Commonwealth of Kentucky: Amicus Curiae Brief of Kentucky State Treasurer Allison J. Ball

Case: 20-6341 Document: 27 Filed: 11/28/2020 Page: 1
NO. 20-5742
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
COMMONWEALTH OF KENTUCKY, ex rel Attorney General Daniel Cameron

& DANVILLE CHRISTIAN ACADEMY, INC.
Plaintiffs-Appellees,
v.
ANDREW G. BESHEAR, in his official capacity as Governor of the

Commonwealth of Kentucky
Defendant-Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF KENTUCKY
FRANKFORT DIVISION
DISTRICT COURT NO. 3:20-CV-00075
AMICUS CURIAE BRIEF OF

KENTUCKY STATE TREASURER ALLISON J. BALL
________________________
/s/ Noah R. Friend

Noah R. Friend (KBA 92209)
General Counsel
Kentucky State Treasurer
1050 US Hwy 127 S, Suite 100
Frankfort, KY 40601
Cell: 606.369.7030
noah.friend@ky.gov
Counsel for Amicus Curiae
TABLE OF CONTENTS
IDENTITY, INTEREST & AUTHORITY TO FILE AMICUS ...........................1
STATEMENT REQUIRED BY FED R. APP. P. 29(2)(4)(E) ..............................3
SUMMARY OF THE ARGUMENT .....................................................................4
ARGUMENT ..........................................................................................................5
A. Appellant Has Previously Used Executive Orders to Discriminate Against

Religious Exercise……………………………….……………………………7
B. The District Court abused its discretion, based upon all information
properly before the court, and imposed a substantively unreasonable
sentence… ……………………………………………………………………15
CONCLUSION .......................................................................................................16
CERTIFICATE OF SERVICE ...............................................................................17
CERTIFICATE OF COMPLIANCE ......................................................................18
APPENDIX (Treasurer’s Report)
i
TABLE OF AUTHORITIES
Cases
Raney v. Stovall, 361 S.W. 2d 518 (Ky. 1962)……….. .....................................7
Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020) .................................................10
Statutes
Ky. Rev. Stat. § 41.010 ...........................................................................................7
Other Sources
Oakes, Marie “Gov. Cuomo Calls Mayor DeBlasio’s Second Lockdown ‘Fear-
Drive’ in Newly Released Audio” The Westphalian Times, October 13, 2020
(available at https://westphaliantimes.com/gov-cuomo-calls-mayor-deblasios-
second-lockdown-fear-driven-in-newly-released-audio/ (last visited November 23,
2020)). ........................................................................................................................5
Saavedra, Ryan “CDC Director: Schools Among ‘Safest Places’ Kids Can Be,
Closing Schools an ‘Emotional Response’ Not Backed by Data,” The Daily Wire,
November 19, 2020, (available at https://www.dailywire.com/news/cdc-director-
schools-among-safest-places-kids-can-be-closing-schools-an-emotional-response-
not-backed-by-data (last visited November 23, 2020)…………………………….5
UNICEF, Averting a Lost COVID Generation: A Six-Point Plan to Respond,

Recover and Reimagine a Post-Pandemic World for Every Child. UNICEF Division
of Communications (November, 2020) available online at
https://www.unicef.org/media/86881/file/Averting-a-lost-covid-generation-world-
childrens-day-data-and-advocacy-brief-2020.pdf.....................................................6
Maryville Baptist Church v. Beshear, 3:20-cv-278 Memorandum in Support of

[Governor’s] Motion to Dissolve the Preliminary Injunction & Injunction Pending
Appeal (Docket Entry 46) (June 29, 2020). ............................................................10
November 20, 2020 K-12 Public Health Report………………………………….13
ii
IDENTITY, INTEREST & AUTHORITY

