FRANKFORT, Ky. (FOX19) - A Kentucky appellate court ruled Monday against Gov. Andy Beshear and other petitioners in their effort to fast-track the reversal of two restraining orders granted recently against Beshear’s pandemic measures.
The appellate court did not rule on the merits of the cases but on the means by which the governor brought them before the court.
In doing so, the court used its discretion to defer to the “innate wisdom and common sense” of Kentuckians, whom the court congratulated and credited for the state’s success battling COVID-19. Its reasoning suggests Kentucky’s apparent success against COVID-19 by itself invalidates Beshear’s claim that a reversal of the rulings is urgent.
“Kentuckians have taken measures they believe must be taken to protect themselves, those they know and love and those they are yet to meet,” the court wrote in its conclusion. “And (…) they succeeded in keeping Kentucky ranked among states with the lowest per capita incidence of the coronavirus. They are entitled to as much credit for that success as is the leadership of their governor and his advisors.
“(…) This court does not believe that, for the very short duration of the restraining orders, Kentuckians will suffer to a greater degree than without them. With or without them, Kentuckians remain capable of doing the wise and common-sense things necessary to keep each other safe in the coming days, just as they have until now.”
The full ruling is embedded at the end of this article.
Ky. Attorney General Daniel Cameron joined each circuit court case on behalf of the plaintiffs.
The first of the two restraining orders was granted July 2 after Florence Speedway and Little Links Daycare sued the governor, Cabinet for Health and Human Services Secretary Eric Friedlander and Health Commissioner Steven Stack, MD, in Boone County circuit court.
The Boone County restraining order barred defendants from enforcing the governor’s executive orders placing attendance limits on auto race tracks and student-child ratio limits on child care centers in Kentucky.
A hearing on the plaintiffs’ motion for a full injunction is scheduled in Boone County circuit court July 16 at 10 a.m.
In comparison to the stop-gap, short-lived nature of restraining orders, which typically last until an injunction hearing can take place or a final judgement is entered, an injunction can last indefinitely to prohibit certain actions or conduct.
The Scott County restraining order was granted July 9 after Evans Orchard and Cider Mill and the Ky. Agriculture Commissioner sued the same defendants in Scott County circuit court. That restraining order, which also took effect statewide, barred them from enforcing executive orders placing capacity limits on indoor event spaces.
The Scott County judge did not grant the plaintiffs’ motion for an injunction or set a hearing date for it. Nor did she set an end-date for the restraining order.
Last week, Beshear called the order “bizarre” and “not legal,” adding, “You don’t write restraining orders like this.”
Citing the urgency of the pandemic, the governor elected to bypass a direct appeal on the Scott County ruling, instead opting for a writ — an original judicial action in the appellate court — to stop enforcement of the restraining order immediately and ultimately dissolve the order. The writ would also prohibit the Scott County judge from hearing or ruling on motions for injunctive relief in the case.
On the Boone County ruling, Beshear filed a writ with the same aims. He also filed a direct appeal in parallel.
A writ may be granted if the lower court is shown to have acted in error, if there’s no good remedy by appeal and if “great injustice and irreparable injury will result if the petition is granted,” the appellate court explained quoting from precedent.
It also wrote, quoting from Beshear’s complaint:
“Petitioners argue COVID-19 presents a substantial public health emergency such that ‘[n]either the governor nor the citizenry he was elected to protect can wait for the circuit court to further address these matters so that an appeal may be taken.’ They further maintain they have no remedy ‘by appeal or adequate remedy by moving to dissolve the restraining order’ because they ‘were heard on the motion [for a restraining order] and their arguments were unequivocally spurned.’ Therefore, petitioners conclude that further action in the circuit court would be ‘futile.’”
The appellate court did not agree.
Writs, it said, represent an “extraordinary remedy,” and courts are cautious granting them because they “[bypass] the regular appellate process and [require] significant interference with the lower courts’ administration of justice.”
Beshear and the petitioners, the court said, could simply have appealed the restraining orders.
Moreover, in the Boone County ruling, the injunction hearing has already been scheduled. The hearing will see a fresh round of arguments, and its result will either dissolve the restraining order or grant the injunction in any case.
On the matter of having been so “spurned” by the Scott County judge that an appeal would have been futile, the appellate court wrote it “rejects the cynicism of this argument.”
On the urgency of the pandemic, the appellate court wrote: “This Court is aware of the current anomalous state of both the health of Kentuckians and the economy of Kentucky. But, in the context of considering intermediate relief, there are several sound reasons for marginalizing the governor’s concerns.
“That this season of our history is temporarily our of flux does not alone justify a similar fluidity in our procedural or substantive jurisprudence. The petitioners have failed to offer a reason why Kentucky courts should not apply our laws and procedures in these troubled times the same as when times are tranquil, just as we apply laws and procedures equally to pauper and prince.”