COMMONWEALTH OF KENTUCKY

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BOONE CIRCUIT COURT
FIRST DIVISION
CIVIL ACTION NO. 20-CI-00678
Electronically Filed

RIDGEWAY PROPERTIES, LLC, d/b/a Beans Cafe PLAINTIFF

and

COMMONWEALTH OF KENTUCKY, INTERVENING PLAINTIFF

ex rel. ATTORNEY GENERAL DAVID CAMERON

v.

NORTHERN KENTUCKY INDEPENDENT DEFENDANTS

HEALTH DISTRICT, ET AL.

PLAINTIFF’S OPPOSOTION TO MOTION FOR SUMMARY JUDGMENT BY

GOVERNOR BESHEAR, SECRETARY FRIEDLANDER, AND DR. STACK AND
REPLY IN SUPPORT OF THEIR OWN MOTION FOR SUMMARY JUDGMENT

Plaintiff, by and through Counsel, provides this Opposition to Defendant Andrew

Beshear, Eric Friedlander, and Dr. Steven Stack, MD’s (collectively we have denoted these

parties as the “State Defendants” or the “Governor”) Motion for Summary Judgment, and its

Reply in support of its own Motion for Summary Judgment.

I. The Governor does not dispute that the challenged mandates are illegal if 21 RS
SB1, 21 RS HB1, 21 RS SB2, and 21 HJR 77 are valid

The Governor’s brief does not challenge the Plaintiff’s position that the challenged

mandates (specifically the Governor’s Healthy at Work “Guidance,” Mask Executive Order, and

Mask Regulation) are illegal if 21 RS SB1, 21 RS HB1, 21 RS SB2,1 and 21 HJR 77 are valid.

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The failure of the Governor to comply with 21 RS SB2 also raises separate violations of the
Kentucky Constitution, as plead in our complaint, specifically the right to procedural due
process. The legislation required such procedural due process for any alleged violations of the
regulations, but the Governor has denied it in his face covering executive order and regulation,
and Plaintiff has been injured thereby. Plaintiff is entitled to summary judgment on this
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As such, it is clear that the Governor’s mandates have no validity if the foregoing legislation is

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valid.

II. The Franklin Circuit Court Action and its orders do not bind the Plaintiffs, this
Court, provide any obstacle, or otherwise impede the ability of this Court to proceed
to judgment

A. The Franklin Circuit Court Action does not bind the Plaintiffs, this Court, and
the Governor is not entitled to “proceed under the law as declared in Beshear v.
Acree”

Much, perhaps more than half, of the Governor’s Brief and Cross-Motion for Summary

Judgment are predicated upon the erroneous belief that somehow the orders issued by the

Franklin County Circuit Court are somehow binding upon this Court, these Plaintiffs, or others

who are not a party to that action. Dispelling that misconception, as a first step, is necessary to

resolve the remaining arguments raised by the Governor.

It is true that the Franklin Circuit Court has entered orders purporting to enjoin various

pieces of legislation. And it is also true that the Attorney General has appealed that order, but

only on jurisdictional grounds.

Much argument by the State Defendants (and Health Department Defendants) centers

around recent decisions from the Franklin Circuit Court. It is well settled law, however, that a

Circuit Court – or any tribunal – that lacks jurisdiction is not empowered to hear the case. As a

result, any orders it enters are nullities. Johnson v. Commonwealth, 17 S.W.3d 109, 113-114

(2000). Such is the case here when it comes to the Franklin Circuit Court action.

Governor Beshear takes the public position that he need not comply with House Bill 1,

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

procedural due process claim as well. Franklin v. Natural Resources and Environmental
Protection Cabinet, 799 S.W.2d 1 (Ky. 1990).
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governmental bodies, including the Labor Cabinet and local Health Departments, to continue to

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enforce his mandates, and they are doing so. To that end, the Governor filed an action in the

Franklin Circuit Court against the Attorney General, Senate President, LRC, and House Speaker,

in order to have these pieces of legislation declared unconstitutional.

He did not, however, seek class certification, nor has class status been granted. And,

none of these Plaintiffs are parties to that matter.

Most importantly, none of the Defendants named in that action enforce the challenged

statutes – ironically, only Governor Beshear enforces those statutes. As a consequence, the

Franklin Circuit Court action, and any orders it issues, are nullities as a matter of law.

Commonwealth v. Hughes, 873 S.W.2d 828, 830 (1994) (“This Court has repeatedly reaffirmed

the proposition that it has no jurisdiction to decide issues which do not derive from an actual case

or controversy,” citing Ky. Const. § 110); In Re; Constitutionality of House Bill No. 222, Ky.,

262 Ky. 437, 90 S.W.2d 692 (1936) ("Power to render advisory opinions conflicts with

Kentucky Constitution Section 110 and thus cannot be exercised by the Court"); Philpot v.

Patton, Ky., 837 S.W.2d 491, 493 (1992), ("our courts do not function to give advisory opinions,

even on important public issues, unless there is an actual case or controversy.").

That then brings us to the Franklin Circuit Court’s orders purporting to enjoin legislation.

“A restraining order granting injunctive relief against the enforcement of a statute or ordinance is

to be directed against the acts of those specific public officials charged with enforcing the statute

to enjoin their threatened enforcement.” Akers v. Floyd County Fiscal Court, Ky., 556 S.W.2d

146 (1977); Commonwealth v. Mountain Truckers Ass'n, Inc., 683 S.W.2d 260, 263 (Ky.App.

1984).

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 The Franklin Circuit Court’s actions in directing an injunction against legislation, rather

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than officials that enforce it, raises significant and troubling constitutional questions involving

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

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

Accordingly, “all the courts of Kentucky, other than the Franklin Circuit Court, [may not]

be automatically divested of their jurisdiction to hear matters … simply by issuance of a

restraining order including the Commonwealth as a party.” Mountain Truckers Asso., 683

S.W.2d 260, 263. Indeed:

What the appellee describes as the judicial effect of the circuit court's original restraining
order is actually a novel form of "blanket" writ of prohibition. A writ of prohibition is
itself a drastic and extraordinary form of equitable remedy exercised by a court of higher
authority against an inferior court where that court is acting without jurisdiction, or
within jurisdiction but erroneously such that irreparable injury will result. Jones v. Tartar,
308 Ky. 813, 215 S.W.2d 955 (1948). Such a writ is not presently involved. Thus, while
the courts have power to enjoin disputing parties presently before them from seeking
relief in another judicial forum, they have no equitable power to prevent those other
forums from hearing issues founded on identical statutory or common law principles but
involving different parties. As neither of the acting officers was an official, agent or
attorney of either the Transportation or Revenue Cabinets nor had actual notice of the
controversy, their actions in citing Bartrum and the Floyd District Court's action in
convicting and finding him was not subject to the original restraining order issued in
Southeast Truckers.

Id. at 263-264

Likewise, no orders from that action can bind non-parties to that case, such as Beans,

under ancient bedrock Kentucky law. Singleton v. Singleton, 47 Ky. 340 (1848); Combs v.

Jones, 244 Ky. 512 (1932). Defendants erroneously contend that a temporary injunctive order

from another circuit court binds this Court and Plaintiffs—even though circuit courts have co-

equal powers (one circuit cannot bind another) and even though the other court lacks personal

jurisdiction over Plaintiffs (circuit courts cannot bind parties over whom they lack jurisdiction).

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Also, a(nother) “trial court’s decision has ‘no precedential value.’” Bell v. CHFS, Dep’t for

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

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

considered sequential orders issued by different circuit courts in separate but “strikingly similar”

cases. Id. at 159. The Court upheld the second order, prohibited enforcement of the first order,

and said that only the General Assembly could prevent the possibility of inconsistent orders by

different circuit judges. Id. at 163 n.30, 176. Defendants’ collateral-attack argument thus also

fails, since Plaintiffs have no need to attack—collaterally or otherwise—an order that is not

binding on them or this Court.

Thus, the Governor is not, therefore entitled to proceed under the law prior to the more

recent legislative enactments and ignore these recent statutory enactments by the legislature.

