COMMONWEALTH OF KENTUCKY

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BOONE CIRCUIT COURT
DIVISION I
CASE NO. 20-CI-00678

RIDGEWAY PROPERTIES, LLC

dba Beans Café & Bakery PLAINTIFF

AND

COMMONWEALTH OF KENTUCKY, INTERVENING

ex rel. ATTORNEY GENERAL DANIEL CAMERON PLAINTIFF

VS.

HON. ANDREW BESHEAR, GOVERNOR,

COMMONWEALTH OF KENTUCKY, et al., DEFENDANTS

JUDGMENT AND ORDER

This matter is before the Court for final adjudication. But it comes thus in a bit of a

tangle. Despite its recent vintage, this case has an appellate and procedural history that is both

extensive and unusual.1 The Court conducted an evidentiary hearing on May 17, 2021, and

1
On July 2, 2020, this Court entered a Temporary Injunction against Governor Beshear and other executive agencies
enjoining the enforcement of certain orders issued in the wake of the Governor’s declaration of emergency. That
same day, the Court also allowed Attorney General Daniel Cameron to intervene as Plaintiff on behalf of the people
of the Commonwealth of Kentucky, who sought a wider injunction against all of the Governor’s orders as offensive
to their constitutional rights. Following this Court’s initial Order enjoining enforcement, Governor Beshear and
other executive agencies petitioned the Kentucky Court of Appeals for a writ of prohibition to prohibit the grant of
such relief. That case was captioned, Hon. Andrew Beshear, et al., v. Hon. Richard A. Brueggemann, et al., Ky. Ct.
App. No. 2020-CA-834-OA. On July 13, 2020, in an opinion by the Hon. Glenn Acree, the Kentucky Court of
Appeals denied the writ. Defendants then filed an original action in the Kentucky Supreme Court, petitioning that it
mandate Judge Acree to prohibit this Court from acting, or otherwise for the higher court to directly prohibit this
Court from acting. That case was captioned, Hon. Andrew Beshear, et al., v. Hon. Glenn E. Acree, et al., Ky. S. Ct.
2020-SC-313-OA.
On July 16, 2020, this Court held an evidentiary hearing on whether further temporary injunctions should
issue. At the conclusion of that hearing, this Court stated that it was granting the full relief sought by Plaintiffs and
Intervening Plaintiff, ex rel. Attorney General Daniel Cameron, and that an order with its findings and conclusions
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would be entered in due course. In an Order entered July 17, 2020, the Kentucky Supreme Court directed this Court
to proceed and issue the findings of fact and conclusions of law it found appropriate. However, the Supreme Court
also stayed all injunctions previously imposed in the matter and prohibited the issuance of any new injunctive relief
“until the full record of proceedings below is reviewed . . . and [the Kentucky Supreme Court] issues a final order.”
On July 20, 2020, this Court entered an Order with findings and conclusions that all of the emergency
orders issued by the governor and executive agencies violated the constitutional rights of Kentuckians and that, but
for the Kentucky Supreme Court’s July 17, 2020 Order, would have been enjoined during the pendency of this
action. The Kentucky Supreme Court then considered the matter as on appeal in the case captioned as a writ.
1
pursuant to an agreed briefing schedule, took all remaining matters under submission on May 25,

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2021.

PROCEDURAL AND FACTUAL BACKGROUND

On March 6, 2020, Governor Beshear declared that the 2019 coronavirus2 constituted an

emergency in the Commonwealth, invoking KRS Chapter 39A, and began issuing a string of

executive orders. Among these, he ordered the closure of all businesses except for specific

pursuits that he deemed essential for life.3 Through the Cabinet for Health and Family Services

(“CHFS”), he ordered the closure of churches and houses of worship.4 Following his directives,

CHFS prohibited individuals from meeting together in certain types of mass gatherings, later

allowing meetings only in numbers not exceeding ten persons.5 The Governor prohibited

citizens from peaceably assembling for the purpose of petitioning a redress of these grievances

but allowed and even joined assemblies for other causes.6 He had prohibited travel, with limited

exceptions, and decreed those daring to travel across state lines in violation of his order must

quarantine for 14 days.7 He ordered all citizens to remain at home unless engaged in a pursuit

deemed by the government to be essential for life.8 The CHFS ordered hospitals and doctors to

cease providing any health care, including surgeries, unless said treatment was deemed emergent

Additionally, due to dismissals on side of both Plaintiffs and Defendants, this case is no longer captioned as
Kentucky Speedway, Inc., et al., v. Northern Kentucky Independent Health District, et al.
2
Known as SARS-COV-2, commonly referred to as “Covid-19.”
3
Ky. Exec. Order No. 2020-246, Gov.’s Resp., p. 4, Available at https://governor.ky.gov/attachments/
20200322_Executive-Order_2020-246_Retail.pdf .
4
Id. CHFS Order, Mar. 19, 2020, Gov.’s Resp., p. 4, available at
https://governor.ky.gov/attachments/20200319_Order_Mass-Gatherings.pdf .
5
Order of CFHS Re: Mass Gatherings, available at https://governor.ky.gov/attachments/20200319_Order_Mass-
Gatherings.pdf. See also, Gov. Beshear Updates Kentuckians on the Fight to Defeat COVID-19, available at
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https://kentucky.gov/Pages/Activity-stream.aspx?n=GovernorBeshear&prId=168.
6
Testimony of Dr. Stack, V.R. 07/16/2020, circa 07:42:00; and Exh. 31 to July 16, 2020 hearing.
7
Ky. Exec. Order No. 2020-258, Available at https://governor.ky.gov/attachments/20200330_Executive-
Order_2020-258_Out-of-State-Travel.pdf ;See also Ky. Exec. Order No. 2020-266. Available at
https://governor.ky.gov/attachments/20200402_Executive-Order_2020-266_State-of-Emergency.pdf ; and Ky. Exec.
Order No. 2020-315, available at https://governor.ky.gov/attachments/20200506_Executive-Order_2020-
315_Travel.pdf.
8
https://kentucky.gov/Pages/Activity-stream.aspx?n=GovernorBeshear&prId=10.
2
(that is, likely to result in serious, irreparable harm if not provided within 24 hours), thereby

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prohibiting the people from access to procedures such as cancer-screenings, dental care and

physical therapy.9 The Governor ordered everyone in Kentucky to wear masks and threatened

fines and penalties for violations.10

At first, the Governor indicated the emergency would last for just two weeks11—fourteen

days to flatten the curve. But fourteen months later, the Governor insists his wielding of broad

emergency powers must continue. At the hearing on May 17, 2021, the Commissioner of Public

Health and Governor’s health advisor, Dr. Steven Stack, testified that he could not specify an

incidence rate or any precise conditions that would have to be in place in order to end the state of

emergency and remove all the mandates.12 That, he said, was something only the Governor

could answer.13

In July 2020, for purposes of CR 65.04, this Court found the Governor’s orders

constitutionally offensive on grounds that KRS Chapter 39A attempted to delegate functions

constitutionally reserved to the legislative branch, and also for violating the inherent and

unalienable rights of Kentucky’s citizens. In Beshear v. Acree, 615 S.W.3d 780 (Ky. 2020),14

the Kentucky Supreme Court reversed this Court’s grant of temporary injunctive relief and held

the delegation under KRS Chapter 39A to be constitutional.15 The Kentucky Supreme Court

