage caused by COVID-19 includes prolonged sickness and the deaths of Kentuckians ‘The Commonwealth cannat take the chance ofthe exponential spread of COVID-19 the circuit cous” orders will cause. The orders will also increase the burden on the Commonwealth's public health departments, contact tracers, EMS workers, doctors, nurses, and hospital ax they respon tothe outbreaks In addition, the cireit cours’ temporary restraining orders wil ead vo chaos and confusion concerning the enforceability of the Commonwealth's emergency orders. Moreover, they erode the Governor's statutory emergency powers andthe Commonwealth's ability "ad govicoromaira019-acovhcpllinical guidance management pasion (as! wpe Jane 3, 2020 last ed Jay 13, 2020, 35 respond to an ever-evolving global pandemic. In short, they impair the Commonwealth's ability to acto protect the public health. Any restition, even a temporary rstition, on the Governors ability to respond 19 COVID-19 significantly threatens the public health and, correspondingly efforts to reopen and rebuild the sate economy. For these reason, intermediate reli from this Courts nacessary, asi the issuance of the requested writ aginst the Court of Appeals. PRAY: FOR RELIEF Based upon te foregoing, te Petitioners request the following clit from this Count: 1. A wrt of mandamus, mandating that Respondent preserve the satus quo by granting immediate temporary rele in Case Nos, 2020-CA-000834-0A and 2020-CA- (000849-00 from the esting orders entered in Boone Circuit Civil Action No. 2020-C1678 and Scot Cireuit Civil Action No, 20-C1-000376; 2, Expedited consideration of his petition; 3. A heati 1g on te petition; and 4, Allother elit to which the Petitioners are entitled. CONCLUSION Responsible officials are at war with this coronavirs Petitioners seek to keep coronavirus cases low and keep Kentucky families safe, while successfully reopening our economy. Govermor Andy Beshear, the Cabinet for Health and Family Services, the Kentucky Department for Public Health, Secretary Eric Friedlander, and Commissioner Steven Stack, MD. request relict from this Court, 36 punsel SiTevis Mayo Chiet Deputy General Counsel ‘aye Payne Deputy General Counset Dara pice Deputy General Counset Ofte of the Governor Sam Flynn Deputy Genera Counsel Fhranoe and Adminstration Cabinet Joseph A. Newberg It Deputy General Counsel Energy and Environment Cabinet “00 €2pitl Avenue, Suite 106 Frankfort, KY 4060 (602) 564-2611 favismyo@y gn taylor paync@hy gov lauraeipton@ky: gov est th Rade (algerntaoe) Executive Dicer Office of Legal Services David Level Depa General Couns (Caine or Health and Faily Services S73 Esse Main Strat SW-A Frankton, KY 40621 (502) S64 7042 MrescyW.Duke@y gov devi ovely@ky 308 Counsel for Petitioners a Conumomvealth of Kentucky Court of Appeals NO. 2020-CA-000834-O0A HON. ANDREW BESHEAR, in his official capacity as Governor of the Commonwealth of Kentucky, KENTUCKY CABINET FOR HEALTH AND FAMILY SERVICES, ERIC FRIEDLANDER, imhis official capacity as Secretary of the Kentucky Cabinet for Health and Family Services, and DR. STEVEN STACK, in hs official capacity as ‘Commissioner of the Kentucky Department for Public Health PETITIONERS AN ORIGINAL ACTION v, ARISING FROM BOONE CIRCUIT COURT ACTION NO, 20-CI-00678 HON. RICHARD A. BRUEGGEMANN, Judge, 32% Judicial Cireuit, Boone Circuit Court RESPONDENT and FLORENCE SPEEDWAY, INC,, RIDGEWAY PROPERTIES, LLC d/b/a BEAN'S CAFE & BAKERY, LITTLE LINKS TO LEARNING, LLC, end HON. DANIEL J. CAMERON, in his official capacity as Attorney General of the Commonwealth of Kentucky REAL PARTIES IN INTEREST ‘NO, 2020-CA-000849-0A, HON. ANDREW BESHEAR, in his official capacity as Governor of the Commonwealth of Kentucky, KENTUCKY CABINET FOR HEALTH AND FAMILY SERVICES, ERIC FRIEDLANDER, in his official capacity as Secretary of the Kentucky Cabinet for Health and Family Services, DR. STEVEN STACK, in his official capacity as Commissioner of the Kentucky Department for Public Health, and KENTUCKY DEPARTMENT FOR PUBLIC HEALTH PETITIONERS AN ORIGINAL ACTION v ARISING FROM SCOTT CIRCUIT COURT ACTION NO. 20-CI-00376 HON. BRIAN PRIVETT, RESPONDENT Judge, 14" Judicial Cireuit, Seott Cireuit Court, and RYAN QUARLES, in his official capacity as Commissioner of Agriculture, EVANS ORCHARD AND CIDER MILL, LLC, WEDCO DISTRICT HEALTH DEPARTMENT, CRYSTAL MILLER, and HON. DANIEL J. CAMERON, in his official capacity as Attomey