OF AMICUS CURIAE TO FILE
(A) IDENTITY & INTEREST OF THE MOVANT
The Movant is the elected State Treasurer of the Commonwealth of Kentucky.
In said role, the Movant is responsible for assuring that the expenditures of the
Commonwealth of Kentucky are paid in accordance with the Constitution and laws
governing the Commonwealth. See Raney v. Stovall, 361 S.W. 2d 518 (Ky. 1962);
see also, Ky. Rev. Stat. § 41.010 et seq.
Movant has a specific interest in the matter sub judice, as the continued
development, promulgation, and enforcement of the Defendant-Appellant Andrew
Beshear’s (hereinafter “Appellant”) Executive Orders involves the expenditure of
the resources and funds of the Commonwealth of Kentucky. The Movant has a direct
interest in stopping any attempts by the Appellant to expend state funds in a matter
that contravenes the constitutions and laws governing the Commonwealth. As noted
in the proposed amicus brief appended hereto, Movant’s review of the Appellant’s
Executive Orders during the COVID-19 pandemic have caused the Movant to
conclude that Executive Order 2020-969 constitutes a further unwarranted and
unconstitutional incursion upon religious liberty by the Appellant.
(B) RELEVANCE OF BRIEF FOR AMICUS CURIAE
As part of her official responsibilities as State Treasurer, the Movant’s office
has extensively reviewed thousands of pages of documents and communications
1
regarding COVID-19 restrictions imposed upon First Amendment religious exercise
by the Appellant. This review culminated in a report that was prepared and presented
to the Interim Joint Committee on Judiciary of the Kentucky General Assembly on
October 22, 2020. Movant has appended this report hereto, which contains
significant direct communications involving high-level members of the Appellant’s
administration, as well as other state and local officials tasked with the enforcement
of the Appellant’s executive orders. These communications add perspective to the
facts underlying the present dispute, which is closely related to other executive
orders issued by the Appellant.
(C) AUTHORITY TO FILE AMICUS BRIEF
The decision as to whether to allow the filing of an amicus brief is within the
discretion of this Honorable Court, and may be granted by this Court or with the
consent of the parties. FED. R. APP. P. 29(2). As a general matter, an amicus provides
assistance to the Court when able to bring relevant information and perspective to
the attention of the Court. See e.g. U.S. Sup. Ct. R. 37(1).
Movant has requested consent for this motion, and the filing of the amicus
brief. Counsel for both Plaintiff Danville Christian Academy and Commonwealth
of Kentucky ex rel Daniel Cameron have consented to the filing of the motion and
amicus brief. Counsel for the Defendant has also consented to this filing.
2
STATEMENT REQUIRED BY FED. R. APP. P. 29(a)(4)(E)

Amicus submits that counsel for the parties took no part in the authoring of
this brief. In addition, neither counsel nor any of the parties herein contributed
money intended to fund the preparation and submission of this brief. Finally, no
other persons contributed money to assist in the preparation and submission of this
brief.
3
SUMMARY OF ARGUMENT
The District Court properly determined that Appellant’s Executive Order
2020-969 violates the First Amendment of the United States Constitution.
The Appellant’s prior conduct throughout the COVID-19 pandemic has
reflected a profound lack of respect for the boundaries set by the First Amendment
as it relates to the free exercise of religion. Moreover, the Appellant’s criteria for
reopening private, religious schools, are so unduly burdensome as to likely constitute
a de facto ban on religious instruction for the remainder of the present school year,
and possibly beyond.
4
ARGUMENT
“This is not a highly nuanced, sophisticated response. This is a fear-

driven response. You know, this is not a policy being written by a scalpel. This is a
policy being cut by a hatchet. It’s just very blunt…People see the numbers going
up – ‘Close everything! Close everything!’ It’s not the best way to do it, but it is a
fear-driven response. The virus scares people. Hopefully if we get the numbers
down in the zip codes, the anxiety comes down, and then we can have a smarter,
more tailored approach.”
- Gov. Andrew Cuomo (New York), October 6, 2020
(discussing school closures in neighborhoods near New York City) 1
“Sigh. No cure for ignorance or obstinacy.”

