Академический Документы
Профессиональный Документы
Культура Документы
Plaintiffs
v.
Defendants
Commonwealth ex rel. Beshear v. Commonwealth ex rel. Bevin, 498 S.W.3d 355, 361
(Ky. 2016).
The court may also grant permissive intervention, upon a timely motion, “(a) when a
defense and the main action have a question of law or fact in common.” CR 24.02. The
1
I. The Attorney General, on behalf of the Commonwealth, may intervene
of CR 24.01 because, under KRS 15.020, the Attorney General shall “enter his
appearance in all cases, hearings, and proceedings in and before all other courts,
tribunals, or commissions in or out of the state, and attend to all litigation and legal
business in or out of the state required of him by law, or in which the Commonwealth
has an interest[.]” Moreover, the Attorney General shall “exercise all common law
duties and authority pertaining to the office of the Attorney General under the
common law, except when modified by statutory enactment.” Id. “It is unquestioned
that at common law, the Attorney General had the power to institute, conduct and
maintain suits and proceedings for the enforcement of the laws of the state, the
preservation of order, and the protection of public rights.” Beshear, 498 S.W.3d at
362. Among those powers inherent in the Office of Attorney General is “the power to
at 363.
complaint alleges that Governor Beshear, and his subordinate officers, have violated
1 The initial complaint was filed only several days earlier, on June 16, 2020, naming only
the Northern Kentucky Independent Health District as a defendant. It was not until June
22, 2020, that Plaintiffs amended their complaint to seek relief against the state officials
central to the alleged constitutional violations.
2
allege that Governor Beshear has 1) acted arbitrarily, in violation of Section 2 of the
to act pursuant to KRS 39A.100 under these facts; and 4) violated the rule making
agrees with that Plaintiffs that the Governor’s executive orders are constitutionally
right on behalf of the Commonwealth and its citizens. Beshear, 498 S.W.3d at 363.
II. The Court should grant the Attorney General, on behalf of the
Commonwealth of Kentucky, permissive intervention.
the elements for permissive intervention. The Commonwealth asserts claims against
the same group of state officials for violating the constitutional rights of Kentuckians
by issuing several overbroad and illegal executive orders shutting down the
businesses and livelihood of citizens across the state. These claims arise from the
same unconstitutional actions by the defendants and involve overlapping legal issues.
3
III. The Attorney General’s motion is timely.
motion, which this motion is. The Commonwealth is moving to intervene less than
ten days after Plaintiffs filed their amended complaint. At the time of this motion,
the Defendants have yet to file an answer, or other responsive pleading, and there
has been no discovery. See Government Employees Ins. Co., v. Winsett, 153 S.W.3d
862 (Ky. App. 2004) (holding that an insurance company’s motion to intervene was
timely when “[n]o judgment, settlement or other event has occurred disposing of the
case at [the] time” the motion was filed). This motion is therefore timely.
Respectfully submitted,
Daniel Cameron
ATTORNEY GENERAL
4
NOTICE
CERTIFICATE OF SERVICE
I certify that on June 30, 2020, a copy of the above was filed electronically with
the Court and served through the Court’s electronic filing system and was served by
U.S. Mail, postage prepaid on July 1, 2020, on the following:
Hon. Andrew Beshear, Governor Cabinet for Health and Family Services
Commonwealth of Kentucky 275 E. Main Street
700 Capitol Avenue, Suite 100 Frankfort, KY 40621
Frankfort, KY 40601
Jeffrey C. Mando
Claire E. Parsons
Olivia Amlung
40 West Pike Street
Covington, KY 41011
Counsel for Northern Kentucky
Independent Health District
5
COMMONWEALTH OF KENTUCKY
Plaintiffs
and
Intervening Plaintiff
v.
Defendants
Cameron brings this action for a declaration of rights and injunctive relief against
Friedlander, in his official capacity as the Secretary of the Cabinet for Health and
1
Family Services, and Steven Stack, M.D., in his official capacity as the Commissioner
INTRODUCTION
38 senators and 100 representatives, right now nearly every aspect of the lives and
livelihoods of those 4.5 million Kentuckian is purportedly governed by one man, and
Governor Andrew Beshear is micromanaging Kentucky’s economy and the daily lives
of every Kentucky citizen.3 He has ordered private industry to open and close at his
will. He has ordered churches closed and religious gatherings to disperse. And, with
will wield the breathtaking authority he claims. Citizens all over the state have no
way to predict what’s next, and no control over fundamental parts of their lives.
and Kentucky law, it shouldn’t be. “While the law may take periodic naps during a
1 Unless expressly noted or the context indicates otherwise, reference to “Governor Beshear”
includes Secretary Friedlander and Commissioner Stack.
