MSJ Roberts 1 8 2021

Case: 2:20-cv-00054-WOB-CJS Doc #: 89 Filed: 01/08/21 Page: 1 of 30 - Page ID#: 1240
IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY
COVINGTON DIVISION
THEODORE JOSEPH ROBERTS, et. al. : Case No. 2:20-CV-00054-WOB

Plaintiffs :
v. :
ANDREW BESHEAR, et. al. :
Defendants :
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND PERMANENT
INJUNCTION
Plaintiffs, by and through Counsel, move this Court for Summary Judgment and a
Permanent Injunction. A Memorandum in Support is attached hereto and incorporated by
reference herein. A Proposed Order is also attached.
Respectfully submitted,
/s/ Christopher Wiest___________

Christopher Wiest (KBA 90725)
Chris Wiest, Atty at Law, PLLC
25 Town Center Blvd, Suite 104
Crestview Hills, KY 41017
513/257-1895 (v)
chris@cwiestlaw.com
/s/Thomas Bruns_____________
Thomas Bruns (KBA 84985)
4750 Ashwood Drive, STE 200
Cincinnati, OH 45241
tbruns@bcvalaw.com
513-312-9890
/s/Robert A. Winter, Jr. __________

Robert A. Winter, Jr. (KBA #78230)
P.O. Box 175883
Fort Mitchell, KY 41017-5883
(859) 250-3337
robertawinterjr@gmail.com
Attorneys for Plaintiffs
1
MEMORANDUM IN SUPPORT
I. FACTS
1. Background
This litigation began after the Plaintiffs attended in-person worship on Easter Sunday of
last year. [Verified Amended Complaint, RE#6]. As a result of exercising this bedrock First
Amendment right, Plaintiffs received notices on their windshields ordering them to quarantine
and threatening them with the prospect of criminal prosecution. Id. At that time, all in-person
worship was banned by the Governor under his mass gatherings ban, the only exceptions to
which were purely secular in nature. Id. Plaintiff Roberts also sought to travel outside of the
Commonwealth but was unwilling to risk quarantine and/or arrest for doing so. Id. At the time,
all travel outside the Commonwealth, with few exceptions, was banned under the Governor’s
Travel Ban. Id. Plaintiffs filed their Complaint in this matter on April 14, 2020. Id. The
Complaint contained three claims: (i) a Free Exercise Claim; (ii) a fundamental right to travel
claim; and (iii) a claim based on procedural due process. Id.
Plaintiffs are practicing Christians who provided unrebutted evidence of their sincerely
held religious beliefs concerning in-person worship, particularly on Easter Sunday. [Am.
Verified Compl, RE#6, PageID#72; Dec. Roberts, RE#7-2, PageID#150-155; Declaration
Daniel, RE#7-3, PageID#150-155; Declaration O’Boyle, RE#7-4, PageID#160-164].
Defendants, who include Governor Andrew Beshear, and Secretary Friedlander, were all
sued in their official capacities as they all were intimately involved with the enforcement of the
challenged orders. [Am. Verified Compl, RE#6, PageID#72-73; Declaration Roberts, RE#7-2,
PAGEID#150-155].
2
2. The ban on all in-person church attendance
By way of background, on March 19, 2020, in response to COVID-19, the Governor
issued an order (the “mass gatherings ban”) that prohibited some, but not all, public gatherings.
[Am. Ver. Compl., RE#6, PageID#74-75, and Exhibit D thereto, PageID#99-100]. The
Governor’s exercise in word play could not be clearer. On the one hand, his order provided that
“[a]ll mass gatherings are hereby prohibited.” But then, in paragraph 3 of the same order, he
exempted a number of purely secular activities from this definition. As enumerated in paragraph
3, and for the avoidance of doubt, a mass gathering does not include “normal operations at
airports, bus and train stations, medical facilities, libraries, shopping malls and centers, or other
spaces where persons may be in transit.” Id. “It also does not include typical office
environments, factories, or retail or grocery stores where large numbers of people are present,
but maintain appropriate social distancing.” Id.
The mass gatherings ban referenced K.R.S. 39A and/or K.R.S. Chapter 214 as authority
for its promulgation. [Am. Ver. Compl., RE#6, PageID#76, and Exhibit D, PageID#99-100].
Both of those Chapters contain criminal penalties. K.R.S. 39A.990 (Class A misdemeanor for
any violations of orders); K.R.S. 220.990 (Class B misdemeanor for any violations of orders).
K.R.S. 39A.190 gives police officers authority to “arrest without a warrant any person violating
or attempting to violate in the officer’s presence any order or administrative regulation made
pursuant to” KRS Chapter 39A. The Governor also created the “COVID-19 Reporting Hotline”
and requested that Kentuckians call it “for complaints about noncompliance with coronavirus
mandates.” Id. at PageID#81.
On March 22, 2020, the Governor and/or his designees shut down additional “non-life
sustaining” retail establishments to in-person traffic, but left other “life sustaining” retail
3
establishments open such as convenience stores selling lottery tickets and six packs of beer. [See
Ver. Am. Complaint, RE#6-5, Exhibit E, PageID#32-35]. On March 23, 2020, the Governor
and/or his designees banned most elective medical procedures. [See Ver. Am. Complaint, RE#6-
6, Exhibit F, PageID#101-104]. On March 25, 2020, the Governor and/or his designees shut
down additional businesses for in-person work, while leaving others open. [See Ver. Amended
Complaint, RE#6-7, Exhibit G, PageID#105-106].
In his evening briefings after promulgating the mass gatherings ban, the Governor made
clear that he was going to target religious services for quarantine notices, apart from other
gatherings. [Am. Verified Compl., RE#6, PageID#78; Declaration Roberts, RE#7-2,
PAGEID#150-155].
Specifically, the Governor spoke about “mass gatherings,” but then admitted he was
talking about “less than seven churches” statewide.1 Id. He also admitted that he had been
“focused a lot on an individual church or pastor.” [Id. Video, at the 35:44-39:35 mark]. He
admitted he was sending out enforcers to take and record the license plate number of church
attendees and then would force those attendees to quarantine. Id. The Governor admitted that the
prohibition on “mass gatherings” applied to “in-church” services. Id. at 49:39-51:28. Further, in
response to a reporter’s questions, he stated that these enforcement activities applied only to the
Easter weekend services and church services. Id. at 1:08:00 to 1:08:07. Governor Beshear then
carried out his unconstitutional threats. Id.
During the COVID-19 outbreak, Governor Beshear and the other Defendants actively
enforced the Governor’s executive orders, including ordering sheriff’s deputies to forcibly
1
https://www.youtube.com/watch?v=SJVDhu38S68&feature=youtu.be (last visited 4/16/2020).
This statement can be found at between the 35:44-39:35 mark.
4
quarantine at least one Kentuckian who attempted to travel. [Ver. Am. Complaint, RE#6, ¶46,
PageID#81; Declaration Roberts, RE#7-2, PageID#150-155]. In fact, multiple Kentuckians in
Louisville were ordered to wear ankle monitors to ensure their government-imposed quarantine,
even though they never tested positive for COVID-19. [Ver. Am. Complaint, RE#6, ¶47,
PageID#81].
On the same day that the Governor instituted his Travel Ban, he also created the
“COVID-19 Reporting Hotline” and requested that Kentuckians call it “for complaints about
non-compliance with coronavirus mandates.” [Ver. Am. Complaint, RE#6, ¶48, PageID#81;
Declaration Roberts, RE#7-2, PageID#150-155].
3. The Plaintiffs attend Easter Sunday Church and come out of church to find the
Governor has targeted them for enforcement
On Easter Sunday, April 12, 2020, Plaintiffs TJ Roberts, Randall Daniel, and Sally
O’Boyle attended Easter church service at Maryville Baptist Church, in Hillview, Bullitt County
Kentucky. [Am. Verified Compl., RE#6, PageID#76; Declaration Roberts, RE#7-2,
PageID#150-155]. They each did so pursuant to sincerely held religious beliefs that in-person
church attendance was required, particularly on Easter Sunday. [Id.; Declaration Roberts, RE#7-
2, PageID#150-155; Declaration Daniel, RE#7-3, PageID#156-159; Declaration O’Boyle,
RE#74, PageID#160-164].
While at the service, each ensured appropriate social distancing and took other measures
appropriate for the circumstances in accordance with CDC Guidelines. Id. Among other things,
they each sat six feet away from other congregants at the service, wore masks covering their
faces, and did not have personal contact with others attending. Id. No evidence exists that
anyone with COVID-19 attended any of the April 12, 2020, Easter services. Id.; [Declaration
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Roberts, RE#7-2, PageID#150-155; Declaration Daniel, RE#7-3, PageID#156-159; Declaration
O’Boyle, RE#7-4, PageID#160-164].
Church leadership appeared to take the COVID issue seriously, in that they had the choir
and other celebrants of the service spaced six feet apart, and it appeared that the church interior
had been sanitized prior to the service. [Declaration Roberts, RE#7-2, PageID#150-155]. At
that time, there were between 11 and 50 persons in Bullitt County with a COVID-19 diagnosis,
out of a population of 81,676. [Declaration Roberts, RE#7-2, PageID#150-155; Verified Am.
Complaint, RE#6]. In other words, 0.06% of the population had a diagnosis. Id.
When Plaintiffs TJ Roberts, Randall Daniel, and Sally O’Boyle exited the service, they
found on their windshield the following notice (“Quarantine and Prosecution Notice”), placed
there by Kentucky State Troopers:
Employees of the local health depanroeotwill be conracting those associated with thisvebickv.-ith sell--qw>n<inc ~ u ,
including an agreement requiring this vehicle's occupants and anyone in the household to se~ninin< for 14 days.
Faibln to sign orcomplywitb tbeqru,nml-41 rutdt inji,rtb,rmforc,_,.1.,.,.....,...
Please be advised that KRS 39A.990 makes it a Class A misdemeanor to notate an emaieocr onler.
6
Id.
Other than sending state troopers to churches, the evidence established that no
enforcement action occurred as to other “mass gatherings” reported to the Governor. In fact, two
witnesses provided uncontradicted declarations demonstrating the selective targeting of the
Plaintiffs’ exercise of their closely held religious beliefs and practices. [Declaration Stanley,
RE#7-5, PageID#165-166; Declaration Cox, RE#7-6, PageID#156-159; Supp. Declaration Cox,
RE#18-1, PageID#273274].
Not surprisingly, and without contradicting Plaintiffs’ proof, Defendants placed evidence
of record that they did enforce the Governor’s non-essential business ban as to non-essential
businesses. [Declaration Perry, RE#24-5, PageID#373-375]. But, when it came to enforcement
of the mass gatherings ban, Defendants engaged in a sleight of hand: they indicated they received
70 complaints, but did not indicate whether they responded to any of those 70 complaints. Id.
Also, Defendants admitted that they dispatched state police to faith-based mass gatherings, but
did not state whether they dispatched state police to any other “mass gatherings.” [Declaration
Brewer, RE#24-4, PageID#371-372]. Therefore, Plaintiffs’ evidence of selective enforcement is
unrebutted.
None of the Plaintiffs have displayed any symptoms of the COVID-19 disease, and, to
the best of their knowledge, they do not have the COVID-19 disease. [Am. Verified Compl.,
RE#6, PageID#79; Declaration Roberts, RE#7-2, PageID#150-155; Declaration Daniel, RE#7-3,
PageID#156-159; Declaration O’Boyle, RE#7-4, PageID#160-164]. All of the Plaintiffs refused
to self-quarantine, as required by the Quarantine and Prosecution Notice, unless and until they
had a diagnosis of having contracted COVID-19, which none of them have. Id. In light of the
notice, Plaintiffs TJ Roberts, Randall Daniel, and Sally O’Boyle reasonably feared prosecution
7
and/or the equivalent of house arrest if, in the exercise of their constitutional rights, they should
attend further in-person church services. Id.
4. The Kentucky State Treasurer conducts an investigation, and finds that the Governor
and his designees targeted religion.
On October 22, 2020, the Kentucky State Treasurer investigated of the Governor’s
activities related to religious freedom and issued a report. (Declaration Wiest, Exhibit 1,
attached hereto).2 As the Treasurer’s report indicates, the Governor’s office directed that certain
churches (but not other businesses) “be monitored by Kentucky State Police, with a ‘visible
presence’ ‘by at least two uniformed officers.’” Id. at Report, p. 12. “At the same time, the KSP
received a ‘Church Protocol’ document that was being circulated ‘TO ALL Sheriffs,’ and many
local health officials, which listed possible offenses that could be used to charge non-compliant
church officials.” Id. at Report, p.12.
The public record communications attached to the report are stunning. They confirm
deliberate and knowing violations of the United States Constitution by the Governor. The
Kentucky State Police Commissioner, in a directive to KSP officers, observed that “this is
clearly a first amendment issue and any action taken certainly has significant potential to result
in litigation”, and that “there is a potential for the need for force, although it is a very low
potential.” Id. at Report, p.13 (emphasis added). And yet, at the direction of the Governor, they
charged full steam ahead into a series of unconstitutional actions.
2
Because the Report is a public record, and contains public records documenting governmental
operations contemporaneously with the time they occurred, they are subject to judicial notice.
Twumasi-Ankrah v. Checkr, Inc., 954 F.3d 938 (6th Cir. 2020); Bailey v. City of Ann Arbor, 860
F.3d 382 (6th Cir. 2017). It is available from government websites:
https://apps.legislature.ky.gov/CommitteeDocuments/8/12872/Oct%2022%202020%20Treasurer
's%20Report%20Ball.pdf (last visited 12/30/2020).
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The report confirms equally damning communications between the Governor’s Chief of
Staff, State Police, and Counsel for the Cabinet for Health and Family Services, documenting an
intention to take further steps against church parishioners. Id. at Report, p.14-15. Simply put,
the entirety of the Report, including the Exhibits to it, all of which are public records,
demonstrate a direct targeting of religious services by the Governor. Id. at Report.
5. The Due Process Issues with the Governor’s orders
The mass gatherings ban, with its Quarantine and Prosecution Notice, does not provide
any process at all to challenge the facts and circumstances of any enforcement. [Verified
Complaint, RE#1 ¶¶42-44, PageID#11; Declaration Roberts, RE#7-2, PageID#150-155].
The Travel Ban, the mass gatherings ban, with its Quarantine and Prosecution Notice,
and other executive orders issued by the Governor do not provide any right or opportunity for the
individual Kentuckian to be heard if the individual is ordered to be quarantined, or detained, or
otherwise punished for violating the Travel Ban or mass gatherings ban. [Verified Complaint,
RE#1, ¶43, PageID#11; Declaration Roberts, RE#7-2, PageID#150-155].
They also do not provide the individual Kentuckian with a right to be heard by a fair and
independent tribunal if the citizen is ordered to be quarantined, or detained, or otherwise
punished for violating those orders. Id. The orders provide no right to appeal a quarantine,
detention, or punishment. Id. The orders do not provide Kentuckians with the right to present
evidence, the right to know the evidence opposing them, the right to cross-examine, the
opportunity for counsel, or the right to have a record. Id.
On May 4, 2020, the District Court granted in part and denied in part, a preliminary
injunction, and specifically declined to find relief as to the total ban on in-person worship.
[Opinion, RE#46, PageID#825-839, Injunction, RE#47, PageID#840]. A timely notice of
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Case: 2:20-cv-00054-WOB-CJS Doc #: 89 Filed: 01/08/21 Page: 10 of 30 - Page ID#:
1249
appeal was filed on May 4, 2020. [Notice of Appeal, RE#48, PageID#841-858]. On May 6,
2020, the Plaintiffs moved for an injunction pending appeal. [R.12]. And on May 9, 2020, the
Sixth Circuit Court of Appeals granted that injunction pending appeal in a decision it ordered to
be published. [R.33].
6. The Travel Ban
Absent the Travel Ban, Plaintiff TJ Roberts, who resides and lives in Boone County,
would have temporarily traveled to Ohio, in contravention of the Travel Ban, to: (i) conduct
unpaid volunteer work all while complying with social distancing requirements; (ii) recreate all
while complying with social distancing requirements; (iii) associate with others in Ohio all
while practicing social distancing requirements; (iv) visit Mr. Bruns’ office for the purpose of
pursuing this lawsuit all while practicing social distancing requirements; and (v) due to the
proximity of Plaintiff to the border, take trips to Indiana and/or Ohio for a variety of purposes,
including simply to drive through Indiana and/or parts of Ohio to reach other locations in
Kentucky, all while practicing social distancing requirements. (Am. Ver. Complaint, RE#6, ¶40;
Declaration Roberts). All of the aforementioned activities were always permitted under Ohio’s
and Indiana’s COVID-19 response actions. Id.
The Travel Ban, the mass gatherings ban, with its Quarantine and Prosecution Notice,
and other executive orders issued by the Governor do not provide a process by which the
individual Kentuckian will be notified if they are charged or accused of a violation of the orders,
do not provide any mechanism to challenge or appeal any such determinations, and do not
provide any process at all to challenge the facts and circumstances of such orders. (Am. Ver.
Complaint, RE#6, ¶41; Declaration Roberts).
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7. The Deposition of Dr. Steve Stack
The Plaintiffs in a parallel case regarding the Governor’s mass gathering ban took the
deposition of Dr. Steven Stack, Kentucky’s Commissioner of Public Health, and have refiled that
deposition here. [Depo. Steve Stack, RE#84 at p. 5]. Dr. Stack testimony is revealing. He has
not conducted any personal studies of the coronavirus, but relies on the studies of others to issue
public health orders. Id. at pp.8-9. He confirms that the science around the coronavirus is
evolving. Id. at p.12.
Coronavirus is spread by droplets from coughing, sneezing, speaking, shouting, and
singing. Id. at pp.12-13. People who are closer than six feet in proximity to others are more at
risk. Id. at p.13. There is some debate on the appropriate amount of distancing. For instance,
the World Health Organization recommends 1 meter (a little over 3 feet), but the U.S. Center for
Disease Control and Kentucky officials recommend six feet because the additional distance
includes a “safety factor”. Id. at pp.23-24. Further, risk concerning coronavirus is relative. Id.
at p.13. Face to face encounters at closer than six feet distance is particularly high risk. Id. at
p.14. The “jury is out” on whether or not asymptomatic people can spread coronavirus. Id. at
p.15. Dr. Stack explained that from an infection risk perspective, the risk is determined from
both the duration and intensity of the exposure. Id. at p.85.
Dr. Stack confirmed that the coronavirus does not care if a group is sitting next to each
other in an office conference room or a church pew, if they are engaged in the same activity. Id.
at p.22. Coronavirus makes no distinction about the viewpoint of speech. Id. at p.28. This is
relevant because on May 11, 2020, Kentucky opened offices for business, with a 50% capacity
requirement, but with no limits on people. Id. at p.48; Exhibit 9, RE#84-6. Dr. Stack confirmed
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that those orders permit 50 people in an office environment to attend a retirement party. Id. at
p.92.
In each instance where the Governor created other orders permitting particular activities,
those activities and orders became an exception to the mass gathering ban. [Depo. Stack,
RE#84, pp.35,58-59].
Dr. Stack explained, from a risk perspective, that he and the Center for Disease Control
define a “mass gathering” as any group with more than 250 persons present. Id. at p.88. He
reiterated that his concern was primarily with groups of 250 or more. Id. at p.97. He
acknowledged 300 people on a factory floor is very risky (the factory mass gathering was
permitted). Id. at p.88. Dr. Stack also explained that there is more risk in close quarters such as
on subways or on packed public transportation in Louisville, which is extremely risky – but this
was also permitted. Id. at pp.74-75.
Ultimately, Dr. Stack repeatedly testified to a risk versus benefit analysis that occurs with
all of Kentucky’s public health orders, and he recognizes very serious costs and consequences
from those orders. Id. at pp.44-46. Generally speaking, he attempts to reduce the risk to a level
that protects people while permitting them to engage in human interaction. Id. at pp.44-47.
Conversely, Dr. Stack also testified that it is the function of others (the Governor), and not Dr.
Stack, to determine the value of a particular activity and whether the benefit is worth permitting
the activity, while it is the function of Dr. Stack to determine the risk from a particular activity
and make recommendations about that risk. Id. at pp. 63,97.
For permitted activities, he explained that Kentucky officials permitted activities that “we
felt … were essential or life-sustaining services,” but also acknowledged that non-life sustaining
activities were also permitted, and testified that “obviously I, I can’t classify an auction as a life-
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sustaining or essential service…” Id. at pp.89-90. Nevertheless, Dr. Stack determined that
auctions are important enough to be permitted even though there is only the mere “possibility” of
constraining variables “more reliably” there than in other situations. Id. at p.92.
8. The Governor’s voluntary cessation activities
Following weeks of litigation in the lower courts, in Maryville Baptist Church, Inc. v.
Beshear, 957 F.3d 610 (6th Cir. 2020), the Sixth Circuit Court entered an injunction pending
appeal related to drive-in church services on May 2, 2020.3 In response, two days later on May
4, 2020, before this Court, RE#44, PageID#819-823, the Governor argued that this Court’s order
only applied to drive-in church attendance and he argued that this Court should not extend the
ruling to in-person worship.
Then, on May 8, 2020, the District Court in Maryville granted a preliminary injunction as
to in-person worship, in Maryville Baptist Church, Inc. v. Beshear, WDKY Case No. 3:20-cv-
00278, RE#35, PageID#575-580 (we have attached the relevant Maryville pleadings to this
motion through the declaration of Mr. Wiest). A day later, on May 9, 2020, the Sixth Circuit
rendered its opinion in Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020), but not before the
Governor in that case: (i) continued to defend his order (Roberts v. Neace, 6th Cir. Case No. 20-
5465, Response, at R.25); and (ii) argued the Court should withhold relief because he lifted the
order to permit in-person worship just a few weeks later, (Roberts v. Neace, 6th Cir. Case No. 20-
5465, Notice, at R.28).
3
This Court may take judicial notice of the proceedings of other courts of record, including those
in the Western District of Kentucky and the Sixth Circuit Court of Appeals, and, Plaintiffs
submit, the Court should do so here. Granader v. Public Bank, 417 F.2d 75 (6th Cir. 1969);
Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th Cir. 1980); Lyons v. Stovall, 188
F.3d 327 (6th Cir. 1999); Chase v. Macauley, 971 F.3d 582, 588, n.1 (6th Cir. 2020).
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1253
Governor Beshear was not done. On May 11, 2020, he changed his order, and asked the
District Court in Maryville to dismiss the case. (Maryville, RE#36). The next day, on May 12,
2020, in Maryville, he moved to dismiss the case and lift the District Court’s injunction, arguing
that the law had changed and now he should be able to reimpose the ban, while simultaneously
arguing that the case was moot. (Maryville, RE#38). Undeterred, on June 29, 2020, the
Governor again attempted to lift the injunction to prohibit in-person worship. (Maryville
RE#46). And, into both July and August, he filed pleadings seeking the same relief, so that he
could reimpose the ban on in person worship. (Maryville RE#49; RE#51).
The Sixth Circuit, just a few weeks ago, acknowledged this history of manipulation in its
decision in Maryville Baptist Church, Inc. v. Beshear, 977 F.3d 561, 565 (6th Cir. 2020) (“At the
same time, however, the Governor has raised the possibility of lifting the injunction in the
Maryville Baptist Church case on the ground that intervening legal developments make it
wrong.”)
Further, as this Court is aware, on May 4, 2020, Plaintiffs obtained from this Court a
preliminary injunction against the Governor on his ban on interstate travel in Roberts v. Neace,
KYED Case No. 2:20-cv-00054, Order and Opinion and Injunction, RE#46, RE#47,
PageID#825-840. On May 11, 2020, arguing mootness and for dismissal, the Governor
rescinded and amended his travel order, Roberts v. Neace, KYED Case No. 2:20-cv-00054,
Notice of Filing, RE#58, PageID#819-934. Then, on June 29, 2020, the Governor again
attempted to dissolve the preliminary injunction on the travel ban and to reimpose the travel ban
in this case. Roberts v. Neace, KYED Case No. 2:20-cv-00054, Motion to Dissolve Preliminary
Injunction, RE#58, PageID#957-966.
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1254
II. LAW AND ARGUMENT
A. Summary Judgment and Permanent Injunction Standard: there are no genuine

issues of material fact, and, with constitutional rights at stake, Plaintiffs have
demonstrated success on the merits and entitlement to a permanent injunction
Summary judgment is appropriate where "the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a). All evidence is construed in the light most favorable to the non-moving party.
Villegas v. Metro. Gov't of Nashville, 709 F.3d 563, 568 (6th Cir. 2013). The evidence of record
demonstrates no genuine issue of material fact; thus, summary judgment is appropriate on their
claims for declaratory relief and a permanent injunction.
When deciding whether to issue a preliminary injunction, the court must consider the
following four factors: (1) Whether the movant has demonstrated a strong likelihood of success
on the merits; (2) Whether the movant would suffer irreparable harm; (3) Whether issuance
would cause substantial harm to others; and (4) Whether the public interest would be served by
issuance. Suster v. Marshall, 149 F.3d 523, 528 (6th Cir. 1998); Northeast Ohio Coalition for the
Homeless v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006). These "are factors to be balanced,
not prerequisites that must be met." In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.
1985).
When analyzing a motion for preliminary injunction, "the 'likelihood of success' prong is
the most important [factor] and often determinative in First Amendment cases." Jones v. Caruso,
569 F.3d 258, 277 (6th Cir. 2009); see also Aristotle Pub. v. Brown, 61 F. App'x 186, 188 (6th
Cir. 2003). The standards for preliminary injunctions and permanent injunctions are essentially
the same with the exception that for a permanent injunction the plaintiff must show actual
15
1255
success on the merits rather than the likelihood of success. ACLU of Ky. v. McCreary County,
Ky., 607 F.3d 439, 445 (6th Cir. 2010).
B. The case is not moot, because Plaintiffs violated the orders in question and the
statute of limitations has not expired, the case falls under the voluntary cessation
doctrine, and is capable of repetition yet evading review
1. Plaintiffs’ violation of the orders, along with the threats of prosecution directed by
the Governor, render the matter not moot
Violations of the Governor’s orders are Class A misdemeanors. K.R.S. 39A.990. The
statute of limitations of two years 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).
The Governor directed the Kentucky State Police to place these notices on each of the
Plaintiffs’ windshields following their attendance at Easter Sunday church in April, 2020,:
T his vehicle's presence at this