- Dr. Steven Stack, Commissioner, Kentucky Department for Public Health
March 22, 2020
(discussing intention of church to proceed with in-person services)
“We should be making data driven decisions when we are talking about what we
should be doing for institutions or what we should be doing for commercial
closures. For example, as we mentioned, last spring CDC did not recommend
school closures nor did we recommend their closures today. … K through 12
schools can operate with face to face learning and they can do it safely and they
can do it responsibly.”
- Dr. Robert Redfield, Director, Center for Disease Control, November 19, 2020 2
**********
The first two quotations above reflect the reality of how some state executives
are choosing to enforce COVID-19 closures: broad, fear-driven responses, backed
by an underlying refusal to recognize either the constitutional rights at stake, or the
1
Oakes, Marie “Gov. Cuomo Calls Mayor DeBlasio’s Second Lockdown ‘Fear-Drive’ in Newly
Released Audio” The Westphalian Times, October 13, 2020 (available at
https://westphaliantimes.com/gov-cuomo-calls-mayor-deblasios-second-lockdown-fear-driven-
in-newly-released-audio/ (last visited November 23, 2020)).
2
Saavedra, Ryan “CDC Director: Schools Among ‘Safest Places’ Kids Can Be, Closing Schools
an ‘Emotional Response’ Not Backed by Data,” The Daily Wire, November 19, 2020, (available
at https://www.dailywire.com/news/cdc-director-schools-among-safest-places-kids-can-be-
closing-schools-an-emotional-response-not-backed-by-data (last visited November 23, 2020).
5
vital role that faith plays in the lives of a great number of Americans. The third
quotation, from the Director of the Center for Disease Control, represents a well-
reasoned, scientific approach to combating the COVID-19 pandemic. The Appellant
has chosen, at least in regards to religious exercise and Executive Order 2020-969,
to choose the blunt path of the “hatchet” as described by Gov. Andrew Cuomo:
broad, statewide mandates that completely ignore the constitutional rights at stake,
as well as vital distinctions as to how COVID-19 impacts different communities and
institutions. Indeed, a recent UNICEF report notes:
Children and schools are not the main drivers of the epidemic across
countries. Evidence shows that the net benefits of keeping schools open
outweigh the costs of closing them. Data from 191 countries show no
consistent association between school reopening rates and COVID-19
infection rates.”
UNICEF, Averting a Lost COVID Generation: A Six-Point Plan to Respond,
Recover and Reimagine a Post-Pandemic World for Every Child. UNICEF Division
of Communications (November, 2020) available online at
https://www.unicef.org/media/86881/file/Averting-a-lost-covid-generation-world-
childrens-day-data-and-advocacy-brief-2020.pdf (last visited November 28, 2020).
The UNICEF report noted that studies by the British Government, as well as Brown
University, show low levels of infection among students and teachers, and concluded
that “children are more likely to get the virus outside of school settings.” Id. at 5.
6
The Appellant’s unduly harsh policy closing private religious schools is
unconstitutional and continues to risk irreparable damage to faith-based schools, and
the individuals who attend and support these institutions.
A. APPELLANT HAS PREVIOUSLY USED EXECUTIVE ORDERS TO

DISCRIMINATE AGAINST RELIGIOUS EXERCISE
As the elected State Treasurer of the Commonwealth of Kentucky, amicus is
responsible for assuring that the expenditures of the Commonwealth of Kentucky
are paid in accordance with the Constitution and laws governing the Commonwealth.
See Raney v. Stovall, 361 S.W. 2d 518 (Ky. 1962); see also, Ky. Rev. Stat. § 41.010
et seq.
As part of her official responsibilities as State Treasurer, amicus has
extensively reviewed documents and communications regarding COVID-19
restrictions imposed upon First Amendment religious exercise by the Appellant.
This review culminated in a report that was prepared and presented to the Interim
Joint Committee on Judiciary of the Kentucky General Assembly on October 22,
2020. This report is appended hereto as Exhibit A. In sum, the report shows the
following:
• The targeted monitoring of churches by local health departments at the

direction of state officials;
• The coordinated surveillance of churches by the Kentucky State Police, which

included officers remaining posted outside church services where church-
goers were instructed that they faced the threat of repercussions, including
criminal penalties and quarantine orders for their attendance
7
• The disdain shown by the Administration for the sincerely held religious
beliefs of the Commonwealth’s citizens; and,
• The enforcement distinctions drawn by the Administration between protests