9
See Ky. Exec. Order No. 2020-323, Available at
https://governor.ky.gov/attachments/20200323_Directive_Elective-Procedures.pdf.
10
Ky. Exec. Order No. 2020-586, available at https://governor.ky.gov/attachments/20200709_Executive-
Order_State-of-Emergency.pdf.
11
See Com. ex rel. Resp., p. 2, fn. 3, citing “Gov. Beshear Tightens
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Restrictions,” https://kentucky.gov/Pages/Activity-stream.aspx?n=GovernorBeshear&prId=104, quoting the

Governor as stating, “Kentucky—these next two weeks are about us . . . doing everything we can to blunt the curve”
(last accessed May 30, 2021).
12
V.R. 05/17/2021, circa 03:28:00; 03:47:00
13
Id.; 04:06:30.
14
See footnote 1, explaining that although Acree commenced as a separate original action on petition for a writ in
response to denial of a writ, it also effectively resulted in an appeal of this Court’s preliminary orders.
15
Id., at 805-813.
3
further held that the challenged orders were not unconstitutionally arbitrary under §§ 1 and 2 of

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Kentucky’s Constitution,16 except for an order which had prohibited family members from

sitting together on outdoor stadium seating at race-tracks.17 As to the latter, because the

Governor had revised that order to remove the offending prohibition, the Kentucky Supreme

Court found it to be moot.18

The landscape currently, however, has changed. Now, it is Defendants who seek to

invalidate certain portions of KRS Chapter 39A on constitutional grounds. Plaintiff and

Intervening Plaintiff assert that the Governor’s continuing orders violate those Kentucky

Statutes. During the 2021 legislative session, the General Assembly amended KRS Chapter 39A

to limit the extent and duration of its legislative delegation to the Governor. The specific

legislation at issue includes Senate Bill 1 (2021 RS SB1), Senate Bill 2 (2021 RS SB2), House

Bill 1 (2021 RS HB1), and House Joint Resolution 77 (2021 RS HJR 77) (all collectively

referred to hereinafter as the “New Legislation” or the “Acts”). The Governor vetoed each of

these measures, after which the General Assembly overrode his veto with votes of overwhelming

majorities.19 All of the New Legislation contained severability clauses, and also emergency

clauses resulting in the Acts going into effect immediately.

Senate Bill 1 amended Chapter 39A in several ways. Section 2 amends KRS 39A.090 to

impose a 30-day limit on the duration of any executive orders or administrative regulations that

purport to restrict in-person meetings or social gatherings, or thereby impairs the operation of

churches, places of worship, schools, private businesses, local governments, nonprofit OO : 000004 of 000030

16
Id., at 815-829; the Court specifically addressed the economic rights of Plaintiffs but did not address in its analysis
the rights under Section 1 of the citizens at large who are represented by the Commonwealth, ex rel. Attorney
General Daniel Cameron .
17
Id., at 825.
18
Id.
19
For example, Senate Bill 1 overrode the Governor’s veto by vote of 69-20 in the house, and 29-8 in the Senate;
and Senate Bill 2 overrode the Governor’s veto in the House 72-22, and 29-8 in the Senate.
4
organizations, and other political, religious or social gatherings. After 30 days, the rules imposed

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by executive order will expire unless the General Assembly shall vote to extend it.20 Section 3 of

Senate Bill 1 requires reporting on the use of any public funds in connection with an emergency

order.21 Section 4 limits the delegation that would allow the Governor to suspend statutes or

regulations by requiring that he specifically identify the law being suspended, and also

conditions any suspension of law on the written approval of the Attorney General.22

One of the provisions in Senate Bill 2 requires the Cabinet for Health and Family

Services to follow the procedures for promulgating regulations (rather than allowing it to merely

issue rules) concerning the exercise of its authority relating to the invasion of infectious or

contagious disease.23 It also imposes a 30-day limit similar to that in Senate Bill 1.

House Bill 1 provides that any business or other organization, be it for-profit or nonprofit,

as well as local government, including schools and school districts, “may remain open and fully

operational for in-person services,” so long as the business or organization adopts a plan that

follows either the Governor’s order or guidance issued by the Center for Disease Control

(“CDC”).24 In other words, it allows the organization to choose the least restrictive option.

House Joint Resolution 77 expressed approval of 56 of the executive’s orders and

regulations, 24 of which it provided shall continue for 90 additional days, and 32 of which it

extended for 30 additional days.25 Otherwise, it provided that “[a]ll COVID-19 related executive

orders, administrative regulations, other directives issued by the Governor or pursuant to his

authority, or agencies or boards under the Governor’s authority, not specifically extended by this OO : 000005 of 000030

20
2021 Ky. Acts ch. 6 § 2.
21
Id., at § 3.
22
Id., at § 4.
23
2021 Ky. Acts ch. 7 § 4.
24
2021 Ky. Acts ch. 3 § 1.
25
2021 Ky. Acts ch. 168, §§ 2, 3.
5
Act are of no further force or effect as of the effective date of this Act.”26 Among the

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Governor’s orders that the General Assembly expressly did not extend was his decree that all

Kentuckians wear a mask.

ARGUMENTS PRESENTED27

Based on the New Legislation, Plaintiff and Intervening Plaintiff seek a declaration that

all of the Governor’s emergency orders in conflict with the Acts are void as a matter of law, and

also seek a permanent injunction compelling Defendants to comply. Further, they point to

existing data from various states to show that the Governor’s mandates have had no appreciable

effect on fighting the coronavirus and that there is no justification in fact for the same to

continue.

Plaintiff presented testimony from Richard Hayhoe, owner of Ridgeway Properties, LLC,

to show he is suffering continuing harm. Plaintiff, as to his business, argues the data shows there

to be neither any need nor rational basis for certain measures the Governor continues to order

and impose, including the mask mandate, social distancing, capacity limitations, and time

limitations for serving customers. Plaintiff also presented testimony from Dr. Molly Rutherford

and Stephen E. Petty, P.E., CIH., who testified as an expert as a certified industrial hygienist.

On the other side, Defendants filed a cross-motion for summary judgment asking the

Court to declare the New Legislation unconstitutional. Defendants argue that the Governor

cannot be in violation of the New Legislation because he obtained an injunction from the

Franklin Circuit to enjoin application of those Acts and, thus, the Governor’s orders remain in

effect. Defendants also insist that, even without the ruling in Franklin Circuit, the Governor
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26
Id., at § 1.
27
Many arguments were presented and, although not recited, were considered. Some arguments or evidence
presented may be recited only in the analysis portion of this Order.
6
cannot be limited by the New Legislation. According to Defendants, the result is an

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unconstitutional encroachment by the legislative branch.28 Defendants presented testimony of

Dr. Steven Stack, the Commissioner of Public Health and Governor’s health advisor.

Defendants also argue that the harms alleged by Plaintiffs are either non-existent, moot,

or have already been decreed by the Kentucky Supreme Court as insufficient to warrant

injunctive relief, and that the same is the law of the case. They further point out that the

Governor’s emergency orders have undergone numerous revisions and that, under his current

stated intention, both the capacity limitations on businesses will be removed, and the mask

mandate imposed on all Kentuckians lifted, on June 11, 2021—but not in all settings.

