Roberts v. Neace

457 F.Supp.3d 595

Theodore Joseph ROBERTS, et al., Plaintiffs

v.Hon. Robert NEACE, et al., Defendants

CIVIL ACTION NO. 2:20cv054 (WOB-CJS)

United States District Court, E.D. Kentucky, Northern Division. at Covington.

Signed May 4, 2020

Christopher David Wiest, Christopher Wiest, Atty at Law, PLLC, Crestview Hills, KY, Robert A. Winter, Jr., Fort Mitchell, KY, Thomas B. Bruns, Bruns, Connell, Vollmar & Armstrong, LLC, Cincinnati, OH, for Plaintiffs.

Jennifer Haddad Langen, Jeffrey C. Mando, Adams, Stepner, Woltermann & Dusing, PLLC, Covington, KY, La Tasha Buckner, Laura Crittenden Tipton, Marc Griffin Farris, Steven Travis Mayo, Taylor Payne, Office of the Governor KY, Frankfort, KY, David Thomas Lovely, J. Wesley Warden Duke, Cabinet for Health & Family Services - Frankfort Office of Legal Services, Frankfort, KY, for Defendants.

MEMORANDUM OPINION AND ORDER

William O. Bertelsman, United States District Judge

Plaintiffs Theodore Joseph Roberts, Randall Daniel, and Sally Boyle bring this action challenging the constitutionality of certain measures instituted by the Commonwealth of Kentucky in response to the COVID-19 public health crisis.

Specifically, plaintiffs Daniel and Boyle allege that the ban on "mass gatherings" as applied to in-person church attendance violates their right to freedom of religion under the First Amendment. (Doc. 6, ¶¶ 56-66). Plaintiff Roberts alleges that restrictions on out-of-state travel violate his fundamental liberty interest and thus his right to substantive due process. (Id. ¶¶ 67-73). Plaintiffs further allege that the Travel Ban violates their right to procedural due process. (Id. ¶¶ 74-79).

This matter is before the Court on plaintiffs' emergency motion for temporary restraining order and motion for preliminary injunction (Doc. 7). The Court previously heard oral argument on these motions and took the matter under submission. (Doc. 33).

By agreement of the parties, the Court now issues the following Memorandum Opinion and Order ruling on plaintiffs' motion for preliminary injunction.¹

Factual and Procedural Background

A. Challenged Restrictions

On March 6, 2020, Kentucky Governor Andrew Beshear began issuing a series of Executive Orders placing restrictions on Kentucky citizens as part of an effort to slow the spread of the COVID-19 virus in the Commonwealth. (Am. Compl. ¶¶ 13-23).

As relevant here, on March 19, 2020, Governor Beshear issued an Executive Order prohibiting all "mass gatherings." (Am. Compl. Exh. D). The Order states: "Mass gatherings include any event or convening that brings together groups of individuals, including, but not limited to, community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities." The Order states that mass gatherings do not include "normal operations at airports, bus and train stations, medical facilities, libraries, shopping malls and centers, or other spaces where persons may be in transit," as well as "typical office environments, factories, or retail or grocery stores where large numbers of people are present, but maintain appropriate social distancing." (Id. ).

Subsequent Executive Orders closed non-life-sustaining retail businesses; banned most elective medical procedures; shut down additional businesses for in-person work; and placed further restrictions on retail establishments that were allowed to remain open. (Am. Compl. ¶¶ 18-23).

On March 30, 2020, the Governor issued an Executive Order banning Kentucky residents from travelling out of state, except when required for employment; to obtain groceries, medicine, or other necessary supplies; to seek or obtain care by a licensed healthcare provider; to provide care for dependents, the elderly, or other vulnerable person; or when required by court order. (Am. Compl. Exh. H). The Order also required any Kentuckian in another state for reasons other than those set forth in the exceptions to self-quarantine for fourteen days upon returning to Kentucky. (Id. ).

Finally, on April 2, 2020, Governor Beshear issued an additional Executive Order expanding the travel ban to require residents of states other than Kentucky who travel into the Commonwealth for reasons outside the above exceptions also to self-quarantine for fourteen days. (Am. Compl. Exh. I).