2 United States Census Bureau, Quick Facts: Kentucky, available at
https://www.census.gov/quickfacts/KY (last visited June 30, 2020).
3 As used throughout this Complaint, “executive orders” encompasses any form of directives,
however styled, that purport to govern members of the public.
2
pandemic, we will not let it sleep through one.” Roberts v. Neace, 958 F.3d 409, 414–
NATURE OF ACTION
governed by the Kentucky Declaratory Judgment Act, KRS 418.010, et seq., and
5. KRS 418.040 provides that where “an actual controversy exists, the
plaintiff may ask for a declaration of rights, either alone or with other relief; and the
court may make a binding declaration of rights, whether or not consequential relief
is or could be asked.”
57.
PARTIES
355, 362 (Ky. 2016). As the chief law officer of the Commonwealth, Attorney General
Cameron has standing to challenge the “authority for and constitutionality of the
Governor’s actions.” Beshear, 498 S.W.3d at 363. And as the lawyer for the people,
Kentucky to restore constitutional order and the rule of law in the Commonwealth.
3
9. Governor Andrew Beshear is the Commonwealth’s “Chief Magistrate,”
10. The Cabinet for Health and Family Services “is the primary state
agency for operating the public health . . . programs in the Commonwealth,” KRS
194A.010, and must, when it “believes that there is a probability that any infectious
or contagious disease will invade this state . . . take such action and adopt and enforce
spread of such infectious or contagious disease or diseases within this state.” KRS
214.020.
11. Eric Friedlander is the Secretary of the Cabinet for Health and Family
Services.
12. Steven Stack, M.D. is the Commissioner for the Kentucky Department
of Public Health.
13. This Court has jurisdiction over this action under Section 112(5) of the
14. Venue for this action is proper in this Court under KRS 452.405(2) and
KRS 452.480.
4
FACTUAL BACKGROUND
emergency in the Commonwealth, though only one confirmed case of the novel
16. Since his initial order, Governor Beshear and his political appointees
17. On March 16, 2020, Secretary Friedlander issued an order limiting all
food and beverage sales to carry-out, delivery, and drive-thru service only. The order
relied on the Governor’s authority in KRS 39A.100(1)(f),(h), and (j), as well as KRS
18. On March 17, 2020, Secretary Friedlander issued an order requiring the
5
community and recreation centers, gyms and exercise facilities, hair salons, nail
19. On March 18, 2020, Governor Beshear issued Executive Order 2020-
243,6 regarding social distancing. The order purported to promote social distancing,
but interpreted that term as “meaning staying home when possible.” The order,
relying on KRS 39A.180, purported to suspend all statutes and regulations requiring
guidance. Without citation, the Governor apparently relied on his authority under
KRS 39A.100(1)(j). Broad in scope, the order suspended, without specific reference,
impact of Secretary Friedlander’s March 16, 2020 order mandating carry-out food and
21. On March 19, 2020, Secretary Friedlander issued an order banning all
mass gatherings. Relying on KRS 194A.025, KRS 214.020, and KRS Chapter 39A
generally, the order prohibited the gathering or convening of individuals for the
6
order exempted the following gatherings: normal operations at airports, bus and train
22. On March 22, 2020, Governor Beshear issued Executive Order 2020-
246,7 which closed all businesses he deemed “non-life sustaining.” The Governor’s
value judgment on “non-life sustaining” business required the closure of all in-person
retail businesses, excepting grocery stores, pharmacies, banks, hardware stores, and
other businesses that provide staple goods. Without citation, the Governor apparently
23. On March 23, 2020, Secretary Friedlander issued an order requiring all
practice or procedures to have ceased on March 18, 2020. As authority, the order cited
KRS 194A.025, KRS 214.020, and KRS Chapter 39A generally. Despite this order,
the Governor and the Cabinet permitted the continued operation of abortion facilities.