Contra the arguments presented by Defendants, ex rel. Attorney General Daniel

Cameron, as Intervening Plaintiff on behalf of the people of the Commonwealth, insists that the

decision in the Franklin Circuit does not effect this case, that the law of the case from Acree does

not apply to the relief sought and, consequently, that this Court should not delay to reach the

merits of the claims and constitutional questions before it. Intervening Plaintiff argues the

General Assembly passed the Acts as part of its legislative powers and, because the same are

constitutionally sound, urges this Court to deny Defendants’ cross-motion and to order

Defendants to comply with the New Legislation.

ANALYSIS

No one in the civil realm, however high their office, is above the law. It was for this

principle that English Barons assembled at Runnemede meadow and, on June 15, 1215, forced

King John to sign the Magna Carta, within which he avowed the Crown would abide thereby in
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28
Defendants’ specific arguments on this as to each of the Acts will be more fully addressed in the analysis section
of this Order below.
7
perpetuity.29 Even after he signed, the Barons refused allegiance until he formally affixed upon

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it the Seal of England. The great charter of Kentucky is its Constitution. And its guarantees are

sealed by an oath, one that applies to all offices in all branches. Before a person may take any

office, regardless of whether the person is elected or appointed, the individual, among other

avowals, must formally declare:

I do solemnly swear (or affirm . . .) that I will support the Constitution of the
United States and the Constitution of this Commonwealth, and be faithful and
true . . . so help me God.30

The Constitution places limits on what government may do to (and for) its citizens. All

the laws enacted by the General Assembly, and all laws enforced by the executive, are subject to

those limits. The result, as John Adams put it, is a government of laws, not men. No branch, not

even all branches acting in concert, can legitimately change any provision of the Constitution.

Only by direct vote or convention of the people—whose rights the Constitution exists to

protect—can any change occur.31 The text and meaning of the Constitution is fixed, as its

framers make clear in § 26:

To guard against transgression of the high powers which we have delegated,

We Declare that every thing in this Bill of Rights is excepted out of the
general powers of government, and shall forever remain inviolate; and all
laws contrary thereto, or contrary to this Constitution, shall be void.32

Words mean things, and the meaning of the words in our Constitution is clear. The

legislature alone enacts the laws. “The legislative power shall be vested in a House of

Representatives and a Senate . . . .”33 The executive carries out the law. “The supreme executive
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29
See, generally, Magna Carta, § 1 (“We furthermore grant and give to all the freemen of our realm for ourselves
and our heirs in perpetuity the liberties written below to have and to hold to them and their heirs from us and our
heirs in perpetuity”), quoted from National Archives, Magna Carta Translation,
https://www.archives.gov/exhibits/featured-documents/magna-carta/translation.html, last accessed, May 29, 2021.
30
KY. CONST. § 228.
31
KY. CONST. §§ 256, 258.
32
KY. CONST. § 26.
33
Ky. Const. § 29.
8
power of the Commonwealth shall be vested in . . . the ‘Governor . . .” who “shall take care that

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the laws are faithfully executed.”34 And the judicial branch adjudicates controversies according

to the law.35 No branch “shall exercise any power properly belonging to either of the others,

except in the instances . . . expressly directed or permitted [within the text of the Constitution].”36

All parties to this action agree on one point, namely, that the Constitution has been

violated. The only dispute, when boiled down, is by which it is being transgressed.

A. Law-of-the-Case and Comity

Under the law-of-the-case doctrine, trial courts are not permitted to reopen questions of

law that have been decided by an appellate court in the very same case. “A final decision of [an

appellate court], whether right or wrong, is the law of the case and is conclusive . . . .”37

Nevertheless, the law-of-the-case rule is not without exceptions. An exception exists in the

“limited situation where the controlling law changes after reversal . . . but prior to a subsequent

re-trial.”38 Further, the law-of-the-case doctrine applies to questions of law actually decided, and

not dicta.39 And the doctrine applies only to determinations made based upon law and not

questions of fact.40

In Acree, the Kentucky Supreme Court held that the legislature can delegate to the

Governor emergency rulemaking authority under 39A.41 That determination is the law of this

case. However, Plaintiff and Intervening Plaintiff seek relief based upon intervening changes in

34
KY. CONST. §§ 69, 81.
35
KY. CONST. § 109.
36
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KY. CONST. § 28.

37
Ragland v. DiGiuro, 352 S.W.3d 908, 914–15 (Ky. App. 2010); quoting, Williamson v. Commonwealth, 767
S.W.2d 323, 325 (Ky.1989) (emphasis original).
38
St. Clair v. Commonwealth, 451 S.W.3d 597, 612–13 (Ky. 2014); accord, Brown v. Commonwealth, 313 S.W.3d
577, 610 (Ky. 2010), Sherley v. Commonwealth, 889 S.W.2d 794 (Ky. 1994).
39
Johnson, True & Guarnieri, LLP, 538 S.W.3d 901, 918 (Ky. App. 2017).
40
Inman v. Inman, 648 S.W.2d 847, 849 (Ky. 1982).
41
Acree, 615 S.W.3d, at 805-13.
9
the law since Acree was decided. In short, they contend that, by those changes, the legislature

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has limited some of the power previously granted. Plaintiff and Intervening Plaintiff insist that if

the General Assembly can delegate that power, it can also limit the extent of its delegation or

revoke it entirely. Although the Court found the Defendants’ arguments concerning the law-of-

the-case a difficult question, it is persuaded that it does not apply to the issues remaining for

decision. In addition to the reasons recited herein, the Court is persuaded otherwise by the

arguments presented in ex rel. Attorney General Daniel Cameron’s Post Hearing Reply.42

Although Plaintiff was a party plaintiff at the time Acree was decided, the law has nonetheless

changed, new facts are presented, and the matter is before this Court for final judgment, not

temporary relief.

Plaintiff presents evidence of new facts not offered or considered at the preliminary

injunction hearing. Intervening Plaintiff provides factual data not existing in July 2020 and

concerning which this Court can take judicial notice. The essential questions here are, first,

whether the Acts are constitutional. And, if so, in light of the New Legislation and new facts,

whether the Governor may continue to impose emergency orders that exceed the limits expressly

set under the new law. Defendants argue that the Court may not address that question, entertain

permanent injunctive relief, or address the merits in any manner inconsistent with the result

reached in the Franklin Circuit.

42
See pp. 1-9. However, the Court does correct a statement in the Attorney General’s argument on page 9, which
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states that the decision in Acree “in no way precludes another Plaintiff, with different facts, in an altogether different
legal landscape, from prevailing on its request for a permanent injunction.” The current Plaintiff was in fact a
Plaintiff at the time Acree was decided. However, this Court did not grant a temporary injunction to the current
Plaintiff on the economic grounds presented by it but, rather, on the grounds presented by ex rel. Attorney General
Cameron on behalf of all Kentucky citizens. In fact, this Court expressly held that Plaintiff did not show likelihood
that it would suffer irreparable harm in the same way the other Plaintiffs had and that it was not granting injunctive
relief on that basis. Consequently, the discussion in Acree concerning irreparable harm does not apply.
Furthermore, this is on for final judgment and the elements required for temporary injunctive relief do not apply.
10
 Defendants also assert that the Court should not resolve this matter because the Franklin

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Circuit has enjoined enforcement or enjoined the applicability of the New Legislation. Relating

to this, the parties have presented arguments as to standing, ripeness and whether there was lack

of controversy in Franklin Circuit where, purportedly, the party seeking the injunction is also the

person that would be enjoined. But those arguments turn solely on the case in Franklin Circuit.

