SUPREME COURT ORDER ENTERED INVOLVING GOV. BESHEAR V. ACREE MATTER

Attached is a Supreme Court order entered today, Aug. 7, 2020, in the Beshear v. Acree matter. This order sets a briefing schedule and schedules the case for oral argument on Sept. 17, 2020.

Leigh Anne Hiatt, APR

Public Information Officer

Administrative Office of the Courts

1001 Vandalay Drive, Frankfort, KY 40601

Office 502-573-2350

Cell 859-619-7916

lhiatt@kycourts.net

kycourts.govSupreme Court of Kentucky

2020-SC-0313-OA
2020-SC-0331-T

HONORABLE ANDREW BESHEAR, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE COMMONWEALTH OF KENTUCKY; ERIC FRIEDLANDER, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE KENTUCKY CABINET FOR HEALTH AND FAMILY SERVICES; DR. STEVEN STACK, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE KENTUCKY DEPARTMENT FOR PUBLIC HEALTH; KENTUCKY CABINET FOR HEALTH AND FAMILY SERVICES; AND, THE KENTUCKY DEPARTMENT FOR PUBLIC HEALTH PETITIONERS

ORIGINAL ACTION IN SUPREME COURT V. ARISING FROM COURT OF APPEALS NOS. 2020-CA-000834 AND 2020-CA-000849 HONORABLE GLENN E. ACREE, JUDGE, KENTUCKY COURT OF APPEALS; HONORABLE RICHARD A. BRUEGGEMANN, JUDGE, 52ND JUDICIAL CIRCUIT, BOONE CIRCUIT COURT; AND, HONORABLE BRIAN PRIVETT, JUDGE, 14TH JUDICIAL CIRCUIT, SCOTT CIRCUIT COURT AND RESPONDENTS

FLORENCE SPEEDWAY, INC.; RIDGEWAY PROPERTIES, LLC D/B/A BEAN’S CAFÉ & BAKERY; LITTLE LINKS TO LEARNING, LLC; RYAN QUARLES, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF AGRICULTURE; EVANS ORCHARD AND CIDER MILL, LLC.; WEDCO DISTRICT HEALTH DEPARTMENT; CRYSTAL MILLER; AND, HONORABLE DANIEL J. CAMERON, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL REAL PARTIES IN INTEREST

2 ORDER

The Petitioners came before this Court after filing an original action in the nature of a writ of mandamus pursuant to CR 76.36 and CR 81 and a request for intermediate relief by temporary order pursuant to CR 76.36(4). Thereafter, this Court, pursuant to its authority under Section 110 of the Kentucky Constitution, stayed “all orders of injunctive relief until such time as the various orders” could properly come before the Court “with a full record of any evidence and pleadings considered by the lower courts,” and directed that “[t]he Boone and Scott Circuit Courts may proceed . . . and issue all findings of fact and conclusions of law they find appropriate but no order, however characterized, shall be effective.” Any order entered by a lower court was to “be immediately transmitted to Clerk of the Supreme Court for consideration by the full Court . . . .”

The effect of our July 17 Order was three-fold: (1) it halted the escalating requests for intermediate and writ relief being sought in this Court and the Court of Appeals; (2) it placed these consolidated matters on an appellate trajectory like that contemplated by CR 65.07 and CR 65.09 (each concerning appeals of injunctive relief); except that, (3) our Order, given the significance of the issues to be decided, directed appellate review proceed directly to this Court. In this way, the record on appeal would be more robust and the trial court could make findings of fact and conclusions of law as needed, before returning to this Court for review on the merits.

As these matters proceed, it is important to remember that restraining orders and temporary injunctions are distinct forms of injunctive relief. A restraining order, under CR 65.03(1), requires that the movant demonstrate that a right belonging to them “[is] being or will be violated by the adverse party,” and that the movant “will suffer immediate and irreparable injury, loss or damage.” By comparison, a temporary injunction requires not only that the movant further demonstrate a violation of a right and irreparable harm, but also that a “substantial question exists” regarding the merits of the movant’s underlying claims. Maupin v. Stansbury, 575 S.W.2d 695, 699 (Ky. App. 1978). By directing these matters to proceed as the Court did, this Court will have the opportunity to review the underlying merits of the legal claims made by the Plaintiffs and Intervening Plaintiffs concerning the scope of the Governor’s executive power, which is likely the determinative issue in the cases below. At the time these matters were previously before the Court, only temporary restraining orders had been entered. No substantive review of the claims and defenses of the parties on the merits had taken place at the trial court level. This Court did not want to engage in a cursory review of claims of such paramount importance without the benefit of a more fully developed record addressing the merits of the underlying claims. Since entry of this Court’s July 17 Order, circumstances have changed, and these matters are ripe for further action and review by this Court.