General of the Commonwealth: of Kentucky REAL PARTIES IN INTEREST ORDER DENYING MOTION FOR INTERMEDIATE RELIEF IN NO. 2020-CA-000834-0A AND. ‘NO. 2020-CA-000849-0A ‘These cases come before the Court on seperate petitions for writs pursuant to CR! 76.36, and related motions for intermediate relief pursuant to CR 76.36(4). Though these original actions began in separate circuit courts of the Commonwealth, the respective petitions and motions for relief present the same issues and involve many ofthe same parties. For these reasons, and for the conservation of judicial resources, we have consolidated the cases for purposes of review and adjudication. ‘This Order addresses the request for intermediate relief in the form of ‘emergency orders pursuant to CR 76.36(4), pending review by a three-judge panel of this Court of the respective petitions. ‘Heving reviewed the limited record in both original actions, considered the arguments of counsel, and being otherwise sufficiently advised, IT IS HEREBY ORDERED that Petitioners’ respective motions for intermediate relief in both cases shall be, and hereby are, DENIED. I. BACKGROUND ~ 2020-CA-000834-0A ‘On June 22, 2020, Real Parties In Interest Florence Speedway, Inc., Little Links to Leaming, LLC, and others filed 2 verified amended complaint in the Boone Circuit Court challenging the constitutionality of certain emergency Executive Orders issued by Governor Andrew Beshear. The first Executive Order, " Kentucky Rules of Civil Procedure dated March 6, 2020, deciared a state of emergency in Kentucky due to the outbreak of COVID-I9. Itis undisputed that COVID-19 is a novel coronavirus which may manifest it severe respiratory illness and, in some cases, leads to death ‘On March 19, 2020, Governor Beshear issued an Executive Order prohibiting mass gatherings. On March 25, 2020, he issued an Executive Order directing all businesses that are “not life-sustaining” to cease operations, with certain exceptions not relevant here, Beginning in April 2020, the Governor issued Executive Orders establishing requirements for reopening Kentucky businesses. Pertinent to this original action, he later established “Requirements for Automobile Racing Tracks” (dated June 1, 2020), and “Requirements for Childcare Programs” (dated June 8, 2020), ‘The June 1, 2020 directive required racetracks to “prohibit fans and outside media” and to ensute that “everyone on premises adhere to social distancing guidelines by staying at least six (6) feet away from other people ‘whenever possible.” The directive also established: cleaning and disinfecting requirements; requirements pertaining to the use of personal protective equipment (PPE) by employees; and training and safety protocols ‘The June 8, 2020 directive allowed center-based licensed childcare businesses to reopen subject to certain requirements, including: limited class sizes. of ten (10) children; additional social distancing; additional disinfecting standards; PPE requirements for adults; and additional training and safety protocols. ‘The verified amended complaint alleges the Executive Orders, ineluding the June 1, 2020 and June 8, 2020 Minimum Requirements just eseribed, violate the constitutional rights of the Reel Parties In Interest protected pursuant to: Section 1 of the Kentucky Constitution (right to life, liberty, and ‘acquiring and protecting property); Section 2 of the Kentucky Constitution (prohibition on absolute and arbitrary power over the lives, liberty and property of the citizens); and Sections 27 and 28 of the Kentucky Constitution (separation of powers among the three brenches of government). The verified amended complaint further challenges the constitutionality of certain statutes the Governor claims as the souree of his authority to issue these Executive Orders. See KRS* 195A.025, KRS 39A.100, and KRS 214.200. Finally it alleges the Executive Orders violate KRS Chapter 13 because they were implemented without the promulgation of administrative regulations. Florence Speedway, Little Links, and others subsequently filed a ‘motion in the circuit court for a restraining ordef arid temporary injunction pursuant to CR 65.03 and CR 65.04. The Commonwealth of Kentucky, ex rel. 2 Kentucky Revised Statutes. Attorney General Daniel J. Cameron, moved to intervene in the underlying action and for a restraining order. (On June 29, 2020, Governor Beshear issued “Requirements for