24. On March 25, 2020, Governor Beshear issued Executive Order 2020-
257,8 expanding on Executive Order 2020-246 and banning all in-person work. The
7
Home” branding. Without citation, the Governor apparently relied on his authority
25. On March 30, 2020, Governor Beshear issued Executive Order 2020-
258,9 banning out-of-state travel, except in four limited circumstances. The order
further required a mandatory fourteen day self-quarantine for any Kentuckian who
which banned residents of other states from traveling into Kentucky and required
those who did travel into Kentucky to self-quarantine for fourteen days. Through
Executive Order 2020-315,11 and after being struck down by the federal courts,
Governor Beshear eased travel restrictions, allowing travel into and out of the
for fourteen days. Without citation, the Governor apparently relied on his authority
8
27. On May 22, 2020, Governor Beshear issued Executive Order 2020-415, 12
still allowed to operate. The order limited entrance to one adult member per
household. The order also prohibited door-to-door solicitations. Without citation, the
29. After shuttering most of Kentucky throughout March and April, on May
detailed in the Orders of the Cabinet for Health and Family Services implementing
this Executive Order and requirements for specific sectors, businesses, and
entities[.]”
and supply chain businesses, vehicle and vessel dealerships, horse racing tracks, pet
businesses to reopen.
9
31. On May 20, 2020, Governor Beshear issued Executive Order 2020-398, 15
“the minimum requirements for all entities in the Commonwealth of Kentucky under
Executive Order 2020-323 and as implemented by the May 11, 2020 Order of the
32. On May 22, 2020, Secretary Friedlander issued an order amending his
prior orders of March 16, 2020, and March 17, 2020, to allow in-person dining at
33. And as of May 25, 2020, cosmetology businesses, hair salons and
barbershops, massage therapy businesses, nail salons, tanning salons, and tattoo
parlors could reopen subject to social distancing, capacity, and cleaning guidelines.
As authority, the order cited KRS 194A.025, KRS 214.020, and Executive Orders
prior orders of May 22, 2020, March 16, 2020, and March 17, 2020, to allow auctions,
auto/dirt track racing, aquatic centers, bowling alleys, fishing tournaments, fitness
centers, and movie theaters to reopen subject to social distancing, capacity, and
cleaning guidelines. As authority, his order cited KRS 194A.025, KRS 214.020, and
10
35. On June 8, 2020, Secretary Friedlander issued an order, amending his
educational and cultural activities, horse shows, and in-home childcare to reopen
subject to social distancing, capacity, and cleaning guidelines. As authority, his order
cited KRS 194A.025, KRS 214.020, and Executive Orders 2020-215 and 2020-323.
36. On June 15, 2020, Secretary Friedlander issued an order, amending his
prior orders of May 22, 2020, March 16, 2020, and March 17, 2020, to allow childcare,
youth sports and athletic activities to reopen subject to social distancing, capacity,
and cleaning guidelines. As authority, the Secretary cited KRS 194A.025, KRS
37. The courts seem to be the only way for Kentuckians to have their voices
heard. Despite making national news for repeatedly violating the rights of the
citizens, Governor Beshear has consistently refused to curtail his overreach until a
38. And on that front, Governor Beshear’s micromanaging of the lives and
rights of Kentuckians has not been well-received by the courts. Time after time,
Kentuckians have had to resort to costly litigation to stop the Governor’s oppressive
actions. And time after time, those Kentuckians have prevailed. Virtually every court
state of emergency has declared it unconstitutional and enjoined him from further
enforcement.
11
39. Governor Beshear first made national waves when he ordered the
person attending church on Easter Weekend. Maryville filed suit claiming that the
40. The Sixth Circuit Court of Appeals agreed with the church. Twice.
41. The court first enjoined the Governor from enforcing his ban on mass
Beshear, 957 F.3d 610 (6th Cir. 2020). In doing so, the court’s unanimous, three-judge
panel explained that the Governor’s ban on mass gatherings had “several potential
hallmarks of discrimination.” Id. at 614. Even though the Court did not “doubt the
Governor’s sincerity in trying to do his level best to lessen the spread of the virus or
his authority to protect the Commonwealth’s citizens,” id., the Constitution prevailed
42. The Governor brazenly responded by declaring victory, claiming that the
Sixth Circuit did not completely enjoin his ban on religious gatherings.
43. Unimpressed, the Sixth Circuit enjoined him again one week later. See
Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020). This time, the court unanimously
prohibited the Governor from enforcing his order against all of Maryville’s religious
injunction against the Governor on the same issue. See Tabernacle Baptist Church,
12
Inc. of Nicholasville, Ky. v. Beshear, No. 3:20-CV-33-GFVT, 2020 WL 2305307 (E.D.