B. The claims are not speculative

Putting his eggs in the same basket, the Governor again argues that the claims are

speculative because, he argues, the Franklin Circuit Court orders apply statewide to everyone,

including non-parties to the action. As explained above, that is simply not so. Mountain Truckers

Asso., 683 S.W.2d 260, 263. The claims are concrete.

C. Executive Order 2020-1034 incorporated and kept in force various mandates,

which are challenged here, and is to that extent being challenged in this matter

The Governor next argues that Executive Order 2020-1034 is merely an advisory order

that cannot be challenged, but a closer look at that order demonstrates that is not true. That

order, at paragraph 1, makes clear that all other orders remain in effect, and that mask mandates

continue (this is, contrary to the Governor’s assertions in his Motion, a presently in-force

restriction). That order, at paragraph 2, continues the Healthy at Work restrictions and

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requirements (this is, contrary to the Governor’s assertions in his Motion, a presently in-force

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restriction).

These first two paragraphs, which are those that are challenged (and not the

recommendations that follow), and are the most recently pronouncement on the Healthy at Work

restrictions, are in force and are challenged by the Plaintiff.

III. 21 RS HB1, 21 RS SB1, 21 RS SB2, and 21 RS HJR 77 do not violate the Kentucky
Constitution

Before addressing the Governor’s specific challenges to the aforementioned legislation, it

might do well to begin with the high – indeed insurmountable here – bar to have statutory

enactments declared unconstitutional. Analysis begins with the presumption that legislative acts

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

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

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

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

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

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

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

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

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

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

statute unconstitutional.” Id.

Undoubtedly, then, the burden is on the Governor, to establish unconstitutionality beyond

a reasonable doubt, and, to the extent any statute is arguably unconstitutional, or arguably not, it

must be determined to be constitutional.

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 A. 21 RS HB1, 21 RS SB1, 21 RS SB2, and 21 RS HJR 77 do not violate the

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Separation of Powers of the Kentucky Constitution; rather, the Governor’s
attempts to resist compliance with this legislation violate the Separation of
Powers of the Kentucky Constitution and engage in unbridled autocracy

The Governor begins with a contention that 21 RS HB1, 21 RS SB1, 21 RS SB2, and 21

RS HJR 77 violate Kentucky’s Separation of Powers (contained in Sections 27 and 28 of the

Kentucky Constitution). This is patently incorrect. First, the text of those sections:

Section 27 of the Kentucky Constitution provides:

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

Section 28 of the Kentucky Constitution provides:

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

The Governor begins his argument in regard to the separation of powers with his tortured

reading of Beshear v. Acree, 615 S.W.3d 780 (Ky. 2020), and, as a consequence, we will

examine that case first. But as a starting premise, it is the legislature that makes the law, the

judiciary that interprets the law, and the executive who enforces the law. Sibert v. Garrett, 197

Ky. 17, 35 (1922) (Clay, J., dissenting), cited by Landrum v. Commonwealth ex rel. Beshear, 599

S.W.3d 781 (Ky. 2019).

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

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

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

that “that making laws for the Commonwealth is the prerogative of the legislature.” 615 S.W.3d

780, 809.

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 And the Governor? His obligation is to "take care that the laws be faithfully executed."

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Ky. Const. § 81.

The Governor seeks to upend this careful balance. He seeks a largely non-reviewable,

non-revokable power, to declare an emergency, to determine its length, and to determine what

the response is, legislative enactments to the contrary notwithstanding.

Back to Acree. The Court there observed that “[u]ltimately, the Governor's power to

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

Id. at 804. How can the Governor’s power to declare a state of emergency be controlled by a

statute, if, as he now contends, it violates the separation of powers to place any restrictions or

controls on his ability to declare emergencies and then direct the response? To ask this question

is to answer it.

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

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

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

authority to direct an emergency response.” Id. at 805. Now, of course the Governor goes

further: he contends that statutory enactments cannot constrain him.

The Kentucky Supreme Court in Acree also observed that “[t]he duration of the state of

emergency, at least the one at issue in this case, is also limited by the aforementioned 2020

Senate Bill 150, Section 3, which requires the Governor to state when the emergency has ceased

but, in any event, allows the General Assembly to make the determination itself if the Governor

has not declared an end to the emergency "before the first day of the next regular session of the

General Assembly." Id. at 812. Why would the Kentucky Supreme Court state that the General

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Assembly has the power to make the determination concerning the end of the emergency, if, in

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fact, they cannot constitutionally do so? Again, to ask the question is to answer it.

In distinguishing the Kentucky case in Acree from the majority opinion in a recent

Michigan case, our Supreme Court observed that “[o]ur case differs from the Michigan case in

several important ways but most notably our Governor does not have emergency powers of

indefinite duration.” Id. at 812. They distinguished Michigan due to the fact the General

Assembly can end the emergency. But, now, with the General Assembly having come in and

taken action to do just that, not merely as to COVID-19, but instead to limit any emergency

response to 30 days generally, the Governor now seeks to upend that holding.

To which the question must again be asked: if the Governor in fact has never-ending,

non-reviewable, emergency response powers, that cannot be confined or constrained by the

people’s legislative representatives, why was it necessary for the Kentucky Supreme Court to

make the observations that the existence of such limits make the Governor’s exercise of

emergency powers constitutional in Acree? Again, to ask the question is to answer it.

And, finally, when answering the question about checks on the Governor’s authority, that

were constitutionally required, why would the Kentucky Supreme Court observe that it was

required that there be the ability for “legislative amendment or revocation of the emergency

powers granted the Governor?” Id. at 812-813. Again, to ask the question is to answer it.

The Governor, at bottom, seems to conflate executive power (i.e. carrying out policies

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

had the ability to do, with absolute dictatorial power, not to merely carry out the policy set by the

legislative branch, but instead chart his own course, unconstrained and in contravention of

legislative enactments, as some sort of unaccountable unbridled autocrat.

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 In part, he claims that the General Assembly is seeking to control the exercise of

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executive powers – but that is not so. The General Assembly has given him broad emergency

response powers for 30 days. And then, at the end of those 30 days, if the Governor does

nothing else, those powers end. He does not need to call the General Assembly back into

session. And, again, if he does not do so, his orders end on their own terms.

We would be remiss if we did not observe that numerous Kentucky Supreme Court cases

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

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

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

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

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

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

614, 39 3 Ky. L. Summary 12 (Ky. 1992). The Governor’s counterclaims reflect what is, at

bottom, a policy dispute; the Governor merely disagrees with the policy set by the legislative

branch in duly enacted legislation.

The Governor’s contentions that equate being the Chief Magistrate with being able to

exert absolute, largely unchecked, power runs afoul of separation of powers, and with bedrock

Kentucky law, as set forth in Brown v. Barkley, 628 S.W.2d 616 (1982), where the Court

expressly found that the General Assembly had “the prerogative of withholding executive

powers from him,” that “under our Constitution the General Assembly has all powers not denied

to it or vested elsewhere by the Constitution,” that “if it be postulated that the chief executive

does possess implied or ‘inherent’ powers, they would be subordinate to statute,” that “the

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executive branch exists principally to do [the legislative branch’s] bidding,” and that the

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Governor’s powers “are only what the General Assembly chooses to give him.” Id. at 622-623.

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

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

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

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

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

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

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

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

explained in Barkley:

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

Governor raises here in Brown, and held:

Whether the Governor, in the exercise of his authority as the "supreme executive power
of the Commonwealth" (Const. Sec. 69), can do the same thing in the absence of
legislative authority is another matter. Though we are satisfied that the transfer of an
existing, legislatively-created function from one executive agency or department to
another is essentially an executive action, like the reassignment of troops or battle
missions from one military command to another, and is not an exercise of legislative
power by the chief executive, we do not believe that the chief executive has the power to
do it without legislative sanction unless it is necessary in order for him to carry out a law

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 or laws that the legislature has created without prescribing in sufficient detail how they

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

carrying out statutory enactments, not, as he argues in this case, in defying them and carrying out

his own preferred policies in contravention of statutory enactments. Thus, “[t]his means, we

think, that when the General Assembly has placed a function, power or duty in one place there is

no authority in the Governor to move it elsewhere unless the General Assembly gives him that

authority.” Id. at 623.

Addressing the Constitutional interplay between Kentucky’s branches, the Brown Court

explained:

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

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

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 Id.