Venues and Event Spaces” setting out minimum conditions for the reopening of such establishments, “[P]rofessional and amateur sporting/athletic stadiums and arenas” are inchided within the directive, which sets forth social distancing rules, cleaning and disinfecting requirements, PPE requirements, and training and safety requirements, Specifically, it requires these facilities to “Jimit the persons, not including employees, present in any venue or event space to 50% of the maximum permitted éccupancy capacity of the venue or event space, assuming all individuals in the venue or event space are able to maintain six (6) feet of space between each ‘other with that level of occupancy.” Footnote 1 of the June 29, 2020 directive provides: “[vJenue and event spaces requirements do not supersede or replace Healthy at Work Youth Sports and Athletic Activities Guidance.” On July 2, 2020, following a hearing the day before, the circuit court centered an order granting the Attomey General’s motion to intervene and granting, in part, a restraining order pursuant to CR 65.03. The order provides: 1. Defendants, Hon. Andrew Beshear, Governor, Secretary Eric Friedlander, Dr. Steven Stack, the Cabinet for Health and Family Services, and their officers, agents, and attomeys and other persons in active concert or participation with them who receive actual notice of the restraining order by personal service or otherwise, are 6 hereby ENJOINED from enforcing the requirements in their June 1, 2020 “Requirements for Automobile Racing Tracks” that prohibit fans, outside media, or guests of family members from attending events or races; they are also prohibited from enforcing footnote I of the June 29, 2020 “Requirements for Venues and Event Spaces” to the extent the footnote is in conflict with this paragraph. Thus, automobile racetracks may operate at 50% capacity, assuming all individuals attending are able to maintain 6- foot social distancing between households. 2. Defendants, Hon. Andrew Beshear, Governor, Secretary Bric Friedlander, Dr. Steven Stack, the Cabinet for Health and Family Services, and their officers, agents, and attomeys and other persons in active concert or participation with them who receive actual notice of the restraining order by personal service or otherwise, are hereby ENJOINED from enforcing the requirements in their June 8, 2020 “Requirements for Childeate Programs” 1s to the requirements that “All childcare programs will need to utilize a maximum group size of ten children per group” end “Children will remain inthe same group of ten children all day without being combined with another classroom.” Childcare programs shall be permitted the ‘maximum group size of 28. ‘The July 2, 2020 order reserved ruling on the Attomey General’s ‘motion for a restraining order, noting that the motion would be “taken as sought under CR 65.04.” The order also reserved ruling on Florence Speedway’s and the Little Links’ motions for temporary injunctions “pending hearing which shall be held by the Court on July 16, 2020, at 10:00 am., and Counsel shall then appear to present any further testimony, evidence, or argument.” The order further provides it shall remain in effect “until the entry of an Order on, or following, the hearing. that is scheduled in this matter for July 16, 2020.” ‘In response, Petitioners initiated an original action inthis Court pursuant to CR 76.36, which was assigned Court of Appeals No. 2020-CA- (000834-OA. Petitioners seek a writ that: (1) mandates the circuit court to dissolve the July 2, 2020 restraining order; (2) prohibits the circuit court from hearing the Attomey General’s motion fora restraining order as well as the temporary junction motion of the remaining Real Parties In Interest; and (3) grants intermediate relief staying enforcement of the July 2, 2020 restraining order during the pendency of this inal action. ‘The Real Parties In Interest filed responses to the motion for intermediate relief, On July 8, 2020, the Attorney General moved to dismiss this original action. On July 9, 2020, the Petitioners filed a response. I, BACKGROUND ~ 2020-CA-000849-OA On June 29, 2020, Real Parties In Interest Ryan Quarles, in his official capacity as Commissioner of Agriculture, ang Evans Orchard and Cider Mill, LLC, filed @ complaint in the Scott Cireuit Court challenging the constitutionality of certain emergency Executive Orders issued by Governor