45. Governor Beshear has also been sued and enjoined over his travel ban.
See Roberts v. Neace, No. 2:20CV054 (WOB-CJS), 2020 WL 2115358 (E.D. Ky. May 4,
2020); see also W.O. v. Beshear, No. 3:20-CV-00023-GFVT (E.D. Ky.). Several
Kentuckians sued the Governor over the ban almost immediately, raising serious
constitutional concerns over the stunning breadth of the restrictions. For over a
month, the Governor refused to modify even one word of his order to address the
order.
reign over Kentucky during the pandemic. He made no effort to revise his order or
address the legitimate concerns of the citizens until a federal court ordered him to do
so.
47. The same problem arose when the Governor banned political protests at
the state Capitol. In response to several groups gathering to protest the way in which
the Governor has exercised arbitrary authority over the Commonwealth and its
citizens, Governor Beshear barricaded the traditionally open grounds of the Capitol
to prevent further political gatherings. Several protesters filed suit, and a federal
13
court in Frankfort again enjoined the Governor from enforcing his unconstitutional
48. Just like his response to the travel-ban litigation, the Governor refused
even went so far as to argue that the suit should be dismissed because he did not
intend to enforce the ban against these particular protesters while refusing to modify
one word of his ban on mass gatherings. The Sixth Circuit rejected his attempt to
avoid litigation without addressing the issues, and the district court in Frankfort
followed suit with an injunction in which the Governor was ordered to modify his
49. This has been the persistent pattern for Governor Beshear: Exercising
broad, unfettered, and unlawful authority over the daily lives of Kentuckians and
refusing to listen to or compromise over serious issues raised by citizens. Only when
a court orders him to do so does the Governor make any effort at protecting the
any law.
14
COUNT I – DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF:
52. To guard against all major hazards, KRS Chapter 39A through 39F are
intended to “confer upon the Governor, the county judges/executive of the counties,
the mayors of the cities and urban-county governments of the Commonwealth, and
the chief executive of other local governments” certain emergency authority. KRS
39A.010(2).
local government that ensures continuity and effectiveness of our public institutions
54. KRS 39A.100(1) provides that “[i]n the event of the occurrence or
by KRS 39A.010, 39A.020, or 39A.030, the Governor may declare, in writing, that a
state of emergency exists.” And during a state of emergency, the Governor has and
may exercise those powers specifically enumerated and granted to him in KRS
threaten to cause, loss of life, serious injury, significant damage to property, or major
15
harm to public health or the environment and which a local emergency response
56. Thus, before the Governor may exercise those powers listed in KRS
39A.100(1) in any jurisdiction within the Commonwealth, two things must occur:
first, a situation that poses a major threat to public safety so as to cause, or threaten
to cause, loss of life; and, second, the local emergency response agency must
determine that the situation “is beyond its capabilities.” KRS 39A.100(1).
57. Governor Beshear is familiar with this statutory prerequisite to the use
of these expanded, emergency powers. In an opinion issued by his office just last year,
could invoke the emergency powers of KRS Chapters 39A–39F to fill the position of
“emergency” in KRS 39A.020(12) and determined that even if the vacancy posed a
major threat to public safety, it was “not a circumstance that a local emergency
response agency would determine to be beyond its capabilities.” Ky. OAG No. 19-021,
58. Like the judge/executive in OAG No. 19-021, the Governor has not
shown that any local emergency response agency in the Commonwealth—much less,
every local agency—has determined that the situation caused by the novel
coronavirus “is beyond its capabilities.” KRS 39A.100(1). Thus, the Governor has no
16
59. Therefore, the Commonwealth respectfully requests a declaration that
authority are invalid and without legal effect in all those counties where the local
emergency response agency has not determined that the situation “is beyond its
the Defendants from enforcing any of the Governor’s executive orders issued under
All men are, by nature, free and equal, and have certain inherent
and inalienable rights, among which may be reckoned:
First: The right of enjoying and defending their lives and liberties.
17 Kentucky’s counties and cities have not been affected by the pandemic in identical ways.
Permitting the local emergency response agency to determine when to request assistance from the
Commonwealth helps to tailor the Commonwealth’s response and marshal the Commonwealth’s
resources to where they are needed.