The matter that is or was before the Franklin Circuit is different from the controversies presented

here. And this Court does not agree that it should prevent final resolution on the merits in this

case. Again, the Court agrees with the position espoused by ex rel. Attorney General Cameron

that there is no basis for displacing the claims and controversies here.43 “All courts shall be

open, and every person for an injury done him . . . shall have remedy by due course of law, and

right and justice administered without . . . denial or delay.”44

As this Court sees it, Defendants’ arguments concerning the Franklin Circuit are more

closely related to comity than jurisdiction or ripeness. Under the rules of comity, where two

identical actions are brought in separate courts that could result in conflicting judgments with

“calamitous results,” the court with the latter suit is counseled to defer.45 However, comity only

applies where all the parties are identical, and the cause of action in the first suit is identical with

that in the second suit.46 Here, the parties are not identical. Second, the cause of action differs

as to the nature of the controversy. Third, there is evidence presented in this case that has not

been presented in the other case, or the evidence otherwise differs. Moreover, there are already

different decisions in at least two other circuits involving questions relating somewhat to that OO : 000011 of 000030

43
See Com. ex rel. Attorney General Daniel Cameron’s Resp., p. 13, quoting Baze v. Commonwealth, 276 S.W.3d
761, 767 (Ky. 2008), Bell v. Cabinet for Health & Family Servs., Dep’t for Cmty. Based Servs., 423 S.W.3d 742,
751 (Ky. 2014).
44
KY. CONST. § 14.
45
Delaney v. Alcorn, 301 Ky. 802, 805-806 (Ky. 1946).
46
Riddle v. Howard, 357 S.W.2d 705, 708 (Ky. 1962).
11
presented here. It is not uncommon for decisions among circuits to differ, especially on

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questions of first impression. And here, the parties are ploughing new ground.

Moreover, there are already conflicting rulings in Franklin and Scott Counties.

Ultimately, the conflicting circuit decisions will be resolved on appeal—something that can be

expedited as the history in this case demonstrates. Delaying decision here would deprive the

litigants in this case from presenting their arguments on the facts and law presented here.

Defendants contend that this can be remedied by allowing Plaintiff to file an amicus brief with

the appellate tribunal in those other cases. But that is not equivalent to having one’s own case

heard. Nor does that allow for the presentation of evidence by the Plaintiff here.

B. Impact of Governor’s Emergency Decrees

Plaintiff presented evidence of the injury it is suffering. Plaintiff, along with Intervening

Plaintiff, also presented evidence that there is no scientific basis for many of the Governor’s

orders at issue. Based upon the data presented, they argue that the measures imposed in

Kentucky have had no appreciable effect when compared to other states.

Richard Hayhoe, owner of Beans Café & Bakery, testified47 that as a result of the

capacity restrictions ordered by the Governor, he lost two-thirds of his restaurant’s seating

capacity. According to Hayhoe, the mandates have put his business in a precarious financial

condition. Additionally, the Northern Kentucky Independent Health District cited Plaintiff for

violating the Governor’s mask mandate, for which Hayhoe was later criminally charged.

Hayhoe testified that he was not afforded any opportunity to defend against the allegations. He

said that, had he been able to, he would have explained that the person not wearing a mask had a
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health exemption.

47
V.R. 05/17/2021, circa 10:31:30 a.m.
12
 After passage of the New Legislation, Hayhoe’s business opted to develop a compliance

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plan based upon CDC guidance in lieu of the Governor’s mandates. The former, according to

Hayhoe, are less restrictive. Hayhoe testified that he fears enforcement actions may still be

brought against him even though as yet, that has not occurred following the passage of the Acts.

1. Analysis of Effectiveness of Various Mandates on Covid-19

Dr. Mary (“Molly”) Rutherford testified48 as an expert in medicine in public health.

Although Defendants objected to her qualifications, the Court found her education, background

and experience sufficient. Dr. Rutherford obtained her master’s degree in public health at John

Hopkins University, with a focus on epidemiology. She worked for Dr. Fauci for a total of nine

years, the first six at National Institute of Allergy and Infectious Diseases, and the latter three at

the National Institute of Health. She co-authored an international, peer reviewed article titled,

“Multi-treatment of Early Ambulatory High Risk SARS/COV-2 Infection.”49 She testified that

she has treated nearly 100 patients for Covid-19 in her family practice. Dr. Rutherford is board

certified in addiction medicine, and is the past Chair and a current board member of the

American Academy of Family Physicians.

Dr. Rutherford pointed to several published articles during her testimony. One analyzed

the effect that government mandates have had on the infection rates, hospitalizations and deaths

from Covid-19 by comparing data from countries that imposed strict lockdowns against those

that did nothing.50 Among its conclusions, the study found that “government actions such as

border closures, full lockdowns and a high rate of COVID-19 testing, were not associated with OO : 000013 of 000030

48
V.R. 05/17/2021, circa 10:46:30.
49
Plaintiff’s Exh. 16.
50
Plaintiff’s Exh. 17; Rabail Chaundhry, George Dranitsaris, et al., A country level analysis measuring the impact of
government actions, country preparedness and socioeconomic factors on Covid-19 mortality and related health
outcomes, EClinicalMedicine 25 (2020) 100464 (21 Jul. 2020).
13
statistically significant reductions in the number of critical cases or overall mortality.”51

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Similarly, a later study likewise found that the “[s]tringency of measures settled to fight

pandemia, including lockdown, did not appear to be linked with the death rate.”52

Another study opined that, even if cases are reduced in the short-term, interventions

actually lead to more deaths overall.53 According to the researchers’ findings, and Dr.

Rutherford, the focus should have been only on those determined to be high risk, such as those

over 70 years of age. Plaintiff also presented an article that is still in manuscript form that, in

effect, challenges claims that government interventions saved any lives.54 This study concludes

that the “United Kingdom’s lockdown was both superfluous and ineffective,” and that

proponents of government interventions employ “circular logic.”55

Dr. Rutherford stated that, at first, she trusted Dr. Fauci and the CDC even though they

were pushing governments to impose measures, such as social distancing, that were not based

upon known science. However, Dr. Rutherford testified that in the following months, as a result

of their actions, she no longer trusts what they say. It isn’t just that the government lockdowns

did not help. Rather, she opined, the government’s actions have inflicted more harm and death.

She testified that there has been an increase in overdose deaths and pointed to specific cases

where she contends overdose deaths occurred as a direct consequence of the closure of facilities.

Finally, Dr. Rutherford also testified concerning Covid-19 data comparisons from various

states, using it to illustrate the lack of difference between states that imposed harsh lockdowns

OO : 000014 of 000030

51
Id., p. 5.
52
Plaintiff’s Exh. 20: Quentin De Larochelambert, Andy Marc, et al., Covid-19 Mortallity: A Matter of
Vulnerability Among Nations Facing Limited Margins of Adaption, Front. Public Health 8:604339 (19 Nov. 2020).
53
Plaintiff’s Exh. 18: Ken Rice, Ben Wynne, et al., Effect of school closures on mortality from coronavirus disease
2019: old and new predictions, BMJ 2020; 371:m3588 (7 Oct. 2020).
54
Plaintiff’s Exh. 21: Stefan Homburg and Christof Kuhbandner, Comment on Flaxman et al., Leibniz University
Hannover and University of Regensburg (christof.kuhbandner@ur.de).
55
Id.
14
from those that did not. In connection with this, Plaintiff presented a document identified as

3D6BAC2F-53A1-4402-BB90-973E51C973BD : 000015 of 000030

“Exhibit 26” containing a table of data comparisons. At the hearing, Defendants objected to

admission of that document on grounds of improper foundation, and lack of identification of

origin or sources. Because the testimony had occurred earlier in the day, and the witness had

already been excused, the Court indicated that it would rule following a review of the testimony.