Andrew Beshear. Attorney General Daniel J. Cameron subsequently intervened in the case, Counsel forthe Governor agreed to this date forthe temporary injunction hearing, & Commissioner Quarles is the heed of the Kentucky Department of, Agriculture, The Department's purpose isto “[p]tomote agritourism in Kentucky to potential visitors, both national and international; and ... assist in sustaining the vi ity and growth ofthe agritourism industry in Kentucky.” KRS 247.800. ‘There are currently 548 agritourism businesses in Kentucky registered withthe Department, incliding Evans Orchard. ‘The complaint alleges Evans Orchard is a family-owned business that operates “agritourism attractions,” including: pick-your-own fruits, such as strawberries, blueberries, pears, lowers, pumpkins, and apples; a retail market for selling food products and other products; a café and bakery; 2 96,000 square-foot outdoor Playing Area and Barnyard for children; and an Event Barn for weddings and other outdoorfindoor ceremonies and events, The Playing Are and Bamyard cover two acres, and the complaint alleges the area has “sufficient capacity for ‘more than 2,000 people under normal circumstances.” The peak season for such agritourism businesses is September and October, and Evans Orchard typically employs approximately 40 people during that time. As noted in the background discussion of the first original action set out above, the Governor's Executive Order, dated March 6, 2020, declared a state of emergency in Kentucky due tothe outbreak of COVID-19. According to Dr. Steven J. Stack, the Commissioner of the Kentucky Department for Public Health, COVID-19 is transmitted “mainly among people who are in close contact with each other (within about 6 feet) for a prolonged period” through respiratory droplets from an infected person’s mouth and nose, PPertinent to the dispute emong the parties, on June 8, 2020, Governor Beshear directed that “limited outdoor attractions” could reopen subject to certain conditions, including: (1) the limitation of “the persons, not including employees, present in any given tourism facility or business to an amount small enough to permit atleast six (6) feet of social distancing between all individuals or households,” and (2) the development and implementation by the facilities of plans and protocols “to create transmission barriers, where possible, and promote and enforce social distancing; implement touchless solutions, where practical; and enhance and promote sanitation and hygiene practices.” In Execuitive Orders dated June 16, 2020 and June 22, 2020, Governor Beshear set forth specific “Guidance for Gatherings of Up to Fifty (50) People,” effective June 29, 2020, which: (I) permit such gatherings only where social dista 1g of six (6) feet can be maintained emong households; (2) require individuals to wear a cloth face covering or mask if they will be closer than six (6) feet to someone outside their own household; and (3) prohibit the sharing of “food, drink containers, napkins or utensils.” -10- Evans Orchard states it will be “unable to profitably operate the Playing Area and Bamyatd forthe remainder ofthe 2020 calendar year,” and it ‘will be “unable to host weddings and other events at its Bvent Bara for the remainder of the 2020 calendar year” ...“so long as those Executive Orders remain in effect.” Petitioners counter that the Governor, by en additional Exec Order dated June 29, 2020, issued new “Requirements for Venues and Event Spaces,” under which Evans Orchard may operate the Event Bam at up to ‘50% capacity if certain additional conditions are observed.’ Like the verified amended complaint filed in the Boone Circuit Court action discussed above, the complaint filed in Scott Cireuit Court alleges the contested Executive Orders and statutes cited as the authority for those Executive Orders are unconstitutional forthe same reasons expressed to the Boone Circuit Court, It further alleges the Executive Orders were issued in violation of KRS. Chapter 13A because they were issued without the promulgation of administrative ‘vans Orchard requested permission to have a capacity of 100 people (approximately 25 {amilies) ata time inthe Playing Area and Barnyard. ‘The WEDCO District Health Department, defendant helow, allegedly informed Evans Orchard that 10 individuals (approximately 2-3 families) at atime would be permitted until June 29, after which time up 1050 individuals (approximately 12-13 families) would be allowed. 