17
274A9B7A-ED2E-4430-8BA1-D5253C68F383 : 000023 of 000056
Fifth: The right of acquiring and protecting property.
arbitrary power over the lives, liberty and property of freemen exists nowhere in a
64. KRS Chapter 39A premises the Governor’s emergency powers on “the
or catastrophe.
65. Despite statutory language that requires specificity and precision, the
Governor has declared a state of emergency throughout the Commonwealth and has
county-to-county and region-to-region. Not until June 29, 2020, nearly four months
after the state of emergency was declared, did Robertson County experience its first
18 Beshear reports 117 new COVID-19 Cases, Two Deaths; Robertson County Reports First Case,
Northern Ky. Tribune (June 30, 2020), available at: https://www.nkytribune.com/2020/06/117-new-
18
COVID-19 website19 shows that as of June 30, 2020, 27 counties have ten or fewer
67. As of June 30, 2020, 15,642 of the Commonwealth’s nearly 4.5 million
residents (or approximately 0.3%) of the population has been diagnosed with COVID-
68. Sections 1 and 2 of the Kentucky Constitution and KRS Chapter 39A
require the Governor to tailor the declaration of a state of emergency and the response
19
69. By declaring a statewide emergency and refusing to tailor his orders to
the Governor’s executive orders under KRS Chapter 39A must specifically identify
the grounds upon which an emergency is declared and the location of the emergency
and must be reasonably tailored in such a way that the emergency response addresses
the Defendants from enforcing any of the Governor’s executive orders issued under
73. In Legislative Research Commission v. Brown, 664 S.W.2d 907, 912 (Ky.
1984), the Kentucky Supreme Court observed that “[o]ur present constitution
contains explicit provisions which, on the one hand, mandate separation among the
three branches of government, and on the other hand, specifically prohibit incursion
of one branch of government into the powers and functions of the others. Thus, our
20
74. That “double-barreled” separation of powers is reflected in Sections 27
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.”
76. Moreover, “[t]he legislative, executive and judicial branches of our state
government are to operate within their respective spheres and ‘no person or collection
of persons, being of one of those departments, shall exercise any power properly
Constitution.” Beshear v. Haydon Bridge Co., 416 S.W.3d 280, 295 (Ky. 2013) (citing
77. Thus, Kentucky courts have recognized that “perhaps no state forming
part of the . . . United States has a constitution whose language more emphatically
separates and perpetuates what might be termed the American tripod form of
Co., 416 S.W.3d at 295 (citing Sibert v. Garrett, 246 S.W. 455, 457 (Ky. 1922)).
78. Section 26 of the Kentucky Constitution provides that the Bill of Rights
“shall forever remain inviolate; and all laws contrary thereto, or contrary to this
21
79. The nondelegation doctrine is an outgrowth of this strong separation of
legislative power to the executive branch except in rare cases where certain
restrictive of powers granted than the federal Constitution . . . . Indeed, in the area
of Trustees of the Judicial Form Ret. Sys. v. Attorney General, 132 S.W.3d 770, 782
(Ky. 2004).
Constitution because the federal Constitution does not have a ‘provision expressly
forbidding the Congress to delegate its legislative powers,’ as do Sections 27, 28, 29,
82. And Kentucky law mandates that “the legislature must lay down
executive branch.
Beshear since March 6, 2019, and related to the novel coronavirus, contains none of
84. For example, KRS 39A.090 provides that the Governor may “make,
amend, and rescind any executive orders as deemed necessary to carry out the
provisions of KRS Chapters 39A to 39F,” but contains neither any “policy” nor any
22
“standard” to constrain the Governor’s alleged lawmaking authority and power to
emergency exists so that he may exercise broad powers, including the authority “to
perform and exercise other functions, powers, and duties deemed necessary to
promote and secure the safety and protection of the civilian population.” KRS
39A.100(1)(j). And KRS 39A.180(2) provides that “[a]ll existing laws, ordinances, and
39F, or of any order or administrative regulation issued under the authority of KRS
Chapters 39A to 39F, shall be suspended during the period of time and to the extent
that the conflict exists.” The provisions purport to give the Governor the power to
86. Here again, KRS Chapter 39A imposes neither any “policies” nor any
may suspend and what orders he may issue during a declared state of emergency.
87. Thus, to the extent that KRS Chapter 39A authorizes the unconditional
exercise of legislative authority and the suspension of laws enacted by the General
Assembly, KRS Chapter 39A violates Sections 15, 27, and 28 of the Kentucky
23
89. The Commonwealth seeks injunctive relief under CR 65, including a
the Defendants from enforcing any of the Governor’s executive orders issued under
statutes.