Having done so, Defendant’s objection to Exhibit 26 is sustained.56 However, the objection

applied only to Exhibit 26, not her testimony, or the specific points of data contained therein on

which she expressed knowledge.

2. Validity of Social Distancing and Mask Mandates on Covid-19

Stephen E. Petty, P.E., CIH, testified57 as an expert and was accepted as such without

objection. Mr. Petty has served as an expert witness in approximately 400 cases relating to toxic

or infectious exposure, personal protective equipment (“PPE”), and as a warning expert. He also

served as an epidemiology expert for the plaintiffs in the Monsanto “Roundup” cases, and for

those in the Dupont C8 litigation. In connection with his service as an expert, he was deposed

nearly 100 times and has provided court testimony in approximately 20 trials. Mr. Petty holds

nine U.S. patents, has written a book comprising nearly 1,000 pages on forensics engineering, is

a certified industrial hygienist, and a recognized expert with the Occupational Safety and Health

Agency. Mr. Petty helped write the rules on risk assessment for the State of Ohio and has trained

Ohio’s risk assessors.

Mr. Petty explained that the field of his expertise is “to anticipate and recognize and

control things that could hurt people, everything from making them sick to killing them.”58 He
OO : 000015 of 000030

56
On cross-examination, Dr. Rutherford testified that she did not participate in compiling the document, could not
provide source citations to identify the source(s) of the data within the document, could not state who performed the
calculations contained in the document, and could not identify who chose which states to sample.
57
V.R. 05/17/2021, circa 11:45:40.
58
Id.
15
testified that, in this context, he has analyzed the use of masks and social distancing in

3D6BAC2F-53A1-4402-BB90-973E51C973BD : 000016 of 000030

connection with Covid-19. He testified that both the six-foot-distancing rule, and mask

mandates, are wholly ineffective at reducing the spread of this virus. Masks are worthless, he

explained, because they are not capable of filtering anything as small as Covid-19 aerosols. In

addition, masks are not respirators and lack the limited protections that respirators can provide.

The N-95 respirator, which he states is in the bottom class of what may be classified as a

respirator, is rated to filter 95% of all particles that are larger than .3 microns. However, a

Covid-19 particle, which is only between .09 to .12 micron, is much smaller. Mr. Petty further

explained that an N-95 will not even filter above .3 microns if it is not used in accordance with

industry standards. Among the requirements, respirators must be properly fitted to seal along the

face, and they also must be timely replaced. Mr. Petty stated that N-95 masks, which he said are

often utilized as surgical masks, are “not intended to keep infectious disease from either the

surgeon or from the patient infecting each other” but only to catch the “big droplets” from the

surgeon’s mouth.”59

According to Mr. Petty, masks have no standards, are not respirators, and do not even

qualify as protective equipment. In contrast, respirators have standards, including rules that state

respirators may not be worn by persons with facial hair, must be fitted to ensure a seal, and must

be timely replaced—or, as in higher end respirators, the cartridges must be replaced to prevent

saturation. In addition, standards for respirators also require users to obtain a medical clearance

because the breathing restriction can impair lung function or cause other problems for persons

having such limitations. Putting those persons in a respirator can harm their well-being.
OO : 000016 of 000030

59
Id.
16
 Concerning the effectiveness of respirators, Mr. Petty explained that it comes down to

3D6BAC2F-53A1-4402-BB90-973E51C973BD : 000017 of 000030

“big stuff” versus “small stuff.” Big stuff can be taken out by the body’s defenses, such as its

mucus tissue, where droplets can be caught and eliminated. The small stuff, however—like

aerosols—are more dangerous. Masks cannot filter the small stuff. According to Petty, because

Covid-19 particles are comprised of aerosols, it is really, really, small stuff. And, as he pointed

out, an N-95 is designed to filter larger particles. Even for particles as large as .3 micron, Mr.

Petty testified that an N-95’s effectiveness is in direct proportion to its seal. In fact, he stated it

becomes completely ineffective if 3% or more of the contact area with the face is not sealed.

Mr. Petty testified that masks leak, do not filter out the small stuff, cannot be sealed, are

commonly worn by persons with facial hair, and may be contaminated due to repetitive use and

the manner of use. He emphatically stated that mask wearing provides no benefit whatsoever,

either to the wearer or others.

He explained that the big droplets fall to the ground right away, the smaller droplets will

float longer, and aerosols will remain suspended for days or longer if the air is stirred. Mr. Petty

testified that the duration of time that particles remain suspended can be determined using

“Stoke’s Law.” Based on it, for particles the size of Covid-19 (.12 to .09 micron) to fall five feet

would take between 5 and 58 days in still air. Thus, particles are suspended in the air even from

previous days. And so, he asks, “If it takes days for the particles to fall, how in the world does a

six-foot rule have any meaning?”60

Mr. Petty acknowledged that both OSHA and CDC have recommended that people wear

masks. However, he called this “at best dishonest.”61 As an example on this, he pointed to CDC
OO : 000017 of 000030

guidance documents where, on page 1, it recommends wearing a mask; but then on page 6,

60
Id.
61
Id.
17
admits that “masks, do not provide . . . a reliable level of protection from . . . smaller airborne

3D6BAC2F-53A1-4402-BB90-973E51C973BD : 000018 of 000030

particles.”62 According to Mr. Petty, those agencies have smart individuals who know better.

Mr. Petty points out that, even before March 2020, it was known that Covid-19 particles are tiny

aerosols. And on this, he states that he insisted that fact early on. He also points to a more

recent letter by numerous medical researchers, physicians and experts with Ph.D.s, asking the

CDC to address the implications of Covid-19 aerosols. During Dr. Stack’s subsequent

testimony, he also acknowledged that Covid-19 is spread “by . . . airborne transmission that

could be aerosols . . . .”63

Finally, Mr. Petty pointed to another recent study by Ben Sheldon of Stanford University

out of Palo Alto. According to that study, “both the medical and non-medical face masks are

ineffective to block human-to-human transmission of viral and infectious diseases, such as

SARS, CoV-2 and COVID-19.”64 The Court finds the opinions expressed by Mr. Petty firmly

established in logic. The inescapable conclusion from his testimony is that ordering masks to

stop Covid-19 is like putting up chain-link fencing to keep out mosquitos. The six-foot-

distancing requirements fare no better.