prohib. .
. ited by Orders of th Glocation ind',catcsthatitsoccupantsarepresentatamassgathttiag
this vehicle's occupants, ane. d anyone
overnorthey
and the
co Cabinet
• forl lealth. and Family Services· As a •owl,
___,
COVID
adults
· 19 a respirato ill
and those with un:!r1 tes~:
h me into contact with. arut risk of contracting
at can b~ severe and lead to death, particularly for o\dtr
Y ng an, lung, kidney, and immunity issues.
Where people congregate unnccnsaril:y
the or ~ail to follow adequate social distancing p..,;ctlces,
Yan: spreading COVID-,9,CREATING SCENES OF AN EMERGENCY
iiilf§iiiliiii·iihiii&·HEHl\ii§1HHfriH+M
Employees of the local health dcparrment will be contaetin8 those =ia«d wiili this ,ehidt%;,h self-"''"'"'"'-'
including an agneemcnt requiring this vehicle's occupant> and ,nyone in tl,c ho""hold w se\1-qu.nnrin< £or 14 do!>
Fai /111'¥ to sip or comply sith tbe agrumn"""'1 rurdt i•fartbo'0tfonemnit mtasaru.
Please be advised that KRS 39A.990 makes ii a Class A misd-illl•r to YioWe ao -cy onler.
16
1256
[Declaration Roberts, RE#7-2, PageID#150-155; Verified Amended Complaint, RE#6]. A
review of the language is important: the notice in question informed the Plaintiffs that the
occupants of the vehicle are present at a mass gathering prohibited by the Governor’s orders. Id.
It further indicated government authorities, e.g. the Kentucky State Police, recorded the
Plaintiffs’ license plates. Id. And it informed the Plaintiffs that they committed Class A
misdemeanors. Id. At no time has the Governor, or any other state government official, ever
sent Plaintiffs any notice rescinding or otherwise disclaiming this intention to prosecute and Mr.
Roberts has a reasonable and actual belief that he may be prosecuted. [Second Declaration of
Theodore Roberts, attached hereto].
Thus, because an injunction would protect these plaintiffs from prosecution, the matter is
not moot. Sacks v. Office of Foreign Assets Control, 466 F.3d 764 (9th Cir. 2006) (violation of
repealed statute does not foreclose relief if the statute was violated); Bowman v.
Schwarzenegger, 2009 U.S. Dist. LEXIS 24678 (ED Cal 2009) (same); Dean Foods Co. v.
Tracy, 990 F. Supp. 646 (W.D. Wis. 1997) (claim not moot where enforcement possible); Bennie
v. Munn, 822 F.3d 392 (8th Cir. 2016) (same); Ctr. for Individual Freedom v. Tennant, 706 F.3d
270, 293 (4th Cir. 2013) (possibility of enforcement for past violation rendered matter not moot).
2. The voluntary cessation doctrine applies
As reflected above, the Governor had the offending notices placed on vehicles by the
Kentucky State Police, engaged in litigation vigorously defending his orders and his threatened
enforcement, and then, after adverse decisions were entered against him, lifted his orders. Later,
the Governor filed pleadings attempting to lift injunctions entered against him and indicated his
intention to reimpose his very same orders. At no time has the Governor ever said he would not
ever re-instate his orders.
17
1257
“A defendant's voluntary cessation of allegedly unlawful conduct ordinarily does not
suffice to moot a case.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 189 (2000). (emphasis added). "If it did, the courts would be compelled to leave 'the
defendant . . . free to return to his old ways.'" Id., citing City of Mesquite v. Aladdin's Castle,
Inc., 455 U.S. 283, 289 (1982).
As the United States Supreme Court has observed:
We have recognized, however, that a defendant cannot automatically moot a case simply
by ending its unlawful conduct once sued. Otherwise, a defendant could engage in
unlawful conduct, stop when sued to have the case declared moot, then pick up where he
left off, repeating this cycle until he achieves all his unlawful ends.
Given this concern, our cases have explained that a defendant claiming that its voluntary
compliance moots a case bears the formidable burden of showing that it is absolutely
clear the allegedly wrongful behavior could not reasonably be expected to recur.
Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013).
In Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 n.1
(2017), the Supreme Court held that a governor’s change in policy does not moot a case. Rather,
the court held that the defendant has the burden to demonstrate that it is “absolutely clear the
allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth,
Inc., 528 U.S. 167 at 190.
In this case, Governor Beshear has failed to meet his burden that it is “absolutely clear”
he will not reimpose these unconstitutional edicts. His mere lifting of these edicts, for the time
being, but with his record of requests to reimpose those edicts, does not come close to meeting
his heightened burden. Governor Beshear has “neither asserted nor demonstrated that [he] will
never resume the complained of conduct.” Norman-Bloodsaw v. Lawrence Berkely Lab., 135
F.3d 1260, 1274 (9th Cir 1998); Cf. United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1537 n.*
(2018) (holding “the rescission of the policy does not render this case moot”).
18
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Since the governor’s decision not to extend his recent orders is by executive order, and is
not statutorily binding, Governor Beshear’s actions cannot moot the claim. This is because
determining whether the ceased action "could not reasonably be expected to recur," Friends of
the Earth, 528 U.S. at 189, requires taking into account the totality of the circumstances
surrounding the voluntary cessation, including the manner in which the cessation was executed.
Speech First, Inc. v. Schlissel, 939 F.3d 756, 767 (6th Cir. 2019). Where, as here, “a change is
merely regulatory [or by executive action], the degree of solicitude the voluntary cessation
enjoys is based on whether the regulatory processes leading to the change involved legislative-
like procedures or were ad hoc, discretionary, and easily reversible actions.” Id.
Thus, where, as here, “the discretion to effect the change lies with one agency or
individual, or there are no formal processes required to effect the change, significantly more than
the bare solicitude itself is necessary to show that the voluntary cessation moots the claim.” Id.
Given the Governor’s repeated attempts to lift the injunction through court actions, which
would allow him the ability to reimpose his unconstitutional bans, particularly in light of the
temporary recission or expiration of his ban occurring in the midst of litigation, is entitled to no
weight whatsoever. See A. Philip Randolph Inst. v. Husted, 838 F.3d 699, 713 (6th Cir. 2016),
rev'd on other grounds, 138 S. Ct. 1833 (2018) ("[T]he circumstances of the Secretary's issuance
of the new form do not inspire confidence in his assurances regarding the likelihood of
recurrence—he issued that new form on the same day as the parties' final merits briefs were due
before the district court, attaching the form as an exhibit to his brief and only then presenting his
mootness argument. This fact makes the Secretary's voluntary cessation appear less genuine.");
Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323, 342-43 (6th Cir. 2007) ("In this
case, that burden is increased by the fact that the voluntary cessation only appears to have
19
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occurred in response to the present litigation, which shows a greater likelihood that it could be
resumed.").
Further, where, as here, the Governor "vigorously defends the constitutionality of [his] . .
. program" is important to the mootness inquiry. Schlissel, 939 F.3d 756 at 770, citing Parents
Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719 (2007). Nothing Governor
Beshear has said or done has shown that he believes he was wrong to impose his unconstitutional
ban and Governor Beshear continues to publicly defend his ban. A case is not moot where, as
here, the Governor “did not voluntarily cease the challenged activity because he felt [it] was
improper,” and “has at all times continued to argue vigorously that his actions were lawful.”
Olagues v. Russoniello, 770 F.2d 791, 795 (9th Cir. 1985).
The Supreme Court has noted that in addition to a court retaining the ability to hear a
case after voluntarily cessation (considerations of mootness), "the court's power to grant
injunctive relief survives discontinuance of the illegal conduct." United States v. W. T. Grant
Co., 345 U.S. 629, 633 (1953). "The necessary determination is that there exists some cognizable
danger of recurrent violation…." Id. The Governor’s attempts to lift the injunction in the
Maryville case on church attendance and his attempts in this case to lift the travel ban, suggests
“some cognizable danger of recurrent violation.” Id.
As the Supreme Court recently acknowledged in Roman Catholic Diocese v. Cuomo, 208
L. Ed. 2d 206 (2020), the threat of reimposing the restrictions and the short time periods
involved warranted granting relief. Id. at 210 (“injunctive relief is still called for because the
applicants remain under a constant threat that [the restrictions will be reimposed],” [t]he
Governor imposed restrictions “without prior notice” and the challengers “have made the
20
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showing needed to obtain relief, and there is no reason why they should bear the risk of suffering
further irreparable harm in the event [the restrictions are reimposed].”).
Failing to take up this matter would permit Governor Beshear to “engage in unlawful
conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating
this cycle until he achieves all his unlawful ends.” Nike, Inc., 568 U.S. 85, 91. Thus, the Sixth
Circuit has indicated the propriety of proceeding to the merits in such situations. Anderson v.
Spear, 356 F.3d 651, 656 (6th Cir. 2004) (mere temporary ceasing of challenged activity does
not warrant withholding relief); Schlissel, 939 F.3d 756 at 770.
3. The case is capable of repetition yet evading review
Governor Beshear not only fails to demonstrate that the voluntary cessation doctrine does
not apply, but he also fails to demonstrate that this case is not one that is capable of repetition,
yet evading review.
“The exception applies where ‘(1) the challenged action is in its duration too short to be
fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the
same complaining party will be subject to the same action again.’” Fed. Election Comm'n v.
Wisconsin Right To Life, Inc., 551 U.S. 449, 462 (2007). Both requirements are present in this
case. Given the rapidly changing COVID-19 landscape there is no question that the duration of
the Governor’s ban on mass gatherings and travel were always going to be “too short to be fully
litigated prior to cessation or expiration.”
Beyond COVID, the unconstitutional bans were always going to be far too short in
duration to be fully litigated while it was in effect. This sort of case was destined to be too short
to be fully litigated. See Kingdomware Tech., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016)
(two years is too short); Turner v. Rogers, 564 U.S. 431, 440 (2011) (12 months is too short);
21
1261
First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 774 (1978) (18 months is too short);
Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911) (two years is too short); Roe v.
Wade, 93 S. Ct. 705 (1973) (266 days is too short).
Because COVID has already shown that it can experience a resurgence after a decline, it
is entirely reasonable to assume a third wave and that these unconstitutional bans may be
repeated.
C. The Governor’s mass gathering ban violated the Free Exercise Clause
The disposition of the Free Exercise challenge was discussed, and indeed, largely decided
by the Sixth Circuit in Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020). As the Court discussed in
that case, “[t]he Governor's restriction on in-person worship services … "prohibits the free
exercise" of "religion" in violation of the First and Fourteenth Amendments.” Id. at 413, citing
U.S. Const. amends. I, XIV; Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). As that Court
explained, “[o]n one side of the line, a generally applicable law that incidentally burdens
religious practices usually will be upheld.” Id., citing Employment Div. v. Smith, 494 U.S. 872,
878-79 (1990). “On the other side of the line, a law that discriminates against religious practices
usually will be invalidated because it is the rare law that can be ‘justified by a compelling
interest and is narrowly tailored to advance that interest.’” Id., citing Church of the Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 553 (1993).
“These orders … fall on the prohibited side of the line.” Id. “Faith-based discrimination
can come in many forms.” Id. “A law might be motivated by animus toward people of faith in
general or one faith in particular.” Id. “Or a law might appear to be generally applicable on the
surface but not be so in practice due to exceptions for comparable secular activities.” Id., citing
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Ward v. Polite, 667 F.3d 727, 738 (6th Cir. 2012); see also Fraternal Order of Police Newark
Lodge No. 12 v. City of Newark, 170 F.3d 359, 365-67 (3d Cir. 1999).
The Sixth Circuit observed in Roberts that “we don't think it's fair at this point and on this
record to say that the orders or their manner of enforcement turned on faith-based animus.” Id.
at 413. But the record at this point in time is clearly different. Now, the record contains the
State Treasurer’s report, which paints a stark picture of faith-based animus. It tells a story of
specific church enforcement protocols being adopted, of state police being directed to churches
and not elsewhere, of knowledge of First Amendment violations followed by the deliberate
choice to proceed anyways. (Declaration Wiest, Exhibit 1, attached hereto).4 That, of course,
under Lukimi and Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719
(2018), is more than sufficient to prove a violation of the Free Exercise Clause.
But, as the Sixth Circuit explained in Roberts, “the four pages of exceptions in the orders,
and the kinds of group activities allowed, remove[d] them from the safe harbor for generally
applicable laws.” Id. at 413. “As a rule of thumb, the more exceptions to a prohibition, the less
likely it will count as a generally applicable, non-discriminatory law.” Id., citing Ward, 667 F.3d
at 738. "At some point, an exception-ridden policy takes on the appearance and reality of a
system of individualized exemptions, the antithesis of a neutral and generally applicable policy
and just the kind of state action that must run the gauntlet of strict scrutiny." Id. at 413, citing
4
Because the Report is a public record, and contains public records documenting governmental
operations contemporaneously with the time they occurred, they are subject to judicial notice. It
is available from government websites:
https://apps.legislature.ky.gov/CommitteeDocuments/8/12872/Oct%2022%202020%20Treasurer
's%20Report%20Ball.pdf (last visited 12/30/2020). Twumasi-Ankrah v. Checkr, Inc., 954 F.3d
938 (6th Cir. 2020); Bailey v. City of Ann Arbor, 860 F.3d 382 (6th Cir. 2017).
23
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Ward, 667 F.3d at 740. Further, “many of the serial exemptions for secular activities pose
comparable public health risks to worship services.” Id. at 414.
“The Governor has offered no good reason for refusing to trust the congregants who
promise to use care in worship in just the same way it trusts accountants, lawyers, and
laundromat workers to do the same.” Id. In fact:
Come to think of it, aren't the two groups of people often the same people—going to
work on one day and going to worship on another? How can the same person be trusted
to comply with social-distancing and other health guidelines in secular settings but not be
trusted to do the same in religious settings? The distinction defies explanation, or at least
the Governor has not provided one. Id.
Further:
But restrictions inexplicably applied to one group and exempted from another do little to
further these goals and do much to burden religious freedom. Assuming all of the same
precautions are taken, why can someone safely walk down a grocery store aisle but not a
pew? And why can someone safely interact with a brave deliverywoman but not with a
stoic minister? The Commonwealth has no good answers. Id. at 414.
Thus, “[w]hile the law may take periodic naps during a pandemic, we will not let it sleep
through one.” Id. at 414-415. “All of this requires the orders to satisfy the strictures of strict
scrutiny.” Id. at 415. “They cannot.” Id. “All in all, the Governor did not customize his orders
to the least restrictive way of dealing with the problem at hand.” Id. at 416.
There are two additional cases that are applicable: one from the United States Supreme
Court and one from the Sixth Circuit. The Supreme Court case first. In Roman Catholic
Diocese v. Cuomo, 208 L. Ed. 2d 206 (2020), the Supreme Court analyzed a less burdensome
restriction than the one imposed by Governor Beshear earlier this year. As in Cuomo, statements
by Governor Beshear, and the myriad of evidence contained in the Treasurer’s report, are
“statements made in connection with the challenged rules [that] can be viewed as targeting,”
triggering strict scrutiny. Id. at 208. “But even if we put those comments aside, the regulations
24
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cannot be viewed as neutral because they single out houses of worship for especially harsh
treatment.” Id.
This was because “while a synagogue or church may not admit more than 10 persons,
businesses categorized as ‘essential’ may admit as many people as they wish.” Id. “These
categorizations lead to troubling results.” Id. “At the hearing in the District Court, a health
department official testified about a large store in Brooklyn that could ‘literally have hundreds of
people shopping there on any given day.’” Id. at 208-209. “Yet a nearby church or synagogue
would be prohibited from allowing more than 10 or 25 people inside for a worship service.” Id.
at 209.
The Supreme Court found that these disparities led to a finding that the law was neither
neutral nor generally applicable, triggering strict scrutiny. Id. And the Court found, just as the
Sixth Circuit did in Roberts, that the orders failed to meet those stringent requirements and was
unconstitutional. Id.
Which brings us to the third and most recent case from mere days ago: Monclova
Christian Acad. v. Toledo-Lucas County Health Dep't, 2020 U.S. App. LEXIS 40856, --- F.3d ---
(6th Cir. 2020). Monclova likewise dealt with COVID-19 closure orders and a Free Exercise
challenge. Id. Citing Cuomo, the Sixth Circuit observed that the Free Exercise Clause "prohibits
government officials from treating religious exercises worse than comparable secular
activities[.]" Id. The Monclova Court observed that “[w]hether conduct is analogous (or
‘comparable’) for purposes of this rule does not depend on whether the religious and secular
conduct involve similar forms of activity.” Id. “Instead, comparability is measured against the
interests the State offers in support of its restrictions on conduct.” Id. “Specifically,
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comparability depends on whether the secular conduct ‘endangers these interests in a similar or
greater degree than’ the religious conduct does.” Id.
Analyzing Cuomo, the Sixth Circuit observed that “[m]itigation of that risk, of course,
was the State's asserted interest in support of its restrictions on attendance at religious services
[in Cuomo]; the State did not extend those restrictions to comparable secular conduct; and thus,
the [Supreme] Court held, ‘the challenged restrictions’ were not ‘of 'general applicability[.]'" Id.
From a mitigation of risk perspective, in person church attendance did not threaten the public in
any greater degree than did sitting in close proximity in an office, an airport, or bus station. And
thus the ban was unconstitutional.
As in Roberts, Cuomo, and Monclova, the unconstitutional ban by the Governor on in-
person attendance at religious services does not survive strict scrutiny and, therefore, violates the
free exercise clause. Id. Summary judgment and a permanent injunction should enter.
D. The Governor’s travel ban violated the fundamental right to travel
Under binding Supreme Court precedent, the “constitutional right to travel from
one State to another” is firmly embedded in this nation’s constitutional jurisprudence.
Saenz v. Roe, 526 U.S. 489, 498 (1999) (citing U.S. v. Guest, 383 U.S. 747, 757 (1966)).
“The right is so important that it is assertable against private interference as well as
governmental action… a virtually unconditional personal right, guaranteed by the
Constitution to us all.” Id. (citing Shapiro v. Thompson, 394 U.S. 618, 643 (1969)
(Stewart, J. concurring)). “Freedom of movement is basic in our scheme of values.” Id.
(citing Crandall v. Nevada, 6. Wall 35, 44 (1868); Williams v. Fear, 179 U.S. 270, 274
(1900); Edwards v. California, 314 U.S. 160 (1941)). The Court wrote in the 1970s that
26
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“the right of interstate travel is virtually unqualified.” Califano v. Aznavorian, 439 U.S.
170, 176 (1978).
Decades earlier, the Supreme Court in Kent v. Dulles, 357 U.S. 116, 125 (1958),
was confronted with the constitutional issue involving travel during what was the then
emergency of the day: the threat posed by communists. The Secretary of State refused to
issue passports to two individuals after questions arose as to whether they were
communists. The United States was involved in a Cold War with the Soviet Union at the
time. However, and even in the midst of the crisis of the Cold War, the Supreme Court
reversed. It held that the right to travel is a part of the liberty of which the citizen cannot
be deprived without due process of law under the Fifth Amendment. This is because
freedom of movement “may be as close to the heart of the individual as the choice of what
he eats, or wears, or reads.” Id. at 126. The Court contrasted the right of interstate travel
with the right of international travel, holding that while interstate travel was a virtually
unqualified right, the right of international travel could be regulated within the bounds of
due process. Id.
Later, the Supreme Court decided Griffin v. Breckenridge, 403 U.S. 88, 105-06
(1971) in the wake of ongoing racial violence. In Griffin, black citizens of Mississippi
sued a group of whites who conspired to assault them while they travelled on the
highways. There, the Court held that “[o]ur cases have firmly established that the right of
interstate travel is constitutionally protected, does not necessarily rest on the Fourteenth
Amendment, and is assertable against private, as well as governmental, interference.” Id.
History shows the Supreme Court has been consistent on the right to interstate
travel. In all of these cases, during all of these similarly trying times, Chief Justice
27
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Taney’s words from his opinion in the Passenger Cases still ring true: “For all the great
purposes for which the Federal government was formed, we are one people, with one
common country. We are all citizens of the United States; and, as members of the same
community, must have the right to pass and repass through every part of it without
interruption, as freely as in our own States.” Smith v. Turner, 48 U.S. 283, 492 (1849)
(Taney, C.J., dissenting).
This Court appropriately analyzed the travel ban in Roberts v. Neace, 457 F. Supp.
3d 595 (EDKY 2020). It appropriately raised a number of troubling questions, none of
which had answers then, and none of which have answers now. Id. at 602-603. And, as
this Court observed, the ban was not narrowly tailored. Id. at 603.
The Governor’s Travel Ban violated a fundamental right under the federal
constitution. The ban was not narrowly tailored to serve a compelling governmental
interest.
E. The Governor’s order violated due process
Indeed, as if the violation of the Plaintiffs’ constitutional rights to interstate travel and
Free Exercise of religion were not enough, the Governor’s Orders do not provide any due
process of law to those accused of violating them. “[T]here can be no doubt that at a minimum
[procedural due process] require[s] that deprivation of life, liberty or property by adjudication be
preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mullane v.
Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). “A fair trial in a fair tribunal is a
basic requirement of due process.” In re Murchison, 349 U.S. 133, 136 (1955). The Supreme
Court has explained that “in deciding what process constitutionally is due in various contexts, the
Court repeatedly has emphasized that ‘procedural due process rules are shaped by the risk of
28
1268
error inherent in the truth-finding process….’” Carey v. Piphus, 435 U.S. 247, 259 (1978) (citing
Mathews v. Eldridge, 424 U.S. 319, 344 (1976)). Moreover, “[e]lementary notions of fairness
enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of
the conduct that will subject him to punishment, but also of the severity of the penalty that a
State may impose.” BMW of N. Am. v. Gore, 517 U.S. 559, 574 (1996).
The Governor’s Orders (the mass gathering ban on in-person church attendance and the
Travel Ban) have none of those hallmarks. They have no means for a detention, quarantine or
punishment to be reviewed by a neutral official. If the Governor orders sheriff’s deputies
stationed outside a Kentuckian’s home, or if another elected official orders an ankle monitor
strapped to a Kentuckian’s ankle, or if a law enforcement officer detains someone falsely
accused of crossing the state border based upon an incorrect tip to the “reporting hotline,” an
accused Kentuckian must at least have the right to be heard before an unbiased tribunal. See
Mullane, supra. Given the extraordinary power wielded by the government here – the claimed
power to deprive people of foundational constitutional rights – additional due process protections
are merited. Kentuckians should have the right to present evidence, the right to know the
evidence opposing them, the right to cross-examine, the opportunity for counsel, and the right to
have a record.
Pre-deprivation hearings must be afforded. The Sixth Circuit is clear that due process
generally requires a pre-deprivation hearing, subject to exceptions not applicable here. Cahoo v.
SAS Analytics, Inc., 912 F.3d 887 (6th Cir. 2019). The quarantine and prosecution notices
required that parties have the means to challenge them, but they offered no such opportunity.
29
1269
III. CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that a permanent injunction and
summary judgment be entered on their claims for declaratory and injunctive relief.

Chris Wiest, Atty at Law, PLLC
25 Town Center Blvd, Suite 104
Crestview Hills, KY 41017
859/486-6850 (v)
513/257-1895 (c)
859/495-0803 (f)
chris@cwiestlaw.com
/s/Thomas Bruns_____________
Thomas Bruns (KBA 84985)
4750 Ashwood Drive, STE 200
Cincinnati, OH 45241
tbruns@bcvalaw.com
513-312-9890
/s/Robert A. Winter, Jr. __________

Robert A. Winter, Jr. (KBA #78230)
P.O. Box 175883
Fort Mitchell, KY 41017-5883
(859) 250-3337
robertawinterjr@gmail.com
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
I certify that I have served a copy of the foregoing upon Counsel for the Defendants, this
8th day of January, 2021, by filing same with the Court’s CM/ECF system which gives notice to
all counsel of record.

30
Case: 2:20-cv-00054-WOB-CJS Doc #: 89-1 Filed: 01/08/21 Page: 1 of 2 - Page ID#:
1270

COVINGTON DIVISION

Plaintiffs :
v. :
Defendants :
SECOND DECLARATION OF THEODORE JOSEPH ROBERTS

Pursuant to 28 U.S.C. §1746, the undersigned, Theodore Joseph Roberts, makes the following
declaration, under penalty of perjury under the laws of the United States of America, that the
facts contained herein are true and correct and based upon my personal knowledge:
1. My name is Theodore Joseph Roberts, and I am one of the Plaintiffs in this action.
2. On April 12, 2020, after exiting Easter Sunday service, we each found on our windshields
the following notice (“Quarantine and Prosecution Notice”), placed there by Kentucky
State Troopers:
E,-a)~Ofd'ae loc2f hnbhdcpsnmCOl wilbc ~•OIICIK ~~,:ba.-,duckW>tb,tl.1..,...-.mmt

i;K:JWCwg:an~requuu:igrltd~«cupmo.lMaowuoc&$11ltc~~~•14 ~
~10n)tt•~,.;,1,t1M-r---~1tmjil,d,crof,,,__.-r~
-""'~-.OSl!IA.fiO_ ... a,., _ .. - - - - -
1
1271
3. At no time, from that placement of that notice on April 12, 2020 to the present time, have
I ever received any kind of notice or other notification from the Kentucky State Police,
the Governor, or any other government official that l would not, in fact, be prosecuted for
attending Easter church service in 2020, or that in any way rescinds or otherwise
withdraws that threat of prosecution.
4. As a consequence, it is my understanding that the Quarantine and Prosecution Notice
means what it says and that there is al least a reasonably probability that I wilt be
prosecuted without tbe entry of a permanent injunction.
5. I reasonably and actually have a fear of arrest and prosecution for attending church in
violation of the Governor's mass gathering ban in light of his Quarantine and Prosecution
Notice, and for having traveled out of state in contravention of the Governor's former
travel ban,
Pursuant to 28 U.S.C. § 1746, l declare under penalties of perjury under the laws of the United
States of America that the foregoing Declaration is true and correct to the best of my knowledge
and belief and that such facts are made based on my personal knowledge.
Executedon 1;1pz1. T h ~
2
1272

COVINGTON DIVISION

Plaintiffs :
v. :
Defendants :
DECLARATION OF CHRISTOPHER WIEST

Pursuant to 28 U.S.C. §1746, the undersigned, Christopher Wiest, makes the following
declaration, under penalty of perjury under the laws of the United States of America, that the
facts contained herein are true and correct and based upon my personal knowledge:
Attached hereto, as Exhibit 1, is a true and accurate copy of the Kentucky State
Treasurer’s investigation of the Governor, concerning his attack on religious liberty; the
record in question is a public record, maintained by the Commonwealth of Kentucky, and
available here:
https://apps.legislature.ky.gov/CommitteeDocuments/8/12872/Oct%2022%202020%20T
reasurer's%20Report%20Ball.pdf (last visited 12/30/2020)
Attached hereto, as Exhibits 2-1 through 2-, are true and accurate copies of certain
pleadings filed in, and orders entered by the District Court, in a case styled Maryville
Baptist Church, Inc. v. Beshear, WDKY Case No. 3:20-cv-00278.
Pursuant to 28 U.S.C. §1746, I declare under penalties of perjury under the laws of the United
States of America that the foregoing Declaration is true and correct to the best of my knowledge
and belief and that such facts are made based
ed on my personal knowle
knowledge.
1-8-2021
Executed on ________________. _______________________________
______________________
Christopher Wiest
1273
Preliminary
REPORT
FROM THE OFFICE OF THE
KENTUCKY STATE
TREASURER
Accountability for
October 22, 2020
State Expenditures
During the Pandemic
Interim Joint Committee

on Judiciary
Allison Ball
Kentucky State Treasurer
Noah Friend
General Counsel
Exhibit 1
1274
EXECUTIVE SUMMARY
A general consensus exists regarding the unique challenge posed by the
COVID-19 pandemic. The lives of all citizens of the Commonwealth have been
touched in some way, whether by the health effects of the virus itself or the economic
hardships resulting from lockdowns and business closures. For the citizens who
have lost loved ones as a result of COVID-19, their sadness and grief will extend
beyond any declaration of emergency. Acknowledging these very real and serious
challenges, this report nevertheless seeks to shine a light on various decision points
undertaken by the Beshear Administration in its handling of the on-going pandemic.
In my role as Treasurer, I am responsible for ensuring that expenditures of the
Commonwealth conform to the Constitutions of the United States and the
Commonwealth of Kentucky. Accordingly, my Office has undertaken a review of
documents received from multiple health departments, as well as the Kentucky State
Police, regarding actions that were taken in relation to the First Amendment exercise
of Kentucky citizens during the COVID-19 pandemic. This report shows:
x The targeted monitoring of churches by local health departments at the
direction of state officials;
x The coordinated surveillance of churches by the Kentucky State Police, which
included officers remaining posted outside church services where church-

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goers were instructed that they faced the threat of repercussions, including
criminal penalties and quarantine orders for their attendance;
x The disdain shown by the Administration for the sincerely held religious
beliefs of the Commonwealth’s citizens; and
x The enforcement distinctions drawn by the Administration between protests
based on the subject matter of those protests.
The federal courts have been clear in their holdings that the Administration’s
orders have violated the Constitution. Even more concerning is the fact the
Commonwealth is still under a state of emergency as declared by the Governor
pursuant to KRS 39A, and he has made clear in federal court filings that he still seeks
the authority to engage in the same sort of activities found to be unconstitutional by
federal courts should, in his determination, the need arise. Thus, the threat to the
Constitution posed by this Administration’s decisions as they relate to the pandemic
has not yet passed. This information is intended to assist the General Assembly as
it weighs its legislative response to the pandemic and to ensure that the constitutional
rights of Kentucky’s citizens are respected and upheld. As U.S. District Judge
Gregory Van Tatenhove explained in Tabernacle Baptist Church v. Beshear, “It
would be easy to put [the Constitution] on the shelf in times like this, to be pulled
down and dusted off when more convenient. But that is not our tradition. Its enduring
quality requires that it be respected even when it is hard.”

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TABLE OF CONTENTS
I. INTRODUCTION ..................................................................................1
II. GENERAL BACKGROUND .................................................................5
III. FINDINGS...............................................................................................9
THE GOVERNOR’S OFFICE, KENTUCKY STATE POLICE & THE CABINET FOR
HEALTH & FAMILY SERVICES ENCOURAGED & PARTICIPATED IN THE
UNCONSTITUTIONAL SUPPRESSION OF FIRST AMENDMENT EXERCISE
A. Violations Related to Religious Assembly
(1) Governor’s Office & Law Enforcement ...................................10
(2) State Health Officials ...............................................................15
(3) Health Departments .................................................................18
B. Violations Related to “Non Religious”