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The Court concluded:
To round out this analysis of the respective powers and duties of the Governor, the
General Assembly, and the officers established by Const. Sec. 91, we need to consider
the relationship between the Governor and the Const. Sec. 91 officers. That the Const.
Sec. 91 officers are to be elected by the people suggests that, whatever their duties, they
are not answerable to the supervision of anyone else. This inference finds support in that
provision of our Constitution (Sec. 78) which empowers the Governor to require
information in writing from the officers of the executive branch upon any subject relating
to the duties of their offices. Had the framers of the Constitution intended the Governor to
have any further authority over these officers, Sec. 78 would have been unnecessary and,
indeed, an anomaly.
Id.
What about the Governor’s claims that he is entitled to do whatever he wishes because it

is an emergency? That emergency response is inherently executive? In one respect, he is

undoubtedly correct: response and the deployment of state personnel and resources is inherently

executive because the executive branch carries out and takes care that the laws (including those

relating to emergency response) are followed – and if the legislature authorizes or directs it, it

falls to the Governor to carry it out. But in another respect, he is inherently wrong and advances

a terrifyingly undemocratic argument; contrary to these contentions about the Governor being

able to engage in unbridled autocracy, however, the executive branch can only respond and do

what it is permitted to do under the statutes.

Our case law in Kentucky establishes these boundaries. A few years ago, the Kentucky

Supreme Court was confronted, not as they were in Acree with a Governor acting under and

accordance with legislative enactments, to carry out and execute legislative enactments; but,

instead, as is the case here, with a Governor who was acting contrary to legislative enactments.

Fletcher v. Office of the AG. ex rel. Stumbo, 163 S.W.3d 852 (2005). In Fletcher, as here, the

Governor claimed that emergency and exigency gave rise to the need to take action. There, the

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Kentucky Supreme Court was clear: “[w]e reject the proposition that a Governor can unilaterally

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declare an emergency and [do what he wishes] to resolve it.” Id. at 871. The Court in Fletcher

was also clear that it was constitutionally intolerable to refuse to follow the law simply because

an emergency existed that necessitated it:

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

The Fletcher Court also observed that:

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

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

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

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

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

Id. at 871. That was true then. It is true now. This is a feature, not a drawback, to our

separation of powers and Republican form of Government.

Let us take each bill in turn. First, 21 RS SB1. The Governor’s contention is that the

legislature cannot confer in itself the ability to determine the length of emergency orders or to

end them. First, the default: the emergency orders end on their own terms: 30 days after the

emergency order issued.

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 But further response can also be found in several cases from various jurisdictions,

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including a couple from Kentucky. First, our own Supreme Court in Acree was clear that “[t]he

duration of the state of emergency, at least the one at issue in this case, is also limited by the

aforementioned 2020 Senate Bill 150, Section 3, which requires the Governor to state when the

emergency has ceased but, in any event, allows the General Assembly to make the determination

itself if the Governor has not declared an end to the emergency "before the first day of the next

regular session of the General Assembly." 615 S.W.3d 780 at 812. Why would the Kentucky

Supreme Court state that the General Assembly has the power to make the determination

concerning the end of the emergency if, in fact, they cannot constitutionally do so? Again, to ask

the question is to answer it.

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

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

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

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

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

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

regarding health and welfare.” Id.

Third, Pennsylvania, which has a Constitution extraordinarily similar to that of Kentucky,

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

Supreme Court interpreting like clauses in the Pennsylvania Constitution are uniquely persuasive

in interpreting our own.” Commonwealth v. Wasson, 842 S.W.2d 487, 492 (1992).

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

law, including the feature of the ability to end the emergency by the General Assembly of

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Pennsylvania by joint resolution (which it found a necessary feature to upholding the statute

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against a constitutional challenge), is constitutional. Friends of Devito v. Wolf, 227 A.3d 872,

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

constitutional, but finding the resolutions had to be presented to the Governor and were not in

Pennsylvania – here, of course, there is no doubt but that the resolutions ending, or extending,

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

Governor Beshear, vetoed, and that veto overridden).

Next Michigan. The Kentucky Supreme Court cited in Acree, with approval, Chief

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

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

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

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

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

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

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

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

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

the decision), noted that:

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

16
 or state of disaster after 28 days. A durational limitation is not the equivalent of a

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veto. Id. (emphasis added).

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

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

Governor argues was the case in Brown, 664 S.W.2d 907,2 of a subcommittee exercising

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

limit on executive orders under 21 RS SB1. Notably, the Wisconsin Supreme Court, as well, has

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

The Governor finally argues that he has implicit constitutional powers as Commander in

Chief to do whatever he wants in an emergency he gets to define, that only he gets to end, and

contrary to legislative enactments. Of course, we deal here not with the deployment of the

militia to quell an insurrection, but instead the use of orders that, according to the Governor,

have the force of law and direct standards of conduct for the general public.

But even the case that the Governor cites for this proposition, Franks v. Smith, 142 Ky.

232 (1911) cannot be read as expansively as the Governor suggests. First, Franks was clear that

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

taking care that the laws of the State are faithfully executed.” Id. at 238. Here, he argues not

that the laws be faithfully executed, but that he can disregard them in favor of his own preferred

policies in terms of COVID-19 response. One can search Franks in vain for any suggestion that

the Governor can disregard legislative enactments or that they are not applicable to him because

he is the Commander in Chief.

2
This case is also not akin to Ins v. Chadha, 462 U.S. 919 (1983) in which the legislature set
forth a statutory scheme related to immigration, the executive carried it out according to its
terms, and then the legislature overrode individual applications of the law as opposed to general
enactments. Here, the law is plain and clear: 30-day limits on the use of emergency powers.
17
 In part, Franks came out the way it did because the Court observed that “[i]t will be

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

the Governor to order into active service the militia of the State or to direct into what locality

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

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

Governor.

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

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

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

wanted. And, to make the point clear, that the Governor’s duty is to follow the law, even in the

capacity of Commander in Chief, and not to become, as he seeks to do, a law unto himself, the

Franks Court observed:

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

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

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

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

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

held:

18
 We are not willing to concede that in any exigency that may arise the military is superior

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

So much for the Governor’s arguments about Franks permitting the Governor to disregard the

law, or even to use the alleged powers of Commander in Chief to declare an emergency and then

disregard legislative enactments that he may find inconvenient to respond to it as he wishes,

when Franks stands for the exact opposite proposition.

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

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

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

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

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

permitted under 20 RS SB 150 and 21 RS SB1.

These were all policy judgments. Without a doubt, the Governor disagrees with those

policy choices. But numerous Kentucky Supreme Court cases have uniformly held that

“[s]haping public policy is the exclusive domain of the General Assembly,” and "[t]he

establishment of public policy is granted to the legislature alone. It is beyond the power of a

court to vitiate an act of the legislature on the grounds that public policy promulgated therein is

contrary to what the court [or the Governor and his appointees] considers to be in the public

interest." Caneyville Volunteer Fire Dep't, 286 S.W.3d 790, 907, quoting Wilkinson, 828

S.W.2d 610, 614.

The Governor’s contentions that equate being the Chief Magistrate with being able to

exert absolute, largely unchecked, power runs afoul of Section 2 of the Kentucky Constitution,

19
and with bedrock Kentucky law, including that announced in Brown, 628 S.W.2d 616, including

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the ability of the General Assembly to have “the prerogative of withholding executive powers

from him,” that “under our Constitution the General Assembly has all powers not denied to it or

vested elsewhere by the Constitution,” that “if it be postulated that the chief executive does

possess implied or ‘inherent’ powers, they would be subordinate to statute,” that “the executive

branch exists principally to do [the legislative branch’s] bidding,” and that the Governor’s

powers “are only what the General Assembly chooses to give him.” Id. at 622-623.

The Kentucky Supreme Court’s final observations in Fletcher are appropriate to relate

here and now:

Some truths are so basic that, like the air around us, they are easily overlooked. Much of
the Constitution is concerned with setting forth the form of our government, and the
courts have traditionally invalidated measures deviating from that form. The result may
appear "formalistic" in a given case to partisans of the measure at issue, because such
measures are typically the product of the era's perceived necessity. But the Constitution
protects us from our own best intentions: It divides power . . . among branches of
government precisely so that we may resist the temptation to concentrate power in one
location as an expedient solution to the crisis of the day.