3. Data Comparisons: Kentucky and Freer States

Plaintiff and Intervening Plaintiff argue the Governor’s orders have been shown to be

ineffectual and, therefore, cannot justify continued imposition on an emergency basis. They

compare Kentucky’s data with the data from states that purportedly imposed no mandates, such

as South Dakota, or states that imposed far less stringent mandates, such as Tennessee, Texas OO : 000018 of 000030

62
Id.
63
V.R. 05/17/2021, circa 02:05:45.
64
V.R. 05/17/2021, circa 11:45:40.
18
and Florida. At the hearing, and in the Attorney General’s Reply, the primary focus was on

3D6BAC2F-53A1-4402-BB90-973E51C973BD : 000019 of 000030

Florida. The Court can take judicial notice of the published data.65

As to the greater freedoms allowed by the Governor in Florida, Dr. Steven Stack agreed

that, “at varying times,” Florida “had much less stringent requirements” than those imposed in

Kentucky.66 He further acknowledged that Florida “opened up earlier than us, yes,

significantly.”67

The population of Florida is more than four times that of Kentucky, Florida’s being

21,538,187 and Kentucky’s 4,505,836.68 In addition, Florida has a higher percentage of its

population over age 65 than does Kentucky. In Florida, 20.9% of the people are over age 65,

whereas in Kentucky 16.9% are over age 65.69 Florida had 10,471 Covid-19 cases for every

100,000 people, and Kentucky had 10,197 per 100,000 people.70 The CDC reports that, in

Florida, for every 100,000 people, 167 died with Covid-19 and, in Kentucky, for every 100,000

people, 150 people died with Covid-19.71 That is a difference of a mere 0.017%, with

Kentucky’s number being slightly better.

However, Florida’s population is older. In fact, an additional 4% of Florida’s population

are over age 65 compared to Kentucky. When that fact is considered, Florida’s success and

survival rate is better than Kentucky’s. In Florida, deaths of persons with Coivd-19 who were at

65
See Attorney General’s Post Hear’g Reply, pp. 9-12; see also KRE 201(c), and Doe v. Golden & Walters, PLLC,
173 S.W.3d 260, 264 (Ky. App. 2005), holding a court can take judicial notice of a fact that is generally known and
“[c]apable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned.”
66
OO : 000019 of 000030

V.R. 05/17/2021, circa 03:58:38 p.m.

67
Id.
68
See U.S. Census Bureau data for 2020, available at: https://www.census.gov/quickfacts/fact; see also Att. Gen.
Reply, p. 10 for 2019 Census Data.
69
Id.
70
See CDC Covid Data Tracker, available at: https://covid.cdc.gov/covid-data-tracker/#cases_casesper100k; see
also, Att. Gen. Reply, p. 11.
71
Id.
19
age 65 and older represent 75.16% of the total persons who died of Covid-19 in that state.72

3D6BAC2F-53A1-4402-BB90-973E51C973BD : 000020 of 000030

Compare that to Kentucky, where persons who died with Covid-19 over the age of 65 represent

87.75% of all Covid-19 deaths.73 In any event, the data comparison demonstrate there to be no

emergency justification for continuing Governor Beshear’s orders.

4. Accuracy of CDC Case Counts

Dr. Stack testified as to the different methods by which cases are determined to be

positive for Covid-19. He also provided information on the polymerase chain reaction (“PCR”)

test and that, by government order, the cycle rates used in that testing may not be disclosed.

According to Dr. Stack, federal regulation prohibits labs from reporting to the public the number

of cycles it took to yield a positive result during the test.74 This is commonly referred to as

“cycle threshold” or “Ct” values.75 The Ct value is “the number of amplification cycles . . . at

which the diagnostic test result of the real-time PCR changes from negative (not detectable) to

positive (detectible).76 According to the guidance, the total number of cycles required to yield a

positive result “generally ranges from about 15 to 45 cycles.”77 The guidance provided by Dr.

Stack explains that, “[d]iagnostic laboratories should not include Ct values on laboratory reports

because it could be out of compliance with laboratory regulations and they should not be used to

inform patient management.”78

72
Compare CDC Covid Data Tracker, available at
https://www.cdc.gov/nchs/nvss/vsrr/covid_weekly/index.htm#SexAndAge, with https://covid.cdc.gov/covid-data-
OO : 000020 of 000030

tracker/#cases_casesper100k, and https://www.census.gov/quickfacts/fact.

73
Id.
74
V.R. 05/17/2021, at 03:50:00 p.m.; and 04:07:00.p.m
75
See Defendants’ Exh. A, at p. 31 of 34; Ct Values: What They Are and How They Can be Used; Vers. 1 APHL
(Nov. 9, 2020).
76
Id.
77
Id.
78
Id.
20
 In contrast, however, the CDC has recently indicated that Ct values should be limited at,

3D6BAC2F-53A1-4402-BB90-973E51C973BD : 000021 of 000030

or less than, 28 cycles when cataloguing “breakthrough infections,” i.e., infections occurring in

persons that have been fully vaccinated for Covid-19. For those cases, the CDC states that

“Clinical specimens for sequencing should have an RT-PCR Ct value ≤28.”79 This is, at the very

least, a curious difference. The CDC accepts Cycle thresholds for ordinary PCR testing for

sequencing even when amplified as high as 45 cycles. But for “breakthrough” cases, states it

should be no higher than 28. This invites many questions, such as why Ct values in Covid tests

should differ based upon whether or not the individual being tested has been vaccinated; and,

why a federal government agency has ordered labs to “not include Ct values on laboratory

reports . . . to inform patient management,” even though the CDC indicates that PCR Ct values

should be ≤28. These are important questions. Case counts have been the poster child for the

need to deprive people of their liberty.

C. Constitutionality of the Acts

Defendants point out that, under the New Legislation, the General Assembly did not

repeal the delegation it granted under Chapter 39A. Thus, Defendants argue, since the General

Assembly has maintained its delegation to the Governor, thereby allowing him to make rules

during an emergency, it cannot at the same time manage the Governor in how he goes about it.

That, they insist, would be engaging in executive functions by the legislature. According to

Defendants, because the New Legislation attempts to do so, it encroaches on the powers granted

to the executive branch under the Constitution.

As to House Bill 1, Defendants’ challenge is on grounds that it attempts to delegate

OO : 000021 of 000030

functions to the CDC. According to Defendants, House Bill 1 makes the CDC the interpretative

79
See CDC, COVID-19 vaccine breakthrough case investigation, Information for public health, clinical, and
reference laboratories, available at: https://www.cdc.gov/vaccines/covid-19/downloads/Information-for-
laboratories-COVID-vaccine-breakthrough-case-investigation.pdf (last accessed, June 7, 2021).
21
or determinative body of what measures should be imposed upon businesses. Defendants

3D6BAC2F-53A1-4402-BB90-973E51C973BD : 000022 of 000030

complain that House Bill 1 does not specify which of the CDC’s 100-plus guidance documents

are not to be Kentucky law. Defendants further assert that CDC guidance is conflicting and

difficult to navigate. Therefore, Defendants argue, because it makes CDC guidance the

regulatory standard, House Bill 1 violates §§ 1 and 2 of Kentucky’s Constitution for being

impermissibly arbitrary, vague, and unintelligible.