First Amendment Exercise ..............................................................22
APPENDICES
1. Emails & Records: Governor’s Office, CHFS, Law Enforcement & Health
Departments
2. Executive Orders
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I. INTRODUCTION
A. ROLE OF STATE TREASURER
The State Treasurer is one of six independently-elected executive officers set
forth in Kentucky’s Constitution. Kentucky law tasks the Treasurer with the duty to
execute payments on behalf of the Commonwealth. As part of this responsibility,
the Treasurer has an obligation to ensure that all governmental expenditures are
permitted under the Constitutions and laws of the United States and the
Commonwealth of Kentucky.
B. NATURE OF INVESTIGATION
Significant concerns have been publicly raised regarding the legal
permissibility of many actions taken by the Beshear Administration in response to
the COVID-19 pandemic. Several of these actions resulted in court decisions
overturning actions of the Administration. The Treasury, in response to the concerns
of the public, issued several requests for documents to multiple health departments,
as well as the Kentucky State Police, regarding actions that were being taken in
relation to the First Amendment exercise of Kentucky citizens during the COVID-
19 pandemic.
The Treasury reviewed documents from several of Kentucky’s local health
departments, as well as a limited set of non-sensitive documents from the Kentucky
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State Police. The Treasury reviewed over 10,000 pages of responsive records in
preparing this report.
The Treasury has not yet pursued any Open Records Appeals for a handful of
local health departments who did not fully respond to the records requests, nor has
the Treasury pursued any further review of redactions that were included in
additional records.
C. LIMITED SCOPE OF REPORT
The Treasury’s request for documents to local health departments and the
Kentucky State Police were expressly limited to issues involving First Amendment
activities. The Treasury, therefore, has not included in this report any information
related to other potential constitutional or statutory violations committed by the
Administration, including issues related to: the separation of powers; the non-
delegation doctrine; violations of Chapter 13A; arbitrary action or other violations
under Sections 1 and 2 of the Kentucky Constitution; generalized due process
concerns; or, the creation and enforcement of the interstate travel ban.
This report is also limited in the amount of time covered. The requests
covered terms such as “church,” “congregation,” or “protest” during the period from
March 1, 2020, to approximately June 15, 2020. As some record responses were
not received until September, a few responsive records occur after June 15, 2020.
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D. GENERAL SUMMARY
The Treasury’s review of the documentation reflected a few pivotal pieces of
information. First, local health officials have been facing a massive task in their
receipt of guidance from the state level and translating it into action; this guidance,
particularly in the early stages of the pandemic, was voluminous, quickly changing,
and often lacking in clarity and consistency. Despite all the challenges posed by the
COVID crisis, local health officials have consistently stepped up to the behemoth
task placed in front of them, and have performed admirably in communicating
information to the public and enforcing the policies set forth by the Administration.
At the same time, however, the Administration’s failures in creating a
cooperative and constitutionally-permissible approach to First Amendment activities
has caused or contributed to unnecessary conflict and unconstitutional enforcement
in many instances. While many local health departments have been able to maintain
productive, cordial and, it appears, legally compliant procedures regarding First
Amendment exercise, others have taken a heavy-handed approach, encouraged by
high-level officials within the Beshear Administration.
Based upon the Treasury’s review, it is recommended that changes be made
to Kentucky law to clarify limitations on the Governor’s emergency authority under
Chapter 39A. Local health officials expressed, on multiple occasions, that they felt
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constrained to act in an unconstitutional manner, based on the directions received
from high-level Administration officials. KRS Chapter 39A should be modified to
provide protection and clarification not only for the people of the Commonwealth,
but for local health and law enforcement officials who are tasked with enforcement
efforts.
Finally, the Treasury will establish an additional means through which
concerned state or local employees, or the general public, can provide confidential
information regarding potential constitutional or legal violations, without fear of
retaliation.
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II. GENERAL BACKGROUND
The general background is familiar to most and can be easily found through a
review of news stories and federal court decisions. A very brief summation is
warranted related to the narrow scope of this report.
Throughout the COVID-19 pandemic, the Beshear Administration has acted
through a lengthy series of all-encompassing executive orders, which seek to control
an almost limitless scope of activities for individuals within the Commonwealth. The
Attorney General, for example, estimates that, as of late August, there were
approximately 150 “orders, guidance documents, and emergency regulations” issued
in the wake of the initial March 6, 2020, emergency declaration.1 Several of these
orders were directly aimed at First Amendment activities.
On March 19, 2020, an Executive Order was entered banning “all mass
gatherings” which specifically included “community, civic, public, leisure, [and]
faith-based” gatherings. See Appendix 2, March 19, 2020 Executive Order. This
executive order, however, excluded a large number of gatherings from its scope:
For the avoidance of doubt, a mass gathering does not include normal
operations at airports, bus and train stations, medical facilities, libraries,
shopping malls and centers, or other spaces where persons may be in
transit. It also does not include typical office environments, factories or
retail or grocery stores where large numbers of people are present, but
maintain appropriate social distancing.
1
See, Brief for the Commonwealth of Kentucky, Beshear v. Florence Speedway, 2020-CA-
000834, p. 4.
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Id. at ¶ 3. On March 25, 2020, the Governor issued Executive Order 2020-257, which
closed all businesses that “are not life-sustaining.” Executive Order 2020-257 listed
approximately six (6) pages of “life sustaining” businesses. See Appendix 2,
Executive Order 2020-257.
Several federal lawsuits were initiated regarding the Governor’s actions as
they related to religious exercise. Two of the lawsuits arose from the Governor’s
use of Kentucky State Police to shut down services at Maryville Baptist Church in
Bullitt County. On May 2, 2020, a panel of the United States Sixth Circuit Court of
Appeals entered a preliminary injunction, which enjoined “[t]he Governor and all
other Commonwealth officials…from enforcing orders prohibiting drive-in services
at the Maryville Baptist Church if the Church, its ministers, and its congregants
adhere to the public health requirements mandated for ‘life-sustaining’ entities.”
Maryville Baptist Church v. Beshear, 957 F.3d 610 (6th Cir. 2020).
On May 8, 2020, United States District Judge Gregory F. Van Tatenhove
issued a preliminary injunction, allowing churches statewide to begin holding
services, so long as they adhered “to applicable social distancing and hygiene
guidelines.” Tabernacle Baptist Church, Inc. v. Beshear, 3:20-cv-00033-GFVT,
Docket Entry 24 (E.D. Ky. May 8, 2020). The following day, the Administration
issued a new executive order excepting churches from the mass gathering
prohibitions. See Appendix 2, May 9, 2020 Executive Order.
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On the same day this updated Executive Order was issued, the Sixth Circuit
Court of Appeals issued an injunction prohibiting the Governor and other state
officials “from enforcing orders prohibiting in-person services at the Maryville
Baptist Church if the Church, its ministers, and its congregants adhere to the public
health requirements mandated for ‘life-sustaining’ entities.” Roberts v. Neace, 958
F.3d 409 (6th Cir. 2020). In finding that the Governor’s orders had violated the
United States Constitution, the Court noted as follows:
Keep in mind that the Church and its congregants just want to be treated
equally. They don’t seek to insulate themselves from the
Commonwealth’s general public health guidelines. They simply wish
to incorporate them into their worship services. They are willing to
practice social distancing. They are willing to follow any hygiene
requirements. They do not ask to share a chalice. The Governor has
offered no good reason for refusing to trust the congregants who
promise to use care in worship in just the same way it trusts
accountants, lawyers, and laundromat workers to do the same.
Id. These decisions did not, however, end the litigation related to the Governor’s
actions.
On June 29, 2020, the Administration filed requests to dissolve the injunctions
in both the Maryville and Roberts cases. The administration argued that the United
States Supreme Court “has issued intervening law clarifying that enjoining the mass
gatherings order was improper.” Maryville Baptist Church v. Beshear, 3:20-cv-278
Memorandum in Support of [Governor’s] Motion to Dissolve the Preliminary
Injunction & Injunction Pending Appeal (Docket Entry 46) (June 29, 2020). The
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Administration takes the position that the injunctions were wrongly issued, that they
are “no longer good law” and that “it is entirely permissible for state officials to treat
laundromats and offices differently from places of mass gathering.” Id. at 4-5. The
Administration believes that “like the California Governor, Governor Beshear
should be afforded broad latitude” in his decisions, and that the court needs to
“restore the leeway” the Governor needs “in the event the disease returns in force,
or some other emergency arises.” Id. at 5-6 (emphasis added).
On October 19, 2020, the Sixth Circuit issued an update to the Maryville and
Roberts decisions, sending the Roberts case back to the District Court for further
briefing. The Sixth Circuit’s stated rationale is that, per the Court, “the Governor has
raised the possibility of dissolving the injunction in the Maryville Baptist Church
case on the ground that intervening legal developments make it wrong.” Roberts v.
Neace, 20-5465 Opinion at p.6 (6th Cir. Oct. 19, 2020). The Court noted that the
Governor’s position suggests that the Administration may seek to dissolve the
injunction, and “that he wishes to have the authority to ban indoor church services
again.”
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III. FINDINGS
THE GOVERNOR’S OFFICE, KENTUCKY STATE POLICE & THE CABINET FOR
HEALTH & FAMILY SERVICES ENCOURAGED & PARTICIPATED IN THE
UNCONSTITUTIONAL SUPPRESSION OF FIRST AMENDMENT EXERCISE
The free exercise of religious rights and the right of assembly lie at the heart
of the First Amendment to the United States Constitution, as well as Sections 1 and
5 of the Kentucky Constitution. For sake of simplicity, this report will break the
violations down into two sections: first, violations related to “religious assembly,”
and second, violations related to non-religious protests or “assembly.”
As noted above in Section II(C), the investigation by the Treasury did not
request information related to other potential violations of Kentucky’s Constitution
or statutes. Thus, this report will be limited to only First Amendment concerns.2
A. Violations Related to Religious Assembly
After the entry of the Governor’s March 19, 2020, Executive Order, several
of the responsive local health departments began a series of actions to monitor local
churches,3 with frequent requests for law enforcement assistance. In addition, the
Administration took action directly related to religious assemblies, including
directing law enforcement to monitor and shut down religious services. These
2
There is ongoing litigation in the Kentucky Supreme Court related to, among other things, the
constitutionality of the Administration’s executive orders and the delegation of authority to the
Governor pursuant to Chapter 39A.
3
This report will utilize the term “churches” as the responsive records were overwhelmingly
related to Christian houses of worship.
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actions were not empty words but were consistently backed up with threats of
criminal prosecution for failure to comply.
(1) Governor’s Office & Law Enforcement
The Governor’s daily press conferences and press releases 4 had numerous
mentions of religious services and related admonitions regarding religious
restrictions. On Saturday, March 28, 2020, for example, one local official properly
characterized these statements during his press conferences as a “call out” of a local
church, and emailed the local health department on the issue. The health department
responded, saying “If you have an available police officer, can they swing by and
just do a visual…”. See Appendix 1, Emails with NKY Health Department (March
28, 2020). Emails reflect that the Governor directly contacted at least two judges-
executive on or about April 7 and April 9, 2020, regarding concerns about churches
holding services in their respective counties. See Appendix 1, Emails with Bullitt
and Jessamine County Health Departments (April 7 & April 9, 2020).
During this time, law enforcement was directed by the Governor’s Office to
take action against local churches who were refusing to follow the March 19, 2020,
shut-down Executive Order. In an email sent to numerous KSP officials throughout
the state, Kentucky State Police Commissioner Rodney Brewer, indicated: “I am
4 The daily press releases for at least ten dates between March 21, 2020 and April 12, 2020,
specifically mentioned issues related to houses of worship. The press releases are available for
review at: https://governor.ky.gov/news (last visited October 20, 2020).
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attaching a flyer directed to me from the Governor’s office via the local health
department concerning churches in your post area that are expected to be non-
compliant…Please see that the following actions are taken regarding this situation:
• A visible presence at or near the parking lot entrance by at least two uniformed troopers utilizing at least one
marked SP as attendees are entering the parking lot for any in-person services that may occur on April 10th and
12th (Friday & Sunday);
• PPE masks and gloves may be utilized but are not mandatory;
• Units are not expected to enter the actual church building;
• Copies of the attached flyer concerning COVID guideli nes and a self-imposed quarantine by those in attendance
should be placed on the windshield of each car in the parking lot after the service begins.
• License plate numbers should be recorded for those vehicles present at each gathering.
• A list containing the name and address of each vehicle owner should be forwarded to your respective Troop
Major by the close of business April 13th in order that the local health department can formally send out notices
of violation.
Image 1. See Appendix 1, Email from Commissioner Brewer to KSP Officials (April
10, 2020). The following image were to be placed on any vehicles that were
observed at the churches:
NOTICE
This vehicle's presence at this location indicates that its occup ant s are present at a JllaSS gathering
prohibited by Orders of the Governor and the Cabinet for Health and Family Services. As a result,
this vehicle's occupants, and anyone they come into contact with, are at risk of contracting
COVID-19, a respiratory illness that can be severe and lead to death, particularly for o lde r
adults and those with underlying heart, lung, kidney, and immunity issues.
Where p eople congregate unnecessarily,

or fail to follo= adequate social distancing practices,
they are spreading COVID-19,CREATING SCENES OF AN EMERGENCY
THIS VEHICLE'S LICENSE PLATE NUMBER HAS BEEN RECORDED.*
Employees of the local he alth depart ment will be contacting those associated with this vehicle w ith self-quarantine docume nts,
including an agreeme nt requiring this vehicle's occupants and anyone in the househ old to self-quarantin e for 14 days.
Failure to sign or comply with the agreement may result infurther enforcement measures.
Please be advised that KRS 39A.990 makes it a Class A misdemeanor to violate an emergency order.
• Reco rds maintained by the Commonwealth are subject to disclosure unde r the Open Records Act.
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Image 2. See Appendix 1, Email from Commissioner Brewer to KSP Officials (April
10, 2020). The email included an attachment listing not only Maryville Baptist
Church, but also: two other churches in Louisville; one in Falmouth; and, one in
Morgantown. These churches were to be monitored by Kentucky State Police, with
a “visible presence” “by at least two uniformed officers.” In addition, on April 11,
the COVID Shutdown flyer was forwarded to KSP officials to be used for an
unnamed “Hopkinsville Church.” Appendix 1, “Fwd: Church detail” KSP Emails
(April 11, 2020). No other responsive information was provided regarding the
outcome of this monitoring.
The “NOTICE” to be placed on the vehicles of any individuals attending a
church included the notation: “Please be advised that KRS 39A.990 makes it a Class
A misdemeanor to violate an emergency order.” The “NOTICE” also told people
that their license plate numbers were “[r]ecords maintained by the Commonwealth
are subject to disclosure under the Open Records Act.” Thus, the notice raised the
specter of both criminal prosecution, and that an individual’s license plate number
and attendance would be publicly released.
At the same time, the KSP received a “Church Protocol” document that was
being circulated “TO ALL Sheriffs,” and many local health officials, which listed
possible offenses that could be used to charge non-compliant church officials:
[L]aw enforcement officials can cite for violations of KRS 39A.180

(using UOR Code 02689 for any misdemeanor charge not covered by
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other code). Disorderly conduct under KRS 525.060 may also fit, as a
subsection describes the element of “failing to disperse” when ordered.
The same guidance also noted that “[T]his is clearly a first amendment issue and any
action taken certainly has significant potential to result in litigation” and that “[t]here
is a potential for the need for force, although it is a very low potential.” Appendix 1,
“Fw: Church Protocol” Email to Rodney Brewer (April 10, 2020). All of this
information was circulated, and the potential actions were being planned at a time
when the Governor was noting in his press conferences that “99.8%” of houses of
worship were shut down. See Governor Press Release April 11, 2020 (available
online at https://governor.ky.gov/news (last visited October 20, 2020).5
On Sunday, April 12, as has been well-documented publicly, Kentucky State
Police troopers placed the “NOTICES” on vehicles at Maryville Baptist Church, and
recorded the license plate numbers of those in attendance. Emails obtained from the
Kentucky State Police reflect, however, that several other churches were monitored
by Kentucky State Police troopers on April 12, 2020. KSP Commissioner Brewer
received email reports from Post 3 regarding the monitoring of churches located in
Barren County, Butler County, and Logan County. 6 The following information was
conveyed by the troopers to Commissioner Brewer:
5
As can be seen in Image 5, reflecting totals from June, church congregations have proved to be a
very limited source of Kentucky COVID-19 cases. This appears to remain the case, even as
churches have reopened.
6
None of these counties were included in our records requests to local health departments, and
no further information is currently available beyond what is included in the KSP email.
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At the location listed at the Brooklyn Missionary Baptist Church in Butler County, Sgt.- traveled to the
location on Friday, April 10, 2020 and found no services (CAD#2020-004468906). On Sunday, April 12, 2020 he went
back to the church and while placing the issued papers on the windshields was encountered by the parishioners. Sgt.
l l l ladvised only 9 people were present and they were practicing social distancing. He provided them the papers and
left without incident. He wrote down their registration information and placed it in the CAD if further action is
requested. (CAD# 2020-0470337)
The second complaint was at the St Abram Orthodox Church located at 106 Wilson Road in Auburn, KY. It was reported
that several cars were in the parking lot. Sgt. - went to the church and found only 6 or 8 cars present. He
observed the location and no others arrived. He did not enter the church or take any further action. (CAD#2020-
00470282)
The last complaint was at Westwood Church of Christ located at 106 West wood St in Glasgow, KY. Information was
received that parishioners were parking down the street and the church buses were taking them to the facility. Upon
receiving the information I sent Trooper to observe. Upon arrival he observed no cars at the church,
but several parked down the road. He remained for approximately two hours and only observed three people leaving
the facility. He did not attempt to enter the church or take any further action. (CAD#2020-00470371)
Image 3. This information indicates that troopers observed these locations, in one
instance for approximately two hours, and in at least one instance, provided the
“NOTICE” document to those in attendance. The “NOTICE” document was
provided despite the fact that there were “only 9 people present and they were
practicing social distancing.”
The information related to the church surveillance by the Kentucky State
Police was sent directly by Commissioner Brewer to LaTasha Buckner, the Chief of
Staff for Governor Beshear. Chief of Staff Buckner received the surveillance reports
on April 13, 2020, and acknowledged receipt of the surveillance report within eleven
minutes of receipt. Appendix 1, Emails Between Buckner and Brewer (April 13,
2020). That same date, the General Counsel for the Cabinet for Health and Family
Services obtained a list of the license plate information, and advised the health
department that if the individuals did not “sign a voluntary quarantine form” that
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“further steps” can be discussed. Appendix 1 “License plate info for church goers”
(April 13, 2020).
(2) State Health Officials
Several high-level state officials were directly involved in providing
documentation and advising the Bullitt County Health Department on the Maryville
Baptist Church incident. Emails were exchanged with Dr. Steven Stack, the
Commissioner of the Department for Public Health (DPH), Kelly Alexander, the
Chief of Staff for the DPH, and Wesley Duke, General Counsel for the Cabinet for
Health and Family Services. See, e.g., Appendix 1 “Enforcement Notice Served”
Email to Stack & Alexander (April 7, 2020). These officials were not, however, only
involved in Bullitt County, as they were tasked with statewide-level implementation
and enforcement efforts.
On Sunday, March 22, 2020, a mere three days after entry of the Executive
Order banning faith-based gatherings, a church in Northern Kentucky indicated to
its congregation that it intended to try to go forward with services. Church
correspondence obtained by the health department indicated that that services were
going to be limited to a certain number of people “[T]his is to keep the proper
distance between people to prevent contagion.” People were also requested to sign-
up online and were warned “[i]f you fail to sign up you may not be able to attend.”
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This information was conveyed by the health department to Dr. Stack, who tellingly
responded:
Thank you,. ,
s,gh. No cure for ignorance or obstinacy.
Thanks for letting me know . I w ish I had an answer to offer. One thing, certainly don't send in any
arm ed officers. That would undermine our efforts to inspire people to be good citizens and do the
right thing.
Steve
Steven J. stack, MD, MBA, FACEP

Commissioner
Kentucky Department for Public Health
Kentucky Public Health

Pl-,•V'IIIII l'•"fflftl•, p,,.,._,.
Image 4. Appendix 1, Email from Stack to NKY Health Department (March 22,
2020). Following Dr. Stack’s comment that there was “no cure for ignorance or
obstinacy” the local health official indicated that “I need to talk to you in more detail
about this.” Id. No further communication on the subject is available, and the other
responding departments did not have additional direct correspondence with Dr.
Stack regarding similar issues. No Open Record request has, as of this time, been
sent to CHFS, DPH or Dr. Stack personally.
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The responsive records included one document from the Kentucky
Department of Public Health, dated June 26, 2020. The following image appears in
the document:
Current situation in Kentucky1

• other Congregate
Facilities might include:
Long-term Care Facilities (LTCFs), Other Congregate Faci lities,* Group Homes, :
Residential Treatment :
Places of Worship and Workp lace Settings Facilities,
Inpatient Psychiatric •
Hospttals and Correctional:
Facilities •
206 Facilities 72 Workplaces

with at least one case with 2 or more cases
5 Places of Worship
175 LTCFs w it h 2 or more cases At least
31 Other Congregate*
1,037 cases - 5 deaths
At least
Residents: 2,661 cases, 358 deaths In
170 cases - 32 deaths
St aff: 1,073 cases, 3 deaths
In 32 counties
2 counties
Image 5. See Appendix 1 (June 26, 2020). This image reflects that, taking the
numbers at face value, as of June 26, 2020, there were 170 cases that were tied to
houses of worship, out of 14,859 cases total. Thus, by the Administration’s own
statistics, 1.1% of all COVID-19 cases in Kentucky were tied to churches. On the
other hand, 3,734 cases, or just slightly over 25% of cases, were tied to “long-term
case facilities” or “other congregate facilities.”
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(3) Health Departments
As an initial matter, it deserves restating that many of the records from local
health departments reflect dedicated individuals trying to assist their local
communities with respect and fairness in their approach. The last email attached to
this report is a March 11, 2020, email that circulated among many health
departments. The document is from a local health official, who gave a list of
“suggestions” to local congregations, as well as his phone number and email. The
official went through a great number of practical solutions, framed as responsible
and reasonable ways that congregations could lessen the spread of COVID. See
Appendix 1, Church Suggestions Email (March 11, 2020). There were many emails
like this, where health officials appeared to do everything possible to be
accommodating and kind to pastors and congregations. As the restrictions from the
Governor’s Executive Orders were being put in place, many local health officials
indicated that they had to follow orders, even if some of them questioned whether
they had the authority to proceed.
While the most pressing concerns regarding First Amendment activity appear
to have direct involvement of state officials and state law enforcement, the records
obtained from local health departments did reveal that some local departments, in
response to the Governor’s Executive Orders, engaged in surveillance of churches,
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and utilized local law enforcement resources to either assist in surveillance or in
closing down services.
For example, on March 21, 2020, a local health department requested that a
local official “have an officer stop by the church to ensure they do not have service.”
The local official responded: “Police stopped by a couple of times to ensure the
church was closed. By their 2nd visit it was mostly closed and empty.” Appendix 1,
“Re: Church violating the social distancing and public gathering orders” (March
21, 2020). It should be noted that, three days earlier, this same department had
received a report of 300+ people working in a large business “many have flu like
symptoms;” the only responsive document that is available states that the health
department official was “not sure if we should reach out to them to provide guidance
specifically or let it ride.” Appendix 1, “Voicemail Notification” (March 18, 2020).
On the same weekend, March 22, 2020, another county health department
specifically assigned several employees to go out and monitor churches on Sunday.
Keene Churches --
Mount Pleasant Baptist Church -1108 Keene South Elkhorn

Macedonia Baptist Church - 103 Cushingberry Lane
Shun Pike Churches-
Grace Community Church of Nazarene 705 Shun Pike 10:30

Lighthouse Baptist 105 Shun Pike 10:30
Image 6. Appendix 1 “FW: Churches” (March 22, 2020).
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Our records request did not receive all reports from the employees who engaged in
the surveillance. However, the single report that was returned, noted that the
locations had been visited, how many cars were in the lot, and whether there were
signs on the doors. The employee noted that one church was having a service in the
parking lot, and it was “a stinking mess.” Appendix 1, “List of observation patrol
churches 3.22 10A-12P” (March 22, 2020).
The same county also indicated that it “would probably need” law
enforcement assistance in closing a church that had been having a service. Appendix
1, March 23, 2020 Email re: Church (March 23, 2020). An email from approximately
a week later regarding another church indicated that the department had “received a
multitude of complaints from citizens as well as law enforcement with pictures that
suggest the social distancing was not followed.” Appendix 1, Concerns (March 30,
2020).
Included in the documents received from the responding health departments
were, occasionally, communications from other health departments who were not
subject to the records request. The following items were of interest, based upon the
nature of the Treasury’s inquiry.
A non-responding health department indicated that at some point prior to
March 23, 2020, most likely either the 21st or the 22nd, the local Sheriff reached out
to directly contact a minister who had planned to have a service on the 22nd. Per the
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email, “[T]he sheriff called the minister, and about an hour later, the minister posted
that the church would be closed.” Appendix 1, Enforcing Closures (March 23, 2020).
Earlier in the same email chain, a director from another local non-responding health
department indicated that “[o]ur issue is with churches – and no one feels
comfortable crossing that ‘religion’ line…”. Id.
During early April, when the Governor’s daily briefings and releases were
replete with references to church services, it is also instructive to note an email that
was circulated amongst all local health departments, from a District Director in a
non-responding health department. The email stated that the District Director was
“HIGHLY OFFENDED” by the fact that there were religious leaders who were
standing against the Governor’s orders. This Director indicated that “there is not a
religious leader in this country that I would hesitate to go toe-to-toe with to debate
saving lives by social distancing.” The Director further noted that “I’m taking the
reactions of our community members very personally.” This email was circulated to
at least one County Judge Executive, an official with CHFS, and numerous officials
in the local school systems, as well as all Local Health Department Directors
throughout the state. Appendix 1, FW: Situation Report (April 10, 2020).
21
1298
B. Violations Related to “Non-Religious” First Amendment Exercise
On April 15, 2020, a crowd of approximately 100 individuals organized a
protest at the State Capitol during the Governor’s press conference. After this
protest, the Kentucky State Police restricted public access to areas around the
southeast side of the Capitol building, and placed barriers around certain areas.
These barriers had signage to the effect that the areas were “restricted zones” and
failure to adhere to them could result in criminal penalties. This event, along with a
later event on May 2, when KSP allegedly blocked off additional areas for “drive
through” protesting, resulted in a federal lawsuit. On June 24, 2020, United States
District Judge Gregory F. Van Tatenhove entered a Preliminary Injunction, finding
that the Governor’s actions related to First Amendment gatherings, had gone too far.
See Ramsek v. Beshear, 3:20-cv-00036-GFVT, Docket Entry 47 (E.D. Ky. June 24,
2020).
Unlike the religious exercise and assembly issues previously discussed, there
do not appear to be widespread violations of general, non-religious gatherings,
where people are attempting to exercise their First Amendment rights. Other than
the issues set forth in the Ramsek case, the only instance uncovered during a review
22
1299
of documents was a single incident where a health department advised that a local
official “may” use police to break up a protest by parents who were protesting a
graduation cancellation, as it “technically goes against the Governor’s order related
to mass gatherings.” See Appendix 1, Emails May 7, 2020.
Indeed, by mid-June, high-level officials at CHFS emailed all local health
departments, and informed them that health departments were not to attempt
enforcement against the ongoing protests that were taking place in many areas
throughout the state. Appendix 1, Email from Wes Duke to LHDs (June 12, 2020).
23
1300
APPENDIX 1
Emails & Records: Governor’s Office,

c CHFS,
Law Enforcement & Health Departments
r
1301
From: @nkyhealth.org>
To:
Subject: Fwd: FreePBX Voicernail Notification
Date: Wednesday, March 18, 2020 12:28:52 PM
Attachments:
Allegedly a large business where multiple people (300+) and many have flu
like symptoms ....not sure if we should Teach out to them to provide guidance specifically or let
it ride ...
Northern Kentucky Health Department

New address: 8001 Veterans Memorial Drive, Florence, KY 4 1042
Office: I Fax:
@nkyhealth.org
EEOIM/FN ets/Disable<l/H
NOTICE OF CONFIDENTIALITY: This e-lllll~. including any attachments, is intended only for the use of the rndividual or entity to which it is addressed and may contain
confidential information !hat is legally privileged and_exempt from disdosure under applicable law. If the reader of this message is not the intended recipient, you are
notified that any review, use, disclosure, distribution or copying of this commun.ication is strictly prohibited. If you have received th1s communication in error, please
contact the sender by reply e-01ail and destroy all copies.of the original message.
---------- Fo1warded message ---------

From: FreePBX Phone System <asterisk@freepbx.sangoma.local>
Date: Wed,Mar 18, 2020 at 11:39 AM
Sub.· ect: FreePBX Voicemail Notification
To: @nkyhealth.org>
There is a new voicemail in mailbox 2009:
From: "FLS CHURCH,VA" ~ >

Length: 0:44 seconds
Date: Wednesday, March 18, 2020 at 03:39:33 PM
Dial *98 to acce$s your voicemail by phone.

Visit http://AMPWEBADDRESS/ucp to check your voicemail with a web browser.
You received this message because you are subscribed to the Google Groups "Communicable
Disease Response Team" group.
To unsubscribe from this group and stop receiving emails from it, send an email to
CDRT+unsubscribe@nkyhealth.org.
1302
CABINET FOR HEALTH AND FAMILY SERVICES

OFFICE OF LEGAL SERVICES
Andy Beshear 275 East Main Street, 5W-B Eric C. Friedlander

Governor Frankfort, KY 40621 Acting Secretary
502-564-7905
502-564-7573 Wesley W. Duke
www.chfs.ky.gov General Counsel
ORDER
March 19, 2020
On March 6, 2020, Governor Andy Beshear signed Executive Order 2020-215, declaring a state of
emergency in the Commonwealth due to the outbreak of COVID-19 virus, a public health emergency.
Pursuant to the authority in KRS 194A.025, KRS 214.020, KRS Chapter 39A, and Executive Orders
2020-215 and 2020-243, the Cabinet for Health and Family Services, Department of Public Health,
hereby orders the following directives to reduce and slow the spread of COVID-19:
1. All mass gatherings are hereby prohibited.
2. Mass gatherings include any event or convening that brings together groups of
individuals, including, but not limited to, community, civic, public, leisure,
faith-based, or sporting events; parades; concerts; festivals; conventions;
fundraisers; and similar activities.
3. For the avoidance of doubt, a mass gathering does not include normal
operations at airports, bus and train stations, medical facilities, libraries,
shopping malls and centers, or other spaces where persons may be in transit. It
also does not include typical office environments, factories, or retail or
grocery stores where large numbers of people are present, but maintain
appropriate social distancing.
4. Any gathering, regardless of whether it is a mass gathering prohibited under

this Order, shall to the extent practicable implement Centers for Disease
Control guidance, including:
• maintaining a distance of 6 feet between persons;
KentuckyUnbridledSpiritcom An Equal Opportunity Employer M/F/D

1303
• encouraging good hygiene measures, including regular, thorough

handwashing, and providing adequate hygiene materials, including hand
sanitizing options;
• encouraging people who are sick to remain home or leave the premises;
and
• regularly cleaning and disinfecting frequently touched objects and

surfaces.
5. The Department of Public Health hereby delegates to local health departments

the authority to take all necessary measures to implement this Order.
The Cabinet for Health and Family Services will monitor these directives continuously and may extend
the directives beyond their current expiration date. The Cabinet will continue to provide information
and updates to healthcare providers during the duration of this Public Health Emergency.
Commissioner of Public Health

Department of Public th
Cabinet for Hea d Fa ·1y Services
Acting Secretary
Governor's Designee
1304
From: on behalf of @covingtonky.gov>

To:
Cc:
Subject: Re: urc violating the social distancing and public gathering orders
Date: Saturday, March 21, 2020 11:07:15 PM
P olice stopped by a couple of times to ensme the church was closed. By their 2nd visit it was
mostly closed and empty.
On Mru~020 5:23 PM, ~ @nkyhealth.org> wrnte:

Mayor_ ,
I spoke to the pastor of the church by phone a bit ago. I identified myself and who I was with.
I told him that the Ky Governor has directed that all in-person services be cancelled until
further notice due to Coronavims. I described the issue with him in plain language several
times and w hy it is important to close the church to keep parishioners from spreading the
illness. He said he would not h old service and would send people away when they showed up.
I reinforced this was a state wide order for all churches.
H owever I h ave the feeling that may_- ot ha en. Could you have an officer stop by the chmch
to ensure they do not have service? will also be calling you to request this to
address the concern expressed by you an colllillunity members as well as the health
department.
Sincerely ,

8001 · .· . · 41042
~Q/M{f~~:
t6i'
mfi;n1at.1~bla
~IALITY: This e-majl ind11dino anv attachment~·s int.ende~tly
th1e\..,tfse o t e. Iv ua or. ntin fov men It 1 aoctr ss ct anct ma cont
I~eg y_ pntvile.gJa i.Y'exempt irom
dis~osure un~er a;)P 1c~<fe law. r
. ticten
e
r.ea r or t m~sao.1:: 1s not the mten ect'rec1v1ent vo11 are not.Itlect tna1 nv r.e'aew use,
ct1sc os 1stnout:ron o .co . · m · ot ·. s conllnuiilC'a 10n 1s tn w r )ht 1tect. il · d h ve
rece1veW.'m~s comm1u11ca\10rfiii efror, p ease contact tfte sender ~~-fpPy e-mail and ~esft·oy all
copies otttie on gmai message.
On Mar 21, 2020, at 4:59 PM, ~ @nkyhealth.org> wrote:
More detailed infonnation .

1305

8001 Veterans Memorial Drive, Florence, KY 41042
Office:
EEOIM/FNets/Disabled/H
NOTICE OF CONFIDENTIAUTY: This e-ma~. including any altachmenls, is intended only for the use of the individual or entity to which ij is
addressed and may contain confidential infonnation that is legally privileged and exempt from disclosure under applicable Jaw. If the reader of this
message is not the intended recipient, you are notified that any review, use, disclosure, distribution or copying of this communication is strictly
prohibited. If you have received this communication in error, please contact the sender by reply e-mail and destroy all copies of the original
message.
---------- Fmwarded messa. e ---------

From: @covingtonky.gov>
Date: Sat, Mar 21, 2020 at 3:41 PM
Sub· ect: Church viola tin the social distancing and public gathering orders
To: @nkyhealth.org>
I received a plea from a concerned citizen. Ministe1io Jesus Liberta

church in Covington is staying open and does masses with over 60 people
in attendance. The Pastor refuses to close it despite Governor's order. It is
an hispanic church and many parishioners are listening to their pastor and
doin_g sleepovers overni_ght at church. Can you please send someone to
talk to them and get them to close their church just for now. Our police
department is available for backup if the church declines to obey the
health department.
Address: Ministerio Jesus Liberta, 16 E 9th st, covington, KY 41011. Pastor

Jose Luis Lopez.
■
1306
City of Covington, Office of the Mayor
20 West Pike St., Covington, KY 41011
direct | 859-292-2127 main
fax 859-292-2137
Facebook | Twitter
I
www.covingtonky.gov
I
Sign up to receive our Eblasts

I
Disclaimer: Please note all content in this email may be subject to open records request.
1307
------------
From: (LHD-Jessamine Co)
Sent: 25, 2020 10:29 AM
To: (LHD- Jessamine Co)
Subject: FW: Churches
(LHD- Jessamine Co) @ky.gov>

h 22, 2020 9:28 AM
(LHD - Jessamine Co) ~ @ky.gov>; (LHD-Jessamine Co)
.gov>
(LHD-Jess- @ky.gov>; (LHD-Jessamine Co)
< @ky.gov>; ~ amine Co) @ky.gov>
Subject: FW: Churches
- - House of God 108 Stephens has been added to your churches. Thanks
LHD- Jessamine Co)

2, 2020 9:15 AM
-Jessamine Co) . . - i@ky.gov>; (LHD - Jessamine Co)
(lHD-Jessamine Co)
LHD-Jessamine Co)
Subject: Churches
Keene Churches --
Mount Pleasant Baptist Church - 1108 Keene South Elkhorn

Macedonia Baptist Church -103 Cushingberry Lane
Shun Pike Churches-
Grat e Community Church of Nazarene 705 Shun Pike 10:30

Lighthouse Baptist 105 Shun Pike 10:30
Jessamine County Health Department

210 East Walnut Street
Nicholasville, KY 40356
Office: ; Fax:
1
1308
NOTICE OF CONFIDENTIALITY: This e-mail, induding any attachments, is intended only for the use of the individual or entity to which it is addressed and may contain confidential
information that is legally privileged and exempt from disdosure under applicable Jaw. If the reader of this message is not the intended recipient, you are notified that any
review, use, disclosure, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please contact the sender by reply e-
mail and destroy all copies of the original message.
2
1309
From:
To: (LHD- Jessamine Co); LHD-Jessamine Co)
-
Cc: (LHD - Jessamine Co); (LHD - Jessamine Co); (LHD-
Jessamine Co)
Subject: ’s list of observation patrol churches 3.22 10A-12P
Date: Sunday, March 22, 2020 12:19:26 PM
St Athnasius- 7 cars in lot- sign on door
-
Ignite - service in parking lot but tons of ppl not doing social distancing - a stinking mess-
called
East Maple- closed- no sign
Faith Baptist- 3 cars and sign on door
Nichlolasville Christian- no cars and sign on door
St Luke- closed and sign
Nicholasville Church of Christ- no sign but no cars either
Jehova’s witness- closed- no sign but no cars
Generations- closed w sign on door
Harmony- 3 cars and practicing social distancing when dude in truck was talking to them
outside
New beginnings- closed no sign or cars
Sent from my iPhone

1310
-
From:
Sent:
To:
(LHD-
Monday, March 23, 2020 11 :23 AM
Co)
Cc:
Subject:
Thanks ~ ..we will be having a conversation with them and let them know if they can't control the crowd, we will
have to disallow and would probably need your assistance _
Thanks,
Email: ~
NOTICE OF CONRDENTIAL/TY: This e-mo/11 including any atrachmenu , 1s intended onlyJar the use of ihe lnd/Vfdual or enrny 10 which Ir 1s addresseclond moy contam canfiden(IO/
infarmotfon that Is legally prill/leged and e,rempt from disclosure under applicable law. I/the reader af this message Is not rhe Intended reclplenr, yov are notified that any
review, use, disclosure, distribution, or copying of this communication ls strictly prohibited. if you have received this cammunicaVon In error, please conroct ihe sender by reply e-
mail and destroy all copies of the original message.
From: .org>
Sent: Monday, March 23, 2020 10:48 AM
LHD • •lco) ~ ky.gov>
Not sure who to report this to but i . church on had service yesterday. They
said it was a outdoor service but lots of them were out of their cars hugging and shaking hands and
not staying away from each other. I also noticed that they are inside their building today. I was told
maybe doing something with food for the needy ahd I get that but if they continue what th ey are doing
-
we Will see a rise I am afraid.
Sgt.
Public Information Officer
1311
To:
Cc: Kelly N Alexander JD. MA
Subject: Re: FW: from_the_pastor_coronavirus_letter_2.pdf [IMAN-DMS.FID583416]
Date: Monday, March 23, 2020 11:35:00 AM
Are you saying that we should just leave it alone? I need to talk to you in more detail about
this.