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

B. The Governor’s arguments about his ability to engage in unbridled autocracy

notwithstanding the legislation and render the legislature unable to legislate in
the area of emergency response under various provisions of the Kentucky
Constitution, if adopted, will cause Kentucky to violate Article IV, Section 4, of
the United States Constitution

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

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

The Governor contends, at bottom, that the General Assembly cannot legislate in an

entire area of the law: emergency response. And not just any response, but instead that the

20
General Assembly cannot define emergencies, place conditions of emergency response, or

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otherwise reflect the will of the people through legislation.

For the most part, while claims under this clause present non-justiciable cases and

controversies, that is not always so. The United States Supreme Court has held this clause to

involve “the right of the people to choose their own officers for governmental administration,

and pass their own laws in virtue of the legislative power reposed in representative bodies, whose

legitimate acts may be said to be those of the people themselves.” In re Duncan, 139 U.S. 449,

461 (1891). It is, perhaps, not a surprise that claims under this clause rarely present themselves.

Where, after all, in the United States, is it not the case that people have the right to have laws

passed through elected representatives and given force and effect? However, if this, or any other

Court, were to hold that the General Assembly cannot pass laws in an area of the law that

provides a Governor unfettered, absolute, dictatorial like powers, such an extreme case presents

itself.

The drastic interpretation that the Governor advances of the Kentucky Constitution here,

which prohibits legislation over an entire field (and a concerning field at that), and which leaves

the legislature unable to legislate in an entire field, violates the United States Constitution’s

Guarantee Clause. New York v. United States, 505 U.S. 144, 183-186 (1992).

C. 21 RS HB1, 21 RS SB1, 21 RS SB2, and 21 RS HJR 77 do not violate the

Governor’s authority under Section 69 of the Kentucky Constitution; rather, the
Governor’s attempts to resist compliance with this legislation and engage in
unbridled autocracy violates Section 81 of the Kentucky Constitution

1. The Governor has not implicit power to respond to emergencies, and can only
execute the statutory enactments given to him to enforce by the General Assembly

The Governor also contends that Section 69 of the Kentucky Constitution effectively

renders the legislature unable to legislate (at least as to any matters that touch upon COVID-19).

21
Again, he is wrong, and his contentions, if agreed with, have additional terrifying implications

5F6A7851-9A55-40DA-B526-E37F21BE9E45 : 000022 of 000044

beyond a federal constitutional violation. Section 69 of Kentucky’s Constitution states “[t]he

supreme executive power of the Commonwealth shall be vested in a Chief Magistrate, who shall

be styled the "Governor of the Commonwealth of Kentucky." What, exactly, is that power?

That, is contained in Section 81 of the Kentucky Constitution, which states: “He shall take care

that the laws be faithfully executed.”

The Governor, for his part, contends that the challenged legislation, 21 RS HB1, 21 RS

SB1, 21 RS SB2, and 21 RS HJR 77 invades on this executive because they place “the

Governor’s power to respond to emergencies under the legislature’s control,” 21 RS SB1

constrains the ability to suspend statutes, and 21 RS HB 1 and 21 RS SB1 under the control of

local governments.

Breaking these contentions down and subjecting them to even a modicum of scrutiny

demonstrate that they have no merit.

First, the Governor argues that 21 RS HB1 is unconstitutional because it permits entities

to comply with CDC Guidance, which are subject to change, as opposed to the Governor’s own

mandates, which are equally subject to change. The entirety of this is a policy argument and

disagreement, and, it would do well to remind the Governor that “[s]haping public policy is the

exclusive domain of the General Assembly,” and "[t]he establishment of public policy is granted

to the legislature alone. It is beyond the power of a court to vitiate an act of the legislature on the

grounds that public policy promulgated therein is contrary to what the court [or the Governor and

his appointees] considers to be in the public interest." Caneyville Volunteer Fire Dep't, 286

S.W.3d 790, 907 (Ky. 2009), quoting Wilkinson, 828 S.W.2d 610, 614.

22
 The Kentucky Supreme Court has addressed the Governor’s powers, including in

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emergencies, in a variety of cases, many of which we have expounded on above. Suffice to say,

three cases dispose of the Governor’s arguments under Section 69 of the Kentucky Constitution.

First, Barkley, 628 S.W.2d 616, 622, where the Kentucky Supreme Court observed that the

“exercise of his authority as the ‘supreme executive power of the Commonwealth’ (Const. Sec.

69)” cannot be exercised “without legislative sanction unless it is necessary in order for him to

carry out a law or laws that the legislature has created without prescribing in sufficient detail

how they are to be executed.” Second, Fletcher, 163 S.W.3d 852, 871, that “[t]he Governor

possesses no ‘emergency’ or ‘inherent’ powers to [take action not authorized by the General

Assembly].” Id. at 871. And third, Acree, where the Kentucky Supreme Court was clear that

“[t]he duration of the state of emergency, at least the one at issue in this case, is also limited by

the aforementioned 2020 Senate Bill 150, Section 3, which requires the Governor to state when

the emergency has ceased but, in any event, allows the General Assembly to make the

determination itself if the Governor has not declared an end to the emergency "before the first

day of the next regular session of the General Assembly." 615 S.W.3d 780 at 812.

To the extent the Governor takes issue with the legislative determination that the least

restrictive of federal guidance or the Governor’s mandates control in 21 RS HB1, it probably

also bears noting that Kentucky law, and court precedent, are replete with Kentucky law and

regulation that reference or relate to federal law or guidance. KRS 13A.120 (incorporating

federal law and regulation into administrative regulation authority); KRS 13A.2245 (governing

the incorporation of federal guidance or law into Kentucky regulations); KRS 13A.245 (federal

mandate analysis required); KRS 21.540 (incorporating federal regulations and guidance into

state law regarding pensions); KRS 61.878(k) (incorporating federal law and regulation into

23
exemptions to open records); KRS 67A.560 (incorporating federal regulations and guidance into

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state law regarding pensions); KRS 61.645 (same); KRS 78.782 (same); KRS 199.641

(incorporating federal guidance into child care statute standards); KRS 315.340 (incorporating

federal guidance into pharmacy standards); KRS 315.342 (same); KRS 355.4-103 (incorporating

into the Uniform Commercial Code, and standards of care, federal guidance and regulation).3

Is this Court, or any Court, really prepared to say that incorporation of federal standards

into a statute (which is fundamentally a legislative exercise) runs afoul of the Governor’s powers

under Section 68? If so, we can kiss our pension system goodbye, undermine a number of

statutory enactments and schemes, most of which are geared towards the continuation of federal

benefits that Kentucky receives from the federal government. The implications of the

Governor’s argument in this regard is truly staggering.

We would be remiss, as an aside, if we did not mention that one of the mandates that

Plaintiff challenges is the Governor’s facemask order and regulation, which both happen to

incorporate, reference, and require adherence to CDC Guidance into them.4 Moreover, the

Governor’s own general requirements for all entities contain numerous references and

incorporation of CDC Guidance.5

Why is it acceptable for the Governor to refer to CDC Guidance in his mandates, but the

General Assembly not be able to do so in law? The only answer that we can discern to this

3
As an aside, a LEXIS search of federal guidance or regulation revealed hundreds of Kentucky
statutes that encompassed the search term. Thus, we are vastly understating the breathtaking
implications of declaring any statutory enactment that references federal guidance or regulations
invalid.
4
https://governor.ky.gov/attachments/20210329_Executive-Order_2021-212_face-coverings-
renewal.pdf (last visited 5/5/2021) at ¶ 1;
https://apps.legislature.ky.gov/law/kar/902/002/211E.pdf (last visited 5/5/2021) at Section 5.
5
https://chfs.ky.gov/agencies/dph/covid19/HAWMinimumRequirements.pdf (last visited
5/6/2021) at ¶¶ 7-8.
24
perplexing hypocrisy is that the Governor believes he operates under a different set of standards

5F6A7851-9A55-40DA-B526-E37F21BE9E45 : 000025 of 000044

than anyone else.