5 “The Requirements for Venues and Event Spaces provides that all fvilites must follow the Fane 29, 2020 “Healthy at Work Requirements for Restaurants and Bars” if they provide dining service as a component of the event. The latter document sts forth ules rogarding social distancing; use of Personal Proweetive Equipment (PPE), cleaning and disinfecting of the ‘premises; and training and safety requirements. oe regulations. Finally, the complaint asserts the enforcement of the Executive Orders, has been selective because, for example, the Executive Orders were not enforced during certain mass gatherings that occurred in Louisville, Frankfort, and other Kentucky communities in May and June 2020, On July 9, 2020, following a hearing, the Scott Circuit Court entered a restraining order pursuant to CR 65.03, providing: 1. Defendants Governor Andrew Beshear, Secretary Eric Friedlander, Dr. Steven Stack, the Cabinet for Health and Family Services, the Kentucky Department for Public Health, the WEDCO District Health Department, and Crystal Miller, and all of their employees, atomeys, and agents, ate ENJOINED from enforcing any Executive Order, Secretary’s Order, or other order or guidance issued pursuant to KRS Chapter 39A related to the emergency declared by the Governor on March 6, 2020, against Evans Orchard & Cider Mill, LLC or any of the 548 agritourism businesses in Kentucky currently registered with the Department of Agricultural [siel; Prior to issuing or enforcing any Executive Order, Secretary's Order, or other order or guidance issued ‘pursuant to KRS Chapter 39A related to the emergency declared by the Governor on March 6, 2020, the Governor or other person authorized by the Governor shill specifically state the emergency that requires the order, the location of the emergency, and the name of the local emergency management agency thot has determined that the emergency is beyond its capabilities(.] Nothing in the limited record before this Court indicates the circuit ‘court entered a temporary injunction, or seta termination date for the restrai “12 order, or seta date to hear argument on the temporary injunction. Neither does the record i icate any Petitioner moved the ci court to dissolve the restraining order. Rather, Petitioners responded to the circuit court's restraining order by filing an original action in this Cour, designated No. 2020-CA-000849-OA. Petitioners request: (1) a writ of mandamus requiring Respondent to dissolve the restraining order; (2) a writ of prohibition enjoining Respondent “from hearing or ruling upon pending motions for further injunctive relief tothe extent that the movants seek relief that i the same or substantially simier to that granted in the Order{;]” and (3) intermediate relief from the restraining order pursuant to CR 76.36(4). 5 Petitioners argue COVID-19 presents a substantial public health ‘emergency such that “[a}either the Governor nor the citizenry he was elected to protect can wait forthe circuit court to further address these matters so that an appeal may be taken.” They further maintain they have no remedy “by appeal or adequate remedy by moving to dissolve the restraining order” because they “were heard on the motion [for a restraining order] and their arguments were ‘unequivocally spumed.” Therefore, Petitioners conclude thet further action in the cireuit court would be “futile.” “13. IIL ANALYSIS: Petitions for writs are of two classes. The first class “refers to subject- matter jurisdiction; that is, the lower court's core authority to hear the case ata Appalachian Racing, LLC. v. Commonwealth, 504 $.W.34 1, 4 (Ky. 2016). Petitioners do not challenge the circuit court’s proper exercise of subject matter jurisdiction in either original action in this Court. Both petitions seek a writ satisfying the requirements of the second class. ‘The second class of writ “may be granted upon a showing ... that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.” Caldwell v. Chauvin, 464 S.W.34 139, 145 (Ky. 2015) (quoting Hoskins v. Maricle, 150 $.W.3d 1, 10 (Ky. 2004) (intemal quotation marks omitted)).* The issuance of a writ is an extreordinary remedy, and the courts of the Commonwealth have always been cautious and conservative in granting such “eluded inte send elas is a sub-

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