EEO/M/FNets/Disable<I/H
NOTICE OF CONFIDENTIALITY: This e-ma~. including any attachments, is intended only for the use of the individual or entity to which ii is addressed and may contain
confidential information that is legaOy privileged and exempt from disdosure under applicable law. If the reader of this message is not the intended recipient, you are
notified that any review, use, disclosure, distribution or copying of this communication is strictly prohibited. II you have received this communication in error, please
contact the sender by reply e-mail and destroy all copies of the original message.
On Sun, Mar 22, 2020 at 6:07 PM Stack, Steven J (CHFS DPH) <steven.stack@.ky.gov>
wrote:
Thank you,. .,
Sigh. No cure for ignorance or obstinacy.
Thanks for letting me know. I wish I had an answer to offer. One thing, certainly don' t send in any
armed officers. That would undermine our efforts to inspire people to be good citizens and do the
right thing.
Steve
Steven J. Stack, MD, MBA, FACEP
Commissioner
1312
'KentuckyPublicHealth
Pre-v-tt1H Preaaole .Protec-I
Sent: Sunday, March 22, 2020 5:15 PM
To: Stack, Steven J (CHFS DPH) <steven.stack@ky.goV>
Subject: Fwd: FW: from_the_pastor_coronavirus_letter_ 2.pdf [IMAN-DMS.FID583416]
..,.......................................................................................................................................................................................................................................................,....
: ...CAUTION.. PDF attachments may contain links to malicious sites. Please contact the :
1COT Service Desk ServiceCorrespondence@ky.gov for any assistance.
I1
.•...................................................................................................................................................•.
, advised me to fo1ward this email to you as a heads

up. We . ave 1st01y wit 1s C urc Assumption) in Walton and are still in litigation. A
little over a week ago, we had checked to see if they were closed and it appeared they had.
We reviewed the steps they were taking that were consistent with the Governor's
recommendation. Evidently when the Governor ordered no faith-based gatherin- the
decided to o in a different direction (see attached). We leamed about this from
las~ t. As you can see, our attorney has reached out to t e
AG's of ice an w1 wor with Ill and the county attorney to dete1mine the best next steps
to address.
Am happy to explain more as you see fit.

1313
From:
To:
Cc:
Subject:
Date:
----
Stack, Steven J (CHFS DPH) on behalf of Stack, Steven J (CHFS DPH) <steven.stack@ky.gov>
@nkyhealth.org
Alexander, Kelly N (CHFS DPH)
RE: FW: from_the_pastor_coronavirus_letter_2.pdf [IMAN-DMS.FID583416]
Sunday, March 22, 2020 6:07:49 PM
Thank you,
- ,
Sigh. No cure for ignorance or obstinacy.
Thanks for letting me know. I wish I had an answer to offer. One thing, certainly don’t send in any
armed officers. That would undermine our efforts to inspire people to be good citizens and do the
right thing.
Steve
Steven J. Stack, MD, MBA, FACEP

Commissioner
KentuckyPublicHealth
Pto-V't!nl. fl'uuoMe Pnue.eL
Sent: Sunday, March 22, 2020 5:15 PM
To: Stack, Steven J (CHFS DPH) <steven.stack@ky.gov>
Subject: Fwd: FW: from_the_pastor_coronavirus_letter_2.pdf [IMAN-DMS.FID583416]
**CAUTION** PDF attachments may contain links to malicious sites. Please contact the COT
Service Desk ServiceCorrespondence@ky.gov for any assistance.
, advised me to forward this email to you as a heads

up. We have history with this Church (Assumption) in Walton and are still in litigation. A
little over a week ago, we had checked to see if they were closed and it appeared they had.
We reviewed the steps they were taking that were consistent with the Governor's
-
recommendation. Evidently when the Governor ordered no faith-based gatherings, they
decided to go in a different direction (see attached). We learned about this from
•
last night. As you can see, our attorney has reached out to the
AG's office and will work with and the county attorney to determine the best next steps
to address.
Am happy to explain more as you see fit.

1314
From: @ky.gov>
To: ; LHD Directors;
Subject:
Date: Monday, March 23, 2020 12:36:25 PM
We had an issue with a church posting on facebook that it would be open for worship service
Sunday. This was brought to the attention of public officials. The sheriff called the minister, and
about an hour later, the minister posted that the church would be closed. Our sheriff handled it very
professionally. We have had more issues with enforcing social distancing in businesses t hat have call
centers, with employees sit t ing less than 6 feet away from each other. Our environmentalists have
been meeting with management of those businesses and making recommendations on how to
comply.
From: @ky.gov>
Subject: RE: Enforcing Closures
Our issue is with churches- and no one feels comfortable crossing t hat "religion" line...
From: Dist)
ky.gov>
Subject: RE: Enforcing Closures
We have had a few businesses that were refusing but the community does a wonderful job of
"publicly shaming" to assist with these efforts©. We have only had a few where we had to use law
enforcement but our local law enforcement in every community stands behind us. I hope you all are
finding the same in your communities.
From: @lcdhd.orgJ
To: LHD Directors <LHDDi · {CHFS DPH DWH)
"--'-'-'-~>; (CHFS- )
Subject: Enforcing Closures
I'm trying to get a sense of how difficult it is for LHDs to enforce all the mandatory
closing. Most facilities comply. The ones that don't, are fiercely oppositional.
- ····any guidance on how to enforce this, other than taking people to court
(which no one has the time to do)?
1315
- · OF CONFIDENTIALITY: This e-mail, including any attachments, is intended

only for the use of the individual or entity to which it is addressed and may contain
confidential information that is legally privileged and exempt from disclosure under
applicable law. If the reader of this message is not the intended recipient, you are
notified that any review, use, disclosure, distribution or copying of this communication
is strictly prohibited. If you have received this communication in error, please contact
the sender by reply e-mail and destroy all copies of the original message.
1316
From:
To:
Subject: Re: F orence Walmart
Date: Saturday, March 28, 2020 10:39:29 AM
I've a~o checked in with~ ou have an available police officer, ,c an they swing
by and just do a visual an~ or I know what they see?
*Promoting and protecting the health of Northern Kentucky by providing

public health services essential for a safe and healthy community.*
NOTICE OF CONFIDENTIALITY: This e-mail, including any attachments, is intended only

for the use of the individual or entity to which it is addressed and may contain confidential
info1mation that is legally privileged and exempt from disclosure under applicable law. If the
reader of this message is not the intended recipient, you are notified that any
Teview, use, disclosure, distribution or copying of this communication is stt·ictly prohibited. If
you have received this communication in enor, please contact the sender by reply e-mail and
destroy all copies of the original message.
On Mar 28, 2020, at 9:45 AM, @florence-ky.gov>

wrote:
Do you have any update on the church of Scientology? Do you believe that is the
church in Florence that the governor called out yesterday in his press conference?
Or are there others?
On Mar 27 2020, at 6:29 PM,

@nkyhealth.org> wrote:
F01warding on to our Env. Health Manager. I can vouch for her desc1·iption of
Costco - my husband went there yesterday and reported to me the same thing.

1317

Office:
Ill
EEO/M/FNefs/Disablecl/H
NOTICE OF CONFIDENTIALITY: This e-mail, including any attachments, i_ s intended only for the use of the individual or entity to which it is
addressed and may contain confidential infonnalion that is legally privileged and exempt from disclosure under applicable law. ti the reader of this
message is not the intended recipient, you are notified that any review, use, disclosure, distribution or copying of this COflYflunication is strictly
prohibited. If you have received this COflYIIUnicatioo in error, please contact the sender by reply e-mail and destroy all copies of !he original
message.
On Fri, Mar 27, 2020 at 6:23 PM @tlorence-

ky gov> wrote:
Begin fo1warded message:
Subject: Florence Walmart
Hi_ ,
Thanks for providing your email address to the public.
My husband and I visited the Florence Walmait this afternoon. We went
shopping for staples last week and at that time Walmart was not busy.
However, this afternoon, we went to Walmaii to get a pick-up order and
purchase a couple other necessities. Walmait w as crazy !!! People were n ot
practicing social distancing, handling clothes and jewele1y , and milling ai·ound
in aisles.
We left Walmali to swing by Costco for a couple of staple items. Costco had an
employee p osted out front to limit the number of customers coming in the
store. When we were able to go in, we picked up our items and exited the store
in just a few minutes without coming close to anyone.
My su ggest.ion: please confum that Walmait limit the nun1ber of people in the
store at one time.
Thanks for our time.
1318
- ( L H D-Jessamine Co)
From: - (LHD-Jessamine Co)

Sent: Monday, March 30, 2020 12:00 PM
To:
Cc: (LHD- Jessamine Co)
Subject: Concerns
Good morning Mr.-
I appreciate the work you've tried to do to ensure everyone worships in a socially dista nced manner during your "drive-
in'' service the past two weeks. Unfortunately, people just don't always adhe re to the message given them as we are
seeing so often during these difficu lt times. I received a multitude of complaints from citizens as well as law
enforcement with pictures that suggest the social d istancing was not followed and although you did provide t hem the
guidance and messaging t hey needed. We've both made a concerted effort to try and make this unique idea
work. Unfortunately, rt doesn't seem to be working in the way we need and is initiating a social gathering in which social
distancing is not being met. I respectfully req uest you make the decision to go to an on-line se rvice like most all other
churches have done to protect t he health and we ll being of o ur comm unity with greatest regar d given to the most
vulnerable among us. Please accept much thanks for continuing to fee d those who may have need and doing it in a very
effective way. Please let me know if you have q uestions.
Regards,

Cell: ■■■■■■; Office:
Email : ~
~ !Q ~ ~
~O
NOTICE OF CONFIDENTIAL/TY; This e-mail, /nc/udlng any attocl,ments, Is Intended only for the use of the fnd/vfdunl or entity ro which it Is addressed ond may con/ain confidential
Information that Is legally prlvlleged ond exempt from disc/osvre under oppllcoble low. if the reader of this message Is not the intended ,reclpienl, you are notified that any
review, use; disclosure, dlstrlburlan, or copying of this communlcotlon Is strictly prohibited. ifyou /Jove received ih/s communication In error; please contact the sender by reply e•
moll and destroy all copies of the origin al message.
i
Firefox https://outlook.office.com/mail/inbox/id/AAQkADA4Yzg5MTRhLTg...
1319
Enforcement Notice served

(LHD-Bullitt Co) @ky.gov>
Tue 4/7/2020 2:47 PM
To: Stack, Steven J (CHFS DPH) <steven.stack@ky.gov>
Cc: Alexander, Kelly N (CHFS DPH) <kelly.alexander@ky.gov>
GoodaŌernoonDr.Stack,
Iwantedtogiveyouaheadsup.Unfortunately,today,wedidhavetoservethePastorofMaryvilleBapƟst
ChurchwithanenforcementnoƟcetoceaseoperaƟonsformassgatherings.OurCountyAƩorneyworked
withusonthewordingofthenoƟceandhe,alongwithourJudgeExecuƟve,havebeenincontactwiththe
Governor’sOĸce.WhenservedthenoƟce,thePastorinformedourEnvironmentalSupervisorthatalawsuit
wasintheworksandthatheintendstoholdservicetomorrowevening.Iwanttoassureyouthatwetried
reasoningandeducaƟngbeforewetookthisstep.IfyouhaveanyquesƟons,pleasedonothesitatetocall
me.Mycellis .
Icannotthankyouandyourteamenoughforthesupportandguidancegiventolocalhealthdepartments.So
proudtobeapartof#TeamKentucky.
-
HappyPublicHealthWeek,
BulliƩCountyHealthDepartment
Oĸce:
Fax
Public Health·
f'I ' - : ·- P1, •
Tell us: How are we doing? Please take our survey to let us know!¬
https://www.surveymonkey.com/r/33JXVVT
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containconĮdenƟalinformaƟonthatislegallyprivilegedandexemptfromdisclosureunderapplicablelaw.Ifthereaderofthismessageisnottheintended
recipient,youarenoƟĮedthatanyreview,use,disclosure,distribuƟonorcopyingofthiscommunicaƟonisstrictlyprohibited.Ifyouhavereceivedthis
communicaƟoninerror,pleasecontactthesenderbyreplyeͲmailanddestroyallcopiesoftheoriginalmessage.
1 of 1 6/22/2020, 10:26 AM
1320
- L H D-Jessamine Co)
Prom: (LHD-Jessamine Co)

Sent: Thursday, April 9, 2020 3:34 PM
To:
Cc: (LHD-Jessamine Co)
Subject: RE: Concerns
Hello John... l wanted to follow up with communication regarding your planning of lgnite's Drive-In service t his
weekend. First, I wanted to see if there was any information or collaboration you need from us to ensu re the service is
done in compliance with the Governor's orders. Secondly, the Governor had communication directly with our Judge
Executive to reiterate the protocols for church's. Following is the specific criteria he gave:
1) Vehicles must be at least 6' apart
2) People must stay in their vehicle
3) Only one family per vehicle
4) Nothing can be passed from one vehicle to anot her
5) Social Distancing must be utilized by the band, speakers, etc.
Please confirm you can meet these requ irements for your service. I pray you have a successful Easter service while
meeting the compliance guidelines as set forth.
Please let me know if you have any questions.
Blessings,

Cell: ■■■■■I ; Office:
Email:-
JCHD ~
·--------
NOTICE OF CONFIDENTIALITY: This e-ma/1, including any ottachmencs. is Intended only for the use of the Individual or entity to which It Is oddressedond may contain conftdentfal
infarmotlon that is legally prfvileged and exempcfrom disclosure under oppficable low. If the reader of tiffs message Is not the Intended recipient, you ore no!lfied that any
revie1v, use, disclosure, distribution, or copying of this communiccttron Is strictly prohibited, if you have received this communlcotlon fn error, please contact the sender by tepty e-
mail and destroy all copies oft/le original message.
esday, Apn
To: (LHD-Jessamine Co)<,- @ky.gov>
Subject: Re: Concerns
Hello,
I did not respond to the last email as I was in prayer concerning you "req uest.'' As of yesterday t he governdr said that
drive in church's as allowed and have guidelines as to the conduct of the service. As we took every measure to walk in
accordance w ith you we w ill take ever measure to ensure we walk in accordance to those standards.
1321
------------
From: Brewer, Rodney W (KSP)
Sent: Frida A ril 10 2020 2:49 PM
To: (KSP); (KSP)
Cc: (KSP); (KSP)
Subject
Attachments: Active Churches (4-10-20)-final.pdf; COVID NOTICE2.pdf
i "CAUTION** PDF attachments may contain links to malicious sites. Please contact the COT Service Desk
1 ServiceCorrespondence@ky.gov for any assistance.
•
Captains----
1 am attaching a flyer directed to me from the Governor' s office via the local health department concerning churches in
your post area that are expected to be non-comp'l iant to the current Executive Order regarding public gatherings during
the COVID pandemic this w eekend. Please see that the following actions are taken regarding this situation:
• A visible presence at or near the parking lot entrance by at least t w o uniformed troopers utilizing at least one
marked SP as attendees are entering the parking lot for any in-person services that may occur on April 10th and
12th (Friday & Sunday);
• Copies of the attached fl yer concerning COVID guidelines and a self-imposed quarantine by those in attendance
should be placed on the windshield of e.ach car in the parking lot after the service begins.
• A list containing the name and address of each vehicle owner should be forw arded to your respective Troop
Major by the close of business April 13th in order that the local health department can formally send out notices
of violation.
I appreciate your continued efforts as w e try to m inimize the spread of the COVID-19. Please feel free to contact me
should you have any questions or concerns at
Commissioner Rodney Brew er

Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
"Good is the enemy of great"

--Jim Collins
1
Active Churches 4/10/2020
1322 11:21 AM
Church Address City Health Department Status

Brooklyn Missionary Baptist Church 3130 Brooklyn Rd Morgantown Barren River/Butler LHD confirms church is open and refuses to
close; pastor is also doing door to door
visitation of members.
LHD confirms church is open and refuses to
Maryville Baptist Church 130 Smith Lane Louisville Bullitt close.
Kingdom Center 12610 Taylorsville Road Louisville Jefferson No word from LHD
Centennial Olivet Baptist Church 1541 W. Oak Street Louisville Jefferson No word from LHD
Falmouth Baptist Church 303 West Shelby Street Falmouth Three Rivers/Pendleton No word from LHD
1323
This vehicle's presence at this location indicates that its occupants are present at a 111ass gathering
prohibited by Orders of the Governor and the Cabinet for Health and Family Services. As a result,
this vehicle's occupants, and anyone they come into contact with, are at risk of contracting
COVID-I9, a respiratory illness that can be severe and lead to death, particularly for older
adults and those with underlying heart, lung, kidney, and immunity issues.
Where people congregate unnecessarily,

or fail to follow adequate social distancing practices,
they are spreading COVID-19,CREATING SCENES OF AN EMERGENCY
THIS VEHICLE'S LICENSE PLATE NUMBER HAS BEEN RECORDED.*
Employees of the local h ealth department will be contacting those associated with this vehicle with self-quarantine documents,
including an agreem ent requiring this vehicle's occupants and anyon e in the h ouseh old to self-quarantine for 14 days.
Failure to sign or comply with the agreement may result infurther enforcement measures.
Please be advised that KRS 39A.990 makes it a Class A misdemeanor to violate an emergency order.
*Records maintained by the CoD1tnonwealth are subject to disclosure under the Open Records Act.
1324
From:
To:
Subject:
Date:
Attachmentsi
-
B rewer Rodney W (KSP}
Fwd: (EXTERNAL)Fw: d,urch Protocol
Friday, April 10, 202011:43:12 AM
Church Protocol.docx
ATT00001.htm
20200319 Order Mass-Gatherings (1).pdf
ATT00002.htm
........................................................................................................................................................
. ..
l itwCAUTION** PDF attachments may contain links to malicious sites. Please contact the COT l
l. Service Desk SeryjceCorrespondence@ky.gov for any assistance. ..l.
...
•...................................................................................................................................................................................•.
(INTERNAL)
FYI
Sent from my iPhone
Begin fo1warded message:
F r o m : - (LHD-Franklin Co)" @ky.gov>

Date: ~ 8:01:09 AM EDT
(LHD-Franklin Co
HD.:Franklin Co)"
S LHD - Frankli ky.gov>,
IS CSE CO Franklin
lincountyky.com>, @frankfo11.ky.gov>
u ject: RNAL)Fw: Church Protocol
FYI
From: @franklincountyky.com>
Sent: Thursday, April 9, 2020 8:53 PM
To: @frankfort.ky.gov>; (LHD-Franklin Co)
<WesleyJ.Clark@ky.gov>
Subject: Fwd: Church Protocol
.....................................................................................................................................
. .
l **CAUTION** PDF attachments may contain links to malicious sites. Please l
l contact the COT Service Desk SeryjceCorrespondence@ky.gov for any assistance. l
.... ...
.
•·········································································································································································•
Hello
This was from our association
Just FYI what' s being pushed out to sheriffs.
1325
Have a good night.
Begin forwarded message:
From: @KENTONCOUNTY.ORG>
Date: April 9, 2020 at 4:47:18 PM EDT
Subject: FW: Church Protocol
Sheriffs
Please see the attachment above and context from emails from legal
counsel that we have consulted. Please use this as a guide as everyone
situation is unique within their jurisdictions.
I agree with the advice given, and largely agree that the
health department should take the lead on the civil side,
with any cease and desist warnings or injunctive relief.
However law enforcement can cite for violation of KRS
39A.180 (using UOR Code 02689 for any misdemeanor
charge not covered by other code.) Disorderly conduct
under KRS 525.060 may also fit, as a subsection
describes the element of “failing to disperse” when
ordered. I mention this because in addition to the civil
remedies all law enforcement is charged with enforcing
these law, and when in consult with the County Attorney
and authorized by their employing Sheriff, citing to
Court or even arresting may be appropriate or necessary.
1. This is clearly a first amendment issue and any action

taken certainly has significant potential to result in litigation.
To that end, a court order is highly advised and self-initiated
activity is not advised. 2. Diplomacy and persuasion are the
preferred methods for compliance. 3. Even if a court order
is issued, the Sheriff has the ability to disregard it. However,
that too may have consequences. 3. There is a potential for
the need for force, although it is a very low potential. The
issuance of emergency and court orders do not relieve a
Sheriff or his deputies from the requirement that any force
used be objectively reasonable.
1326
-
1327
April 9, 2020
TO ALL Sheriffs:
We have received information from Sheriffs from across the Commonwealth about churches that are
having services or going to have services during the Holy Week. We have spoken to legal counsel in
reference what we should do. We have not seen any order specifically banning church services, although
this may change.
x Does your county have a protocol in place with the local Health Department to investigate a
gathering if a complaint is lodged?
x The local Health Department has been directed to take the lead and go to the Pastor or Minster
to speak to them about holding services.
x If the Pastor or Minister refuses and is going to continue, then the health department should go
to consult the appropriate state agency and the County Attorney to see what actions will be
taken. Will a criminal summons or warrant be issued for the Pastor or Minster if they hold
services? Will a court order be sought, directing the services be shut down?
x If a court order is issued directing the Sheriff or his deputy to shut down a church service, it is
highly suggested that the health department take the lead and request the services be shut
down voluntarily. If a court order is issued the sheriff should speak to the Judge issuing the
order before carrying out the court order, specifically addressing what action the Judge we
would like the Sheriff or his deputies to take. Those actions should be spelled out clearly in the
order, to include citing or arresting the Minster or Pastor, including the appropriate charge, or
allow services to continue and issuing a summons for the Minster or Pastor after the services.
x IT IS HIGHLY SUGGESTED THAT ANY ACTION TAKEN BY THE SHERIFF VIA A COURT ORDER
CLOSING DOWN A CHURCH SERVICE SHOULD BE VIDEO AND AUDIO RECORDED FROM THE
TIME YOU WALK ONTO THE CHURCHES PROPERTY UNTIL THE TIME YOU LEAVE THE CHURCH
PROPERTY.
x Sheriffs should meet with his or her legal counsel, the County Attorney, the health department
and the Judge to formulate a plan of action to prevent a future potential litigation on the
Sheriffs’ office and the County.
1328
Fro m:
To: LHD Directors

Subject: FW:- - Situation Report
Date.: Frida~ 5: 26 PM
Attachments: Churches.pdf
ChildCarel.DCguidance.pdf
State of Emergency Executive-Order 2020-215.pdf
Mass-Gatherings Order.pdf
SitR.ep 4-10-20.pdf
image001.png
imageOOS.png
From: @ky.goV>
Sent: Friday, April 10, 2020 7:1 1 PM
To: LHD- District
1329
f iscalcourt.com>;-
,......................................................................................................................................................•
l **CAUTION.. PDF attachments may contain links to malicious sites. Please contact the COT l
\Service Desk ServiceCorrespondence@ky.gov for any assistance. l
... ...
•......................................................................................................................................................•
Please see the attached documents for our churches. Related to religion, I feel the need t o share a
little bit about myself . I was raised by an Appalachian Sout hern Baptist Granny who lived through the
Great Depression. I am HIGHLY OFFENDED by t he religious leaders who are trying to make an
epidemiological attempt to cont rol a disease into an attack on religion or a polit ical rant. In addit ion
to my granny's teachings, I have a doctorate in public health from , so I
feel qualified to speak on t he subject. There is not a religious leader in t his country t hat I would
hesit ate t o go toe-to-toe w ith to debat e saving lives by social distancing. This is not about religion or
polit ics - it's about not spreading this virus and saving lives!
A few months ago, I was bat t ling for t he very existence of due to ret irement
contribut ions and taxes, now we are on t he very front line of everything. - folks are
working tirelessly in our counties to control t his virus. I could not be more proud of them. My own
family at home is also on the front line of this battle.
As you can see, I'm taking the reactions of

our community members very personally.
District Director
Healt h Depart ment I-
1330
no
NOTICE OF CONFIDENTIALITY: This e-mail, including any attachments, is intended only for the use of the individual or entity to which it is
addressed and may contain confidential information that is legally privileged and exempt from disclosure under applicable law. If the
reader of this message is not the intended recipient, you are notified that any review, use, disclosure, distribution or copying of this
communication is strictly prohibited. If you have received this communication in error, please contact the sender by reply e-mail and
destroy all copies of the original message.
1331
From:
To:
Subject: Fw : urc etail
Date: Saturday, April 11, 2020 9:56:07 AM
Attachments: Active Oiurches (4-10-20)-final.pdf
COVID NOTICE2.pdf
For Hopkinsville chmch.

919 Versailles Road, Frankfo1t, KY 40601
ky.gov
This cormnlll1ication may contain infonnation which is confidential. It is for the exclusive use
of the intended recipient(s). If you ~u-e not the intended recipient(s) please note that anyf01m
of distribution, copying, fo1warding or use of this c01nn1lll1ication or the infonnation therein is
prohibited and may be unlawful. If you have received this communication in en or please
return it to the sender and delete the communication.

Sent: Friday, April 10, 2020 2:48:31 PM
Subject: Church detail

.........................................................................................................................................................
. .
l "CAUTION** PDF attachments may contain links to malicious sites. Please contact the COT l
l. Service Desk ServjceCorrespondence@ky.gov for any assistance. ...l
... .
•························································································································································································•
Captains----
1 am attaching a flyer directed to me from the Governor' s office via the local health department
concerning churches in your post area that are expected to be non-compliant to the current
Executive Order regarding public gatherings during the COVID pa ndemic this weekend . Please see
that the following actions are taken regarding this situation:
• A visible presence at or near the parking lot entrance by at least two uniformed troopers
utilizing at least one marked SP as attendees are entering the parking lot for any in-person
services that may occur on April 10th and 12th (Friday & Sunday);
• Copies of the attached flyer concerning COVID guidelines and a self-imposed quarantine by
those in attendance should be placed on the windshield of each car in the parking lot after
1332
the service begins.

• A list containing the name and address of each vehicle owner should be forwarded to your
respective Troop Major by the close of business April 13th in order that the local health
department can formally send out notices of violation.
I appreciate your continued efforts as we try to minimize the spread of the COVID-19. Please feel
free to contact me should you have any questions or concerns at .
Commissioner Rodney Brewer

919 Versailles Road
Frankfort, Kentucky 40601
“Good is the enemy of great”

---Jim Collins
1333
------------
From: Buckner, La Tasha A (Gov Office)
Sent: Monday, April 13, 2020 9:01 AM
To: Brewer, Rodney W (KSP)
Subject: RE: Church detail
Thank you.

Sent: Monday, April 13, 2020 8:50
To: Buckner, La Tasha A (Gov Office) @ky.gov>
Subject: FW: Church detail
,
0
*"'CAUTION** PDF attachments may contain links to malicious sites. Please contact the COT Service Desk
IServiceCorrespondence@ky.gov for any assistance.
(KSP) @ky.gov>
12, 2020 3:56 PM
To: (KSP) - ·@ky.gov>; (KSP) @ky.gov>
Subject: Fwd: Church detail
i- **CAUTION** PDF attachments may contain links to malicious sites. Please contact the COT Service Desk
l ServiceCorrespondence@ky.gov for any assistance.
-
Infotmation on Churches in Post 3 area and action taken.