The Governor next argues that 21 RS SB1 and 21 RS HJR 77 are invalid because they are

somehow executive acts insofar as they permit the legislative branch to extend orders. It is

difficult to understand how that is the case. The enactment of general regulations is

fundamentally a legislative act. It becomes executive only to the extent that the executive acts to

carry out policies pursuant to legislative directives. But that does not mean that the legislative

branch cannot cabin the Governor’s exercise of authority of what is essentially a legislative

power, which is exactly what has occurred here.

As the Michigan Supreme Court unanimously held in Midwest Inst. of Health, PLLC v.

Governor of Mich. (In re Certified Questions from the United States Dist. Court), 2020 Mich.

LEXIS 1758, this is not the case: “These provisions impose nothing more than a durational

limitation on the Governor's authority. The Governor's declaration of a state of emergency or

state of disaster may only endure for [30] days absent legislative approval of an extension.

So, if the Legislature does nothing, as it did here, the Governor is obligated to terminate the

state of emergency or state of disaster after [30] days. A durational limitation is not the

equivalent of a veto.” Id. (emphasis added).

At bottom, and in addition, the Governor’s arguments are foreclosed by Brown, 628

S.W.2d 616, 622, and Fletcher, 163 S.W.3d 852, 871.

2. The Governor has no power to suspend statutes, and the General Assembly has
plenary ability to determine if, whether, when, and under what conditions statutes
can be suspended under Section 15 of the Kentucky Constitution

25
 The Governor next complains that the ability to suspend statutes cannot be conditioned

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on approval by the Kentucky Attorney General, which is what 21 RS SB1 calls for. The text of

that Bill, at Section 4, reads:

(b) The Governor may suspend a statute by executive order when an emergency is
declared under KRS Chapter 39A if:
1. The statute is specifically enumerated by the Governor in the executive order; and
2. The executive order specifying the suspension is approved by the Attorney General
in writing.

Let us begin with the explicit Kentucky Constitutional section that governs statutory

suspension, Section 15: “No power to suspend laws shall be exercised unless by the General

Assembly or its authority.” “Since this provision is a part of the Bill of Rights, the Governor

could not suspend statutes even if he possessed ‘emergency’ or ‘inherent’ powers under Sections

69 and 81.” Fletcher v. Office of the AG. ex rel. Stumbo, 163 S.W.3d 852, 871. “The suspension

of statutes by a Governor is also antithetical to the constitutional duty to ‘take care that the laws

be faithfully executed.’" Id., citing Ky. Const. Sec. 81.

The Governor can cite not one case that stands for the proposition that the power given to

the General Assembly to suspend statutes, is somehow not able to be constrained as the General

Assembly determines.

Rather, the Governor misreads, twists, and misconstrues two cases that simply do not

stand for the proposition that the Governor cites them for. First, he cites Barkley, 628 S.W.2d

616, 622. And, while it is true that constitutional officers are inferior to the Governor, “they are

not answerable to the supervision of anyone else,” including the Governor. Id. at 623. “Had the

framers of the Constitution intended the Governor to have any further authority over these

officers, Sec. 78 would have been unnecessary and, indeed, an anomaly.” Id. “Except for the

26
informational duty specified in Const. Sec. 78, the officers named in Const. Sec. 91 are not and

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cannot be placed under the control or supervision of the Governor.” Id.

Indeed, “these independent executive offices provide convenient receptacles for the

diffusion of executive power.” Id. at 622. And, in the same vein, the General Assembly “has the

prerogative of withholding executive powers from him by assigning them to these constitutional

officers who are not amenable to his supervision and control.” Id.

But clearly, case law also exists that emergency determinations and enactments can be

subject to the approval of the Governor along with other officers. One such case was

Commonwealth ex rel. Meredith v. Johnson, 292 Ky. 288 (Ky. 1942). In Johnson, Kentucky’s

highest court dealt with an enactment that conditioned certain emergency funding on the

approval of the Governor, along with “the Commissioner of Finance, the Commissioner of

Revenue, the Commissioner of Welfare, and the Treasurer,” and the Court found no problem

with this scheme. Id. at 296.

In that case, the Court observed, that the legislature “has conferred upon the Governor,

and in some instances other officers, the power to determine from a state of facts, whether an

emergency exists…” Id. at 300.

In yet another case, Kentucky’s highest court has undertaken to review whether statutory

enactments can require the approval of both the Governor and Attorney General, in their

respective roles, and has held that they can. In Gordon v. Morrow, 186 Ky. 713 (Ky. 1920),

Kentucky’s highest Court observed and undertook analysis of a statute whereby the Governor, in

his role as the Chief Magistrate, and the Attorney General, in his role as Chief Law Officer, both

had to approve the employment of special counsel. The Court held that it was proper “to leave it

27
to the sound judgment of these two high officers of the state to decide when an emergency

5F6A7851-9A55-40DA-B526-E37F21BE9E45 : 000028 of 000044

demanded” the use of the statute in question. Id. at 724.

So we have cases that suggest that the legislative enactment in question here, namely that

the Governor first set forth the specific statutes he intends to suspend (an objection to which the

Governor has not lodged), and to obtain the approval of the Chief Law Officer of the state to

disregard the law he is otherwise constitutionally, and statutorily, charged with enforcing, is

perfectly constitutional.

And, for his part, the Governor next cites Brown, 628 S.W.2d 616, 622, which did not

deal with the suspension of statutes at all, but instead held that the General Assembly can

withdraw power from the Governor, diffuse the executive power with legislative enactments, and

repose executive power in other state constitutional officers. That is no authority at all that

might support the Governor’s contentions.

Finally, the Governor cites Commonwealth ex. rel. Beshear v. Bevin, 575 S.W.3d 673,

681 (Ky. 2019) for his contention that the General Assembly cannot also require the approval of

the Attorney General before the Governor can utilize the incredible power of statutory

suspension, in abrogation of the Governor’s duty otherwise “to the constitutional duty to ‘take

care that the laws be faithfully executed” be lawfully exercised. Fletcher, 163 S.W.3d 852, 871.

Bevin, for its part, simply does not support the argument that the General Assembly

cannot place limitations upon the ability to suspend statutes. Just because the power to suspend

statutes between sessions for reorganizations might have been delegated to the Governor in

Bevin, and thus is considered executive in that regard, does not mean that the General Assembly

cannot place restrictions upon that power.

28
 In fact, Bevin, for its part, explicitly recognized that the power to suspend statutes was

5F6A7851-9A55-40DA-B526-E37F21BE9E45 : 000029 of 000044

legislative. 575 S.W.3d 673, 683. The Court in Bevin went further, noting that the “General

Assembly may validly vest legislative. . . authority in [another branch] if the law delegating that

authority provides 'safeguards, procedural and otherwise, which prevent an abuse of discretion

by the agency. … The purpose was . . . to save the people from autocracy." Id.

The Governor seeks to judicially remove those very necessary safeguards here even

though they are necessary to uphold the law against a challenge for an unconstitutional

delegation under Bevin. The safeguards are that the Governor is not only time-limited in the

period he can suspend statutes under 21 RS SB1; the Governor also must explicitly inform the

public what statutes he is suspending under 21 RS SB1; and, recognizing the awesome power

involved in suspending statutes, he has to walk down the hall and obtain the agreement of the

Chief Law Officer that the particular statute really has to be suspended. These safeguards are “to

save the people from autocracy." Id. Permitting the Governor to disregard these safeguards is to

subject the people of Kentucky to unbridled autocracy.

Bevin, then, does not support the Governor’s arguments about the suspension of statute

provisions. It stands for the exact opposite proposition.

One final point: the power to suspend statutes, which is vested under Section 15 in the

General Assembly, and its delegation, which is likewise vested in the General Assembly, is

fundamentally a political question, foreclosing courts from second guessing legislative

delegation as a matter of state constitutional law. In Philpot v. Haviland, 880 S.W.2d 550 (Ky.