B. Bases for Plaintiffs' Claims

Notwithstanding the ban on mass gatherings, on Easter Sunday, April 12, 2020, plaintiffs attended in-person church services at Maryville Baptist Church in Hillview, Bullitt County, Kentucky. (Am. Compl. ¶ 27). Plaintiffs allege that they did so in accord with their sincerely held religious beliefs that in-person church attendance was required, and that they observed appropriate social distancing and safety measures during the service. (Id. ¶¶ 28-29).

Upon exiting the church, plaintiffs found on their vehicle windshields a Notice informing them that their presence at that location was in violation of the "mass gathering" ban. (Am. Compl. ¶ 32). Plaintiffs allege that the notices were placed there by the Kentucky State Police at the behest of Governor Beshear, who had stated that he was going to target religious services for such notices. (Id. ¶ 33-34).

The Notice states that the recipient is required to self-quarantine for fourteen days and that the local health department will send them a self-quarantine agreement. In bold, the notice continues: "Failure to sign or comply with the agreement may result in further enforcement measures," and "Please be advised that KRS 39A.990 makes it a Class A misdemeanor to violate an emergency order." (Id. ¶ 32). Plaintiffs subsequently received such documentation from the Kentucky Cabinet for Health and Family Services, Department for Public Health. (Doc. 37 at 5-6).

With regard to the Travel Ban, plaintiff Roberts alleges that the ban prevents him from travelling to Ohio and Indiana for a variety of personal reasons that do not fall within the exceptions found in Governor Beshear's orders. (Am. Compl. ¶ 40).

Analysis

"A preliminary injunction is an ‘extraordinary remedy never awarded as of right.’ " Adams & Boyle, P.C. v. Slatery , 956 F.3d 913, 923–24, No. 20-5408 (6th Cir. April 24, 2020) (quoting Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ). "Rather, the party seeking the injunction must prove: (1) that they are likely to succeed on the merits of their claim, (2) that they are likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in their favor, and (4) that an injunction is in the public interest." Id. A court considering whether to grant a preliminary injunction must therefore "balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Id. (citation omitted).

A. Mass Gathering Ban

The Court first considers plaintiffs' claim that Kentucky's ban on mass gatherings impermissibly infringes their First Amendment right to the free exercise of religion.

The Free Exercise Clause of the First Amendment, which has been applied to the States through the Fourteenth Amendment, provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520, 531, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993).

"A law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice." Id. A law is not neutral if it "discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons." Id. at 533, 113 S.Ct. 2217. Stated differently, neutrality is lacking where "the object of a law is to infringe upon or restrict practices because of their religious motivation." Id.

Further, as to general applicability, the Supreme Court noted in Lukumi that "all laws are selective to some extent," and that reality does not render a law constitutionally suspect. Id. at 542, 113 S.Ct. 2217. Rather, the First Amendment inquiry, again, focuses on whether the government is selectively imposing "burdens only on conduct motivated by religious belief." Id. at 543, 113 S.Ct. 2217.

A law that fails to satisfy the neutrality and general applicability requirements "must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest." Id. 531-32, 113 S.Ct. 2217.

With these principles in mind, it is abundantly clear that the "object or purpose of" Kentucky's mass gathering ban is not "the suppression of religion or religious conduct." Lukumi , 508 U.S. at 533, 113 S.Ct. 2217. To the contrary, the plain text of the challenged order categorically bans all "mass gatherings" as a means of preventing the spread of a life-threatening virus. The illustrative examples set forth are sweeping: "community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities." (Doc. 6-4 at 1).

Plaintiffs do not argue that the State has permitted any other of the cited examples of mass gatherings to take place; rather, plaintiffs argue that certain businesses that the government has allowed to remain open present similar health risks. That, of course, is a judgment call, but what is missing is any evidence that Kentucky has conducted the essential/non-essential analysis with religion in mind. Lukumi , 508 U.S. at 543, 113 S.Ct. 2217.

Moreover, there is an undeniable difference between certain activities that are, literally, life sustaining and other that are not. Food, medical care and supplies, certain travel necessary to maintain one's employment and thus income, are, in that sense, essential. Concerts, sports events, and parades clearly are not. And while plaintiffs...