919 Versailles Road, Frankfort, KY 40601
This communication may contain information which is confidential. It is fo1· the exclusive use of the intended
recipient(s) . If you are not the intended recipient(s) please note that any fotm of distribution, copying,
fotwarding or use of this communication or the infotmation therein is prohibited and may be unlawful. If you
have received this communication in e1rnr please return it to the sender and delete the communication.
@ky.gov>
Subject: FW: Church detail
1
1334
**CAUTION** PDF attachments may contain links to malicious sites. Please contact the COT Service Desk
IServiceCorrespondence@ky.gov for any assistance.
In regards to non-compliance regarding public gathering at church services in the Post 3 a rea t he following action has
been taken.
At the location listed at t he Brooklyn Missionary Baptist Church in Butler County, Sgt. - traveled to the
location on Friday, April 10, 2020 and found no services (CAD#2020-004468906). On Sunday, April 12, 2020 he went
back to the church and while placing t he issued papers on the windshields was encountered by t he parishioners. Sgt.
- advised only 9 people were present and t hey were practicing social distancing. He provided t hem the papers and
left wit hout incident. He wrote down their registration information and placed it in the CAD if further action is
requested. (CAD# 2020-0470337)
The second complaint was at t he St Abram Orthodox Church located at 106 Wilson Road in Auburn, KY. It was reported
t hat several cars were in the parking lot . Sgt. - went to t he church and found only 6 or 8 cars present. He
observed the location and no others arrived. He did not enter the church or take any fu rther action. (CAD#2020-
00470282)
The last complaint was at West wood Church of Christ located at 106 Westwood St in Glasgow, KY. Information was
received that parishioners were parking down the street and the church buses were taking t hem to the faci lity. Upon
receiving the information I sent Trooper to observe. Upon arrival he observed no cars at the church,
but several parked down the road. He remained for approximately t wo hours and only observed three people leaving
t he facility. He did not attempt to enter the church or take any further action. (CAD#2020-00470371)
Commander- Post 3/Bo,vling G1·een

3119 Nashville Road
Bowling G1·een, KY 42101

Sent: Friday, April 10, 2020 1:49 PM
To: (KSP) (KSP @ky.gov>; -
(KSP) @ky.gov>; -
Subject: Church detail
j **CAUTION** PDF attachments may contain links to malicious sites. Please contact the COT Service Desk
I ServiceCorrespondence@ky.gov for any assistance.
Captains----
2
1335
IamattachingaflyerdirectedtomefromtheGovernor’sofficeviathelocalhealthdepartmentconcerningchurchesin
yourpostareathatareexpectedtobenonͲcomplianttothecurrentExecutiveOrderregardingpublicgatheringsduring
theCOVIDpandemicthisweekend.Pleaseseethatthefollowingactionsaretakenregardingthissituation:
x Avisiblepresenceatorneartheparkinglotentrancebyatleasttwouniformedtroopersutilizingatleastone
markedSPasattendeesareenteringtheparkinglotforanyinͲpersonservicesthatmayoccuronApril10thand
12th(Friday&Sunday);
x PPEmasksandglovesmaybeutilizedbutarenotmandatory;
x Unitsarenotexpectedtoentertheactualchurchbuilding;
x CopiesoftheattachedflyerconcerningCOVIDguidelinesandaselfͲimposedquarantinebythoseinattendance
shouldbeplacedonthewindshieldofeachcarintheparkinglotaftertheservicebegins.
x Licenseplatenumbersshouldberecordedforthosevehiclespresentateachgathering.
x AlistcontainingthenameandaddressofeachvehicleownershouldbeforwardedtoyourrespectiveTroop
MajorbythecloseofbusinessApril13thinorderthatthelocalhealthdepartmentcanformallysendoutnotices
ofviolation.

IappreciateyourcontinuedeffortsaswetrytominimizethespreadoftheCOVIDͲ19.Pleasefeelfreetocontactme
shouldyouhaveanyquestionsorconcernsat .

CommissionerRodneyBrewer
KentuckyStatePolice
919VersaillesRoad
Frankfort,Kentucky40601

“Goodistheenemyofgreat”
ͲͲͲJimCollins
3
1336
RE: license plate info for church goers

Duke, Wesley W (CHFS OLS) <WesleyW.Duke@ky.gov>
Mon 4/13/2020 4:35 PM
To: (LHD-Bullitt Co) @ky.gov>
Soundsgood.DoyouhavetheaddressesforthenonͲBulliƩCountypeopleonthelist?
From: (LHDͲBulliƩCo) @ky.gov>

Sent:Monday,April13,20204:26PM
To:Duke,WesleyW(CHFSOLS) @ky.gov>
Subject:RE:licenseplateinfoforchurchgoers
Dr.StackagreedthatcerƟĮedleƩerwassuĸcientastoavoidthe“honeybee”eīectandtodecreaseexposure
toourstaī.
From:Duke,WesleyW(CHFSOLS) @ky.gov>
To: (LHDͲBulliƩCo) @ky.gov>
Cc:Alexander,KellyN(CHFSDPH) @ky.gov>
Subject:RE:licenseplateinfoforchurchgoers
-
ItismyunderstandingthatfortheBulliƩCountyindividualstheLHDneedstoaƩempttogotothe
residenceandgetthemtosignavoluntaryquaranƟneform.Iftheywillnotjustletmeknowandwecan
discussfurthersteps.
From: (LHDͲBulliƩCo) @ky.gov>

To:Duke,WesleyW(CHFSOLS) @ky.gov>
Cc:Alexander,KellyN(CHFSDPH @ky.gov>
Subject:licenseplateinfoforchurchgoers
GoodaŌernoonMr.Duke,
CouldyoupleasecontactmeregardingthehandlingoflicenseplateinformaƟon?Mycellphoneis
.I’veaƩachedaleƩerthatwaschangedtoaddressthesituaƟonandtheselfͲmonitorrestricted
movementagreement.
Here’sthebreakdownofthelicenseplatesthatwererecordedatMaryvilleBapƟstChurch:
33recorded(includingduplicatedlicenseplates)
13BulliƩCounty
7Jeīerson
2Nelson
1Grayson
1Boone
1ChrisƟan
1ScoƩ
1Rowan
1Whitley
3outofstate(Maine,MassachuseƩs,andColorado)
1 of 2 6/22/2020, 10:11 AM
Firefox https://outlook.office.com/mail/inbox/id/AAQkADA4Yzg5MTRhLTg.. .
1337
!3ullitt County Health Department

181 Lees Valley Road
Shepherdsville, KY 40165
Office
fax
1338
From: nkyhealth.org>
To:
Cc:
Subject: Re:
Date: Thursday, May 7, 2020 3:53:41 PM
Thanks for the heads up, Mayor - . \Ve will check out the Lucky Duck situation.
Hopefully, the protest planned a~ ool board building will follow social distancing/face
mask guidelines at least. I'll leave it up to you and the Chief whether the police will pay a visit
while they are protesting at the site. If it's more than 10 people it technically goes against the
Governor's order related to mass gatherings.
Steve

8001 V eterans Memorial Drive, Florence, KY 41042
Office: I Fax:
@nkyhealth.org
EEO/M/FNets/Disablecl/H
NOTICE OF CONFIDENTIALITY This e-mail, including any attachments, is intended only for the use of the individual or entity to which ii is addressed and may contain
confidential infomration that is legally privileged and exempt from disdosure under applicable law. If the reader of this message is not the intended recipient, you are
notified that any review, use, disclosure, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please
contact the sender by reply e-mail and destroy all copies of the original message.
On Thu, May 7, 2020 at 2:55 PM @florence-ky.gov> wrote:
So there is a large gathering of parents planned at the school board office this afternoon at
4:00
Also saw on Facebook that the Lucky Duck Restaurant at Oakbrook was doing a "cookout"
and inviting the public.
Don' t know if either of those rise up to your level of concern, but just a couple of things I
am aware of.
People are getting antsy and it's a little concerning.

1339
CABINET FOR HEAL TH AND FAMIL V SERVICES

OFFICE OF THE SECRETARY
Andy Beshear 275 East Main Street, SW•A Eric C. Friedlander
Governor Frankfort, KY 40621 Secretary
502-564-7042
502-564-7091
www.chfs.ky.gov
ORDER
May 9, 2020
On March 6. 2020, Governor Andy Beshear signed Executive Order 2020-215, declaring a state of
Pursuant to the authority in KRS 194A.025, KRS 214.020, and Executive Orders 2020-215, 2020-243,
hereby orders the following directives to reduce and slow the spread of COVID-I9:
l. The March 19, 2020 Order of the Cabinet for Health and Family Services
concerning mass gatherings (the "Mass Gatherings Order") is hereby amended
as follows.
2. Effective immediately, the Mass Gatherings Order shall not apply to in-person
services of faith-based organizations. Faith-based organizations that have in-
person services must implement and follow the Guidelines for Places of
Worship, which are attached hereto and incorporated by reference herein. The
Guidelines for Places of Worship are available on line at
healthyatwork.ky .gov.
3. For the avoidance of doubt, nothing in this Order or the Mass Gatherings
Order prohibits drive-in or virtual, televised, or radio services of faith-based
organizations, so long as appropriate social distancing and hygiene measures
as recommended by the Centers for Disease Control and Prevention are
implemented and followed.
4. The Mass Gatherings Order remains in full force and effect except as
amended herein.
5. Any gathering, regardless of whether it is a mass gathenng prohibited under

this Order, shall to the fullest extent practicable implement Centers for
Disease Control and Prevention. guidance, including:
Kentucky.gov An Equal Opportunity Employer M/F/0

Case: 2:20-cv-00054-WOB-CJS
• maintaining a distanceDoc
of 6 #:
feet89-2 Filed:
between 01/08/21 Page: 69 of 142 - Page ID#:
persons;
1340
sanitizing options;
and

surfaces.

The Cabinet for Health and Family Services will monitor these directives continuously. The Cabinet
will c ·nue to provide information and updates to healthcare providers during the duration of this
H alth Erner ncy.
Commission
Departm
Cabin
Eric Frie lander

~ecretary
Governor's Designee
Firefox https://outlook.office.com/mail/inbox/id/AAQkADA4Yzg5MTRhLTg.. .
1341
Additional information from LHD/ DPH Covid Webinar from Wes Duke
(CHFS DPH DPHPS) @ky.gov>
Fri 6/ 12/ 2020 7:47 AM
. ov>; CHFS DPH PHP Coordinators (Listserv
'DPH LHD Environmental Directors
Good morning,
Please see the email below that Wes Duke asked me to share with you , It contains additional information on
the protests specifically that there would be no LHD enforcement against those events.
■
From: Duke, Wesley W (CHFS OLS) @ky.gov>
Sent: Thursday, June 11, 2020 6:08 PM
To: {CHFS DPH DPHPS) - @ky.gov>
Subject:
Can you send a claiification email to all LHD's in rngard to the protests. Just to clarify that there
would be no health department enforcement against those events.
1342
Get Outlook for iOS
2 of 2 6/22/2020, 11:08 AM
1343
** Internal Work Document **
Kentucky Public Health

Prevent. Promote. Protect.
2019 Novel Coronavirus Key Points

6-26-2020
1344
KENTUCKY1 UNITED STATES2 WORLD3

State of Emergency declared March 6, 2020 Risk to Americans is widespread WHO declared pandemic on March 11, 2020
14,859 2,414,870 9,473,214

Cases (↑242) Cases (↑40,588) Cases (↑177,012)
553 124,325 484,249

Deaths (↑7) Deaths (↑2,516) Deaths (↑5,116)
3.7% 5.1% 5.1%

Mortality Rate Mortality Rate Mortality Rate
119 counties 56 states + territories 215 countries

with at least one case with at least one case with at least one case
1Kentucky Department for Public Health

2The Centers for Disease Control and Prevention https://www.cdc.gov/coronavirus/2019-ncov/cases-in-us.html
3The World Health Organization https://www.who.int/emergencies/diseases/novel-coronavirus-2019/situation-reports/
1345
Current situation in Kentucky1

* Other Congregate
Facilities might include:
Long-term Care Facilities (LTCFs), Other Congregate Facilities,* Group Homes,
Residential Treatment
Places of Worship and Workplace Settings Facil ities,
Inpatient Psych iatric
Hospitals and Correctional
Faci lities
1M1
206 Facilities 72 Workplaces
with at least one case with 2 or more cases
5 Places of Worship
175 LTCFs with 2 or more cases At least
31 Other Congregate*
At least
1,037 cases - s deaths
Residents: 2,661 cases, 358 deaths In
170 cases - 32 deaths
Staff: 1,073 cases, 3 deaths
In 32 counties
2 counties
1 Kentucky Departm ent for Public Hea lth
1346
,ĞůůŽůů͕dŚŝƐŝƐ ǁŝƚŚƚŚĞ
- ,ĞĂůƚŚĞƉƚ͘/ǁŽƵůĚůŝŬĞƚŽŐŝǀĞǇŽƵďĂƐŝĐ
ŝŶĨŽƌŵĂƚŝŽŶĂďŽƵƚƚŚĞŽƌŽŶĂsŝƌƵƐ;Ks/ͲϭϵͿĂŶĚŽĨĨĞƌǇŽƵƚŚĞŽƉƉŽƌƚƵŶŝƚǇƚŽĂƐŬƋƵĞƐƚŝŽŶƐ
ĂŶǇƚŝŵĞ͘zŽƵĐĂŶĐĂůůŵĞďĂĐŬŽŶŵǇƉŚŽŶĞůŝƐƚĞĚďĞůŽǁŽƌĞŵĂŝů͘zŽƵĐĂŶĂůƐŽŐŽƚŽƚŚĞ
■
,ĞĂůƚŚĞƉƚĨĂĐĞďŽŽŬŽƌǁĞďƐŝƚĞĂŶĚĨŝŶĚŐĞŶĞƌĂůŝŶĨŽƌŵĂƚŝŽŶ͘
-
dŽŵǇŬŶŽǁůĞĚŐĞƚŚĞƌĞĂƌĞĐƵƌƌĞŶƚůǇŶŽĐĂƐĞƐŽĨƚŚĞKs/ͲϭϵǀŝƌƵƐŝŶ
- Žƌ<ĞŶƚƵĐŬǇ͘
,ŽǁĞǀĞƌ͕ǁĞƐŚŽƵůĚƚŚŝŶŬĂďŽƵƚƚŚĞƉƌĞĐĂƵƚŝŽŶƐǁĞƵƐĞĨŽƌƚŚĞ&ůƵĂƐĂŐĞŶĞƌĂůŽŶŐŽŝŶŐ
ƉƌĞĐĂƵƚŝŽŶ͘DŽƐƚƉĞŽƉůĞƌĞĐŽǀĞƌĨƌŽŵƚŚŝƐǀŝƌƵƐŽƌŚĂǀĞĂŵŝůĚĐĂƐĞŚŽǁĞǀĞƌĂƚƚŚŝƐƚŝŵĞƚŚĞƌĞ
ŝƐŶŽǀĂĐĐŝŶĂƚŝŽŶĨŽƌƚŚĞǀŝƌƵƐƐŽŵŽƌĞƐĞǀĞƌĞĐĂƐĞƐĐŽƵůĚŚĂƉƉĞŶ͘'ŝǀĞŶƚŚĞƌĞŝƐŶŽǀĂĐĐŝŶĂƚŝŽŶ
ĂƚƚŚŝƐƚŝŵĞ͕ƐĞĞƚŚĞĨŽůůŽǁŝŶŐƐƵŐŐĞƐƚŝŽŶƐĂƐƚŚŝŶŐƐǇŽƵĐĂŶĐŽŶƐŝĚĞƌ͘
,ĞƌĞĂƌĞƐƵŐŐĞƐƚŝŽŶƐĨŽƌǇŽƵƚŽĐŽŶƐŝĚĞƌŝŶǇŽƵƌƐĞƌǀŝĐĞƐ͗
^ŽĐŝĂůĚŝƐƚĂŶĐŝŶŐͲŚŽǁĐĂŶǇŽƵƌĞĂƌƌĂŶŐĞǇŽƵƌƐŝƚƚŝŶŐĂƌƌĂŶŐĞŵĞŶƚƐƐŽƉĞŽƉůĞĐĂŶƐƚŝůůĂƚƚĞŶĚ
ƚŚĞƐĞƌǀŝĐĞďƵƚŶŽƚƐŝƚŶĞǆƚĚŝƌĞĐƚůǇŶĞǆƚƚŽĞĂĐŚŽƚŚĞƌ͍
,ĂŶĚ^ŚĂŬĞͬŚƵŐŐŝŶŐͲĞŶĐŽƵƌĂŐŝŶŐǇŽƵƌĐŽŶŐƌĞŐĂƚŝŽŶƚŽƌĞĨƌĂŝŶĨƌŽŵƚŚŝƐƉĂƌƚŝĐƵůĂƌůǇĚƵƌŝŶŐ
ŽƵƚďƌĞĂŬƚŝŵĞƐŝƐǀĞƌǇďĞŶĞĨŝĐŝĂů͘KŶĞŽĨƚŚĞǁĂǇƐƚŚĂƚǀŝƌƵƐĞƐƐƉƌĞĂĚƚŚĞĞĂƐŝĞƐƚŝƐďǇƉĞŽƉůĞ
ƉƵƚƚŝŶŐƚŚĞŝƌŚĂŶĚƐŽŶƚŚĞŝƌĨĂĐĞƐͬŵŽƵƚŚĂĨƚĞƌŚĂǀŝŶŐĂǀŝƌƵƐŽŶƚŚĞŝƌŚĂŶĚƐ͘/ƌĞĂůŝǌĞ
ĞůŝŵŝŶĂƚŝŶŐŚĂŶĚƐŚĂŬĞƐͬŚƵŐŐŝŶŐǁŽƵůĚƉŽƐƐŝďůǇĂŶŐĞƌƐŽŵĞƉĞŽƉůĞ͕ďƵƚƚŚŝƐŝƐĂŐƌĞĂƚǁĂǇƚŽ
ŚĞůƉǇŽƵƌĐŽŶŐƌĞŐĂƚŝŽŶƐƚĂǇŚĞĂůƚŚǇ͘
KŶůŝŶĞ^ĞƌǀŝĐĞƐͲƐŽŵĞĐŚƵƌĐŚĞƐĂůƌĞĂĚǇŚĂǀĞƚŚŝƐŽƉƚŝŽŶĂŶĚƚŚŝƐŝƐĂŐƌĞĂƚǁĂǇŝŶĂŶŽƵƚďƌĞĂŬ
ƚŽŚĂǀĞƉĞŽƉůĞƐƚŝůůƉĂƌƚŝĐŝƉĂƚĞŝŶƚŚĞƐĞƌǀŝĐĞǁŝƚŚŽƵƚďĞŝŶŐƉƌĞƐĞŶƚŝŶƚŚĞďƵŝůĚŝŶŐ͘/ƌĞĂůŝǌĞŝĨ
ƉĞŽƉůĞĂƌĞŶΖƚŝŶƚŚĞďƵŝůĚŝŶŐƚŚĂƚŽƚŚĞƌƚŚŝŶŐƐŵŝŐŚƚďĞĂĨĨĞĐƚĞĚ͕ŝ͘Ğ͘ͲŽĨĨĞƌŝŶŐ͕ĐŽŵŵƵŶŝŽŶ͕ĞƚĐ͘
ďƵƚƚŚŝƐŝƐĂŽƉƚŝŽŶ͘
ŽŵŵƵŶŝŽŶͲŵĂŶǇĐŚƵƌĐŚĞƐƉĂƐƐƚŚĞďƌĞĂĚƉůĂƚĞĂŶĚĞǀĞƌǇŽŶĞŐƌĂďƐĂƉŝĞĐĞŽĨďƌĞĂĚŽƵƚŽĨŝƚ͘
tŚŝůĞƋƵŝĐŬ͕ƚŚŝƐĂůƐŽĂůůŽǁƐĞǀĞƌǇŽŶĞƚŽƚŽƵĐŚŵƵůƚŝƉůĞƉŝĞĐĞƐŽĨďƌĞĂĚǁŚŝůĞŐƌĂďďŝŶŐƚŚĞŝƌ
ŽǁŶ͘dŚŝƐŝƐĂŐƌĞĂƚǁĂǇƚŽƐƉƌĞĂĚŐĞƌŵƐ͘/ŵĂǇďĞǁƌŽŶŐďƵƚ/ƚŚŝŶŬƚŚĞďƌĞĂĚͬũƵŝĐĞĐĂŶďĞ
ďŽƵŐŚƚŝŶƐĞƉĂƌĂƚĞƉĂĐŬĂŐĞƐƚŚĂƚĞĂĐŚŝŶĚŝǀŝĚƵĂůŐĞƚƐƚŚĂƚĞůŝŵŝŶĂƚĞƐƚŚŝƐŝƐƐƵĞ͘/ĨǇŽƵĂƌĞĂ
ĐŚƵƌĐŚƚŚĂƚĞǀĞƌǇŽŶĞĚƌŝŶŬƐŽƵƚŽĨƚŚĞƐĂŵĞĐƵƉĨŽƌƚŚĞũƵŝĐĞ͕ŽďǀŝŽƵƐůǇƚŚŝƐĐĂŶƐƉƌĞĂĚŐĞƌŵƐ
ƋƵŝĐŬůǇĂƐƚŚĞŵŽƵƚŚŝƐĂŐĂƚĞǁĂǇƚŽƚŚĞŝŵŵƵŶĞƐǇƐƚĞŵĨŽƌŐĞƌŵƐ͘
ǆƚƌĂĐůĞĂŶŝŶŐͲ/ΖŵƐƵƌĞƚŚĂƚĐŚƵƌĐŚĞƐƌĞŐƵůĂƌůǇĐůĞĂŶŽŶĂǁĞĞŬůǇďĂƐŝƐ͘ĚĚŝŶŐĞǆƚƌĂĐůĞĂŶŝŶŐ
ŽĨƐƵƌĨĂĐĞƐƉĂƌƚŝĐƵůĂƌůǇŝŶĐŚŝůĚĐĂƌĞƌŽŽŵƐ͕ƉĞǁƐĂŶĚĐůĂƐƐƌŽŽŵƐĐĂŶŚĞůƉƐƚŽƉƚŚĞƐƉƌĞĂĚŽĨ
ǀŝƌƵƐĞƐ͘
,ĂŶĚtĂƐŚŝŶŐͲŶĐŽƵƌĂŐĞǇŽƵƌĐŽŶŐƌĞŐĂƚŝŽŶƚŽǁĂƐŚŚĂŶĚƐĨƌĞƋƵĞŶƚůǇŽƌƵƐĞŚĂŶĚƐĂŶŝƚŝǌĞƌŝĨ
ŚĂŶĚǁĂƐŚŝŶŐŝƐŶŽƚƉŽƐƐŝďůĞ͘dŚŝƐŝƐǀŝƚĂůŝĨǇŽƵŚĂǀĞŵĞĂůƐĂƚƚŚĞĐŚƵƌĐŚ͕ǁŽƌŬŝŶƚŚĞĐŚŝůĚĐĂƌĞ
ĂƌĞĂ͕ĐŽŽŬŝŶŐĨŽŽĚĨŽƌŵĞŵďĞƌƐ͕ĞƚĐ͘
ŽƵŐŚŝŶŐͬ^ŝĐŬͲĞŶĐŽƵƌĂŐĞĂůůŵĞŵďĞƌƐǁŚŽĂƌĞƐŝĐŬŽƌƐŚŽǁƐŝŐŶƐŽĨƐŝĐŬŶĞƐƐƚŽƐƚĂǇŚŽŵĞ
ĨƌŽŵƚŚĞƐĞƌǀŝĐĞ͘
1347
WĞƌƐŽŶĂů,ĞĂůƚŚͲƉůĞĂƐĞŚĂǀĞĂĐŽŶǀĞƌƐĂƚŝŽŶǁŝƚŚǇŽƵƌĐŽŶŐƌĞŐĂƚŝŽŶĂďŽƵƚĞǀĞƌǇŽŶĞďĞŝŶŐ
ƌĞƐƉŽŶƐŝďůĞĨŽƌƚŚĞŝƌŽǁŶŚĞĂůƚŚ͘KďǀŝŽƵƐůǇĂŶǇŽŶĞĐĂŶŐĞƚƐŝĐŬĂƚĂŶǇƚŝŵĞŝŶĐůƵĚŝŶŐĚŝƐĞĂƐĞ͘
KŶĞŽĨƚŚĞďĞƐƚƉƌĞǀĞŶƚŝŽŶŵĞƚŚŽĚƐĞĂĐŚŽĨƵƐŚĂƐŝƐďĞŝŶŐĂƐŚĞĂůƚŚǇĂƐǁĞĐĂŶƚŽďƵŝůĚŽƵƌ
ŝŵŵƵŶĞƐǇƐƚĞŵ͘dŚŝƐĚŝƐĐƵƐƐŝŽŶǁŽƵůĚŝŶĐůƵĚĞŚĞĂůƚŚǇĞĂƚŝŶŐ͕ĞǆĞƌĐŝƐĞ͕ƌĞƐƚ͕ƉŚǇƐŝĐĂůĞǆĂŵƐ͕
ĞƚĐ͘
tŚŝůĞĂŶǇŽĨƵƐĐĂŶŐĞƚĂĚŝƐĞĂƐĞĂƚĂŶǇƚŝŵĞ͕/ƚƌƵůǇďĞůŝĞǀĞƚŚĂƚŚĞůƉŝŶŐŽƵƌĐŽŶŐƌĞŐĂƚŝŽŶƐďĞĂƐ
ŚĞĂůƚŚǇĂƐƉŽƐƐŝďůĞŝƐƉĂƌƚŽĨƚŚĞŬŝŶŐĚŽŵǁŽƌŬ͊
WůĞĂƐĞĐĂůůͬĞŵĂŝůͬƚĞǆƚŵĞĂŶǇƚŝŵĞĂŶĚ/ǁŝůůďĞŐůĂĚƚŽĚŝƐĐƵƐƐŽƉƚŝŽŶƐǁŝƚŚǇŽƵĂƚĂŶǇƚŝŵĞ͘
,ĞĂůƚŚĞƉƚ
1348
APPENDIX 2
Executive Orders
1349

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1350

sanitizing options;
and

surfaces.

The Cabinet for Health and Family Services will monitor these directives continuously and may extend
the directives beyond their current expiration date. The Cabinet will continue to provide information
and updates to healthcare providers during the duration of this Public Health Emergency.
Commissioner of Public Health

Department of Public th
Acting Secretary
Governor's Designee
1351
ANDY BESHEAR
GOVERNOR
EXECUTIVE ORDER
Secretary of State
Frankfort
Kentucky 2020-257
March 25, 2020
STATE OF EMERGENCY
Background
The novel coronavirus (COVID-19) is a respiratory disease causing illness that can
range from very mild to severe, including illness resulting in death, and many cases of
COVID-19 have been confirmed in the Commonwealth.
To help protect our community from the spread of COVID-19, Kentuckians are
encouraged to remain Healthy at Home. By staying home and limiting your in-person
contact, you can stop the spread of COVID-19, which endangers public health and safety.
If we do not work together to contain the disease, COVID-19 threatens to overwhelm the
Commonwealth's healthcare resources.
The Centers for Disease Control and Prevention (CDC) and the Kentucky
Department of Public Health have recommended that everyone practice social distancing,
meaning staying home when possible and otherwise maintaining six feet of distance from
other individuals, to minimize the spread of the disease. Where people congregate
unnecessarily, or fail to follow adequate social distancing practices, they are spreading the
disease, creating scenes of an emergency.
The Kentucky Constitution and Kentucky Revised Statutes, including KRS Chapter
39A, empower me to exercise all powers necessary to promote and secure the safety and
protection of the civilian population, including the power to suspend state statutes and
regulations, and to command individuals to disperse from the scene of an emergency.
Under those powers, I declared by Executive Order 2020-215 on March 6, 2020, that a
State of Emergency exists in the Commonwealth.
I am now issuing this Order to take additional steps to encourage Kentuckians to
remain Healthy at Home, and to do everything in their power to stop the spread of the
1352
ANDY BESHEAR
GOVERNOR
EXECUTIVE ORDER
Secretary of State
Frankfort
Kentucky 2020-257
March 25, 2020
disease. This Order should be construed broadly to prohibit in-person work that is not
necessary to protect or sustain life.
Order
I, Andy Beshear, Governor of the Commonwealth of Kentucky, by virtue of
authority vested in me pursuant to the Constitution of Kentucky and by KRS Chapter 39A,
do hereby Order and Direct as follows:
1. Only Life-Sustaining Businesses May Remain Open. All businesses that

are not life-sustaining shall cease operations effective Thursday, March 26,
2020, at 8:00 p.m., except as needed to conduct Minimum Basic Operations,
as defined in this Order. For the purposes of this Order, Life-Sustaining
Businesses are all businesses that allow Kentuckians to remain Healthy at
Home, including:
a. CISA List. All businesses operating in the federal critical

infrastructure sectors, as outlined at https://www.cisa.gov/identifying-
critical-infrastructure-during-covid-19.
b. Life-sustaining Retail. In-person retail businesses that provide life-

sustaining goods, consistent with Executive Order 2020-246, as well
as businesses that supply life-sustaining retail and their administrative
support operations. In addition, the following additional categories of
retail are designated as life-sustaining under this Order:
i. hardware stores and businesses that sell electrical, plumbing,

and heating material;
ii. agricultural supply and equipment stores;
111. medical product supply and equipment stores; and
iv. stores that supply first responders and other critical government
and healthcare workers.
The life-sustaining retail stores listed above shall, to the fullest extent
possible, permit customers to use delivery or curbside service.
c. Food, beverage, and agriculture. Food and beverage manufacturing,

production, processing, and cultivation, including farming, livestock,
fishing, baking, and other production agriculture, including cultivation,
marketing, production, and distribution of animals and goods for
consumption; and businesses that provide food, shelter, and other
necessities of life for animals, including animal shelters, rescues,
shelters, kennels, and adoption facilities.
1353
ANDY BESHEAR
GOVERNOR
EXECUTIVE ORDER
Secretary of State
Frankfort
2020-257
Kentucky
March 25, 2020
d. Organizations that provide charitable and social services.