based on the subject matter of those protests.
The general attitude of the Appellant’s Administration can best be summed
up by Dr. Stack’s exasperated comment, prompted by a religious group’s desire to
continue in-person worship that there is “no cure for ignorance and obstinacy.” See
Exhibit A, Email from Stack to NKY Health Department (March 22, 2020). The
comment from Dr. Stack is even more troubling when one considers that the group
in question was implementing significant protocols to reduce the number of
congregants, and otherwise reduce the risk of virus transmission. The responsive
records included one document from the Kentucky Department of Public Health,
dated June 26, 2020. Image 1-1, on the top of the following page, appears in the
document. See Exhibit A, Department of Public Health Internal Work Document
(June 26, 2020). This image reflects that, taking the numbers at face value, as of June
26, 2020, there were 170 cases that were tied to houses of worship, out of 14,859
cases total. Thus, by the Administration’s own statistics, approximately 1.1% of all
COVID-19 cases in Kentucky were possibly tied to churches. On the other hand,
3,734 cases, or just slightly over 25% of cases, were tied to “long-term case
facilities” or “other congregate facilities.”
8
IMAGE 1-1
By the time that the June 26, 2020, document above was created, there had
been several court decisions permitting in-person worship and return to in-person
services had occurred widely throughout the Commonwealth. For example, Catholic
Churches throughout the Commonwealth had reinstituted in-person worship in May.
Rough estimates available online indicate that there are approximately 400,000
Catholics in Kentucky, attending approximately 300 parishes. Estimates for other
denominations indicate that hundreds of thousands of Kentuckians attend churches
which had returned to some form of in-person worship by June, yet the numbers of
cases tied to churches was miniscule.
Despite the evidence that in-person worship can be accomplished safely, on
June 29, 2020, the Defendant filed requests to dissolve the injunctions in two federal
9
cases. The Appellant argues that the United States Supreme Court “has issued
intervening law clarifying that enjoining the mass gatherings order was improper.”
Maryville Baptist Church v. Beshear, 3:20-cv-278 Memorandum in Support of
[Governor’s] Motion to Dissolve the Preliminary Injunction & Injunction Pending
Appeal (Docket Entry 46) (June 29, 2020). The Administration takes the position
that the injunctions were wrongly issued, that they are “no longer good law” and that
“it is entirely permissible for state officials to treat laundromats and offices
differently from places of mass gathering.” Id. at 4-5. The Administration believes
that “like the California Governor, Governor Beshear should be afforded broad
latitude” in his decisions, and that the court needs to “restore the leeway” the
Governor needs “in the event the disease returns in force, or some other emergency
arises.” Id. at 5-6 (emphasis added).
On October 19, 2020, a panel of this Honorable Court issued an update to its
earlier decision in Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020). The Sixth
Circuit’s stated rationale is that, per the Court, “the Governor has raised the
possibility of dissolving the injunction in the Maryville Baptist Church case on the
ground that intervening legal developments make it wrong.” Roberts v. Neace, 20-
5465 Opinion at p.6 (6th Cir. Oct. 19, 2020). The Court noted that the Governor’s
position suggests that the Administration may seek to dissolve the injunction, and
“that he wishes to have the authority to ban indoor church services again.” Id.
10
B. EXECUTIVE ORDER 2020-969 UNCONSTITUTIONALLY DISCRIMINATES

AGAINST RELIGIOUS EXERCISE
Much like the Appellant’s earlier executive orders, Executive Order 2020-969
violates the First Amendment of the United States Constitution, as well as Sections
1 and 5 of the Kentucky Constitution. Amicus defers to the legal analysis contained
within the Appellees’ filings, as well as that of amici “private religious schools”.
Amicus is highly concerned that the Appellant continues to use state resources
to target religious institutions, despite the overwhelming evidence assembled by the
Appellant’s administration that religious schools can operate safely with the
COVID-19 guidelines and precautions they have put in place. The Appellant has
created a website where the public can access information about case occurrences
within public and private schools. The following data is a non-exhaustive list of
schools with no cases reported during the fourteen days preceding the enactment of
Executive Order 2020-969, and is illustrative of the success with which these
religious schools have operated:
TABLE 1-1
School County # Student # Staff

Cases Last 14 Cases Last
Days 14 Days
Bishop Brossart High School Campbell 0 0
Christ the King Elementary Hopkins 0 0
Christ the King School Fayette 0 0
Christian Academy Anderson 0 0
(Lawrenceburg)
Community Christian Academy McCracken 0 0
11
Cornerstone Christian Shelby 0 0

Academy
Cornerstone Christian School Laurel 0 0
Covington Catholic High Kenton 0 0
School
Evangel Christian School Jefferson 0 0
Foundation Christian Academy Warren 0 0
Frankfort Christian Academy Franklin 0 0
Glasgow Christian Academy Barren 0 0
Gospel Christian Academy Clinton 0 0
Heritage Christian Academy Christian 0 0
Highlands Latin School Jefferson 0 0
Holy Family Elementary Boyd 0 0
John Paul II Academy Jefferson 0 0
Lexington Catholic High Fayette 0 0
School
Lexington Christian Academy Fayette 0 0
London Christian Academy Laurel 0 0
Northside Baptist Christian Graves 0 0
School
Nur Islamic School of Jefferson 0 0
Louisville
Rose Hill Christian Boyd 0 0
Saint Agatha Academy Clark 0 0
Saint Agnes School Jefferson 0 0
Saint Andrew Academy Jefferson 0 0
Saint Ann Elementary School Nelson 0 0
Saint Bernard Elementary Jefferson 0 0
Saint Catherine of Alexandria Jefferson 0 0
Academy
Saint Edward Elementary Jefferson 0 0
School
Saint Francis High School Jefferson 0 0
Saint Joseph’s School (Cold Campbell 0 0
Spring)
Saint Mary School Campbell 0 0
Saint Patrick School Mason 0 0
Saint Paul Catholic School Boone 0 0
Sts. Peter and Paul Christian 0 0
12
Sayre School Fayette 0 0