1994), the Kentucky Supreme Court laid out the political question test. Cases involving political

questions involve: “(1) a textually demonstrable constitutional commitment of the issue to a

coordinate political department; or (2) a lack of judicially discoverable and manageable standard

29
for resolving it; or (3) the impossibility of deciding without an initial policy determination of a

5F6A7851-9A55-40DA-B526-E37F21BE9E45 : 000030 of 000044

kind clearly for nonjudicial discretion; or (4) the impossibility of a court's undertaking

independent resolution without expressing lack of respect due coordinate branches of

government; or (5) an unusual need for unquestioning adherence to a political decision already

made; or (6) the potentiality of embarrassment from multifarious pronouncements by various

departments on one question.” Id. at 553.

The power in Section 15 of the Kentucky Constitution clearly fits under these principles.

Section 15 clearly demonstrates a textual commitment of the suspension of statute power to the

General Assembly to exercise and delegate if it chooses. The power in Section 15 of the

Kentucky Constitution lacks any judicially discoverable or manageable standards for review.

And, it is impossible to determine if there is any abuse of the power without an initial policy

determination of a kind clearly for nonjudicial discretion. Further, it is impossible for a court to

undertake independent resolution without expressing lack of respect due coordinate branches of

government. And, here, there is an unusual need for unquestioning adherence to a political

decision already made. Finally, the last prong also likely applies.

To be clear, any one of these prongs would render the question a non-justiciable political

question, and, as demonstrated, numerous prongs are present here. But, equally, “this provision

is a part of the Bill of Rights, the Governor could not suspend statutes even if he possessed

‘emergency’ or ‘inherent’ powers under Sections 69 and 81.” Fletcher, 163 S.W.3d 852, 871.

“The suspension of statutes by a Governor is also antithetical to the constitutional duty to ‘take

care that the laws be faithfully executed.’" Id., citing Ky. Const. Sec. 81. Put another way, the

power at issue, to suspend statutes, is vested in the General Assembly, under whatever conditions

it chooses to put on any delegation.

30
 The Governor’s claims about 21 RS SB1, Section 4, and the suspension of statutes, is

5F6A7851-9A55-40DA-B526-E37F21BE9E45 : 000031 of 000044

non-justiciable, non-reviewable, and thus his claim is utterly baseless.

3. There are no Constitutional problems with the General Assembly’s involvement

of local governments in 21 RS SB1, nor is there any local government
involvement at all implicated in 21 RS HB1

The Governor next argues that 21 RS SB1 is somehow unconstitutional because it

involves local government. Specifically (although he does not say it), the Governor appears to

take issue with Section 2 of the Act, which, in part, for orders that are not covered in subsection

(a) of the Act (which covers executive orders that place restrictions on in person meetings or

functioning of schools, businesses, churches, or local governments), provides that:

(b) All other executive orders, administrative regulations, or directives that are not
described in paragraph (a) of this subsection may exceed thirty (30) days if requested by
a chief executive officer or a legislative body of a local government only for that local
government and only for the period of time requested by the chief executive officer or a
legislative body. The chief executive officer or a legislative body may make a written
request for extensions or early termination of the executive order.

The Governor unconvincingly argues that this statute is not clear; however, its reading is

apparent to anyone who actually reads it. The Governor can issue orders longer than 30 days if

the local Mayor or Judge/Executive or City Council, or Fiscal Court, request him to do so, in

which case the orders are extended for that jurisdiction.

The basis for this challenge appears to rest upon a gross misreading of both Acree, 615

S.W.3d 780, and Brown, 628 S.W.2d 616.

Acree first. In Acree, the Kentucky Supreme Court asked the question about whether it

was “logical that the General Assembly would intend a patchwork approach to a statewide

emergency?” Id. at 804. That ignores the next observation by the Court: “[t]hat is not to say that

the need for consultation with and deference to local authorities is never appropriate.” Id. The

Court then observed that “for ‘crises affecting limited areas’ consultation with a ‘local

31
emergency management agency’ would be entirely appropriate and necessary but for those

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events or occurrences, such as a pandemic, which affect the whole of the Commonwealth (indeed

the nation and the globe) and require a prompt response the necessity for consulting 120

county-level authorities is problematic at best.” Id. (emphasis added).

Several principles can be discerned from all of this language. First, it is clear that the

Court was fundamentally determining what the legislature intended – not as a constitutional

matter – but as a statutory interpretation matter. There are no similar arguments here – we know

what the statutes mean and so does the Governor who advances no argument that he is in

compliance with the enactments. Second, the Court was concerned about the initial “prompt

response,” but, as noted, even with the passage of the legislation in question, the Governor is

entitled to promptly respond, and has virtually unfettered discretion within the first 30 days of

any emergency, enabling him to conduct the “prompt response” the Kentucky Supreme Court

was concerned about in Acree. But what happens when days become weeks, and weeks extend

past 30 days? Then the Governor must, if he is to exercise extraordinary powers, and the

response changes from an emergency requiring prompt response to the new normal, involve the

input of others.

The default presumption is a 30-day limitation. At bottom, “The Governor's

declaration of a state of emergency or state of disaster may only endure for [30] days

absent … approval of an extension. … A durational limitation is not the equivalent of a

veto.” Midwest Inst. of Health, PLLC v. Governor of Mich. (In re Certified Questions from the

United States Dist. Court), 2020 Mich. LEXIS 1758.

32
 The Governor also complains that somehow 21 RS HB1 is somehow implicated in local

5F6A7851-9A55-40DA-B526-E37F21BE9E45 : 000033 of 000044

control or approval, but at bottom, it is not and the plain language of that statute does not

implicate local government controls at all.

D. 21 RS HB1 is neither arbitrary, vague, nor unenforceable

The Governor begins his assault on 21 RS HB1 by arguing that somehow the CDC

Guidance is Kentucky law. The law, however, is 21 RS HB1. And that law indicates that a

business, if it desires to be immune from suit or enforcement actions by the Governor and his

minions, needs to prepare a plan in accordance with CDC Guidance or the Governor’s

restrictions.

Kentucky law is replete with requirements for government entities, and even private

citizens and businesses, to prepare plans. See, e.g. KRS 224.43-340; KRS 175B.030; KRS

147.070; KRS 220.240; KRS 304.33-160; KRS 177.130; KRS 262.910; KRS 216B.457.

To the extent the Governor takes issue with the legislative determination that the least

restrictive of federal guidance or the Governor’s mandates control in 21 RS HB1, it probably

also bears noting that Kentucky law, and court precedent, are replete with Kentucky law and

regulation that reference or relate to federal law or guidance. KRS 13A.120 (incorporating

federal law and regulation into administrative regulation authority); KRS 13A.2245 (governing

the incorporation of federal guidance or law into Kentucky regulations); KRS 13A.245 (federal

mandate analysis required); KRS 21.540 (incorporating federal regulations and guidance into

state law regarding pensions); KRS 61.878(k) (incorporating federal law and regulation into

exemptions to open records); KRS 67A.560 (incorporating federal regulations and guidance into

state law regarding pensions); KRS 61.645 (same); KRS 78.782 (same); KRS 199.641

(incorporating federal guidance into child care statute standards); KRS 315.340 (incorporating

33
federal guidance into pharmacy standards); KRS 315.342 (same); KRS 355.4-103 (incorporating

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into the Uniform Commercial Code, and standards of care, federal guidance and regulation).6

Plaintiff submits that the Governor lacks standing to challenge 21 RS HB1. He makes

numerous arguments about businesses and persons, but does not raise any personal stake that he

has in 21 RS SB1 and its alleged vagueness under Section 2 of the Kentucky Constitution

(which, as explained below, confers personal rights on citizens, not on would-be autocrats),

which is necessary to lodge his challenge. We will proceed to address the remaining arguments

by the Governor.

1. 21 RS HB 1 is not void for vagueness

The Governor contends that 21 RS HB1 is vague under Section 2. It bears noting that the

rights afforded by Section 2 are individual rights, not the right of the Governor of government

agents to direct policy. Commonwealth ex rel. Meredith v. Johnson, 292 Ky. 288, 293 (Ky.

1942). The Governor contends that 21 RS HB1 is somehow vague but it is important to note

what 21 RS HB1 does. It does not impose penal requirements on anyone. Instead, it provides

certain immunities to business owners and others that comply with the requirements to have a

plan.

