Schweder ex rel. P.S. v. Beshear
| Decision Date | 04 November 2021 |
| Docket Number | Civil No. 3:21-cv-00019-GFVT |
| Citation | 570 F.Supp.3d 443 |
| Parties | Matt SCHWEDER, O/B/O P.S., et al., Plaintiffs, v. Andrew Graham BESHEAR, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
Michael A. Hamilton, Nicholasville, KY, Thomas Renz, Pro Hac Vice, Renz Law, LLC, Fremont, OH, for Plaintiffs.
Amy Denise Cubbage, Laura Crittenden Tipton, Steven Travis Mayo, Taylor Payne, Marc Griffin Farris, Office of the Governor KY, Frankfort, KY, for Defendant Andrew Graham Beshear.
J. Wesley Warden Duke, Cabinet for Health & Family Services - Frankfort Office of Legal Services, Frankfort, KY, for Defendants Steven J. Stack, Eric C. Friedlander.
Our patience is wearing thin. Quite frankly, we all hoped things would be back to normal by now. But nature, by way of a virus, continues to stand in the way of that hope.
Understandably, those that filed this lawsuit are frustrated by the Governor's actions aimed at protecting us from Covid-19. But the Constitution does not protect us from every bad policy. Nor are federal courts always available to adjudicate every state action. That is why, as explained below, all of these claims will be DISMISSED.
In the spring of last year, Kentucky Governor Andy Beshear declared a state of emergency in response to the COVID-19 pandemic, citing KRS Chapter 39A as his authority to do so. See Exec. Order 2020-215 (Ky. Mar. 6, 2020). Since then, over the past year and a half, Governor Beshear has both executed and rescinded numerous executive orders pursuant to the state of emergency declaration. See, e.g. , Ky. Exec. Order No. 2020-750 (Sept. 4, 2020) (rescinded). On November 12, 2020, the Supreme Court of Kentucky held that Governor Beshear's declaration of a state of emergency in response to the Covid-19 pandemic was lawful and passed muster under the Kentucky Constitution. Beshear v. Acree , 615 S.W.3d 780 (Ky. 2020). However, the Acree opinion clarified that the Kentucky General Assembly had the authority to limit the Governor's statutorily derived emergency powers if it chose to do so. Id. at 812–13.
And the Kentucky General Assembly did exactly that earlier this year when it enacted legislation that amended the Governor's emergency powers by limiting the unilateral actions he could take in response to the pandemic.1 Certain of these laws became effective on February 2, 2021. Subsequently, Governor Beshear and Secretary of the Cabinet of Health, Eric Friedlander, filed a lawsuit in the Franklin Circuit Court, seeking a declaratory judgment that the Kentucky laws unconstitutionally infringed on his executive powers. See Beshear v. Osborne , No. 21-CI-00089, 2021 WL 1588743 (Franklin Circ. Ct., Mar. 3, 2021). The Franklin Circuit Court granted injunctive relief and temporarily halted enforcement of the new laws. Id. Soon after the Circuit Court granted injunctive relief, the Kentucky General Assembly ratified and extended many of Governor Beshear's executive orders for periods of thirty to sixty days and terminated others. See Res. of Mar. 30, 2021, ch. 168, 2021 Ky. Acts 1059. After an executive veto and legislative override, Governor Beshear moved the Circuit Court to include additional legislation, specifically HJR 77, in the temporary injunction, and the Circuit Court granted the request. See Beshear v. Osborne , No. 21-CI-00089, 2021 WL 1588746, at *3–4 (Franklin Circ. Ct., Apr. 7, 2021). Defendant Kentucky Attorney General Daniel Cameron sought an immediate review of the order in the Kentucky Court of Appeals. See Cameron v. Beshear , 628 S.W.3d 61, 2021 WL 3730708 (Ky. 2021). The Court of Appeals recommended transfer to the Supreme Court of Kentucky. See id.
On Saturday, August 21, 2021, the Supreme Court of Kentucky published its Opinion regarding the constitutionality of the Kentucky Assembly's new laws. Id. at *11–12. In a unanimous decision, the court held that the laws limiting the emergency powers of the Governor were proper, found the Franklin Circuit Court's injunctive relief improper, and remanded the case to the Circuit Court with instructions to dissolve the injunction. Id. The Supreme Court of Kentucky's Acree and Beshear opinions have large implications for the validity of Governor Beshear's emergency mandate and executive orders, as will be discussed in greater detail below.