Businesses and religious and secular nonprofit organizations, including
food banks, when providing food, shelter, and social services, and
other necessities of life for economically disadvantaged or special
populations, individuals who need assistance as a result of this
emergency, and people with disabilities. These organizations have a
special responsibility to implement social distancing to the fullest
extent possible, and to take all necessary actions to stop the spread of
disease, including by stopping in-person retail operations.
e. Media. Newspapers, television, radio, and other media services.
f. Gas stations and businesses needed for transportation. Gas stations

and auto-supply, auto-repair, farm equipment, construction equipment,
boat repair, and related facilities; bicycle repair shops and related
facilities; and motorcycle repair shops.
g. Financial Services. Depository institutions, including but not limited

to banks and credit unions; Non-depository institutions, including but
not limited to consumer, industrial and mortgage loan companies,
mortgage loan brokers, originators and processors, deferred deposit,
check cashers, and payday lending companies, title pledge lenders, and
money transmitters; securities institutions, including but not limited to
brokers, agents, advisers and issuers; appraisers, financial markets,
bond issuers, or institutions selling financial products to the extent
they are providing financial services; and pawnbrokers, to the extent
they are providing check-cashing or similar financial services, or to the
extent they are selling firearms and ammunition pursuant to Paragraph
9 of this Order.
h. Housing, Buildings and Construction. To ensure Kentuckians can

remain Healthy at Home, businesses providing construction or
maintenance of residential, commercial, or governmental structures,
including but not limited to plumbers, electricians, exterminators,
cleaning and janitorial staff, security staff, operating engineers,
HVAC, painting, landscaping, moving and relocation
services, necessary for sustaining the safety, sanitation and operation
of structures.
1. Mail, post, shipping, logistics, delivery, and pick-up services. Post

offices and other businesses that provide shipping and delivery
services, and businesses that ship or deliver groceries. food, beverages,
goods or services to end users or through commercial channels.
j. Laundry services. Laundromats, dry cleaners, industrial laundry

services, and laundry service providers.
1354
ANDY BESHEAR
GOVERNOR
EXECUTIVE ORDER
Secretary of State
Frankfort
Kentucky
2020-257
March 25, 2020
k. Restaurants for consumption off-premises. Carry-out, delivery, and

drive-through food and beverage sales may continue, consistent with
the March 16, 2020 Order of the Cabinet for Health and Family
Services and the Department of Public Health and the March 19, 2020
Order of the Public Protection Cabinet.
I. Supplies for Life-Sustaining Businesses. Businesses that sell,

manufacture, or supply other Life-Sustaining Businesses with the
support or materials necessary to operate, including computers, audio
and video electronics, household appliances; IT and
telecommunication equipment; hardware, paint, flat glass; electrical,
plumbing and heating material; sanitary equipment; personal hygiene
products; food, food additives, ingredients and components; medical
and orthopedic equipment; optics and photography equipment;
diagnostics, food and beverages, chemicals, soaps and detergent; and
firearm and ammunition suppliers and retailers for purposes of safety
and security.
m. Transportation. Airlines, taxis, transportation network providers

(such as Uber and Lyft), vehicle rental services, paratransit, and other
private, public, and commercial transportation and logistics providers
necessary for Kentuckians to safely remain Healthy at Home, and to
access Life-Sustaining Businesses.
n. Home-based care and services. Home-based care for adults, seniors,

children, and/or people with developmental disabilities, intellectual
disabilities, substance use disorders, and/or mental illness, and other
in-home services including meal delivery.
o. Professional services. Professional services, such as legal services,

accounting services, insurance services, real estate services (including
appraisal and title services). Professional services firms must
implement telecommuting and remote work to the fullest extent
possible, and should only use in-person interaction to support
Minimum Basic Operations or where telecommuting is impossible.
p. Manufacture, distribution, and supply chain for critical products

and industries. Manufacturing companies, distributors, and supply
chain companies producing and supplying critical products and
services in and for industries such as pharmaceutical, technology,
biotechnology, healthcare, chemicals and sanitization, waste pickup
and disposal, agriculture, food and beverage, transportation, energy,
steel and steel products, petroleum and fuel, mining, mineral
extraction, construction, national defense, communications, as well as
products used by other Life-Sustaining Businesses, or products that
can be used to treat or prevent COVID-19.
1355
ANDY BESHEAR
GOVERNOR
EXECUTIVE ORDER
Secretary of State
Frankfort
Kentucky
2020-257
March 25, 2020
q. Critical labor union functions. Labor Union critical activities

including the administration of health and welfare funds and personnel
checking on the well-being and safety of members providing services
in Life-Sustaining Businesses, provided that these checks should be
done by telephone or remotely where possible.
r. Hotels and motels. Hotels and motels, to the extent used for lodging
and delivery or carry-out food services.
s. Funeral services. Funeral, mortuary, cremation, burial, cemetery, and

related services, subject to restrictions on mass gathering and
appropriate social distancing.
2. Telework Permitted. The prohibition does not apply to virtual or telework

operations.
3. Social Distancing and Hygiene Required. All businesses permitted to

operate, including Life-Sustaining Businesses and businesses conducting
Minimum Basic Operations, must follow, to the fullest extent practicable,
social distancing and hygiene guidance from the CDC and the Kentucky
Department of Public Health. Failure to do so is a violation of this Order, and
could subject said business to closure or additional penalties as authorized by
law. Social distancing and hygiene guidance includes:
a. ensuring physical separation of employees and customers by at least

six feet when possible;
b. ensuring employees practice appropriate hygiene measures, including

regular, thorough handwashing or access to hand sanitizer;
c. regularly cleaning and disinfecting frequently touched objects and

surfaces;
d. permitting employees to work from home when feasible; and
e. identifying any sick employees and ask theming to leave the premises.
Employers are strongly encouraged to offer these employees paid
leave.
4. Minimum Basic Operations. Minimum Basic Operations are the minimum

necessary activities to maintain the value of the business's inventory, preserve
the condition of the business's physical plant and equipment, ensure security,
process payroll and employee benefits, facilitate telecommuting, and other
related functions.
5. Evictions Suspended. Pursuant to the authority vested in me by KRS Chapter

39A, evictions within the Commonwealth are suspended, and all state, county,
and local law enforcement officers in the Commonwealth are directed to cease
1356
ANDY BESHEAR
GOVERNOR
EXECUTIVE ORDER
Secretary of State
Frankfort
Kentucky
2020-257
March 25, 2020
enforcement of orders of eviction for residential premises for the duration of

the State of Emergency under Executive Order 2020-215. No provision
contained within this Order shall be construed as relieving any individual of
the obligation to pay rent, to make mortgage payments, or to comply with any
other obligation that an individual may have under tenancy or mortgage.
6. Additional Orders. The following designees may provide guidance,

clarification or modification of this Order to industries or businesses, and may
otherwise issue orders necessary to the operation of government during the
State of Emergency: the Governor's Executive Cabinet, as set forth in KRS
11.065; the Commissioner of Public Health; the Director of the Division of
Emergency Management; and the Director of the Kentucky Office of
Homeland Security. Local health departments may take all necessary
measures to implement this Order.
7. In-Person Government Services. All in-person government activities at the

state, county, and local level that are not necessary to sustain or protect life, or
to supporting Life-Sustaining Businesses, are suspended.
a. For purposes of this Order, necessary government activities include

activities performed by critical infrastructure workers, including
workers in law enforcement, public safety, and first responders. Such
activities also include, but are not limited to, public transit, trash pick-
up and disposal, activities necessary to manage and oversee elections,
operations necessary to enable transactions that support the work of a
business's or operation's critical infrastructure workers, and the
maintenance of safe and sanitary public parks so as to allow for
outdoor recreation.
b. Any in-person government services that continue must operate

consistent with social distancing, as set forth in Paragraph 3 of this
Order.
c. Any statutory deadlines that conflict with the suspension of in-person

government activities are hereby suspended during the pendency of
this Order.
d. Nothing in this Order should be interpreted to interfere with or infringe

on the powers of the legislative and judicial branches to perform their
constitutional duties or exercise their authority.
8. Prior Orders Remain In Effect. All prior Executive Orders, and Orders
issued by Cabinets pursuant to Executive Order 2020-215, remain in full force
and effect, except to the extent they conflict with this Order. For the
avoidance of doubt, mass gatherings remain prohibited pursuant to the March
19, 2020 Order of the Cabinet for Health and Family Services and the
Department of Public Health. Non-life sustaining retail operations may
continue to provide local delivery and curbside service of online or telephone
1357
ANDY BESHEAR
GOVERNOR
EXECUTIVE ORDER
Secretary of State
Frankfort
Kentucky
2020-257
March 25, 2020
orders, consistent with Executive Order 2020-246. Violations of these and

other Orders issued pursuant to Executive Order 2020-215 are punishable as
provided in KRS Chapter 39A.
9. Firearms. Consistent with KRS 39A.100(l)(h) and (3), nothing in this Order
should be construed to interfere with the lawful sale of fireanns and
ammunition. Any businesses engaged in the lawful sale offireanns and
ammunition must follow social distancing and hygiene guidance from the
CDC and the Kentucky Department of Public Health, including: ensuring
physical separation of employees and customers by at least six feet when
possible; ensuring employees practice appropriate hygiene measures,
including regular, thorough hand washing; regularly cleaning and disinfecting
frequently touched objects and surfaces; and ordering sick individuals to leave
the premises. Failure to do so is a violation of this Order, and could subject
said business to closure.
This Order shall be in effect for the duration of the State of Emergency herein
referenced, or until this Executive Order is rescinded by further order or by operation of
law.
MICHAEL G. ADAMS
Secretary of State
1358

Andy Beshear 275 East Main Street, SW-A Eric C. Friedlander

Governor Frankfort. KY 40621 Secretary
502-564-7042
502-564-7091
www.chfs.ky.gov
ORDER
May 9, 2020
On March 6, 2020, Governor Andy Beshear signed Executive Order 2020-215, declaring a stale of
Pursuant 10 the authority in KRS l 94A.025, KRS 214.020, and Executive Orders 2020-215, 2020-243,
hereby orders the following directives to reduce and slow the spread of COVJD-19:
1. The March 19, 2020 Order of the Cabinet for Health and Family Services
as follows.
2. Effective immediately, the Mass Gatherings Order shall not apply 10 in-person
services of faith-based organizations. Faith-based organizations thal have in-
Guidelines for Places of Worship are available online at
healthyatwork.ky.gov.
as recommended by the Centers for Disease Control und Prevention are
amended herein.

this Order, shall to the fullest extenl practicable implement Centers for
Disease Control and Prevention guidance, including:
TEAM 1 t
Kentucky.gov KENTUCKY An Equal Opportunity Employer M/F/0
Case: 2:20-cv-00054-WOB-CJS
• maintaining a distanceDoc
of 6 #:
feet89-2 Filed:
between 01/08/21 Page: 88 of 142 - Page ID#:
persons;
1359
• encouraging good hygiene measures. including regular, thorough
handwashing, and providing adequate hygiene materials. including hand
sanitizing options;
and
• regularly cleaning and disinfecting frequenlly touched objects and

surfaces.

the authority to take aJI necessary measures to implement this Order.
The Cabinet for Health and Family Services will monitor these directives continuously. The Cabinet
will c ·nue to provide infonnation and updates to healthcare providers during the duration of this
Pubti H alth Erner ncy.
Cammi lh
Depart
Cabin
Eric Friedlander
~ecretary
Governor's Designee
Case 3:20-cv-00278-DJH-RSE Document 35 Filed 05/08/20 Page 1 of 6 PageID #: 575
1360
UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
MARYVILLE BAPTIST CHURCH, INC.

and DR. JACK ROBERTS, Plaintiffs,
v. Civil Action No. 3:20-cv-278-DJH-RSE
ANDY BESHEAR, in his official capacity as

Governor of the Commonwealth of Kentucky, Defendant.
* * * * *
ORDER
The Court previously denied the motion of Plaintiffs Maryville Baptist Church and Jack
Roberts for a temporary restraining order preventing Governor Andy Beshear from enforcing a
ban on mass gatherings as it applied to church services. (Docket No. 9) Plaintiffs appealed the
Court’s ruling, and the Sixth Circuit has since granted in part Plaintiffs’ motion for an injunction
pending appeal. Maryville Baptist Church, Inc. v. Beshear, No. 20-5427, 2020 U.S. App. LEXIS
14213 (6th Cir. May 2, 2020). The Sixth Circuit, noting that the Governor had not asserted
sovereign immunity, enjoined the Governor from enforcing the ban as to drive-in church services
but left for this Court to decide whether the ban was permissible as applied to in-person services.
See id. at *8-*9, *15-*16. After briefing was complete, as the Court finalized its decision on that
issue, the Governor filed a motion to dismiss, asserting sovereign immunity for the first time in
this litigation. (D.N. 33) As explained below, the Court finds that Plaintiffs would likely succeed
on the merits of their claim under the Kentucky Religious Freedom Restoration Act (KRFRA). In
the alternative, the Court finds that Plaintiffs have a substantial likelihood of success on the merits
of their constitutional claims. The Court will therefore grant the remainder of Plaintiffs’ motion
for injunction pending appeal.
1
Exhibit 2-1
1361
I.
Plaintiffs assert violations of the First Amendment and KRFRA arising from orders issued
by the Governor and state health officials in response to the COVID-19 pandemic. (D.N. 1) The
orders ban “mass gatherings,” defined as “any event or convening that brings together groups of
individuals.” (D.N. 1-5, PageID # 66) This restriction includes, “but [is] not limited to,
community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals;
conventions; fundraisers; and similar activities.” (Id.) The ban on mass gatherings is consistent
with guidance from the Centers for Disease Control and Prevention that “COVID-19 spreads
mainly among people who are in close contact with each other (within about 6 feet) for a prolonged
period” and may be spread by individuals who do not show symptoms of illness. (D.N. 31-2,
PageID # 453 (affidavit of Kentucky Public Health Commissioner Steven Stack, M.D.)) Plaintiffs
maintain that they have required, and would continue to require, social-distancing and hygiene
measures for individuals attending in-person services at the church.1 (D.N. 1, PageID # 17)
The parties repeatedly denied any need for discovery in this matter. Nor did either side
seek an evidentiary hearing or oral argument on Plaintiffs’ motions. The Court directed the parties
to confer regarding a set of stipulated facts. The stipulation filed (D.N. 29) is of minimal value.
As a result, the factual basis for the analysis below is severely limited.
II.
The Federal Rules of Civil Procedure provide that “[w]hile an appeal is pending from an
interlocutory order or final judgment that grants, continues, modifies, refuses, dissolves, or refuses
to dissolve or modify an injunction, the court may suspend, modify, restore, or grant an injunction
1
Plaintiffs have held, and continue to hold, in-person services in violation of the Governor’s
orders. (See, e.g., D.N. 25-3)
2
1362
on terms for bond or other terms that secure the opposing party’s rights.” Fed. R. Civ. P. 62(d).
As before, the Court’s analysis is guided by four factors: (1) whether Plaintiffs have demonstrated
a strong likelihood of success on the merits; (2) whether they will be irreparably injured absent the
requested injunction; (3) whether the injunction would “substantially injure the other parties
interested in the proceeding”; and (4) “where the public interest lies.” Maryville Baptist, 2020
U.S. App. LEXIS 14213, at *4-*5 (quoting Nken v. Holder, 556 U.S. 418, 434 (2009)).
Because the Court must avoid constitutional questions if possible, it addresses Plaintiffs’
KRFRA claim first. See, e.g., Torres v. Precision Indus., 938 F.3d 752, 754-57 (6th Cir. 2019);
WJW-TV, Inc. v. Cleveland, 878 F.2d 906, 910 & n.4 (6th Cir. 1989).
A. Kentucky Religious Freedom Restoration Act
Kentucky Revised Statutes § 446.350 provides:
The right to act or refuse to act in a manner motivated by a sincerely held religious
belief may not be substantially burdened unless the government proves by clear and
convincing evidence that it has a compelling governmental interest in infringing the
specific act or refusal to act and has used the least restrictive means to further that
interest. A “burden” shall include indirect burdens such as withholding benefits,
assessing penalties, or an exclusion from programs or access to facilities.
There is no dispute here that “the Governor has a compelling interest in preventing the spread of a
novel, highly contagious, sometimes fatal virus.” Maryville Baptist, 2020 U.S. App. LEXIS
14213, at *6. Likewise, neither the Court nor the Governor questions whether the activities
burdened by the restrictions are motivated by sincerely held religious beliefs, or that the burden is
substantial. See id. Thus, as the Sixth Circuit recognized, Plaintiffs’ KRFRA claim turns on the
“least restrictive means” element, id., for which the Governor bears the burden of proof. See Ky.
Rev. Stat. § 446.350. Unfortunately, the Governor does not address this element, much less
provide “clear and convincing evidence” to support it. (See generally D.N. 31)
3
1363
The Governor briefly argues, for purposes of Plaintiffs’ constitutional claims, that the
orders are narrowly tailored. Citing evidence that “mass gatherings present a particular risk for
the spread of disease, as compared to transitory encounters,” he asserts that “[p]roviding an
exception to the mass gatherings order for in-person faith-based services would compromise the
Commonwealth’s efforts to reduce the spread of COVID-19 and flatten the curve.” (Id., PageID
# 430 & n.52; see D.N. 31-2, PageID # 453) The Governor fails, however, to present any evidence
or even argument that there was no other, less restrictive, way to achieve the same goals. (See
generally D.N. 31) Most notably, his response brief fails to address the Sixth Circuit’s suggestion
that concerns about large gatherings could be adequately addressed by simply “limit[ing] the
number of people who can attend a service at one time.” Maryville Baptist, 2020 U.S. App. LEXIS
14213, at *14. Because the Governor bears the burden of proof on this element, Ky. Rev. Stat.
§ 446.350, the Court is compelled to find that Plaintiffs have a strong likelihood of success on the
merits of their KRFRA claim.
B. Constitutional Claims
In the alternative—assuming, without deciding, that the Governor has properly asserted
sovereign immunity and that the KRFRA claim is therefore barred—the Court finds that Plaintiffs
are likely to succeed on the merits of their constitutional claims. Unlike this Court, the Sixth
Circuit read the mass-gatherings ban as discriminatory and thus subject to strict scrutiny. See
Maryville Baptist, 2020 U.S. App. LEXIS 14213, at *10-*11. (Cf. D.N. 9, PageID # 223-25) And
as explained above, the Governor has offered little to show that the orders were narrowly tailored.
See supra part II.A; see also Maryville Baptist, 2020 U.S. Dist. LEXIS 14213, at *7 (“All in all,
the Governor did not narrowly tailor the order’s impact on religious exercise.”).
4
1364
The remaining factors all follow from Plaintiffs’ likelihood of success. See Maryville
Baptist, 2020 U.S. Dist. LEXIS 14213, at *14. While “the balance is more difficult when it comes
to in-person services,” the Governor has not shown that allowing in-person services at limited
capacity, with strict social-distancing and hygiene measures observed, would substantially harm
third parties or the public interest. See id. at *10-*11 (noting that “[t]he exception for ‘life-
sustaining’ businesses allows law firms, laundromats, liquor stores, and gun shops to continue to
operate so long as they follow social-distancing and other health-related precautions”).2 He still
“has offered no good reason . . . for refusing to trust the congregants who promise to use care in
worship in just the same way [he] trusts accountants, lawyers, and laundromat workers to do the
2
The Sixth Circuit was concerned that this Court “seemed to think . . . that the explanation for
these groups of people to be in the same area—intentional worship—distinguishes them from
groups of people in a parking lot or a retail store or an airport or some other place where the orders
allow many people to be.” Id. at *13. To address the panel’s concern, the Court clarifies that this
was not, and is not, the Court’s belief. Rather, the Court contrasted events where individuals gather
and remain at a specific time for a common purpose or experience—such as church services,
movies, concerts, and sporting events, all of which are currently prohibited—with activities
undertaken individually, such as a trip to the grocery or liquor store, which is typically brief and
begins and ends according to the individual’s independent purpose. (See D.N. 9, PageID # 224-
25; see also D.N. 31, PageID # 427 (noting that the ban on mass gatherings is intended to “close[]
any event the purpose of which is to congregate person-to-person for an extended period to engage
in a particular activity”)) “Why can someone safely walk down a grocery store aisle but not a
pew?,” the Sixth Circuit asks, “[a]nd why can someone safely interact with a brave deliverywoman
but not with a stoic minister?” Id. at *11. In the infectious-disease context, the Court views the
differences between such encounters as significant: the fellow grocery shopper will not sit down
nearby and stay for an hour or more, talking and singing; the deliverywoman is unlikely to embrace
or speak closely with a package recipient. The studies cited by the Governor, as well as the
affidavit of Commissioner Stack, confirm that these distinctions are relevant in preventing the
spread of COVID-19. (D.N. 31, PageID # 430 n.52 (“There is preliminary evidence suggesting
that mass gatherings present a particular risk for the spread of disease, as compared to transitory
encounters, which is why CDC has advised against gatherings where individuals are in close
contact for prolonged periods of time.” (citations omitted)); D.N. 31-2, PageID # 453) The same
distinctions cannot be drawn for workplaces such as law offices or laundromats, as discussed
above.
5
1365
same.” Id. at *13. The Court therefore finds that preliminary injunctive relief is warranted on
Plaintiffs’ constitutional claims as well.
III.
For the reasons set forth above, it is hereby
ORDERED as follows:
(1) Plaintiffs’ renewed motion for injunction pending appeal (D.N. 25) is GRANTED
as to in-person services. Given that the same issues are raised in Plaintiffs’ initial motion for
preliminary injunction, that motion (D.N. 3) is likewise GRANTED. The Governor and other
Commonwealth officials are ENJOINED from enforcing the ban on mass gatherings as to in-
person services at Maryville Baptist Church so long as the church, its ministers, and its congregants
adhere to public health requirements set by state officials.3
(2) Plaintiffs’ initial motion for injunction pending appeal (D.N. 17) and motion for
reassignment (D.N. 11) are DENIED as moot.
(3) The Governor’s motion to exceed the page limit (D.N. 30) and the motion of the
Commonwealth of Kentucky for leave to file an amicus brief (D.N. 20) are GRANTED.
(4) If necessary, the Court will set by subsequent order a briefing schedule on the
Governor’s motion to dismiss and a hearing on Plaintiffs’ request for permanent injunction.
May 8, 2020
David J. Hale, Judge

United States District Court
3
At approximately 6:00 p.m. on Friday, May 8, 2020, the Governor filed “Supplemental Fact
Development” that included new guidelines for in-person worship services. (D.N. 34)
6
1366

LOUISVILLE
MARYVILLE BAPTIST CHURCH, INC., )

et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 3:20-cv-00278-DJH
)
ANDY BESHEAR, in his official capacity )
as the Governor of the Commonwealth of )
Kentucky, )
)
Defendant. )
GOVERNOR ANDY BESHEAR’S

NOTICE OF FILING OF SUPPLEMENTAL AUTHORITY
Defendant Andy Beshear, in his official capacity as Governor of the Commonwealth of
Kentucky, by and through counsel, hereby provides notice of filing of supplemental authority.
On May 9, 2020, the Cabinet for Health and Family Services issued an Order amending the
March 19, 2020 Order prohibiting all mass gatherings. Effective immediately, the May 9, 2020,
Order, which is attached hereto as Exhibit A, expressly provides that the prohibition on mass
gatherings shall not apply to in-person services of faith-based organizations, and provides that
faith-based organizations that have in-person services must implement the Guidance for Places
of Worship that are attached to and incorporated by reference in the Order. The May 9, 2020,
Order further provides that neither it nor the March 19, 2020, mass gatherings order prohibits
drive-in, virtual, televised, or radio services of faith-based organizations, so long as appropriate
social distancing and hygiene measures as recommended by the Centers for Disease Control and
Prevention are implemented and followed.
Under the May 9, 2020, Cabinet Order, the prohibition on in-person services of faith-
based organizations on which Plaintiffs base their claims in this action no longer exists and the
Exhibit 2-2
1367
May 9, 2020 Order expressly does not prohibit drive-in, virtual, televised, and radio services of
faith-based organizations. Therefore, the action is moot. See Jones v. Haynes, 736 Fed. App’x
585, 588-89 (6th Cir. June 5, 2018).
/s/ S. Travis Mayo

La Tasha Buckner
General Counsel
S. Travis Mayo
Chief Deputy General Counsel
Taylor Payne
Deputy General Counsel
Laura Tipton
Marc Farris
Office of the Governor
700 Capitol Avenue, Suite 106
Frankfort, KY 40601
(502) 564-2611
LaTasha.Buckner@ky.gov
travis.mayo@ky.gov
taylor.payne@ky.gov
laurac.tipton@ky.gov
marc.farris@ky.gov
Counsel for Governor Andy Beshear
I hereby certify that on May 10, 2020, I electronically filed the foregoing Notice of Filing
of Supplemental Authority via the Court’s CM/ECF system, causing counsel of record to be
served.
/s/ S. Travis Mayo

S. Travis Mayo
2
Case 3:20-cv-00278-DJH-RSE Document 36-1 Filed 05/10/20 Page 1 of 6 PageID #: 583
1368
(;+,%,7$
1369

Andy Beshear 275 East Main Street, SW-A Eric C. Friedlander

Governor Frankton. KY 40621 Secretary
502-564-7042
502-564-7091
www.chls.ky.gov
ORDER
May 9, 2020
On March 6, 2020, Governor Andy Beshear signed Executive Order 2020-215, declaring a stale of
Pursuant 10 the authority in KRS l 94A.025, KRS 214.020, and Executive Orders 2020-215, 2020-243,
hereby orders the following directives to reduce and slow the spread of COVJD-19:
1. The March 19, 2020 Order of the Cabinet for Health and Family Services
as follows.
2. Effective immediately, the Mass Gatherings Order shall not apply 10 in-person
services of faith-based organizations. Faith-based organizations thal have in-
Guidelines for Places of Worship are available online at
healthyatwork.ky.gov.
as recommended by the Centers for Disease Control und Prevention are
amended herein.

this Order, shall to the fullest extenl practicable implement Centers for
Disease Control and Prevention guidance, including:
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ID#: 1372
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ID#: 1373
Healthy at Work K1~W1cfv

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Exhibit 2-3
ID#: 1374

LOUISVILLE

et al., )
)
Plaintiffs, )
)
)
Kentucky, )
)
Defendant. )
GOVERNOR BESHEAR’S ),567AMENDED MOTION TO DISMISS
Comes now, Defendant Governor Andy Beshear, in his official capacity, by and through
counsel, and moves this Court pursuant to Fed. R. Civ. P (“FRCP”) 12(b)(1) and (6) to dismiss
Plaintiffs’ claims. Due to a change in circumstances, Plaintiffs’ claims are now moot, depriving
this Court of subject matter jurisdiction. In addition, under the doctrine of sovereign immunity,
this Court lacks subject matter jurisdiction over Plaintiffs’ claim under the Religious Land Use
and Institutionalized Persons Act (“RLUIPA”) and claims under state law. (Doc. 1.).
Alternatively, Plaintiffs fail to plead a claim under the RLUIPA. Finally, all of the claims should
be dismissed pursuant to FRCP 12(b)(6) for the reasons set forth in Governor Beshear’s
Response to the Renewed Emergency Motion for Injunction Pending Appeal (Doc. 31), which is
incorporated fully herein by reference. Those reasons have been applied by other District Courts
to deny similarly requested relief. See Cross Culture Christian Ctr. v. Newsom, No. 2:20-cv-832
JAM/CKD, --- F.Supp.3d ---, 2020 WL 2121111 (E.D. Cal. May 5, 2020); Legacy Church, Inc.
v. Kunkel, No. CIV 20-0327 JB/SCY, --- F.Supp.3d ---, 2020 WL 1905586 (D. N.M. April 17,
2020).
Exhibit 2-3
ID#: 1375
A Memorandum of Law and Proposed Order are attached.
/s/ S. Travis Mayo

La Tasha Buckner
General Counsel
S. Travis Mayo
Taylor Payne
Laura Tipton
Marc Farris
Frankfort, KY 40601
(502) 564-2611
travis.mayo@ky.gov
taylor.payne@ky.gov
marc.farris@ky.gov
I hereby certify that on May 12, 2020, I electronically filed the foregoing Amended
Motion to Dismiss, Memorandum of Law, and Proposed Order via the Court’s CM/ECF system,
causing all counsel of record to be served.
/s/ S. Travis Mayo

S. Travis Mayo
ID#: 1376

LOUISVILLE

et al., )
)
Plaintiffs, )
)
)
Kentucky, )
)
Defendant. )
GOVERNOR BESHEAR’S MEMORANDUM OF LAW