The Governor mostly miscites the standard of review as well, citing cases that deal with

vagueness under the First Amendment, which have unique vagueness concerns and a totally

different test and analysis for vagueness challenges. Rather, the vagueness test for non-First

Amendment cases is different. One case setting forth that test is Commonwealth v. Kash, 967

6
As an aside, a LEXIS search of federal guidance or regulation revealed hundreds of Kentucky
statutes that encompassed the search term. Thus, we are vastly understating the breathtaking
implications of declaring any statutory enactment that references federal guidance or regulations
invalid.
34
S.W.2d 37 (Ky. 1997). "The void-for-vagueness doctrine requires that a penal statute define the

5F6A7851-9A55-40DA-B526-E37F21BE9E45 : 000035 of 000044

criminal offense with sufficient definiteness that ordinary people can understand what conduct is

prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement."

Id. at 43. Here, 21 RS HB1 has no criminal penalty, is not penal, and the doctrine does not apply

at all. Even so, “[t]o assert a facial challenge to a statute as impermissibly vague, a complainant

must show that the statute is vague ‘not in the sense that it requires a person to conform his

conduct to an imprecise but comprehensible normative standard, but rather in the sense that no

standard of conduct is specified at all.’" Id. “Simply because a criminal statute could have been

written more precisely does not mean the statute as written is unconstitutionally vague.” Id.

Indeed, “a statute is not unconstitutionally vague ‘when it may be understood by citizens

who desire to obey it.’" Id. at 44. “Moreover, Kentucky courts have ‘placed a considerable

responsibility upon citizens to determine whether contemplated conduct amounts to a violation’

of the challenged statute.” Id.

Most of the Governor’s contentions under Section 2, and vagueness, are disposed of by

Acree, 615 S.W.3d 780. Acree dealt with a Section 2 challenge. Id. at 819-820. And, even

though the Governor’s regulations involved thousands of pages, many of which were conflicting

and difficult to follow, as well as constantly changing, the Kentucky Supreme Court upheld

them. It is richly ironic for the Governor to now argue that the deferential standards the

Kentucky Supreme Court applied to him in Acree do not equally apply to the General Assembly

in this matter.

So what, exactly, does 21 RS HB1 require? It requires a plan that meets or exceeds CDC

Guidance or the Governor’s mandates, whichever is least restrictive. And it requires that the

plan be posted.

35
 Businesses can discern what is required, and Plaintiff has figured out what the statute

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requires. That is sufficient to overcome the Governor’s vagueness challenge. Kash, 967 S.W.2d

37.

2. 21 RS HB 1 is not void for unintelligibility

The Governor next contends that 21 RS SB1 is unintelligible. This is really an extension

of the void for vagueness doctrine, and the same standards apply. Util. Mgmt. Grp., LLC v. Pike

Cty. Fiscal Court, 531 S.W.3d 3 (Ky. 2017). In Util. Mgmt. Grp., LLC, the Kentucky Supreme

Court was clear that a strong presumption of constitutionality applies, and, further, that the test

was whether “the people the statute affects can understand it and the courts can deduce the

legislature's will.” Id. at 13. There, as here, the answer is yes.

In part, that is because restaurant owners, like the Plaintiff, can look at the CDC

restaurant Guidance (incorporating the requirements), and develop their plan, or can look at the

Governor’s restrictions, and develop their plan. The Plaintiff knows which is more restrictive for

his business: the Governor’s requirements are more restrictive.

Thus, 21 RS HB 1, is constitutional.

E. 21 RS SB1 does not convert the General Assembly into a body of continuous
Session, and does not violate the Kentucky Constitution

1. The legislature being a part time legislature does not mean that it cannot set policy; to
the contrary, the General Assembly is the supreme policy-making branch under the
Kentucky Constitution, as much as the Governor desires otherwise

The Governor argues that the General Assembly is a part-time legislature for specific,

non-continuing sessions. He goes further and argues that the General Assembly cannot legislate

when they are not in session. We agree with both of these contentions.

36
 2. Nothing in 21 RS SB1 requires the Governor to convene an extraordinary session

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The Governor next argues that he has the sole power to convene the General Assembly

when they are not in their regular session for the year. Again, we agree.

3. 21 RS SB1 does not violate Section 36, 42, or Section 80 of the Kentucky
Constitution

However, the Governor goes further than the foregoing premises (neither of which we

dispute), and argues that, somehow, the part time status of the General Assembly renders 21 RS

SB1 unconstitutional. It does not. He argues that the legislation rewrites General Assembly

session terms, but it does no such thing.

There is nothing in the text of 21 RS SB1 that would permit the General Assembly to

meet (without a call of the Governor) when they are not otherwise in regular session.

But then the Governor goes off the rails even further: he argues that “SB1 would force

the Governor to call an extraordinary session of the part-time General Assembly in cases of an

emergency.” (Motion at 37). First, that simply is not true. The General Assembly has given the

Governor 30 days of mostly unfettered discretion to respond to an emergency. After that, if he

wishes to extend extraordinary emergency powers as to certain specific classifications of

regulations that inhibit private businesses and the freedom of the people, then yes, he must call

the General Assembly into session.

It probably bears noting that after (and even during) those 30 days, the Governor has

other response measures in Kentucky law to respond to emergencies. One of those options

available to him is to enact emergency regulations in KRS Chapter 13A. The 30-day time period

the General Assembly has allotted him allows him the time to do exactly that.

In the broadest of terms, the General Assembly has enabled the Governor to engage in the

"prompt response" that the Supreme Court was concerned about in Acree for a reasonable period

37
of 30 days; it did not, however, allow the Governor to extend the “emergency” into perpetuity.

5F6A7851-9A55-40DA-B526-E37F21BE9E45 : 000038 of 000044

615 S.W.3d 780 at 804. As the entire Michigan Supreme Court held “[t]he Governor's

declaration of a state of emergency or state of disaster may only endure for 28 days absent

legislative approval of an extension. So, if the Legislature does nothing, as it did here, the

Governor is obligated to terminate the state of emergency or state of disaster after 28 days. A

durational limitation is not the equivalent of a veto.” Midwest Inst. of Health, PLLC v. Governor

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

(2020).

As it turns out, numerous states have part time legislatures.7 And a significant number of

them happen to have temporal limitations that are equal to, or even more stringent, than the 30-

day limit that the Kentucky General Assembly has placed upon the Governor.8

There is no actual limitation within any of the text of Kentucky’s Constitution on the

General Assembly’s ability to define, limit, or constrain the Governor’s emergency response

powers. And the observations by the Court in Acree about its view of policy considerations that

might tilt towards the Governor exercising breathtaking powers simply do not control when

presented with duly enacted legislative enactments to the contrary.

Again, “[s]haping public policy is the exclusive domain of the General Assembly,” and

"[t]he establishment of public policy is granted to the legislature alone. It is beyond the power of

a court to vitiate an act of the legislature on the grounds that public policy promulgated therein is

contrary to what the court [or the Governor and his appointees] considers to be in the public

7
https://www.ncsl.org/research/about-state-legislatures/full-and-part-time-legislatures.aspx (last
visited May 7, 2021).
8
https://www.ncsl.org/research/about-state-legislatures/legislative-oversight-of-executive-
orders.aspx (last visited May 7, 2021).
38
interest." Caneyville Volunteer Fire Dep't, 286 S.W.3d 790, 907 quoting Wilkinson, 828 S.W.2d

5F6A7851-9A55-40DA-B526-E37F21BE9E45 : 000039 of 000044

610, 614, 39 3 Ky. L. Summary 12.

The Governor’s wailing and gnashing of teeth and ginned up fiction of never-ending

legislative sessions, notwithstanding that emergencies are the exception, not the rule. And

emergencies that last more than 30 days even rarer. When confronted with such a scenario, an

emergency, and specifically one that lasts longer than 30 days, the Governor can use the powers

given to him under 21 RS SB1 for 30 days, and then, in the meantime, enact emergency

regulations; or, if the situation is so dire that it requires additional tools, he has the option to call

the General Assembly into special session. Those options are his.

F. 21 RS HB 1 does not improperly delegate authority

The Governor completes his attack on recent legislative enactments by arguing that 21

RS HB 1 improperly delegates authority.