Dr. Stack testified that he, in consult with others in the executive branch, reviews the

guidance of the CDC and tailors the emergency orders that are imposed on Kentucky

businesses.80 According to Dr. Stack, CDC guidance would be too difficult for individual

businesses to navigate on their own.81 However, as Plaintiff points out, the emergency orders

issued by Defendants also contain references to CDC guidance. Initially Dr. Stack contended

that it would be impossible to enforce a company’s compliance plan if it was predicated on the

CDC guidance.82 But, on cross-examination, he conceded that enforcement based upon CDC

guidelines “should generally be doable.”83

It is true that the General Assembly may not legitimately delegate functions to the CDC,

or make it the interpretive or determinative body for Kentucky law. But House Bill 1 does not

delegate legislative function to the CDC. Rather, House Bill 1 uses CDC guidance as a limit on

the rule-making authority delegated to the Governor. It caps the extent or scope of rulemaking

that the Governor may impose by emergency decree. The Kentucky Supreme Court held that the

General Assembly may delegate rulemaking under KRS Chapter 39A. House Bill 1 sets a OO : 000022 of 000030

80
V.R. 05/17/2021, circa 02:18:00 p.m.
81
Id.
82
Id., circa 02:31:00 – 02:33:00 p.m.
83
V.R. 05/17/2021, circa 03:02:00 p.m.
22
boundary on that delegation by using CDC guidance as the foul-line. For the reasons Defendants

3D6BAC2F-53A1-4402-BB90-973E51C973BD : 000023 of 000030

point out, it is not likely much of a limit. But it is a limit nonetheless.

Whereas House Bill 1 limits executive decrees by their scope, or extent of their reach,

Senate Bills 1 and 2 limit their duration. Senate Bill 1 still allows the executive to restrict in-

person meetings or social gatherings, and to impair attendance at places of worship, schools,

businesses, and other organizations under Chapter 39A, but it limits any such orders to 30 days

“unless an extension, modification, or termination is approved by the General Assembly.”84

Senate Bill 2, § 22, contains a similar time limitation on administrative regulations. Defendants

argue that this violates §§ 36 and 42 of the Kentucky Constitution which mandates that the

General Assembly meet for only 30 days in odd years, and 60 days in even years. Further,

Defendants point to § 80 of the Constitution, which provides that the Governor “may” call an

extraordinary session. According to Defendants, because that provision gives the Governor

discretion to call a special session, it implies that, should he decide not to, he has authority to

decree whatever rules he deems necessary. This proposition, however, turns the Constitution’s

strict separation of powers into a meaningless formula.

In support of their proposition, Defendants present historical accounts of Kentucky’s

1890-91 Constitutional Convention. Specifically, they quote delegates to show the Convention

was called to constrain the General Assembly from meeting too often; that an ongoing legislature

makes the people “subject at times to very great abuses;”85 that without curbing the time during

which the General Assembly may legislate, they “might go on for several months and expend the

money of the people of Kentucky,”86 and that the result was “too much legislation.”87 None of
OO : 000023 of 000030

84
2021 Ky. Acts ch. 6 § 2.
85
Defendants’ Resp. and Cross-motion, p. 36, quoting Delegate DeHaven, 1890 Debates, at 206.
86
Id., quoting Delegate Cox, 1890 Debates, 1126-27.
87
Id.
23
this, however, proves that the people reined-in the legislature only to empower their governor to

3D6BAC2F-53A1-4402-BB90-973E51C973BD : 000024 of 000030

rule by mere decree in its stead. Indeed, that circumstance would be far worse than the first. The

quotes presented by Defendants support the oft repeated quote that “no one’s life, liberty, or

property is safe while the legislature is in session.”88 But the complaint it expresses is not

remedied by replacing legislation with executive rulemaking. As is so cleverly illustrated by the

old Schoolhouse Rock cartoon, “I’m Just a Bill,” it’s not easy to pass a law. It’s not supposed to

be. We have a bicameral legislature for a reason.

Defendants contend the Acts violate § 80 of the Constitution “[b]y forcing the Governor

to call a special session to extend emergency orders,” thereby “effectively [rewriting §§ 36 and

42] to allow the General Assembly to meet for 30 legislative days during odd-numbered years

and 60 legislature days in even numbered years, unless an emergency exists.”89 The Court

disagrees. The Acts do not provide any means for the General Assembly to reconvene itself by

virtue of its own legislation. It still requires a call from the Governor, and that call still remains

at his discretion. Section 80 of the Constitution provides that the Governor “may, on

extraordinary occasions, convene the General Assembly . . . . stating the subjects to be

considered, and no other shall be considered.” The Acts are consistent with this provision. The

following quote attributed to Delegate MacKoy perhaps best makes the point:

It is to be presumed, I think, when the Legislature is convened in special

session, that it is so called in pursuance of some emergency of some public
demand that is urgent, and that the Governor, knowing the wishes of the
people and understanding fully the emergency, will call the Legislature in
special session only when it is absolutely necessary that it shall be done.90 OO : 000024 of 000030

88
Author unknown.
89
Defendants’ Resp. and Cross-motion, p. 37 (italics in original).
90
Id., quoting Delegate MacKoy, 1890 Debates, at 1049.
24
 Before KRS Chapter 39A, if there was “some emergency” and the General Assembly was

3D6BAC2F-53A1-4402-BB90-973E51C973BD : 000025 of 000030

not then in normal session, the Governor had to call a special session and, as provided in § 80,

present “the subjects to be considered” for legislation. Under the New Legislation, if there is

“some emergency,” the Governor may declare an emergency and act on his own for up to 30

days. After that, the authority delegated expires unless the General Assembly shall approve an

extension. This does not square with Defendants’ position that executive power is being

usurped. As Delegate MacKoy remarked, a special session is “called in pursuance of some

emergency . . . that is urgent.” If a purported emergency that would extend beyond 30 days is

not sufficiently urgent to call a special session, then it is not sufficiently urgent to justify the

imposition of indefinite and open-ended rulemaking by executive decree. As John Adams

counseled, “The only maxim of a free government ought to be to trust no man living with power

to endanger the public liberty.”91

Defendants also attack § 4 of Senate Bill 1 because it requires the Governor to identify

with specificity the laws being suspended, and conditions the Governor’s emergency power to

suspend laws upon the written approval of the Attorney General. According to Defendants, that

is constitutionally offensive because it makes the action of the Governor depend upon a lesser

constitutional officer. However, § 15 of the Constitution commands that, “No power to suspend

laws shall be exercised unless by the General Assembly or its authority.” Clearly, if the

Governor can suspend laws, he can only do so “by the General Assembly or its authority.” In

Acree, the Kentucky Supreme Court held the General Assembly could delegate that authority.

Now the General Assembly has, “by its authority,” limited that delegation by the conditions set
OO : 000025 of 000030

out in Senate Bill 1.

91
John Adams, Bill of Rights Institute, https://billofrightsinstitute.org/founders/john-adams, last accessed May 29,
2021.
25
 Defendants also assert that, if the Governor’s emergency orders are not legislative in

3D6BAC2F-53A1-4402-BB90-973E51C973BD : 000026 of 000030

nature, or do not involve legislative power, then he has the authority under the Constitution to act

without regard to any delegation under KRS Chapter 39A. If the Governor’s emergency orders

were not engaging in legislative power, that would certainly be true. Legislative power is

defined in Black’s Law Dictionary as, “[t]he power to make laws and to alter them at discretion .