IN SUPPORT OF FIRST AMENDED MOTION TO DISMISS
Pursuant to Fed. R. Civ. P (“FRCP”) 12(b)(1) and (6), this Court should dismiss
Plaintiffs’ claims. Due to a change in circumstances, Plaintiffs’ claims are now moot, depriving
this Court of subject matter jurisdiction. In addition, under the doctrine of sovereign immunity,
this Court lacks subject matter jurisdiction over Plaintiffs’ claim under the Religious Land Use
and Institutionalized Persons Act (“RLUIPA”) and claims under state law. (Doc. 1.).
Alternatively, Plaintiffs fail to plead a claim under the RLUIPA. Finally, all of the claims should
be dismissed pursuant to FRCP 12(b)(6) for the reasons set forth in Governor Beshear’s
Response to the Renewed Emergency Motion for Injunction Pending Appeal (Doc. 31), which is
incorporated fully herein by reference. Those reasons have been applied by other District Courts
to deny similarly requested relief. See Cross Culture Christian Ctr. v. Newsom, No. 2:20-cv-832
JAM/CKD, --- F.Supp.3d ---, 2020 WL 2121111 (E.D. Cal. May 5, 2020); Legacy Church, Inc.
v. Kunkel, No. CIV 20-0327 JB/SCY, --- F.Supp.3d ---, 2020 WL 1905586 (D. N.M. April 17,
2020).
ID#: 1377
BACKGROUND
I. Procedural Background
This action stems from a dispute over the application of a March 19, 2020 Executive
Order issued by the then-Acting and now current Secretary of the Kentucky Cabinet for Health
and Family Services, acting as the Governor’s designee. Aimed at addressing the COVID-19
pandemic and declared state of emergency in the Commonwealth of Kentucky, the Order
prohibits “all mass gatherings[,]” defined as “any event or convening that brings together groups
of individuals, including, but not limited to community, civic, public, leisure, faith-based, or
sporting events, parades; concerts; festivals; conventions; fundraisers; and similar activities.”
(Doc. 1-5, PageID # 66.)
On April 17, 2020, Plaintiffs filed a Verified Complaint for Declaratory Relief,
Temporary Restraining Order, Preliminary and Permanent Injunctive Relief and Damages
against the Governor in his official capacity challenging the mass gatherings order. (Doc. 1.) The
Complaint sets forth seven federal claims: four claims under the First Amendment, a claim under
Article IV of the United States Constitution, an equal protection claim, and an alleged violation
of RLUIPA. (Doc. 1.) Plaintiffs also allege five state law claims, including four claims arising
under the Kentucky Constitution and a claim that the Order violates the Kentucky Religious
Freedom Restoration Act. (Doc. 1.)
Also on April 17, Plaintiffs filed an Emergency Motion for Temporary Restraining Order.
(Doc. 3.) This Court denied the motion. (Doc. 9.) Plaintiffs appealed the denial of the motion to
the Sixth Circuit Court of Appeals. (Doc. 16.) That appeal is pending.
2
ID#: 1378
In the meantime, Plaintiffs filed Emergency Motions for Preliminary Injunction Pending
Appeal in both this Court and the Sixth Circuit. (Doc. 17); Maryville Baptist
Church, Inc. v. Beshear, No. 20-5427 (6th Cir. May 2, 2020), ECF No. 4-1. In a per curiam
order, the Sixth Circuit granted the motion in part to enjoin the mass gatherings order to the
extent it applied to or was enforced against drive-in faith-based services. (Doc. 23.) The Sixth
Circuit’s Order did not enjoin the mass gatherings order as it applied to in-person faith-based
services. (Id.) Of note, in closing, the Sixth Circuit requested that this Court “prioritize resolution
of the claims[.]” (Id. at 295.) To that end, the Governor filed a Motion to Dismiss (Doc. 33.)
After filing that Motion to Dismiss, an Eastern District of Kentucky District Court issued
a statewide temporary restraining order preventing the Governor or any Commonwealth official
from enforcing the prohibition on mass gatherings as to in-person services of faith-based
organizations. See Opinion and Order (Doc. 24), Tabernacle Baptist Church v. Beshear, No.
3:20-cv-00033-GFVT (E.D.Ky. May 8, 2020). This Court also preliminarily enjoined
enforcement of the prohibition on mass gatherings “as to in-person services at Maryville Baptist
Church so long as the church, its ministers, and its congregants adhere to public health
requirements set by state officials.” (Doc. 35, PageID #: 580.)
In response to these orders, the Secretary of the Cabinet for Health and Family Services
amended the March 19, 2020 order prohibiting mass gatherings. On May 9, 2020, the Secretary
issued an Order amending the prohibition on mass gatherings. (Doc. 36-1.) Pursuant to that
Order, the prohibition on mass gatherings no longer applies to in-person services of faith-based
organizations. (Id.) The Order requires faith-based organizations that have in-person services to
implement and follow the Guidelines for Places of Worship that the Order attaches and
incorporates by reference. (Id.). The Guidelines provide that places of worship will be expected
3
ID#: 1379
to meet the Healthy at Work Minimum Requirements for all entities in Kentucky and, in
addition, should follow the guidelines for places of worship in order to reopen and remain open.
(Id.) The Guidelines are mostly permissive, but, consistent with the Court’s May 8, 2020 Order,
require that places of worship having in-person services adhere to social distancing and hygiene
guidelines of the CDC and public health officials. (Id.)
II. Factual Background
The Governor adopts by incorporation and reference the Response in Opposition to
Plaintiffs’ Renewed Emergency Motion for Injunction Pending Appeal as to the necessary
factual background regarding the spread of COVID-19 and the Commonwealth’s response. (See
Doc. 31. PageID #: 406 – 421.)
Since those filings, Maryville Baptist Church held in-person services on May 10, 2020,
but did not comply with the requirements set forth in this Court’s preliminary injunction Order.
As shown by the video of the in-person service, the service began with members of the choir
standing well within six (6) feet of one another, not adhering to social distancing guidelines. 1
Later during the in-person service, members of the congregation, including some members of the
vulnerable population at higher risk during the COVID-19 pandemic, stood with the pastor, side
by side, not adhering to social distancing, without any face coverings, and at times touched or
hugged one another. (Id. at 25:30-37:02.)
Defendants now amend their prior Motion to Dismiss (Doc. 33) to include these
procedural and factual developments.
1
Video of Maryville Baptist Church Service, May 10, 2020, at 0:01-20:36, available at
https://www.facebook.com/maryville.baptist/videos/3165718850157409/ (last visited May 11, 2020).
4
ID#: 1380
ARGUMENT
In light of recent factual developments, Plaintiffs’ claims are now moot. Furthermore,
the Court should deny Plaintiffs’ requested relief due to their unclean hands. In addition, this
Court lacks jurisdiction over Plaintiffs’ state law claims and RLUIPA claim; sovereign immunity
applies to these claims. Finally, Plaintiffs fail to plead a claim under RLUIPA and with respect
to their Complaint as a whole. The Governor therefore requests that this Court dismiss
Plaintiffs’ Complaint.
I. Legal Standard
FRCP 12(b)(1) requires a court to dismiss a complaint when it lacks subject matter
jurisdiction over the case. A federal court lacks subject matter jurisdiction over moot claims.
Kentucky v. United States ex rel. Hagel, 759 F.3d 588, 595 (6th Cir. 2014). Similarly, a federal
court lacks subject matter jurisdiction over claims against a State rightfully asserting its
sovereign immunity. Alden v. Maine, 527 U.S. 706 (1999).
Alternatively, FRCP 12(b)(6) permits a district court to dismiss a complaint for “failure
to state a claim upon which relief can be granted.” For purposes of ruling on a Motion to Dismiss
pursuant to FRCP 12(b)(6), the court construes the complaint in a light most favorable to the
plaintiff and accepts as true all well-pled allegations in the complaint. Robert N. Clemens Trust,
485 F.3d at 845 (citation omitted). The “factual allegations must be enough to raise a right to
relief above a speculative level on the assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955,
1965, 167 L.Ed.2d 929 (2007) (citations omitted). However, a court is “not bound to accept as
true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286,
106 S.Ct. 2932, 2944, 92 L.Ed.2d 209 (1986) (citation omitted).
5
ID#: 1381
II. The Governor’s Actions Amending The Prohibition On Mass Gatherings Renders
Plaintiffs’ Claims Moot.
This Court’s jurisdiction is limited to “cases and controversies.” U.S. CONST. art. III, § 2.
The issue of mootness addresses whether an actual, live controversy exists during the litigation
or whether an intervening event will render the Court’s final adjudication merely advisory.
Calderon v. Moore, 518 U.S. 149, 150 (1996). In other words, a court that at one point had
jurisdiction may lose that jurisdiction if the case becomes moot because an intervening event has
“completely and irrevocably eradicated the effects of the alleged violation.” Los Angeles Cty. v.
Davis, 440 U.S. 625, 631 (1979) (citations omitted).
The Sixth Circuit treats “cessation of the allegedly illegal conduct by government
officials ... with more solicitude ... than similar action by private parties.” Bench Billboard Co. v.
City of Cincinnati, 675 F.3d 974, 981 (6th Cir. 2012). Therefore, government “self-correction
provides a secure foundation for a dismissal based on mootness so long as it appears genuine.”
Id. “Legislative repeal or amendment of a challenged statute while a case is pending on appeal
usually eliminates this requisite case-or-controversy because a statute must be analyzed by the ...
court in its present form.” Id.
This case became moot on May 9, 2020, when Governor Beshear amended the March 19,
2020 Executive Order prohibiting mass gatherings. That order – the only order at issue in this
matter – no longer applies to in-person services of faith-based organizations. The Sixth Circuit
recognized the issue of mootness in its per curiam order, stating, “The case will become moot
just over three Sundays from now, May 20, when the Governor has agreed to permit places of
worship to reopen.” Maryville Baptist Church v. Beshear, --- F.3d --- (6th Cir. 2020). This
remains true even though the Governor initiated the May 20 reopening plan on May 9. In other
words, the case that would have been moot on May 20 is now moot as of May 9.
6
ID#: 1382
Moreover, any opinion from this Court on the merits of Plaintiffs’ claims would amount
to an advisory opinion, which Article III of the Constitution prohibits. Fialka –Feldman v.
Oakland Univ. Bd. of Trs., 639 F.3d 711, 715 (6th Cir. 2011). To address the merits, the Court
would have to operate under the hypothetical that the mass gatherings order still applied to faith-
based organizations or that the Governor will enact these same measures again. Employment of
such hypotheticals is the hallmark of a prohibited advisory opinion. Chafin v. Chafin, 568 U.S.
165, 172 (2013).
This Court should dismiss Plaintiffs’ Complaint as moot.
III. The Court Should Deny Further Injunctive Relief Due To Plaintiffs’ Unclean
Hands.
The Court should also dismiss these Plaintiffs’ claims for equitable relief because
Plaintiffs have demonstrated unclean hands by conducting in-person services without respecting
CDC guidelines for social distancing, as required by this Court’s May 8, 2020 Order. In fact,
Plaintiffs’ entire request for relief was predicated on their assertion they would comply with the
measures applicable to life-sustaining businesses, including social distancing and hygiene
guidelines. (See generally Complaint, Doc. 1.)
The unclean hands doctrine “closes the doors of a court of equity to one tainted with
inequitableness or bad faith relative to the matter in which he seeks relief, however improper
may have been the behavior of the opposing party.” Cleveland Newspaper Guild, Local 1 v.
Plain Dealer Pub. Co., 839 F.2d 1147, 1155 (6th Cir. 1988) (quotation marks and citation
omitted). The unclean hands doctrine has been invoked to bar relief where, as here, Plaintiffs
have engaged in action in violation of the law while the case is pending. As the Seventh Circuit
has explained, “[p]arties who believe that a statute or ordinance is unconstitutional must wait for
that to happen before treating the challenged law as nonexistent. They do not have free rein to
7
ID#: 1383
invoke a court’s jurisdiction over a challenge to an ordinance, but to then act like the law does
not exist before the court reaches the merits of its challenge.” GEFT Outdoors, LLC v. City of
Westfield, 922 F.3d 357, 370 (7th Cir. 2019).
In this case, Plaintiffs secured the preliminary relief they sought – a limitation on the
mass gatherings order’s application to in-person services that comply with social distancing
requirements. Among those requirements is that family groups maintain six feet of separation.
(Doc. 35, PageID #: 580.) The Eastern District of Kentucky and Sixth Circuit reached similar
results.
Yet Plaintiffs promptly held an in-person service during which individuals – including
individuals who are plainly among the high-risk groups for COVID-19 – were well within six
feet of each other and even touched each other, as the video recording indisputably shows. 2
Thus, Plaintiffs chose to flagrantly violate that part of the mass gatherings order that every court
has upheld.
Plaintiffs’ wrongful conduct bars further injunctive relief, especially given that
Defendants have already revised the mass gatherings order in conformity with this Court’s
decision. In GEFT Outdoors, the Seventh Circuit affirmed a District Court’s denial of injunctive
relief against an ordinance that the plaintiff alleged violated the First Amendment, where the
plaintiff chose to violate the ordinance while the motions were pending. Id. As that court
explained, “[t]he district court, faced with a situation where GEFT had invoked the court’s power
over its dispute with Westfield, but then unilaterally acted in violation of a still-valid ordinance,
did not abuse its discretion in determining that these actions supported denying GEFT’s motion
for equitable relief.” Id.
2
Video of Maryville Baptist Church Service, May 10, 2020, at 0:01-20:36, available at
https://www.facebook.com/maryville.baptist/videos/3165718850157409/ (last visited May 11, 2020).
8
ID#: 1384
Indeed, Plaintiffs’ conduct is more unconscionable than the conduct that barred injunctive
relief in GEFT Outdoors, because Plaintiffs here did not simply act before the Court could rule –
they instead violated the plain language of this Court’s order, which upheld the social distancing
requirements.
In light of Plaintiffs’ unlawful conduct and Defendants’ good-faith effort to comply with
the orders of this Court, the Eastern District of Kentucky, and the Sixth Circuit, the Court should
dismiss the Complaint. There is simply no risk that Plaintiffs’ constitutional rights will be
violated, assuming arguendo that this Court and the Sixth Circuit have correctly articulated those
rights, and Plaintiffs’ willful failure to comply with the orders of this Court and of the Eastern
District of Kentucky bars any relief.
IV. The Eleventh Amendment Prohibits Plaintiffs’ State Claims And RLUIPA Claims
Against The Governor.
The Eleventh Amendment to the United States Constitution bars suits against the state.
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97-98 (1984). State officials sued in
their official capacities are “arms of the state” entitled to assert the State’s sovereign immunity
on their own behalf. See Ernst v. Rising, 427 F.3d 351 (6th Cir. 2005). The Supreme Court
acknowledges three exceptions: suits against state officials for injunctive relief challenging the
constitutionality of the official’s action, see Ex parte Young, 209 U.S. 123 (1908), suits to which
states consent, see Pennhurst, 465 at 98, and suits invoking Congressional statutes pursuant to
the Fourteenth Amendment, see Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 364 (2001).
These exceptions are not applicable to Plaintiffs’ state law claims and RLUIPA claim asserted in
the Complaint. As to the state law claims, “because the purposes of Ex parte Young do not apply
to a lawsuit designed to bring a State into compliance with state law, the States' constitutional
immunity from suit prohibits all state-law claims filed against a State in federal court, whether
9
ID#: 1385
those claims are monetary or injunctive in nature.” Ernst v. Rising, 427 F.3d 351, 368 (6th Cir.
2005) (citing Pennhurst, 465 U.S. at 106). Nor has the Commonwealth consented to suit in
federal court on the state law claims. The Kentucky Constitution provides that the
Commonwealth cannot waive immunity except by express legislative action. KY. CONST. § 231.
See also Edelman v. Jordan, 415 U.S. 651, 673 (1977) (a state must specify “by the most express
language” its intent to waive Eleventh Amendment immunity and subject itself to suit in federal
court.) The Commonwealth has not done so.
As to the RLUIPA claim, that Act does not expressly abrogate a state’s sovereign
immunity. See Webman v. Fed. Bureau of Prisons, 441 F.3d 1022, 1025-26 (D.C. Cir. 2006).
Plaintiffs’ claims also cannot survive as requests for declaratory judgment. See Skelly Oil
Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950) (holding that the Declaratory Judgment
Act does not extend the jurisdiction of federal courts.)
Accordingly, sovereign immunity bars Plaintiffs’ claims against the Governor in his
official capacity for damages, prospective injunctive and declaratory relief under state law and
RLUIPA.
V. Plaintiffs Fail To Plead A Claim Under The Religious Land Use And
Institutionalized Persons Act.
The Court should dismiss Plaintiffs’ RLUIPA claim for the additional reason that they
have not stated a claim under that statute. Plaintiffs assert a violation of 42 U.S.C. §
2000cc(a)(1) of RLUIPA. That section states that “[n]o government shall impose or implement a
land use regulation in a manner that imposes a substantial burden on the religious exercise of a
person, including a religious assembly or institution.” 42 U.S.C. § 2000cc(a)(1). It applies in any
situation in which:
10
ID#: 1386
(A) the substantial burden is imposed in a program or activity that receives Federal
financial assistance, even if the burden results from a rule of general applicability;
(B) the substantial burden affects, or removal of that substantial burden would
affect, commerce with foreign nations, among the several States, or with Indian
tribes, even if the burden results from a rule of general applicability; or
(C) the substantial burden is imposed in the implementation of a land use regulation
or system of land use regulations, under which a government makes, or has in place
formal or informal procedures or practices that permit the government to make,
individualized assessments of the proposed uses for the property involved.
42 U.S.C. § 2000cc(a)(2).
RLUIPA defines “land use regulation” as “a zoning or landmarking law, or the
application of such a law.” 42 U.S.C. § 2000cc-5(5). The mass gatherings order regulates
conduct, not land use. Plaintiffs fail to allege the Governor imposed or implemented a “land use
regulation.” (See Doc. 1, PageID # 44-46.) Moreover, they disregard the application of 42 U.S.C.
§ 2000cc(a)(2) to their claim. Plaintiffs do not allege the burden was imposed “in a program or
activity that receives Federal financial assistance[;] . . . [that it] affect[s] commerce with foreign
nations, among the several States, or with Indian tribes;” or that it was imposed in a manner that
allows the government to “make, individualized assessments of the proposed uses for the
property involved.”
Neither do Plaintiffs cite to any decision upholding a challenge under RLUIPA to a
conduct-regulating statute. Interpreting RLUIPA to regulate conduct in such a way would raise
constitutional questions about RLUIPA’s congruence and proportionality. See Cross Country
Christian Ctr. v. Newsom, -- F.3d --, 2020 WL 2121111, at *7 (E.D. Calif. Mar. 5, 2020) ((citing
Guru Nanak Sikh Soc. Of Yuba City v. County of Sutter, 456 F.3d 978, 986 (9th Cir. 2006) (citing
Cutter v. Wilkinson, 544 U.S. 709, 1161 L.Ed.2d 1020 (2005) (“To avoid RFRA’s fate, Congress
wrote that RLUIPA would apply only to regulations regarding land use and prison conditions.”))
11
ID#: 1387
Under the canon of constitutional avoidance, RLUIPA does not, by its plain terms, apply to the
mass gatherings order.
Plaintiffs fail to plead this claim with the particularity required to survive a motion to
dismiss.
VI. This Court Should Dismiss The Complaint Entirely For Plaintiffs’ Failure to State a
Claim.
Plaintiffs cannot prevail on any of their claims. The Governor’s order prohibiting mass
gatherings was a lawful response to a worldwide public health emergency. The Governor’s
Response to Plaintiff’s Renewed Emergency Motion for Injunction Pending Appeal addresses
these points, which is incorporated in this Motion. These points have been adopted by other
District Courts to uphold similar orders in other states. See Cross Culture Christian Ctr., No.
2:20-cv-832, --- F.Supp.3d ---, 2020 WL 2121111; Legacy Church, Inc., No. CIV 20-0327
JB/SCY, --- F.Supp.3d ---, 2020 WL 1905586.
CONCLUSION
For the foregoing reasons, Governor Beshear respectfully asks the Court to dismiss
Plaintiffs’ Complaint as moot. Alternatively, the Governor respectfully requests that this Court
apply the unclean hands doctrine to deny Plaintiffs’ the relief sought. The Governor further
requests that this Court dismiss Plaintiffs’ state law claims and the claim asserted under the
Religious Land Use and Institutionalized Persons Act pursuant to the doctrine of sovereign
immunity. Additionally, Governor Beshear respectfully asks this Court to dismiss the Complaint
in its entirety for Plaintiff’s failure to state a claim as set forth herein and in Governor Beshear’s
Response to Plaintiffs’ Renewed Emergency Motion for Injunction Pending Appeal.
12
ID#: 1388
/s/ S. Travis Mayo

La Tasha Buckner
General Counsel
S. Travis Mayo
Taylor Payne
Laura Tipton
Marc Farris
Frankfort, KY 40601
(502) 564-2611
travis.mayo@ky.gov
taylor.payne@ky.gov
marc.farris@ky.gov
13
ID#: 1389

LOUISVILLE

et al., )
)
Plaintiffs, )
)
)
Kentucky, )
)
Defendant. )
ORDER
This matter having come before the Court on the Governor’s Amended Motion to
Dismiss, and the Court having reviewed the Amended Motion and being sufficiently advised, it
is hereby ORDERED that the Amended Motion to Dismiss is GRANTED.
So Ordered this ___ day of ________________, 2020.
__________________________________
JUDGE DAVID J. HALE
United States District Court for the
Western District of Kentucky
ID#: 1390

LOUISVILLE

et al., )
)
Plaintiffs, )
)
) Electronically Filed
Kentucky, )
)
Defendant. )
MOTION TO DISSOLVE THE PRELIMINARY INJUNCTION AND INJUNCTION

PENDING APPEAL AND NOTICE OF SUPPLEMENTAL AUTHORITY
Comes now, Defendant Governor Andy Beshear, by and through counsel, and hereby
respectfully moves to dissolve the preliminary injunction and injunction pending appeal and to
provide the Court with notice of supplemental legal authority that is dispositive of the First
Amended Motion to Dismiss, filed May 12, 2020. A memorandum of law is attached that
supports the motion and explains the supplemental authority.
/s/ Taylor Payne

La Tasha Buckner
General Counsel
S. Travis Mayo
Taylor Payne
Laura Tipton
Marc Farris
Frankfort, KY 40601
(502) 564-2611
Exhibit 2-4
ID#: 1391
travis.mayo@ky.gov
taylor.payne@ky.gov
marc.farris@ky.gov
I hereby certify that the foregoing Motion to Dissolve and Notice of Supplemental
Authority were filed with the Clerk of this Court through the Court’s CM/ECF filing system
causing all counsel of record to be served on this the 29th day of June, 2020.
/s/Taylor Payne
Taylor Payne
ID#: 1392

LOUISVILLE

et al., )
)
Plaintiffs, )
)
)
Kentucky, )
)
Defendant. )
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S

MOTION TO DISSOLVE THE PRELIMINARY INJUNCTION
AND INJUNCTION PENDING APPEAL
Defendant Governor Andy Beshear respectfully submits this Memorandum of Law in
support of his Motion to Dissolve the Preliminary Injunction and Injunction Pending Appeal and
to provide the Court with notice of supplemental legal authority that is dispositive of the First
Amended Motion to Dismiss, filed May 12, 2020. The Supreme Court has issued intervening law
clarifying that enjoining the mass gatherings order was improper.
“When presented with a motion for a preliminary injunction, a district court considers
four factors: (1) the plaintiffs' likelihood of success on the merits, (2) whether the plaintiffs could
suffer irreparable harm without the injunction, (3) whether granting the injunction will cause
substantial harm to others, and (4) the impact of the injunction on the public interest.” Golden v.
Kelsey-Hayes Co., 73 F.3d 648, 653 (6th Cir. 1996). “Although no one factor is controlling, a
finding that there is simply no likelihood of success on the merits is usually fatal.” O’Toole v.
O’Connor, 802 F.3d 783, 788 (6th Cir. 2015) (quoting Gonzales v. Nat’l Bd. of Med. Examiners,
ID#: 1393
225 F.3d 620, 625 (6th Cir. 2000)). A court retains jurisdiction to dissolve a preliminary
injunction “[w]here ‘significant changes in the law or circumstances’ render the injunction no
longer equitable. Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 414 (6th Cir. 2012).
This Court initially denied Plaintiffs’ motion for a temporary restraining order, finding
that the mass gatherings order did not discriminate against religious practice because it
prohibited both secular and non-secular mass gatherings. (Doc. 9, PageID#: 224-25.) The Sixth
Circuit disagreed. It held that Plaintiffs were likely to succeed under their First Amendment
claims because the mass gatherings order “inexplicably applied to one group” but exempted
“‘life-sustaining’ businesses” such as “law firms, laundromats, liquor stores, and gun shops[.]”
Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610, 614 (6th Cir. 2020). The Sixth Circuit
enjoined enforcement of the mass gatherings order to the extent it applied to drive-in church
services. Id.
Additionally, in a case that has now been consolidated with the instant case before the
Sixth Circuit, for the same reasons set forth in Maryville Baptist, the Sixth Circuit issued an
injunction pending the appeal of a denial of a preliminary injunction issued by a District Court in
the Eastern District of Kentucky. Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020). With that
guidance, this Court applied strict scrutiny to the mass gatherings order and issued the Plaintiffs’
requests for a preliminary injunction and injunction pending appeal. (Doc. 35, PageID #: 578-
79.)
The Maryville Baptist and Roberts opinions are no longer good law, and therefore
Plaintiffs no longer have any likelihood of success on the merits. On May 29, 2020, United
States Supreme Court Chief Justice John Roberts, in a concurring Opinion in support of an Order
denying a motion for injunctive relief, made clear that the mass gatherings order at issue in this
2
ID#: 1394
case passes constitutional muster and should not be enjoined. South Bay United Pentecostal
Church, et al. v. Newsom, No. 19A1044, 590 U.S. --- (May 29, 2020).1
In South Bay United, like this case, the plaintiffs challenged a broad prohibition on mass
gatherings that did not single out First Amendment protected activity. Id., at *1. The South Bay
United case arose from several executive orders issued by Governor Newsom that are analogous
to Kentucky’s mass gatherings order. Id. In particular, on March 19, 2020, Governor Newsom
issued Executive Order N-33-20, ordering all individuals living in California to stay at home or
their places of residence. Id. On May 7, 2020, Governor Newsom published a four-stage plan for
reopening the state. Religious establishments could not reopen until the state progressed into
stage 3, but offices, manufacturing, retail, groceries, and other services were allowed to open
prior to stage 3. Further, California issued additional guidelines for religious organizations when
they are allowed to open in stage 3, limiting attendance to 25% of building capacity or a
maximum of 100 attendees.
South Bay United filed suit, arguing that allowing certain entities to open prior to
religious organizations violated the Free Exercise Clause of the First Amendment. Id. The
District Court and the Ninth Circuit each denied South Bay’s request for preliminary injunctive
relief. South Bay applied for an injunction to the United States Supreme Court, which also
denied injunctive relief.
The Supreme Court upheld the denial of the same injunctive relief Plaintiffs sought here
because “[o]ur Constitution principally entrusts ‘[t]he safety and the health of the people’ to the
1
On the same day, the Court also denied an application by two churches in Chicago to enjoin Illinois’
stay-at-home order. Elim Romanian Church, et al. v. Pritzker, Gov. of Illinois, 19A1046 (Order List 590
U.S.) (U.S. May 29, 2020). Following that denial, the Seventh Circuit relied on South Bay United to
affirm the lower court’s denial of the preliminary injunction sought by the Plaintiff churches. Elim
Romanian Pentecostal Church v. Pritzker, --- F.3d ----, 2020 WL 3249062 (7th Cir. June 16, 2020).
3
ID#: 1395
politically accountable officials of the States ‘to guard and protect.’” Id. (quoting Jacobson v.
Massachusetts, 197 U. S. 11, 38 (1905).) In particular, the Supreme Court held that the
California Order prohibiting mass gatherings “appear[ed]” to pass First Amendment review
because it applied similar restrictions to “lectures, concerts, movie showings, spectator sports,
and theatrical performances, where large groups of people gather in close proximity for extended
periods of time,” while treating differently “only dissimilar activities, such as operating grocery
stores, banks, and laundromats, in which people neither congregate in large groups nor remain in
close proximity for extended periods.” Id., at *2.
Moreover, the South Bay United Opinion explained the importance of providing leeway
to executive officials responding to an emergency with evolving scientific data, and admonished
the federal courts not to interfere with such decisions. As the Opinion explained, “[w]hen [state]
officials ‘undertake[ ] to act in areas fraught with medical and scientific uncertainties,’ their
latitude ‘must be especially broad.’” Id. (quoting Marshall v. United States, 414 U. S. 417, 427
(1974).) Especially during an emergency, state officials “should not be subject to second-
guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and
expertise to assess public health and is not accountable to the people.” Id. (quoting Garcia v. San
Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985).) In closing, Chief Justice
Roberts wrote:
That is especially true where, as here, a party seeks emergency relief in an

interlocutory posture, while local officials are actively shaping their response to
changing facts on the ground. The notion that it is “indisputably clear” that the
Government’s limitations are unconstitutional seems quite improbable.
Id., at *2-3.
Chief Justice Roberts’ decision makes clear that the Sixth Circuit’s opinion on which this
Court relied is no longer good law, because it is entirely permissible for state officials to treat
4
ID#: 1396
laundromats and offices differently from places of mass gathering. Id. Importantly, both the
plaintiffs and dissenters in South Bay United expressly relied upon the Sixth Circuit’s decisions
concerning Governor Beshear’s Orders. But the Supreme Court, in a published opinion, has now
explicitly spoken to the Sixth Circuit’s reasoning and rejected it as a basis for enjoining
temporary public health measures addressing COVID-19.
Since its issuance, courts continue to rely on South Bay United to uphold or deny
enjoining state action in response to COVID-19. See e.g., Texas Democratic Party v. Abbott, ---
F.3d ---, 2020 WL 2982937 (5th Cir. June 4, 2020); Talleywhacker, Inc. v. Cooper, --- F.Supp.3d
---, 2020 WL 3051207 (E.D.N.C. June 8, 2020); Elkhorn Baptist Church v. Brown, --- P.3d ---,
2020 WL 3116543 (Or. 2020); Christian Cathedral v. Pan, 2020 WL 3078072 (N.D.Cal. June
10, 2020); Professional Beauty Fed. of California v. Newsom, 2020 WL 3056126 (C.D.Cal. June
8, 2020); Altman v. County of Santa Clara, --- F.Supp.3d ----, 2020 WL 2850291 (N.D.Cal June
2, 2020); Calvary Chapel Lone Mountain v. Sisolak, --- F.Supp.3d ----, 2020 WL 3108716
(D.Nev. June 11, 2020); High Plains Harvest Church v. Polis, 2020 WL 3263902 (D.Colo. June
16, 2020); League of Ind. Fitness Facilities and Trainers, Inc. v. Whitmer, --- F.Supp.3d ----,
2020 WL 3421229 (W.D.Mich. June 19, 2020).
Plaintiffs raise the same claims here. Like California’s order, Kentucky’s Mass
Gatherings Order meets this standard because it applied “[s]imilar or more severe restrictions . . .
to comparable secular gatherings[.]” Id. at *2. And like the California Governor, Governor
Beshear should be afforded broad latitude to craft temporary emergency public health measures
to respond to COVID-19. The majority thus rejected the reasoning of the Sixth Circuit in
reaching its decision.
5
ID#: 1397
The other factors – as they did before – weigh heavily towards dissolving the injunctions.
Just last week, an outbreak of 17 cases of COVID-19 occurred at a central Kentucky church that
began holding in-person services on May 13, 2020.2 And now, the Supreme Court has
recognized that the public interest is served by providing governors with broad latitude to craft
responses to public health emergencies.
Based on the reasons set forth in the First Amended Motion to Dismiss and for the
reasons in Chief Justice Roberts’ well-reasoned Opinion, the injunctions should be dissolved and
this case should be dismissed. Importantly, the Court should dissolve the injunctions even though
faith-based organizations are now permitted to open in the Commonwealth and the case is moot,
because it is essential that this Court restore the leeway that our federal system provides to
democratically elected state officials during an emergency. “The essence of our federal system
is that within the realm of authority left open to them under the Constitution, the States must be
equally free to engage in any activity that their citizens choose for the common weal . . . .”
Garcia, 469 U.S. at 546. See also Younger v. Harris, 401 U.S. 37, 44 (1971) (“‘Our Federalism’
. . . is a system in which there is sensitivity to the legitimate interests of both State and National
Governments, and in which the National Government, anxious though it may be to vindicate and
protect federal rights and federal interests, always endeavors to do so in ways that will not
unduly interfere with the legitimate activities of the States.”). In the event the disease returns in
force, or some other emergency arises, it is essential that Governor Beshear and other state
officials be able to respond promptly and with the latitude afforded to them by our federalist
2
Alex Acquisto, This Central Kentucky church reopened on May 10 and became a Covid-19 hot spot,
Lexington Herald-Leader, June 5, 2020 (last visited June 8, 2020).
6
ID#: 1398
system. State officials must be able to respond to this evolving public health emergency without
second-guessing by the federal courts.
Beyond dissolving the injunctions, the Court should also dismiss Plaintiffs’ claims for the
reasons set forth in the First Amended Motion to Dismiss and the reasons set forth in South Bay
United. This intervening law by the Supreme Court makes clear that Plaintiffs cannot prevail on
their claims under the First Amendment.
/s/ Taylor Payne

La Tasha Buckner
General Counsel
S. Travis Mayo
Taylor Payne
Laura Tipton
Marc Farris
Frankfort, KY 40601
(502) 564-2611
travis.mayo@ky.gov
taylor.payne@ky.gov
marc.farris@ky.gov
7
ID#: 1399

LOUISVILLE

et al., )
)
Plaintiffs, )
)
)
Kentucky, )
)
Defendant. )
ORDER
This matter having come before the Court on the Governor’s Motion to Dissolve the
Preliminary Injunction and Injunction Pending Appeal, and the Court having reviewed the
Motion and being sufficiently advised, it is hereby ORDERED that the Motion to Dissolve is
GRANTED.
So Ordered this ___ day of ________________, 2020.
__________________________________
JUDGE DAVID J. HALE
United States District Court for the
Western District of Kentucky
ID#: 1400