“free and equal, and have certain inherent and inalienable rights,” such as the “right
of enjoying and defending their lives and freedom,” the “right of seeking and pursuing
their safety and happiness,” and the “right of acquiring and protecting property,” and
arbitrary power over the lives, liberty and property of freemen exists nowhere in a
ideals, customs and maxims is arbitrary. Likewise, whatever is essentially unjust and
unequal or exceeds the reasonable and legitimate interests of the people is arbitrary.”
Kentucky Milk Marketing and Antimonopoly Comm’n v. Kroger Co., 691 S.W.2d 893,
93. Among other instances, arbitrary executive power is exercised when the
24
where the action is not supported by substantial evidence. See American Beauty
94. KRS 39A.100 requires the Governor to declare, in writing, that a state
of emergency exists prior to exercising the enumerated emergency powers set forth
in KRS 39A.100.
declaring a State of Emergency and invoking his KRS 39A.100 powers, but he failed
to specifically define the emergency authorizing him to invoke any authority under
KRS Chapter 39A. At one point, the Governor suggested that emergency action was
necessary to “flatten the curve” to ensure the availability of healthcare resources. But
what is it now? The Governor won’t say. Yet he continues to wield broad and
96. Despite the lack of any clearly defined emergency, the Governor has
economy and dictated the manner in which Kentucky’s citizens could perform
everyday activities—like shopping, interacting with friends and loved ones, and other
basic activities.
97. The Governor’s executive orders are arbitrary and invalid because they
exceed his statutory authority, contain no procedural due process protections, and are
25
98. Moreover, the “[u]nequal enforcement of the law, if it rises to the level
Kentucky Constitution].” Kroger Co., 691 S.W.2d at 899. The Governor’s executive
99. In fact, although the Governor claims the authority to enforce his orders,
he has also repeatedly suggested that he does not plan to enforce those orders against
those parties challenging his orders before the courts. See, e.g., W.O. v. Beshear, No.
100. Because the Governor claims to retain discretion to enforce his executive
orders and has provided no public notice or provisions explaining how and when his
order may be enforced, the Governor is exercising arbitrary power over the lives of
Constitution.
101. Moreover, because the Governor has not defined the “emergency” that is
the basis for his many orders, it is impossible to determine whether there is
exists or, for that matter, whether there is substantial evidence for any of the orders
Governor Beshear has purportedly issued under his KRS Chapter 39A authority.
or other hearing that would comply with the Kentucky Constitution’s due process
requirements.
26
103. As yet another example, KRS 39A.100(1)(h) permits the Governor to
ammunition.” The statute says nothing about prohibiting or limiting the sale and
provision of services. Yet, the Governor has shuttered barber shops, nail salons,
1’s protection of the “right of acquiring and protecting property,” which Kentucky’s
high court has classified as economic liberty. See, e.g., Gen. Elec. Co. v. Am. Buyers
Co-op, Inc., 316 S.W.2d 354, 360-61 (Ky. 1958); City of Jackson v. Murray-Reed-Slone
418 that the Governor’s executive orders and the Defendants’ actions violate Sections
1 and 2 of the Kentucky Constitution and KRS Chapter 39A, and that all orders
unenforceable.
the Defendants, or any person under their authority or acting in concert with them,
from attempting to enforce any of the Governor’s unlawful executive orders issued
27
COUNT V – DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF:
108. Any person violating any provision of KRS Chapter 39A or an order
39A.990.
accessible or prominently advertised in a defined place known to the public. And none
that any statement of law by any state officer that generally applies to the
28
implements; interprets; prescribes law or policy . . . or affects private rights or
KRS 13A.010(1).
[or] prescribes law or policy [and] affects private rights or procedures available to the
public.” KRS 13A.100. They must, therefore, be promulgated under the provisions of
115. But neither the Governor nor his designees have promulgated their
orders under KRS Chapter 13A. In fact, in developing and implementing the
Executive Orders, the Governor did not use any of the forms of administrative
116. Whereas KRS 39A.180 provides that orders under KRS Chapters 39A to
39F “have the full force of law, when, if issued by the Governor, the director, or any
state agency, a copy is filed with the Legislative Research Commission,” the public is
provided no notice that such orders have been filed with the Commission and there
is no publicly available resource to locate and view the orders filed with the
29
Commission. On the other hand, promulgation under KRS Chapter 13A requires
Kentucky.” KRS 13A.050. The Register is available to the public, and proposed
changing rules that are issued by a single person, and the “official” source for such
rules, the Legislative Research Commission, does not publish the rules.