Seton Catholic School Fayette 0 0
St. Mary of the Woods Owensboro 0 0
Summitt Christian Fayette 0 0
Source: November 20, 2020 K-12 Public Health Report
(available at: https://chfs.ky.gov/agencies/dph/covid19/K-12cv19report.pdf) 3
The list above reflects that many religious schools have instituted policies and
procedures which have stemmed the tide of COVID-19 in their schools. Rather than
applauding these institutions for maintaining the vital service of education to
children around all regions of our Commonwealth, the Defendant seeks to shut them
down, despite their success.
Moreover, and in complete disregard of the success shown above, Executive
Order 2020-969 places extremely harsh conditions on the ability of these institutions
to return to in-person instruction. The “red zone” designation that the Appellant
utilizes to determine when it is safe to go back to in-person instruction operates to
make it extremely difficult for even the most successful schools to go back in
session, particularly in counties with comparatively low population. The “red zone”
designation requires that cases drop below 25 cases per 100,000 residents. However,
in some of the counties listed above, where the schools have been demonstrably
successful in keeping COVID-19 out of their schools, in order for the schools to
3
It should be noted that the listing on the Governor’s website is non-exhaustive, as some schools
are not included on the list. Nonetheless, it is important to note the success of the reporting schools
who have shown the ability to implement appropriate safety measures during in-person instruction.
13
return to in-person instruction, the counties would have to drop to the following
levels:
TABLE 1-2
County Population (Est.) Approximate Case

Threshold for County “Red
Zone” Designation
Barren 44,000 11
Boyd 47,000 12
Clinton 10,000 3
Graves 37,000 9
Laurel 61,000 15
Mason 17,000 4
Shelby 49,000 13
Utilizing the current criteria of Executive Order 2020-969 means that the
likelihood of going back to in-person instruction in any of the aforementioned
counties by December 7, 2020, is wholly illusory at best. Using Clinton County as
an example, if there are three (3) cases of COVID-19 in the county, then schools
may not go back into session. This prohibition on in-person instruction is despite
the fact that the confirmed cases may be quarantined and have no discernable
relationship to the school itself. This cannot be found to comport with the
Constitution.
In short, the Appellant’s treatment of private religious schools is in no way
connected to the realities of how well the schools have managed the spread of
COVID-19. The Appellant’s Executive Order is unduly punitive and substantially
14
burdens the religious exercise of individuals and schools throughout the
Commonwealth.
15
CONCLUSION
The Governor’s Motion should be DENIED, and the District Court’s order
should be permitted to remain in place.
This the 28th day of November, 2020.
/s/ Noah R. Friend

Noah R. Friend (KBA 92209)
General Counsel
1050 US Hwy 127 S, Suite 100
Frankfort, KY 40601
Cell: 606.369.7030
noah.friend@ky.gov
16
CERTIFICATE OF SERVICE
I hereby certify that on this 28th day of November, 2020, I electronically filed
the foregoing Amicus Brief, with the Clerk of the United States Circuit Court for the
Sixth Circuit, by using the CM/ECF system, which will send electronic notice to all
counsel who have requested the same.
/s/ Noah R. Friend

NOAH R. FRIEND
17
CERTIFICATE OF COMPLIANCE
Pursuant to the Federal Rules of Appellate Procedure, I certify that this brief
complies with the type-volume limitations set forth in Rule 32(a)(7), in that it
contains 2,975 words. In certifying the number of words, I have relied on the word
count function of the electronic word processing software used to prepare this
Amicus Brief.
/s/ Noah R. Friend