First, he challenges the incorporation of federal guidance. Again, Kentucky law, and

court precedent, are replete with Kentucky law and regulation that reference or relate to federal

law or guidance. KRS 13A.120 (incorporating federal law and regulation into administrative

regulation authority); KRS 13A.2245 (governing the incorporation of federal guidance or law

into Kentucky regulations); KRS 13A.245 (federal mandate analysis required); KRS 21.540

(incorporating federal regulations and guidance into state law regarding pensions); KRS

61.878(k) (incorporating federal law and regulation into exemptions to open records); KRS

67A.560 (incorporating federal regulations and guidance into state law regarding pensions); KRS

61.645 (same); KRS 78.782 (same); KRS 199.641 (incorporating federal guidance into child care

statute standards); KRS 315.340 (incorporating federal guidance into pharmacy standards); KRS

39
315.342 (same); KRS 355.4-103 (incorporating into the Uniform Commercial Code, and

5F6A7851-9A55-40DA-B526-E37F21BE9E45 : 000040 of 000044

standards of care, federal guidance and regulation).9

Again, “[s]haping public policy is the exclusive domain of the General Assembly,” and

"[t]he establishment of public policy is granted to the legislature alone. It is beyond the power of

a court to vitiate an act of the legislature on the grounds that public policy promulgated therein is

contrary to what the court [or the Governor and his appointees] considers to be in the public

interest." Caneyville Volunteer Fire Dep't, 286 S.W.3d 790, 907 quoting Wilkinson, 828 S.W.2d

610, 614, 39 3 Ky. L. Summary 12.

Moreover, the cases the Governor cites for his propositions are clearly distinguishable.

Young v. Willis, 305 Ky. 201, 204-205 (1947) merely discusses the delegation of authority to

enact rules that carry penalties. But 21 RS HB1 does not authorize the creation of rules and it

carries no penalties; to the contrary, it merely provides a mechanism for businesses to avoid

COVID-19 mandates by creating a plan. Kentucky law is replete with requirements for

government entities, and even private citizens and businesses, to prepare plans. See, e.g. KRS

224.43-340; KRS 175B.030; KRS 147.070; KRS 220.240; KRS 304.33-160; KRS 177.130; KRS

262.910; KRS 216B.457.

The Governor’s arguments about unconstitutional delegation are also disposed of by

Acree; in that case, the challenges raised the fact that KRS 39A provided an unconstitutional

delegation, because of the breathtaking scope of the delegation. 615 S.W.3d 780 at 804. The

9
As an aside, a LEXIS search of federal guidance or regulation revealed hundreds of Kentucky
statutes that encompassed the search term. Thus, we are vastly understating the breathtaking
implications of declaring any statutory enactment that references federal guidance or regulations
invalid.
40
Kentucky Supreme Court disagreed. If the delegation that was previously afforded to the

5F6A7851-9A55-40DA-B526-E37F21BE9E45 : 000041 of 000044

Governor in KRS 39A is constitutional, so is 21 RS HB1.

The Governor next cites Carter v. Carter Coal Co., 298 U.S. 238 (1938) for the

proposition that legislation is invalid if it enables agencies or provide persons to decide what the

law is or when it is effective. Carter was a Commerce Clause case that said nothing of the sort.

But even if the principle the Governor cites the case for applied, the General Assembly

determined what the law is, and enacted principles to govern the applicability of 21 RS HB1.

The Governor next takes issue with 21 RS HB1’s clause that indicates that an entity can

prepare a plan, or use one prepared by others as somehow setting forth rules, and cites

Anderson’s Adm’r v. Granville Coal Co., 205 Ky. 111 (1924). But his argument misses the

mark. The General Assembly has dictated the contents of the plan: it must meet either executive

branch of Kentucky or CDC guidance, and it must detail “how the business, for-profit or not-for-

profit organization, local government, association, or school or school district, whether public,

private, or religiously affiliated, will foster the safety of employees, customers, attendees and

patrons, including social distancing requirements.” 21 RS HB1. That is not standardless.

Granville Coal had a completely standardless delegation, which is not constitutional. 21 RS

HB1 sets forth standards.

The Governor next sets forth policy arguments about why 21 RS HB1 is bad policy. But,

again, “[s]haping public policy is the exclusive domain of the General Assembly,” and "[t]he

establishment of public policy is granted to the legislature alone. It is beyond the power of a

court to vitiate an act of the legislature on the grounds that public policy promulgated therein is

contrary to what the court [or the Governor and his appointees] considers to be in the public

41
interest." Caneyville Volunteer Fire Dep't, 286 S.W.3d 790, 907 quoting Wilkinson, 828 S.W.2d

5F6A7851-9A55-40DA-B526-E37F21BE9E45 : 000042 of 000044

610, 614, 39 3 Ky. L. Summary 12.

IV. Plaintiff is entitled to a permanent injunction

The Governor finally argues that even if 21 RS SB1, 21 RS SB2, 21 RS HB1, and 21

HJR 77 are constitutional, and even though he is not complying with them, that the equities do

not warrant the issuance of an injunction.

As the Kentucky Supreme Court has held, because “irreparable harm is presumed” when

constitutional violations exist, it is “not incumbent upon [Plaintiffs] to present such evidence;

rather, the burden [i]s upon [Defendants] to rebut the presumption of irreparable harm.” Boone

Creek Props., LLC v. Lexington-Fayette Urban Cty. Bd. Of Adjustment, 442 S.W.3d 36, 41 (Ky.

2014).

Indeed, the enactment of new laws “‘constitutes [the General Assembly’s] implied

finding that violations [of the new laws] will harm the public….’” Boone Creek Props., 442

S.W.3d at 40-41. That same case established that non-enforcement of statute constitutes

irreparable harm. Id.

Finally, as Judge Shepherd correctly stated elsewhere, the “public has a preeminent

interest in ensuring that all public officials comply with the law.” Commw. ex rel. Conway v.

Shepherd, 336 S.W.3d 98, 104 (Ky. 2011)). And, as the Governor knows from his own previous

litigation, “[i]t is certainly in ‘the interest of all the people’ that there be no unconstitutional or

illegal governmental conduct.” Beshear v. Bevin, 498 S.W.3d 355, 363 (Ky. 2016).

The injunction factors thus tilt strongly towards the issuance of a permanent injunction.

We will, of course, present additional proof in support of the issuance of a permanent injunction

at the hearing of this matter.

42
V. Conclusion

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Plaintiff is entitled to summary judgment and/or partial summary judgment, declaratory

relief, and a permanent injunction. The Governor’s Motion for Summary Judgment should be

denied.

Respectfully submitted,

/s/Christopher Wiest________
Christopher Wiest (KBA 90725)
25 Town Center Blvd, STE 104
Crestview Hills, KY 41017
513-257-1895 (v)
chris@cwiestlaw.com
Trial Attorney for Plaintiff

/s/Thomas Bruns
Thomas Bruns (KBA 84985)
4750 Ashwood Drive, STE 200
Cincinnati, OH 45241
tbruns@bcvalaw.com

/s/Zach Gottesman________________
Zach Gottesman (86288)
404 East 12 St., First Floor
Cincinnati, OH 45202
zg@zgottesmanlaw.com
Co-Counsel for the Plaintiff

NOTICE OF HEARING

Please take notice and be advised that plaintiff Ridgeway Properties, LLC, d/b/a Beans
Café & Bakery, shall be heard on the following motion on May 17, 2021, at 10:00 a.m., or as
soon thereafter as counsel can be heard.

/s/Christopher Wiest________
Christopher Wiest (KBA 90725)

CERTIFICATE OF SERVICE

I certify that on this 13th day of May, 2021, I electronically filed a true and correct copy
of the foregoing with the Clerk of Court by using the Kentucky Court of Justice eFiling website,
which will send a notice of electronic filing and a link to the document to those attorneys listed

43
below. I further rely on Section 11(1) of the eFiling Rules of the Court of Justice that provides

5F6A7851-9A55-40DA-B526-E37F21BE9E45 : 000044 of 000044

that transmission of a hyperlink to the electronic document constitutes service under C.R. 5 and
served by electronic mail.

/s/ Christopher Wiest_______________

Christopher Wiest

44