LOUISVILLE

et al., )
)
Plaintiffs, )
)
)
Kentucky, )
)
Defendant. )
GOVERNOR BESHEAR’S REPLY IN SUPPORT OF MOTION TO DISMISS
Significant developments have occurred since the filing of the First Amended Motion to
Dismiss on May 12, 2020. First, cases of COVID-19 are increases at a record pace across the
country. On July 8, 2020, the United States surpassed 3,000,000 cases of COVID-19 and
reported a one-day record of 60,021 new cases on July 7.1 More than 132,000 Americans have
died from COVID-19.2 Second, the Supreme Court has denied requests for the same relief
Plaintiffs seek here. See South Bay United Pentecostal Church v. Newsom, 140 S.Ct. 1613 (2020.
The Sixth Circuit has adopted the reasoning of South Bay. Third, the challenged order is no
longer in effect. As the Governor moves to reopen services, places of worship may now operate
at 50% capacity. Plaintiffs do not challenge the capacity limitations in this action. For these
additional reasons, the First Amended Motion to Dismiss should be granted.
1
John Bacon, et al. Coronavirus updates; US hits daily record; New Jersey to require masks outdoors; United
Airlines announces major layoffs, USA Today, July 8, 2020, available at
https://www.usatoday.com/story/news/health/ 2020/07/08/covid-19-us-3-million-cases-florida-new-
jersey/5391309002/ (last visited July 9, 2020).
2
Id.
Exhibit 2-5
ID#: 1401
I. COVID-19 Cases Are Increasing Across The United States.
Recent spikes of COVID-19 cases across the country show that the disease is more
dangerous than ever, and public health officials in those states have imposed new restrictions in
attempting to slow the spread of the virus. Kentucky has yet to experience such a spike, but if it
does, the Governor and public health officials must have the flexibility and discretion to address
it appropriately.
In late June, as cases began to rise throughout Texas, its Governor halted its reopening,
closing its bars, reducing restaurant capacity, and prohibiting gatherings of over 100 people.3 The
city of Houston announced on July 3 that beds in the intensive care units of its hospital system
had nearly reached capacity.4 While Houston has not yet implemented crisis standards, there can
be no doubt that when hospital beds reach capacity some form of rationing will be required
unless more beds are made available, quickly. Over the Fourth of July weekend, hospitals in at
least two counties in Texas reached capacity, prompting Judges in those counties to issue shelter-
in-place orders.5
Starting over the Fourth of July weekend, South Carolina has set records for new cases
and reported 2,239 new cases on July 11 and 1,952 new cases on July 12.6 South Carolina’s
Governor has lifted many restrictions on businesses, and he has warned citizens that college and
3
Gov. Greg Abbott orders Texas bars to close again and restaurants to reduce to 50% occupancy as coronavirus
spreads, Texas Tribune, June 26, 2020, available at https://www.texastribune.org/2020/06/26/texas-bars-restaurants-
coronavirus-greg-abbott/ (last visited July 8, 2020).
4
Joshua Nelson, Houston doctor reports 'ICU beds are just about at capacity' due to surge of coronavirus cases, Fox
News, July 4, 2020, available at https://www.foxnews.com/media/houston-doctor-bill-fisher-coronavirus-icu-
capacity (last visited July 6, 2020).
5
Alta Spells and Susannah Cullinane, 2 Texas counties urge residents to shelter in place as hospitals reach capacity,
CNN, July 4, 2020, available at https://www.cnn.com/2020/07/04/us/texas-hospitals-coronavirus/index.html (last
visited July 4, 2020).
6
See Lou Bezjak and Noah Felt, Cases of COVID-19 complication deadly to kids found in SC, with 1,952 new
positive tests, The State, July 12, 2020, available at https://www.thestate.com/news/coronavirus/
article244173052.html (last visited July 13, 2020).
2
ID#: 1402
high school football are unlikely to resume in the fall.7 California has also seen a resurgence of
COVID-19 cases after early success in battling the disease, with daily diagnoses of over 4,000
positive cases. In the southern California counties where the disease is spreading most rapidly,
Governor Newsom has closed indoor operations at all restaurants, wineries, movie theaters,
family entertainment centers, zoos, museums and cardrooms.8
And in Florida, which reopened quicker than most states, the state reported nearly 15,300
new cases on July 12 and 12,624 new cases on July 13.9 Florida now has 282,435 cases of
COVID-19.10 The test positivity rate reached 19.6-percent (19.6%) there on Sunday.11 Florida’s
governor shut down bars on June 26, 2020.12 The Florida Supreme Court agreed when it ruled
that a “pandemic was a ‘natural emergency’ under Florida’s emergency management law, and
DeSantis was within his rights when he closed restaurants and bars earlier this year.”13,14
7
Lou Bezjak and Noah Feit, SC health officials report more than 1,400 new COVID-19 cases, eight deaths, The
State, July 5, 2020, available at https://www.thestate.com/news/coronavirus/article244012572.html (last visited July
5, 2020).
8
Stephanie Sierra and Alix Martichoux, Gov. Newsom warns Californians to follow new health orders ahead of
Fourth of July, ABC 7 News, July 5, 2020, available at https://abc7news.com/california-coronavirus-what-did-
gavin-newsom-say-today-are-parks-open-in-counties-closed/6292195/ (last visited July 5, 2020).
9
Michelle Marchante, Florida sees more than 12,600 new coronavirus cases as Miami-Dade total hits 67,713,
Miami Herald, July 13, 2020, available at https://www.miamiherald.com/news/coronavirus/article244183227.html
(last visited July 13, 2020).
10
Id.
11
Christina Maxouris and Holly Yan, Florida shatters US record for new single-day Covid-19 cases, CNN Health,
July 12, 2020, available at https://www.cnn.com/2020/07/12/health/us-coronavirus-sunday/index.html (last visited
July 12, 2020).
12
NBC Miami, Florida Shuts Down Consumption of Alcohol at Bars Statewide, available at
https://www.msn.com/en-us/finance/smallbusiness/florida-shuts-down-consumption-of-alcohol-at-bars-statewide/ar-
BB160rZr (last visited July 5, 2020).
13
Lauren Johnson, Florida Supreme Court affirms governor’s emergency powers during pandemic, The Times
(Apalachiola), June 26, 2020, available at https://www.apalachtimes.com/news/20200626/florida-supreme-court-
affirms-governorrsquos-emergency-powers-during-pandemic (last visited July 3, 2020).
14
As Defendants have argued, COVID-19 has reached all areas and places, including in-person services of faith-
based organizations. In a rural county of 25,000 people, 35 people developed COVID-19, causing the deaths of three
people, all linked to attendees of an Arkansas church with less than 100 attendees. Allison James, DVM, PhD, et al.,
CDC Morbitiy and Mortality Weekly Report (MMWR), High COVID-19 Attack Rate Among Attendees at Events at
a Church – Arkansas, March 2020, May 22, 2020, available at
https://www.cdc.gov/mmwr/volumes/69/wr/mm6920e2.htm (last visitsed July 12, 2020).
On May 12, 2020, the Centers for Disease Control and Prevention (CDC) published a Morbidity and
Mortality Weekly Report titled High SARS-CoV-2 Attack Rate Followign Exposure at a Choir Practice – Skagit
3
ID#: 1403
Kentucky has 19,121 reported cases of COVID-19 and 622 Kentuckians have died from
COVID-19.15 With 453 new cases on July 11 and 426 new cases on July 10 – the second- and
third-highest daily number of new cases since the emergency began – Kentucky is no longer in a
plateau.16 Kentucky had 277 new cases on July 12, 333 new cases on July 9 and 402 new cases
on July 8, 2020.17 Comparing cases 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 cases.18
County, Washington, March 2020, regarding the investigation and findings related to a March 10, 2020 choir
practice that resulted in an outbreak of COVID-19 with a high secondary attack rate. Leigh Hamner, MPH, et al.,
CDC Morbidity and Mortality Weekly Report (MMWR), High SARS-CoV-2 Attack Rate Following Exposure at a
Choir Practice – Skagit County, Washington, March, 2020 (Early Release/Vol. 69, May 12, 2020), available at
https://www.cdc.gov/mmwr/volumes/69/wr/mm6919e6.htm (last visited July 12, 2020).
West Virginia has reported at least five outbreaks of COVID-19 that are traced to church services,
including 17 cases tied to the Greenbrier County church. See https://dhhr.wv.gov/News/2020/Pages/COVID-19-
Outbreak-Confirmed-in-Greenbrier-County-Church.aspx (last visited July 12, 2020). At least 51 cases and three
deaths have been tied to a church immediately after in-person service resumed at Graystone Baptist Church in
Ronceverte, West Virginia. Kate Conger, Churches emerge as Major Source of Coronavirus Cases, New York
Times, July 12, 2020, available at https://www.nytimes.com/2020/07/08/us/coronavirus-churches-outbreaks.html
(last visited July 12, 2020). A rural county in Oregon with only six cases early in the pandemic now has over 356
cases, many of which were traced to church resumed services at Lighthouse United Pentecostal Church. Id.
In Kentucky, an outbreak of 18 cases of COVID-19 occurred at a central Kentucky church that began
holding in-person services on May 13, 2020, prompting the church to halt in-person services. Billy Kolbin, Kentucky
pastor spars with Beshear after 18 church members test positive, The Courtier-Journal, June 9, 2020, available at
https://www.courier-journal.com/story/news/local/2020/06/09/coronavirus-kentucky-17-clays-mill-baptist-church-
members-infected/3164299001/ (last visited July 12, 2020); 14 Alex Acquisto, This Central Kentucky church
reopened on May 10 and became a Covid-19 hot spot, Lexington Herald-Leader, June 5, 2020 (last visited July 12,
2020).
15
KY COVID-19 Daily Summary 7/11/2020, Kentucky Department for Public Health, available at
https://chfs.ky.gov/agencies/dph/covid19/COVID19DailyReport.pdf (last visited July 11, 2020). See Gov. Beshear
Provides Update on COVID-19, July 11, 2020, available at https://kentucky.gov/Pages/Activity-
stream.aspx?n=GovernorBeshear&prId=256 (last visited July 11, 2020).
16
See Gov. Beshear Provides Update on COVID-19, July 11, 2020, available at
https://kentucky.gov/Pages/Activity-stream.aspx?n=GovernorBeshear&prId=256 (last visited July 11, 2020); Gov.
Beshear: Face Coverings Protect Our Families, Economy, July 10, 2020, available at
https://kentucky.gov/Pages/Activity-stream.aspx?n=GovernorBeshear&prId=254 (last visited July 10, 2020).
17
Gov. Beshear Provides Updates on COVID-19, July 12, 2020, available at https://kentucky.gov/Pages/Activity-
stream.aspx?n=GovernorBeshear&prId=257 (last visited July 12, 2020); Gov. Beshear Provides Updates on
COVID-19, July 8, 2020, available at https://kentucky.gov/Pages/Activity-
stream.aspx?n=GovernorBeshear&prId=249 (last visited July 10, 2020); Gov. Beshear: Increasing Cases Requires
Kentuckians to Wear Face Masks, July 9, 2020, available at https://kentucky.gov/Pages/Activity-
stream.aspx?n=GovernorBeshear&prId=251 (last visited July 10, 2020)
18
Id.
4
ID#: 1404
II. The Supreme Court Denied Similar Relief.
Since the Governor filed his Motion, the Supreme Court has weighed in. On May 29,
2020, the United States Supreme Court refused to enjoin mass gatherings orders – similar to the
one here – issued by the Governors in California and Illinois that initially closed church services
and were later amended to allow the services to resume at reduced capacity. South Bay, 140 S.Ct.
1613; Elim Romanian Church, et al. v. Pritzker, Gov. of Illinois, 19A1046, 2020 WL 2781671
(Order List 590 U.S.) (U.S. May 29, 2020). In South Bay, Chief Justice Roberts, in a concurring
opinion, opined that the mass gatherings order “appear[ed]” to pass First Amendment review
because it applied similar restrictions to “lectures, concerts, movie showings, spectator sports,
and theatrical performances, where large groups of people gather in close proximity for extended
periods of time,” while treating differently “only dissimilar activities, such as operating grocery
stores, banks, and laundromats, in which people neither congregate in large groups nor remain in
close proximity for extended periods.” Id., at *2. He further addressed the deference owed to
public officials, stating “[o]ur Constitution principally entrusts ‘[t]he safety and the health of the
people’ to the politically accountable officials of the States ‘to guard and protect.’” South Bay,
140 S.Ct. at 1613 (quoting Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905).) He further
cautioned, that when making these decisions, state officials “should not be subject to second-
guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and
expertise to assess public health and is not accountable to the people.” Id. at 1613-14 (quoting
Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985)).
Plaintiffs’ reliance on the Sixth Circuit’s rulings in Maryville Baptist Church, Inc. v.
Beshear, 957 F.3d 610 (6th Cir. 2020) and Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020) is now
misplaced Chief Justice Roberts’ Opinion directly rejects the reasoning in Maryville Baptist
5
ID#: 1405
Church v. Beshear and Roberts v. Neace, Consolidated Appeal Nos. 20-5465 and 20-5427, that
led the Sixth Circuit to find a likelihood of success with respect to First Amendment challenges
to the Mass Gatherings Order. Indeed, both the Petitioners and dissenters in South Bay United
cited to these Sixth Circuit Opinions, which the Supreme Court majority has now rejected. In
Maryville Baptist, the Sixth Circuit reasoned that the mass gatherings prohibition discriminated
against churches because it excepted “life-sustaining” operations such as “law firms,
laundromats, liquor stores, gun shops, airlines, mining operations, funeral homes and
landscaping.” 957 F.3d at 614. But Chief Justice Roberts specifically opined that excluding these
services did not run afoul of the First Amendment, because “grocery stores, banks, and
laundromats” are “dissimilar activities . . . in which people neither congregate in large groups nor
remain in close proximity for extended periods.” South Bay, 140 S.Ct. at 1613.
Since its issuance, the Sixth Circuit has now relied on Justice Roberts’ concurrence to
grant an emergency stay of a preliminary injunction issued against the Governor of Michigan’s
orders closing fitness centers. League of Ind. Fitness Facilities and Trainers, Inc. v. Whitmer, ---
F.Supp.3d ----, 2020 WL 3468281 (6th Cir. June 24, 2020). There, the Sixth Circuit recognized
that “All agree that the police power retained by the states empowers state officials to address
pandemics such as COVID-19 largely without interference from the courts. Id. (citing Jacobson,
197 U.S. at 29).19 With this guidance from the Supreme Court and the Sixth Circuit’s adoption of
19
Since its issuance, courts continue to rely on South Bay United to uphold or deny enjoining state action in
response to COVID-19. See e.g., Texas Democratic Party v. Abbott, --- F.3d ---, 2020 WL 2982937 (5th Cir. June 4,
2020); Talleywhacker, Inc. v. Cooper, --- F.Supp.3d ---, 2020 WL 3051207 (E.D.N.C. June 8, 2020); Elkhorn
Baptist Church v. Brown, --- P.3d ---, 2020 WL 3116543 (Or. 2020); Christian Cathedral v. Pan, 2020 WL 3078072
(N.D.Cal. June 10, 2020); Professional Beauty Fed. of California v. Newsom, 2020 WL 3056126 (C.D.Cal. June 8,
2020); Altman v. County of Santa Clara, --- F.Supp.3d ----, 2020 WL 2850291 (N.D.Cal June 2, 2020); Calvary
Chapel Lone Mountain v. Sisolak, --- F.Supp.3d ----, 2020 WL 3108716 (D.Nev. June 11, 2020) (appeal filed, June
30, 2020, 9th Cir. No. 20-16274); High Plains Harvest Church v. Polis, 2020 WL 3263902 (D.Colo. June 16, 2020).
On July 4, 2020, Justice Kavanaugh entered an order declining to enjoin Illinois Governor Pritzker’s ban on political
events of 50 or more people, further confirming that South Bay United is the settled law of the land. Order, Illinois
Republican Party v. Pritzker, 19A1068 (July 4, 2020).
6
ID#: 1406
that reasoning, this Court should also apply South Bay and the reasoning set forth in the majority
of circuits to find Plaintiffs have not stated a claim upon which this Court may grant relief. See
Elim Romanian Pentecostal Church v. Pritzker, --- F.Supp.3d ----, 2020 WL 2468194, at *4
(N.D. Ill. May 13, 2020) (finding Plaintiffs had less than a negligible likelihood of success on the
free exercise claims because the mass gatherings order was neutral and of general applicability);
See Elim Romanian Pentecostal Church v. Pritzker, --- F. Supp. ----, 2020 WL 3249062 (7th Cir.
2020); Calvary Chapel Lone Mountain v. Sisolak, --- F.Supp.3d ----, 2020 WL 3108716 (D.Nev.
June 11, 2020).
III. Plaintiffs’ Claims Are Moot.
At the time of filing the First Amended Complaint, the Governor had just begun issuing
Healthy at Work guidance that allowed for the reopening of services throughout the state. On
May 9, 2020, places of worship were allowed to hold in-person services, but were advised that
they should limit attendance to 33% capacity in order to allow for effective social distancing. On
June 10, 2020, that capacity increased to 50%.20 Because the challenged order no longer applies
to places of worship, Plaintiffs’ claims are moot.
Plaintiffs’ argument regarding voluntary cessation and capable of repetition exceptions to
mootness do not apply. This is because, “a governmental entity—consisting of public servants
instead of self-interested private parties—has a less laborious undertaking in pursuit of mootness.
Speech First, Inc. v. Schlissel, 939 F.3d 756, 767 (6th Cir. 2019). “[A] governmental entity that
voluntary ceases allegedly illegal conduct is entitled to a good-faith presumption that the conduct
is “unlikely to recur,” Id. at 767–68. Applying this reasoning, Plaintiffs’ argument has already
20
Available at https://govsite-assets.s3.amazonaws.com/r00brFxTl2TJkofBUZUh_Healthy %20at%20Work%-
20Reqs%20-%20Places%20of%20Worship%20-%20Final%20Version%202.0%20Final.pdf (last visited July 12,
2020).
7
ID#: 1407
been rejected by a Kentucky District Court on similar issues. In WO v. Beshear, No. 3:20-cv-
00023, Doc. 43 (E.D.Ky May 21, 2020), the District Court denied the Attorney General’s motion
to intervene on grounds that claims against the Governor’s restrictions on interstate travel were
mooted by the Governor’s amendment to those restrictions. The Court held that while the
Governor’s orders were subject to numerous constitutional challenges and the Governor
amended those orders to address the constitutional challenges, it was not likely that the conduct
was to reoccur. Id. at 4.
For similar reasons, the District Court also held that the executive orders were also not
capable of repetition, yet evading review. Id. The exception applies if “(1) the challenged action
is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a
reasonable expectation that the same complaining party will be subject to the same action again.”
Spencer v. Kemna, 523 U.S. 1, 17 (1998). For the reasons set forth above, there is no reasonable
expectation that Plaintiffs will be subject to the same action again. But even if similar restrictions
were imposed, Plaintiffs could challenge those orders in the same manner they did here.
IV. Plaintiffs’ Unclean Hands Bar Injunctive Relief.
As set forth in the Motion, Plaintiffs have unclean hands, because they have not only
violated the mass gatherings order and guidelines while their motions for temporary relief were
pending; they have also violated this Court’s Orders, which require social distancing. Those
facts are indisputable, as the video posted by Maryville Baptist Church shows.
In their response, Plaintiffs raise questions about that argument, all of which are beside
the point. The video speaks for itself; Plaintiff Maryville Baptist Church posted the video, and
Plaintiffs do not challenge its authenticity. Plaintiffs cannot refute that it shows instances of
violations of the social distancing requirements. Plaintiffs’ unclean hands bar injunctive relief.
8
ID#: 1408
Conclusion
For these additional reasons, Plaintiffs’ claims should be dismissed.
/s/ Taylor Payne

La Tasha Buckner
General Counsel
S. Travis Mayo
Taylor Payne
Laura Tipton
Marc Farris
Frankfort, KY 40601
(502) 564-2611
travis.mayo@ky.gov
taylor.payne@ky.gov
marc.farris@ky.gov
I hereby certify that on July 13, 2020, I electronically filed the foregoing Reply via the
Court’s CM/ECF system, causing counsel of record to be served.
/s/ Taylor Payne

Taylor Payne
9
ID#: 1409

AT LOUISVILLE

et al., )
)
Plaintiffs, )
)
) Electronically filed
as Governor of the Commonwealth of )
Kentucky )
)
Defendant. )
REPLY IN SUPPORT OF MOTION TO DISSOLVE

THE PRELIMINARY INJUNCTION AND INJUNCTION PENDING APPEAL
The intervening law - South Bay United Pentecostal Church v. Newsom, 140 S.Ct. 1613
(Mem) (2020) (Roberts, J. concurring) – supporting the Governor’s motion to dissolve the
preliminary injunction and injunction pending appeal has strengthened since the filing of the
motion. The United States Supreme Court has now denied two other applications for injunctions
against emergency public health orders issued by state governors in response to the COVID-19
pandemic. In spite of Plaintiffs’ arguments, this Court has jurisdiction to dissolve the preliminary
injunction and should follow the developing federal law on this issue to grant the Governor relief
from this Court’s erroneous decision to enjoin the mass gatherings order as it applies to in-person
services at places of worship.
I. The Supreme Court Continues To Deny Preliminary Injunctive Relief Based On

Claims Arising Under First Amendment.
On July 4, 2020, Supreme Court Justice Brett Kavanaugh denied an application by the
Illinois Republican Party and others to enjoin the Governor of Illinois from enforcing an
Executive Order that prohibited gatherings of more than 50 people. See Illinois Republican Party
Exhibit 2-6
ID#: 1410
v. Pritzer, 19A1068 (U.S. July 4, 2020). The order began as a prohibition on groups of more than
10 people and was later amended to prohibit groups of more than 50. See Opinion and Order,
Illinois Republican Party v. Pritzker, 2020 WL 3604106, at *1 (N.D. Ill. July 2, 2020). Plaintiffs
challenged the Executive Order as a violation of the free speech and free association clauses of
the First Amendment. Id. While Justice Kavanaugh alone denied the application, his denial,
along with the decision of Justices Roberts, Sotomayor, Kagan, Ginsburg and Breyer to deny
applications for injunctions in South Bay, indicates that the United States Supreme Court
concludes that blanket bans on mass gatherings do not plainly and palpably violate the First
Amendment for purposes of granting preliminary relief during a global pandemic.
On July 24, 2020, in Calvary Chapel Dayton Valley v. Sisolak, --- S.Ct. ----, 2020 WL
4251360 (Mem) (2020), the Court again denied a church’s application for injunction in a 5-4
decision. The church alleged that the Nevada governor’s order limiting indoor worship services
to fifty persons while allowing secular activities such as casinos to operate at 50% capacity
violated the Constitution. Id., at *1. Notably, in a dissenting opinion, Justice Alito, with whom
Justices Thomas and Kavanaugh joined, recognized the deference paid to orders entered in the
early stages of the COVID-19 pandemic as distinguishable from more recently issued orders. He
wrote:
For months now, States and their subdivisions have responded to the
pandemic by imposing unprecedented restrictions on personal liberty, including the
free exercise of religion. This initial response was understandable. In times of crisis,
public officials must respond quickly and decisively to evolving and uncertain
situations. At the dawn of an emergency – and the opening days of the COVID-19
outbreak plainly qualify – public officials may not be able to craft precisely tailored
rules. Time, information, and expertise may be in short supply, and those
responsible for enforcement may lack the resources needed to administer rules that
draw fine distinctions. Thus, at the outset of an emergency, it may be appropriate
for courts to tolerate very blunt rules.
Id., at *2.
2
ID#: 1411
These Supreme Court orders, following the same pattern as South Bay and Elim
Romanian Church, et al. v. Pritzker, Gov. of Illinois, 19A1046 (Order List 590 U.S.) (U.S. May
29, 2020), further confirm that Plaintiffs were not entitled to a preliminary injunction based on
their First Amendment claims. This is especially true because the mass gatherings order was
temporary in nature and enacted at the beginning of the Commonwealth’s experience combatting
the pandemic. See Calvary Chapel, --- S.Ct. ----, 2020 WL 4251360, at *2 (Alito, J. dissenting).
Most importantly, the Supreme Court has now denied applications from three churches seeking
injunctive relief against COVID-19 orders restricting their ability to attend in-person worship
services. The Court has provided direction; Plaintiffs just do not want this Court to follow it.
Plaintiffs’ argument that Chief Justice Roberts’ concurring opinion relied only upon the
high standard upon which the Court will grant interlocutory relief ignores the plain language of
the concurrence. The Chief Justice stated the restrictions on places of worship “appear consistent
with the Free Exercise Clause of the First Amendment.” South Bay, 140 S.Ct. at 1613. He went
on to note the deferential standard of review required under Jacobson v. Massachusetts, 197 U.S.
11 (1905), and the duty of the federal courts to refrain from “second-guessing” public officials
acting in response to the COVID-19 emergency. Id. at 1613-14.
Plaintiffs’ argument is also unpersuasive in light of recent action of the Court. On July
30, 2020, the Court granted an application by the Governor of Idaho for a stay of District Court
orders requiring Idaho to certify an initiative for inclusion on the ballot without the requisite
number of signatures or to allow additional time to gather digital signatures. Little v. Reclaim
Idaho, --- S.Ct. ----, 2020 WL 4360897, at *1 (2020) (Roberts, C.J. concurrence). Significantly,
Justice Sotomayor dissented by opinion and noted the frequency with which the Court has been
granting stays pending an appeal. Id., at *3 n. 1 (citing Department of Homeland Security v. New
3
ID#: 1412
York, 589 U.S. ––––, 140 S.Ct. 599, 206 L.Ed.2d 115 (2020); Republican National Committee v.
Democratic National Committee, 589 U.S. ––––, 140 S.Ct. 1205, 206 L.Ed.2d 452 (2020) (per
curiam); Barr v. Lee, ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d –––– (2020), ante, p. ––––,
2020 WL 3964985 (per curiam); Barr v. Purkey, ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––
–– (2020), ante, p. ––––, 2020 WL 4006821; Merrill v. People First of Alabama, ––– U.S. ––––,
––– S.Ct. ––––, ––– L.Ed.2d –––– (2020), ante, p. ––––, 2020 WL 3604049; Wolf v. Cook
County, 589 U.S. ––––, 140 S.Ct. 681, 206 L.Ed.2d 142 (2020); Henry Schein, Inc. v. Archer &
White Sales, Inc., 589 U.S. ––––, 140 S.Ct. 951, 205 L.Ed.2d 532 (2020)).
Given the Supreme Court’s recent proclivity to grant interlocutory relief during the
COVID-19 pandemic, this Court should understand South Bay, as well as Elim Romanian,
Illinois Republic Party, and Calvary Chapel, as instructing lower courts to refrain from enjoining
mass gathering orders during the COVID-19 emergency. At the very least, these cases
demonstrate the inability of Plaintiffs to show a substantial likelihood of success on their First
Amendment claims warranting the preliminary injunctive relief granted by this Court. This Court
should dissolve the preliminary injunction and injunction pending appeal in accord with South
Bay, Elim Romanian, Illinois Republic Party, and Calvary Chapel.
II. This Court Maintains Jurisdiction To Dissolve The Preliminary Injunction.
Though this Court’s initial denial of the temporary restraining order is on interlocutory
appeal before the Sixth Circuit, it retains jurisdiction to dissolve the preliminary injunction.
Plaintiffs’ argument that their appeal deprived this Court of jurisdiction to decide the preliminary
injunction is wrong. As Plaintiffs concede, “an appeal from an order granting or denying a
preliminary injunction does not divest the district court of jurisdiction to proceed with the action
on the merits.” Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1174 (6th Cir. 1985)
4
ID#: 1413
(citation omitted). Just as the Court could proceed to the merits and deny Plaintiffs any
permanent injunctive relief, so too can it dissolve the preliminary injunction. Because this Court
retains jurisdiction to decide the matter in its entirety, it must also retain jurisdiction to dissolve
the preliminary injunction.
/s/ Taylor Payne

La Tasha Buckner
General Counsel
S. Travis Mayo
Taylor Payne
Laura Tipton
Marc Farris
Frankfort, KY 40601
(502) 564-2611
travis.mayo@ky.gov
taylor.payne@ky.gov
marc.farris@ky.gov
I hereby certify that on August 3, 2020, I electronically filed the foregoing Reply via the
Court’s CM/ECF system, causing counsel of record to be served.
/s/ Taylor Payne

Taylor Payne
5
1414

COVINGTON DIVISION

Plaintiffs :
v. :
Defendants :
ORDER GRANTING SUMMARY JUDGMENT AND PERMANENT INJUNCTION
Plaintiffs motion for summary judgment and permanent injunction is hereby GRANTED
for the reasons set forth in the Plaintiffs’ Motion. The challenged orders are declared
unconstitutional. Governor Beshear, Secretary Friedlander, and Dr. Stack are hereby
PERMANENTLY ENJOINED, along with their officers, agents, servants, employees, and
attorneys; and other persons who are in active concert or participation with the foregoing from
enforcing, including instituting any criminal prosecution, the executive orders against interstate
travel or in-person worship.
IT IS SO ORDERED:
__________________________

MSJ Roberts 1 8 2021

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Case: 2:20-cv-00054-WOB-CJS Doc #: 89 Filed: 01/08/21 Page: 1 of 30 - Page ID#: 1240

IN THE UNITED STATES DISTRICT COURT

THEODORE JOSEPH ROBERTS, et. al. : Case No. 2:20-CV-00054-WOB

Permanent Injunction. A Memorandum in Support is attached hereto and incorporated by

reference herein. A Proposed Order is also attached.

/s/ Christopher Wiest___________

/s/Robert A. Winter, Jr. __________

claim; and (iii) a claim based on procedural due process. Id.

Verified Compl, RE#6, PageID#72; Dec. Roberts, RE#7-2, PageID#150-155; Declaration

Daniel, RE#7-3, PageID#150-155; Declaration O’Boyle, RE#7-4, PageID#160-164].

2. The ban on all in-person church attendance

By way of background, on March 19, 2020, in response to COVID-19, the Governor

but maintain appropriate social distancing.” Id.

mandates.” Id. at PageID#81.

Complaint, RE#6-7, Exhibit G, PageID#105-106].

gatherings. [Am. Verified Compl., RE#6, PageID#78; Declaration Roberts, RE#7-2,

prohibition on “mass gatherings” applied to “in-church” services. Id. at 49:39-51:28. Further, in

carried out his unconstitutional threats. Id.

PageID#81; Declaration Roberts, RE#7-2, PageID#150-155]. In fact, multiple Kentuckians in

Declaration Roberts, RE#7-2, PageID#150-155].

Kentucky. [Am. Verified Compl., RE#6, PageID#76; Declaration Roberts, RE#7-2,

2, PageID#150-155; Declaration Daniel, RE#7-3, PageID#156-159; Declaration O’Boyle,

Roberts, RE#7-2, PageID#150-155; Declaration Daniel, RE#7-3, PageID#156-159; Declaration

O’Boyle, RE#7-4, PageID#160-164].

out of a population of 81,676. [Declaration Roberts, RE#7-2, PageID#150-155; Verified Am.

there by Kentucky State Troopers:

witnesses provided uncontradicted declarations demonstrating the selective targeting of the

RE#7-5, PageID#165-166; Declaration Cox, RE#7-6, PageID#156-159; Supp. Declaration Cox,

businesses. [Declaration Perry, RE#24-5, PageID#373-375]. But, when it came to enforcement

Brewer, RE#24-4, PageID#371-372]. Therefore, Plaintiffs’ evidence of selective enforcement is

RE#6, PageID#79; Declaration Roberts, RE#7-2, PageID#150-155; Declaration Daniel, RE#7-3,

PageID#156-159; Declaration O’Boyle, RE#7-4, PageID#160-164]. All of the Plaintiffs refused

attend further in-person church services. Id.

church officials.” Id. at Report, p.12.

charged full steam ahead into a series of unconstitutional actions.

demonstrate a direct targeting of religious services by the Governor. Id. at Report.

5. The Due Process Issues with the Governor’s orders

Complaint, RE#1 ¶¶42-44, PageID#11; Declaration Roberts, RE#7-2, PageID#150-155].

individual Kentuckian to be heard if the individual is ordered to be quarantined, or detained, or

RE#1, ¶43, PageID#11; Declaration Roberts, RE#7-2, PageID#150-155].

independent tribunal if the citizen is ordered to be quarantined, or detained, or otherwise

opportunity for counsel, or the right to have a record. Id.

[Opinion, RE#46, PageID#825-839, Injunction, RE#47, PageID#840]. A timely notice of

6. The Travel Ban

and Indiana’s COVID-19 response actions. Id.

Complaint, RE#6, ¶41; Declaration Roberts).

7. The Deposition of Dr. Steve Stack

evolving. Id. at p.12.

Coronavirus is spread by droplets from coughing, sneezing, speaking, shouting, and

both the duration and intensity of the exposure. Id. at p.85.

was also permitted. Id. at pp.74-75.

and make recommendations about that risk. Id. at pp. 63,97.

8. The Governor’s voluntary cessation activities

ruling to in-person worship.

5465, Notice, at R.28).

could reimpose the ban on in person worship. (Maryville RE#49; RE#51).

Injunction, RE#58, PageID#957-966.

II. LAW AND ARGUMENT

A. Summary Judgment and Permanent Injunction Standard: there are no genuine

claims for declaratory relief and a permanent injunction.

Ky., 607 F.3d 439, 445 (6th Cir. 2010).

T his vehicle's presence at this

[Declaration Roberts, RE#7-2, PageID#150-155; Verified Amended Complaint, RE#6]. A