NOAH R. FRIEND
18
Preliminary
REPORT
FROM THE OFFICE OF THE
KENTUCKY STATE
TREASURER
Accountability for
October 22, 2020
State Expenditures
During the Pandemic
Interim Joint Committee

on Judiciary
Allison Ball
Noah Friend
General Counsel
EXECUTIVE SUMMARY
A general consensus exists regarding the unique challenge posed by the
COVID-19 pandemic. The lives of all citizens of the Commonwealth have been
touched in some way, whether by the health effects of the virus itself or the economic
hardships resulting from lockdowns and business closures. For the citizens who
have lost loved ones as a result of COVID-19, their sadness and grief will extend
beyond any declaration of emergency. Acknowledging these very real and serious
challenges, this report nevertheless seeks to shine a light on various decision points
undertaken by the Beshear Administration in its handling of the on-going pandemic.
In my role as Treasurer, I am responsible for ensuring that expenditures of the
Commonwealth conform to the Constitutions of the United States and the
Commonwealth of Kentucky. Accordingly, my Office has undertaken a review of
documents received from multiple health departments, as well as the Kentucky State
Police, regarding actions that were taken in relation to the First Amendment exercise
of Kentucky citizens during the COVID-19 pandemic. This report shows:
• The targeted monitoring of churches by local health departments at the
direction of state officials;
• The coordinated surveillance of churches by the Kentucky State Police, which
included officers remaining posted outside church services where church-

goers were instructed that they faced the threat of repercussions, including
criminal penalties and quarantine orders for their attendance;
• The disdain shown by the Administration for the sincerely held religious
beliefs of the Commonwealth’s citizens; and
• The enforcement distinctions drawn by the Administration between protests
based on the subject matter of those protests.
The federal courts have been clear in their holdings that the Administration’s
orders have violated the Constitution. Even more concerning is the fact the
Commonwealth is still under a state of emergency as declared by the Governor
pursuant to KRS 39A, and he has made clear in federal court filings that he still seeks
the authority to engage in the same sort of activities found to be unconstitutional by
federal courts should, in his determination, the need arise. Thus, the threat to the
Constitution posed by this Administration’s decisions as they relate to the pandemic
has not yet passed. This information is intended to assist the General Assembly as
it weighs its legislative response to the pandemic and to ensure that the constitutional
rights of Kentucky’s citizens are respected and upheld. As U.S. District Judge
Gregory Van Tatenhove explained in Tabernacle Baptist Church v. Beshear, “It
would be easy to put [the Constitution] on the shelf in times like this, to be pulled
down and dusted off when more convenient. But that is not our tradition. Its enduring
quality requires that it be respected even when it is hard.”

TABLE OF CONTENTS
I. INTRODUCTION ..................................................................................1
II. GENERAL BACKGROUND .................................................................5
III. FINDINGS...............................................................................................9
THE GOVERNOR’S OFFICE, KENTUCKY STATE POLICE & THE CABINET FOR
HEALTH & FAMILY SERVICES ENCOURAGED & PARTICIPATED IN THE
UNCONSTITUTIONAL SUPPRESSION OF FIRST AMENDMENT EXERCISE
A. Violations Related to Religious Assembly
(1) Governor’s Office & Law Enforcement ...................................10
(2) State Health Officials ...............................................................15
(3) Health Departments .................................................................18
B. Violations Related to “Non Religious”