. . .”92 Legislative function means “[t]he duty to determine legislative policy”; “the duty to form

and determine future rights and duties.”93 And the definition of legislate includes, “[t]o bring

something into or out of existence by making laws; to attempt to control (something) by

legislation . . . .”94

Cleary, what has been ordered by the Governor’s emergency decrees constitute

legislation. Dr. Stack’s testimony demonstrates that he and others engage in a process of

collaboration and review of CDC guidelines and other documents, the purpose of which is to

impose rules on persons and businesses in Kentucky, and that in formulating these rules they

tailor them to apply uniformly across the Commonwealth.95 This is formulating policy. He

further testified that they have repeatedly amended and revised their orders, thus showing they

deem to have the power to make laws and alter them at discretion. Indeed, he described the

orders imposed as having a “breathtaking scope.”96

It is obvious from even a cursory review that the orders issued over the past fifteen

months “attempt to control” and seek “to form and determine future rights and duties” of

Kentucky citizens. These included ordering the closure of all businesses, except those the

Governor deemed essential. He ordered churches closed, prohibited social gatherings, including
OO : 000026 of 000030

92
BLACK’S LAW DICTIONARY, 7th ed., West Group, p. 911 (St. Paul MN: 1999) (defining “legislative power”).
93
Id. (defining “legislative function”).
94
Id., at 910 (defining “legislate”).
95
V.R. 05/17/2021, circa 02:18:00.
96
Id., at circa 03:02:00.
26
at weddings and funerals, prohibited travel, and through CHFS, even prohibited citizens from

3D6BAC2F-53A1-4402-BB90-973E51C973BD : 000027 of 000030

receiving scheduled surgeries and access to medical care. And then there is the order that

everyone wear a mask. These are, undeniably, attempts to control, set policy, and determine

rights and duties of the citizenry. Except in those instances where the federal courts have

stepped in, Defendants assert authority to modify or re-impose these orders at their sole

discretion. Consider, for example, the recent modification of the mask mandate. It orders

persons who did not get vaccinated for Covid-19 to wear masks but lifts that requirement for

others. That is setting policy and determining future rights and duties.

At the hearing, Defendants took exception to the Attorney General’s characterization of

the Governor’s actions as a “lockdown,” and argued that prohibiting persons from entering those

restaurants is not the same as ordering that they be closed. But that doesn’t minimize the impact

on those who lost their businesses as a result, or those in nursing homes condemned to spend

their final hours alone, deprived of the comfort from loved ones (or even any real contact with

humanity), or those citizens who the Governor prohibited from celebrating their wedding day

with more than ten persons, or those he forced to bury their dead alone, without the consoling

presence of family and friends (and who likewise were deprived of paying their final respects),

or those persons who were barred from entering church to worship Almighty God during Holy

Week, and even Easter Sunday, or those persons who were denied access to health care,

including cancer-screenings, or those denied entry into government buildings (which they pay

for with their taxes) in order to obtain a necessary license, and who were forced to wait outside

for hours in the sweltering heat, or rain, purportedly to keep them from getting sick.
OO : 000027 of 000030

What the people have endured over the past fifteen months—to borrow a phrase from

United States District Judge Justin R. Walker—“is something this Court never expected to see

27
outside the pages of a dystopian novel.”97 Yet, Defendants contend that the Governor’s rule by

3D6BAC2F-53A1-4402-BB90-973E51C973BD : 000028 of 000030

mere emergency decree must continue indefinitely, and independent of legislative limits. In

effect, Defendants seek declaratory judgment that the Constitution provides this broad power so

long as he utters the word, “emergency.” It does not. For this Court to accept Defendant’s

position would not be honoring its oath to support the Constitution; it would be tantamount to a

coup d’état against it.

To succeed on their claims that the New Legislation is unconstitutional, Defendants bear

a heavy burden. Statutes enacted by the General Assembly enjoy a “strong presumption of

constitutionality.”98 This is especially true here, since Defendants contend that the Acts are

unconstitutional on their face. “A facial challenge to a legislative Act is, of course, the most

difficult challenge to mount successfully.”99 In order to find legislation unconstitutional, “the

violation of the Constitution must be clear, complete and unmistakable.”100 Further, the party

“must establish that no set of circumstances exists under which the Act would be valid.”101 For

all of the foregoing reasons, this Court finds that Defendants have failed to meet their burden.

And for the same reasons, Plaintiff’s Motion, and the arguments of the Attorney General, are

well taken.

THEREFORE, JUDGMENT IS HEREBY ENTERED in favor of Plaintiff and

DECLARATORY RELIEF is GRANTED in that the Court finds and declares that all actions

taken by Defendants, Hon. Andrew Beshear, as Governor, Mr. Eric Friedlander, as acting

Secretary of the Cabinet for Health and Family Services, and Dr. Steven Stack, M.D., as OO : 000028 of 000030

97
On Fire Christian Center, Inc., v. Greg Fischer, et al. 3:20-CV-264-JRW, p. 3 (U.S. Dist. Ct., W. Dist. Ky., Apr.
11, 2020).
98
Wynn v. Ibold, Inc., 969 S.W.2d 695, 696 (Ky. 1998).
99
Williams v. Commonwealth, 213 S.W.3d 671, 681 (Ky. 2006), quoting, Rust v. Sullivan, 500 U.S. 173, 183 (1991).
100
Williams, 213 S.W.3d, at 681, quoting Kentucky Industrial Utility Customers, Inc. v. Kentucky Utilities Company,
983 S.W.2d 493, 499 (Ky.1998).
101
Williams, 213 S.W.3d, at 681, quoting Rust, 500 U.S., at 183.
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Commissioner for the Kentucky Department of Public Health, and all emergency orders imposed

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by said Defendants, or that are being continued by said Defendants, are unconstitutional, void

and without any legal effect, to the extent that the same are in conflict with, or are otherwise

contrary to, House Bill 1, Senate Bill 1, Senate Bill 2, and House Joint Resolution 77, as passed

in the 2021 session of the General Assembly.

IT IS FURTHER HEREBY ORDERED that Plaintiff’s Motion for Permanent

Injunction is GRANTED and that, effective June 10, 2021, at 5:00 p.m., Defendants, Hon.

Andrew Beshear, as Governor, Mr. Eric Friedlander, as acting Secretary of the Cabinet for

Health and Family Services, and Dr. Steven Stack, M.D., as commissioner for the Kentucky

Department of Public Health, are enjoined from enforcing Plaintiff to comply with any

emergency orders imposed by said Defendants, or that are being continued by said Defendants,

that are in conflict with, or are otherwise contrary to, House Bill 1, Senate Bill 1, Senate Bill 2,

and House Joint Resolution 77, as passed in the 2021 session of the General Assembly.

IT IS FURTHER HEREBY ORDERED that Plaintiff’s Motion for Class Certification

is DENIED, in that the result of the Declaratory Judgment has the same effect.

IT IS FURTHER HEREBY ORDERED that Defendants’ Cross-Motion for

Declaratory Judgment that the General Assembly violated the Constitution in passing House Bill

1, Senate Bill 1, Senate Bill 2, and House Joint Resolution 77, is DENIED.

There being no just cause for delay in the entry of this Judgement, this Judgment is final

and appealable.

The Clerk shall serve notice of entry hereof in accordance with CR 77.
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 IT IS SO ORDERED.

3D6BAC2F-53A1-4402-BB90-973E51C973BD : 000030 of 000030

JUDGE RICHARD A. BRUEGGEMANN
BOONE CIRCUIT COURT

CC: ALL COUNSEL AND PARTIES OF RECORD.

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