418 that the Governor’s executive orders must be promulgated through the
rulemaking procedures set forth in KRS Chapter 13A and that, because none of the
Governor’s orders have been promulgated consistent with that Chapter, that they are
null, void, and unenforceable. KRS 13A.120; KRS 13A.130; Ky. Const. § 2.
the Defendants, or any person under their authority or acting in concert with them,
from attempting to enforce any of the Governor’s executive orders issued under KRS
Chapter 39A.
30
COUNT VI – DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF:
121. KRS Chapter 39A does not provide an express time limit on a declared
state of emergency.
418 that KRS Chapter 39A is unconstitutional to the extent it does not have a
temporal limitation and does not have a check on the Governor’s power.
31
D. A declaration that KRS 39A.100(1) and KRS 39A.180(2) are
the Governor;
Chapter 39A must be promulgated under the provisions of KRS Chapter 13A;
Stack, and any of their officers, agents, servants, employees, attorneys, and other
persons who are in active concert or participation with them, as further explained in
the motion(s) for injunctive relief that will be filed with the Court;
Respectfully submitted,
Daniel Cameron
ATTORNEY GENERAL
32
274A9B7A-ED2E-4430-8BA1-D5253C68F383 : 000038 of 000056
Exhibit 1
• Restaurants that have provided food and beverage service via curbside, takeout,
and delivery services should continue to do so, to the greatest extent practicable,
in order to minimize the number of persons in the restaurant and contacts between
them.
• Restaurants should provide services and conduct business via phone or Internet to
the greatest extent practicable. Any restaurant employees who are currently able
to perform their job duties via telework (e.g., accounting staff) should continue to
telework.
• Restaurants should limit party size to ten (10) people or fewer. Persons not living
within the same household should not be permitted to sit at the same table.
• Restaurants must limit the number of customers present in any given restaurant to
33% of the maximum permitted occupancy of seating capacity, assuming all
individuals in the restaurant are able to maintain six (6) feet of space between each
other with that level of occupancy. This means no person can be within six (6) feet
of a person seated at another table or booth. If the restaurant is not able to
maintain six (6) feet of space between tables at 33% of capacity, the restaurant
must limit the number of individuals in the restaurant to the greatest number that
permits proper social distancing. Restaurants should consider installation of
portable or permanent non-porous physical barriers (e.g., plexiglass shields)
between tables.
1
For purposes of these requirements, a “restaurant” is an entity that stores, prepares, serves, vends food
directly to the consumer or otherwise provides food for human consumption, and must hold a food service
permit in good standing and has table seating.
274A9B7A-ED2E-4430-8BA1-D5253C68F383 : 000049 of 000056
• If a restaurant has more customers wishing to enter their business than is possible
under the current social distancing requirements of six (6) feet between all
individuals, the restaurant should establish a system for limiting entry and tracking
occupancy numbers. Once a restaurant has reached its capacity, it should permit a
new customer inside only after a previous customer has left the premises on a one-
to-one basis. Restaurants experiencing lines or waits outside their doors should
establish a safe means for customers to await entry, such as asking customers to
remain in their car and notifying them via phone when they are able to enter the
restaurant or demarking spots six (6) feet apart where customers can safely stand
without congregating.
• Restaurants should update floor plans for common dining areas, redesigning
seating arrangement to maximize the ability to social distance to the greatest
extent practicable.
• Restaurants should ensure employees wear face masks for any interactions with
customers, co-workers, or while in common travel areas of the business (e.g., aisles,
hallways, loading docks, breakrooms, bathrooms, entries and exits). Restaurant
employees are not required to wear face masks while alone in personal offices,
while more than six (6) feet from any other individual, or if doing so would pose a
serious threat to their health or safety.
• Linens, such as cloth hampers, cloth napkins, table cloths, wiping cloths, and work
garments including cloth gloves, may still be utilized in dining establishments
consistent with Food service regulations 4-801.11 and 4-802.11. Linens, cloth
gloves, and cloth napkins are to be laundered between uses to prevent the transfer
of pathogenic microorganisms between foods or to food-contact surfaces
• Restaurants should discontinue use of any self-service drink stations to the greatest
extent practicable. Restaurants continuing self-service drink stations should
remove any unwrapped or non-disposable items (e.g. straws or utensils), as well as
fruit (e.g. lemons), sweeteners, creamers, and any condiment containers that are
not in single- use, disposable packages.