First Amendment Exercise ..............................................................22
APPENDICES
1. Emails & Records: Governor’s Office, CHFS, Law Enforcement & Health
Departments
2. Executive Orders
i
I. INTRODUCTION
A. ROLE OF STATE TREASURER
The State Treasurer is one of six independently-elected executive officers set
forth in Kentucky’s Constitution. Kentucky law tasks the Treasurer with the duty to
execute payments on behalf of the Commonwealth. As part of this responsibility,
the Treasurer has an obligation to ensure that all governmental expenditures are
permitted under the Constitutions and laws of the United States and the
Commonwealth of Kentucky.
B. NATURE OF INVESTIGATION
Significant concerns have been publicly raised regarding the legal
permissibility of many actions taken by the Beshear Administration in response to
the COVID-19 pandemic. Several of these actions resulted in court decisions
overturning actions of the Administration. The Treasury, in response to the concerns
of the public, issued several requests for documents to multiple health departments,
as well as the Kentucky State Police, regarding actions that were being taken in
relation to the First Amendment exercise of Kentucky citizens during the COVID-
19 pandemic.
The Treasury reviewed documents from several of Kentucky’s local health
departments, as well as a limited set of non-sensitive documents from the Kentucky
1
State Police. The Treasury reviewed over 10,000 pages of responsive records in
preparing this report.
The Treasury has not yet pursued any Open Records Appeals for a handful of
local health departments who did not fully respond to the records requests, nor has
the Treasury pursued any further review of redactions that were included in
additional records.
C. LIMITED SCOPE OF REPORT
The Treasury’s request for documents to local health departments and the
Kentucky State Police were expressly limited to issues involving First Amendment
activities. The Treasury, therefore, has not included in this report any information
related to other potential constitutional or statutory violations committed by the
Administration, including issues related to: the separation of powers; the non-
delegation doctrine; violations of Chapter 13A; arbitrary action or other violations
under Sections 1 and 2 of the Kentucky Constitution; generalized due process
concerns; or, the creation and enforcement of the interstate travel ban.
This report is also limited in the amount of time covered. The requests
covered terms such as “church,” “congregation,” or “protest” during the period from
March 1, 2020, to approximately June 15, 2020. As some record responses were
not received until September, a few responsive records occur after June 15, 2020.
2
D. GENERAL SUMMARY
The Treasury’s review of the documentation reflected a few pivotal pieces of
information. First, local health officials have been facing a massive task in their
receipt of guidance from the state level and translating it into action; this guidance,
particularly in the early stages of the pandemic, was voluminous, quickly changing,
and often lacking in clarity and consistency. Despite all the challenges posed by the
COVID crisis, local health officials have consistently stepped up to the behemoth
task placed in front of them, and have performed admirably in communicating
information to the public and enforcing the policies set forth by the Administration.
At the same time, however, the Administration’s failures in creating a
cooperative and constitutionally-permissible approach to First Amendment activities
has caused or contributed to unnecessary conflict and unconstitutional enforcement
in many instances. While many local health departments have been able to maintain
productive, cordial and, it appears, legally compliant procedures regarding First
Amendment exercise, others have taken a heavy-handed approach, encouraged by
high-level officials within the Beshear Administration.
Based upon the Treasury’s review, it is recommended that changes be made
to Kentucky law to clarify limitations on the Governor’s emergency authority under
Chapter 39A. Local health officials expressed, on multiple occasions, that they felt
3
constrained to act in an unconstitutional manner, based on the directions received
from high-level Administration officials. KRS Chapter 39A should be modified to
provide protection and clarification not only for the people of the Commonwealth,
but for local health and law enforcement officials who are tasked with enforcement
efforts.
Finally, the Treasury will establish an additional means through which
concerned state or local employees, or the general public, can provide confidential
information regarding potential constitutional or legal violations, without fear of
retaliation.
4
II. GENERAL BACKGROUND
The general background is familiar to most and can be easily found through a
review of news stories and federal court decisions. A very brief summation is
warranted related to the narrow scope of this report.
Throughout the COVID-19 pandemic, the Beshear Administration has acted
through a lengthy series of all-encompassing executive orders, which seek to control
an almost limitless scope of activities for individuals within the Commonwealth. The
Attorney General, for example, estimates that, as of late August, there were
approximately 150 “orders, guidance documents, and emergency regulations” issued
in the wake of the initial March 6, 2020, emergency declaration. 1 Several of these
orders were directly aimed at First Amendment activities.
On March 19, 2020, an Executive Order was entered banning “all mass
gatherings” which specifically included “community, civic, public, leisure, [and]
faith-based” gatherings. See Appendix 2, March 19, 2020 Executive Order. This
executive order, however, excluded a large number of gatherings from its scope:
For the avoidance of doubt, a mass gathering does 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. It also does not include typical office environments, factories or
retail or grocery stores where large numbers of people are present, but
maintain appropriate social distancing.
1
See, Brief for the Commonwealth of Kentucky, Beshear v. Florence Speedway, 2020-CA-