In the present case, various Plaintiffs, who are all Kentucky citizens, seek declaratory judgments that: (1) there is currently no factual predicate for an emergency declaration; (2) Governor Andrew Beshear's emergency orders, both past and present, violate Separation of Powers under the Kentucky Constitution; and (3) the emergency declaration and executive orders concerning the COVID-19 pandemic violate citizens’ constitutional rights to free exercise of religion, equal protection, peaceable assembly, personal autonomy, bodily integrity, lawful occupation, freedom of movement, public education, and substantive due process. [R. 1 at 96–97.] Further, Plaintiffs seek to enjoin, among other things, the use of PCR tests for COVID-19. [Id. ] Lastly, there is a request for an award of compensatory and punitive damages under 42 U.S.C. § 1983. [Id. ]
Defendants subsequently filed a Motion to Dismiss. [R. 8.] On July 6, 2021, while the Supreme Court of Kentucky's Opinion remained pending, Plaintiffs filed a Preliminary Injunction Motion, citing changed circumstances, asserting the absence of a public health crisis, and asking the Court to test the sufficiency of the emergency declaration.2 [R. 14.]
An initial matter is the question of standing. Town of Chester, N.Y. v. Laroe Estates, Inc. , ––– U.S. ––––, 137 S. Ct. 1645, 1650, 198 L.Ed.2d 64 (2017) () (quoting Davis v. Fed. Election Comm'n , 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) ); see also DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). "At least one plaintiff must have standing to seek each form of relief requested in the complaint." Town of Chester, N.Y. , 137 S. Ct. at 1651.
Standing is a threshold inquiry in every federal case that may not be waived by the parties. See, e.g., Warth v. Seldin , 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ; Planned Parenthood Ass'n of Cincinnati, Inc. v. Cincinnati , 822 F.2d 1390, 1394 (6th Cir. 1987). "To satisfy the ‘case’ or ‘controversy requirement’ of Article III, which is the ‘irreducible constitutional minimum’ of standing, a plaintiff must, generally speaking, demonstrate that he has suffered an ‘injury in fact,’ that the injury is ‘fairly traceable’ to the actions of the defendant, and that the injury will likely be redressed by a favorable decision." Bennett v. Spear , 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (citations omitted). Plaintiffs’ injury-in-fact must be both particularized and concrete. Spokeo, Inc. v. Robins , 578 U.S. 330, 136 S. Ct. 1540, 194 L.Ed.2d 635 (2016) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ). "For an injury to be particularized, it must affect the plaintiff in a personal and individual way." Id. (internal quotation marks omitted). Further, a "concrete" injury is a de facto injury that actually exists. Id. Finally, "a plaintiff must also establish, as a prudential matter, that he or she is the proper proponent of the rights on which the action is based." Haskell v. Washington Twp. , 864 F.2d 1266, 1275 (6th Cir. 1988) (citations omitted).
Defendants argue in their Motion to Dismiss that Plaintiffs lack standing because the Plaintiffs have (1) failed to plead facts showing that they plan to engage in conduct that is prohibited by the emergency public health measures; and (2) to the extent injuries exist within the Plaintiffs’ Complaint, Plaintiffs failed to connect those injuries to these Defendants. [R. 8-1 at 12.] In response, Plaintiffs state that "[i]t is preposterous" for Defendants to claim that Plaintiffs lack standing. [R. 12 at 5.] Plaintiffs argue that "[e]ach Plaintiff was injured in numerous ways, including through Constitutional violations," and Plaintiffs highlight numerous ways in which the Plaintiffs have been injured as detailed in the body of the Complaint. Id.
Here, Plaintiffs allege in the Complaint, for each claim brought, specific ways in which the Covid-19 Executive Orders have infringed upon the constitutional rights of individual Plaintiffs’ and argue that a declaration by this Court in addition to compensatory and punitive damages would provide relief for the alleged injuries. [R. 1 at 9–34, 96–98.] For example, numerous Plaintiffs allege the inability to practice their religion or assemble with others because of the Emergency Declaration and subsequent Covid-19 Executive Orders in violation of their constitutional rights. Id. Accordingly, Plaintiffs have met the threshold inquiry of standing.3
A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of a plaintiff's complaint. In reviewing a Rule 12(b)(6) motion, the Court "construe[s] the complaint in the light most favorable to the plaintiff, accept[s] its allegations as true, and draw[s] all inferences in favor of the plaintiff." DirecTV, Inc. v. Treesh , 487 F.3d 471, 476 (6th Cir. 2007) (citation omitted). The Court, however, "need not accept as true legal conclusions or unwarranted factual inferences." Id. (quoting Gregory v. Shelby County , 220 F.3d 433, 446 (6th Cir. 2000) ). The Supreme Court explained that in order "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell...
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