274A9B7A-ED2E-4430-8BA1-D5253C68F383 : 000050 of 000056
• Restaurants should discontinue use of salad bars and other buffet style dining to
the greatest extent practicable. If a restaurant cannot discontinue buffet style
dining, the restaurant must ensure that employees provide buffet service.
Restaurants should not permit customer self-service. Restaurants providing buffet
service should ensure appropriate sneeze guards are in-place and that employees
are equipped with gloves and other PPE as appropriate.
• Restaurants should ensure employees use digital files rather than paper formats
(e.g., documentation, invoices, inspections, forms, agendas) to the greatest extent
practicable.
• Restaurants should, to the greatest extent practicable, modify internal traffic flow
to minimize contacts between employees and customers.
• Restaurants should ensure, to the greatest extent practicable, that any receipts can
be completed electronically by using e-signature technology for signatures or by
creating a procedure whereby restaurant employees can complete the receipt for
the customer within the customer’s view.
• Restaurants with warehouses and loading docks must ensure minimal interaction
between drivers at loading docks, doorsteps, or other locations.
274A9B7A-ED2E-4430-8BA1-D5253C68F383 : 000051 of 000056
• Restaurants should, to the greatest extent practicable, limit the number of
individuals in a restroom to ensure proper social distancing and ensure that
frequently touched surfaces are appropriately disinfected (e.g., door knobs and
handles).
• Restaurants should remind third-party delivery drivers and any suppliers of the
social distancing requirements.
• Restaurants providing “grab and go” service should stock coolers tono more than minimum
levels to prevent excess touching of items.
• Restaurants should ensure employees do not use cleaning procedures that could
re- aerosolize infectious particles. This includes, but is not limited to, avoiding
practices such as dry sweeping or use of high-pressure streams of air, water, or
cleaning chemicals.
• Restaurants must ensure appropriate face coverings and other personal protective
equipment (PPE) is used by employees whenever they are near other employees or
customers so long as such use does not jeopardize the employees’ health or safety.
Restaurants shall provide PPE at no cost to employees and should offer instruction on
proper use of masks and PPE.
• Restaurants must require contractors, vendors, and drivers to wear face coverings or
masks while at the location.
• Restaurants must ensure, to the greatest extent practicable, that employees use
gloves, along with any PPE normally used for routine job tasks, when cleaning
equipment, workspaces, and high-touch areas of the business.
• Restaurants must ensure employees wash their hands with soap and water and/or
use hand sanitizer frequently after any direct contact customers, and when engaging
in high touch activities.
• Restaurants must ensure, to the greatest extent practicable, that employees wear
protective face coverings during any delivery.
274A9B7A-ED2E-4430-8BA1-D5253C68F383 : 000053 of 000056
Training and Safety Requirements
• Restaurants should establish procedures for disinfecting table tops, seating, and dining ware
(plates, bowls, utensils).
• Restaurants should post signage on entrance door that no one with a fever or
symptoms of COVID-19 is to be permitted in the restaurant.
• Restaurants should ensure employees are informed that they may identify and
communicate potential improvements and/or concerns in order to reduce
potential risk of exposure at the workplace. All education and training must be
communicated in the language best understood by the individual receiving the
education and training.
COMMONWEALTH OF KENTUCKY
Plaintiffs
and
Intervening Plaintiff
v.
Defendants
Commonwealth of Kentucky as of right under Rule 24.01, and the Court having heard
the argument of counsel, and being otherwise sufficiently advised, hereby ORDERS:
3. The Clerk shall file the Intervening Complaint in the record as of this date and
1
4. The Defendants shall file a response to the Intervening Petition within ___
5. The Clerk and the parties shall update the caption and style of this case to
____________________________________
Judge, Boone Circuit Court
2
CLERK’S CERTIFICATE OF SERVICE
Hon. Andrew Beshear, Governor Cabinet for Health and Family Services
Commonwealth of Kentucky 275 E. Main Street
700 Capitol Avenue, Suite 100 Frankfort, KY 40621
Frankfort, KY 40601
____________________________________
Clerk, Boone Circuit Court