Based on the foregoing, the Court hereby finds and orders as follows:

1. Boone Circuit Court No. 20-CI-00678: By order entered on July 20, 2020, the Boone Circuit Court held that it would have “granted the temporary injunctions” sought by the Plaintiff and Intervening Plaintiff, except as to the relief requested by Plaintiffs against Defendant NKIHD. With entry of the Boone Circuit Court’s July 20 Order, that matter is ripe for review by this Court. The entire record in this matter shall be certified to this Court by the Boone Circuit Clerk within 10 days of the date of this Order, and follow an expedited cross-briefing schedule as follows:

A. All parties shall submit their first brief, not to exceed 65 pages, to the Clerk of the Supreme Court no later than August 28, 2020.

B. All parties shall submit their response brief, not to exceed 25 pages, to the Clerk of the Supreme Court no later than September 8, 2020. No reply briefs will be permitted.

C. This matter will be scheduled for oral argument on September 17, 2020 at the hour of 10:00 a.m. Parties are advised oral argument may be conducted remotely pending further Order of this Court.

D. The parties shall file a Notice of Issues stating, in order, the issues to be orally argued by September 14, 2020. For each issue identified in the Notice, the party shall identify the specific section in the party’s brief which addresses that issue.

2. Scott Circuit Court No. 20-CI-00376: The Scott Circuit Court has not entered any further orders in this case since its July 9, 2020 Temporary Restraining Order. Although this case was consolidated with the Boone Circuit Court Case by the Court of Appeals1 for the purposes of judicial economy, we find that these cases are no longer similarly situated considering the continued activity in the Boone Circuit Court matter. Given the need to expeditiously resolve the immediate competing interests in the Boone Circuit Court action, the Court hereby deconsolidates the Scott Circuit Court matter from that action.

The Court hereby directs the Clerk of the Supreme Court to open a separate file for the Scott County matter and to place that original action in abeyance pending the resolution of the Boone Circuit Court case, or pending further developments in the Scott Circuit Court proceedings which return it within the scope of this appeal.

This Court’s previous Order staying injunctive relief in the lower courts pursuant to Section 110 of the Kentucky Constitution shall continue, but the Scott Circuit Court may proceed with matters before it and issue all findings of fact and conclusions of law it finds appropriate. Any orders issued in that case shall, after entry, be immediately transmitted to the Clerk of the Supreme Court. Further scheduling orders by this Court in that case will be issued based upon future developments in the proceedings.

3. Kentucky Court of Appeals No. 2020-CA-0893: Since entry of the July 17 Order, this Court has now received from the Court of Appeals2 a

1 As stated in that court’s Order, “[t]hough these original actions began in separate circuit courts of the Commonwealth, the respective petitions and motions for relief present the same issue and involve many of the same parties. For these reasons, and for the conservation of judicial resources, we have consolidated the cases for purposes of review and adjudication.”)

2020-CA-0834 and 2020-CA-0849. 2 2020-CA-0349.

recommendation to transfer in a separate appeal arising from the denial of a motion to quash third-party subpoenas in Boone Circuit Court No. 20-CI00678. The Court of Appeals has recommended we accept this appeal pursuant to CR 74.02(5) on the basis that the case is of great and immediate public importance.

Transfer in this matter is hereby GRANTED, and the case is placed in abeyance pending the outcome of the review of the July 20, 2020 order of the Boone Circuit Court; provided, however, that if the parties believe the resolution of this appeal is integral to the other pending issues in that action, a motion to consolidate this matter with 2020-SC-0313 should be filed within 10 days of the entry of this Order.

IT IS SO ORDERED.

ALL SITTING. ALL CONCUR.

Dated: August 7, 2020.

______________________________
CHIEF JUSTICE