000834, p. 4.
5
Id. at ¶ 3. On March 25, 2020, the Governor issued Executive Order 2020-257, which
closed all businesses that “are not life-sustaining.” Executive Order 2020-257 listed
approximately six (6) pages of “life sustaining” businesses. See Appendix 2,
Executive Order 2020-257.
Several federal lawsuits were initiated regarding the Governor’s actions as
they related to religious exercise. Two of the lawsuits arose from the Governor’s
use of Kentucky State Police to shut down services at Maryville Baptist Church in
Bullitt County. On May 2, 2020, a panel of the United States Sixth Circuit Court of
Appeals entered a preliminary injunction, which enjoined “[t]he Governor and all
other Commonwealth officials…from enforcing orders prohibiting drive-in services
at the Maryville Baptist Church if the Church, its ministers, and its congregants
adhere to the public health requirements mandated for ‘life-sustaining’ entities.”
Maryville Baptist Church v. Beshear, 957 F.3d 610 (6th Cir. 2020).
On May 8, 2020, United States District Judge Gregory F. Van Tatenhove
issued a preliminary injunction, allowing churches statewide to begin holding
services, so long as they adhered “to applicable social distancing and hygiene
guidelines.” Tabernacle Baptist Church, Inc. v. Beshear, 3:20-cv-00033-GFVT,
Docket Entry 24 (E.D. Ky. May 8, 2020). The following day, the Administration
issued a new executive order excepting churches from the mass gathering
prohibitions. See Appendix 2, May 9, 2020 Executive Order.
6
On the same day this updated Executive Order was issued, the Sixth Circuit
Court of Appeals issued an injunction prohibiting the Governor and other state
officials “from enforcing orders prohibiting in-person services at the Maryville
Baptist Church if the Church, its ministers, and its congregants adhere to the public
health requirements mandated for ‘life-sustaining’ entities.” Roberts v. Neace, 958
F.3d 409 (6th Cir. 2020). In finding that the Governor’s orders had violated the
United States Constitution, the Court noted as follows:
Keep in mind that the Church and its congregants just want to be treated
equally. They don’t seek to insulate themselves from the
Commonwealth’s general public health guidelines. They simply wish
to incorporate them into their worship services. They are willing to
practice social distancing. They are willing to follow any hygiene
requirements. They do not ask to share a chalice. The Governor has
offered no good reason for refusing to trust the congregants who
promise to use care in worship in just the same way it trusts
accountants, lawyers, and laundromat workers to do the same.
Id. These decisions did not, however, end the litigation related to the Governor’s
actions.
On June 29, 2020, the Administration filed requests to dissolve the injunctions
in both the Maryville and Roberts cases. The administration argued that the United
States Supreme Court “has issued intervening law clarifying that enjoining the mass
gatherings order was improper.” Maryville Baptist Church v. Beshear, 3:20-cv-278
Memorandum in Support of [Governor’s] Motion to Dissolve the Preliminary
Injunction & Injunction Pending Appeal (Docket Entry 46) (June 29, 2020). The
7
Administration takes the position that the injunctions were wrongly issued, that they
are “no longer good law” and that “it is entirely permissible for state officials to treat
laundromats and offices differently from places of mass gathering.” Id. at 4-5. The
Administration believes that “like the California Governor, Governor Beshear
should be afforded broad latitude” in his decisions, and that the court needs to
“restore the leeway” the Governor needs “in the event the disease returns in force,
or some other emergency arises.” Id. at 5-6 (emphasis added).
On October 19, 2020, the Sixth Circuit issued an update to the Maryville and
Roberts decisions, sending the Roberts case back to the District Court for further
briefing. The Sixth Circuit’s stated rationale is that, per the Court, “the Governor has
raised the possibility of dissolving the injunction in the Maryville Baptist Church
case on the ground that intervening legal developments make it wrong.” Roberts v.
Neace, 20-5465 Opinion at p.6 (6th Cir. Oct. 19, 2020). The Court noted that the
Governor’s position suggests that the Administration may seek to dissolve the
injunction, and “that he wishes to have the authority to ban indoor church services
again.”
8
III. FINDINGS
THE GOVERNOR’S OFFICE, KENTUCKY STATE POLICE & THE CABINET FOR
HEALTH & FAMILY SERVICES ENCOURAGED & PARTICIPATED IN THE
UNCONSTITUTIONAL SUPPRESSION OF FIRST AMENDMENT EXERCISE
The free exercise of religious rights and the right of assembly lie at the heart
of the First Amendment to the United States Constitution, as well as Sections 1 and
5 of the Kentucky Constitution. For sake of simplicity, this report will break the
violations down into two sections: first, violations related to “religious assembly,”
and second, violations related to non-religious protests or “assembly.”
As noted above in Section II(C), the investigation by the Treasury did not
request information related to other potential violations of Kentucky’s Constitution
or statutes. Thus, this report will be limited to only First Amendment concerns. 2
A. Violations Related to Religious Assembly
After the entry of the Governor’s March 19, 2020, Executive Order, several
of the responsive local health departments began a series of actions to monitor local
churches,3 with frequent requests for law enforcement assistance. In addition, the
Administration took action directly related to religious assemblies, including
directing law enforcement to monitor and shut down religious services. These
2
There is ongoing litigation in the Kentucky Supreme Court related to, among other things, the
constitutionality of the Administration’s executive orders and the delegation of authority to the
Governor pursuant to Chapter 39A.
3
This report will utilize the term “churches” as the responsive records were overwhelmingly
related to Christian houses of worship.
9
actions were not empty words but were consistently backed up with threats of
criminal prosecution for failure to comply.
(1) Governor’s Office & Law Enforcement
The Governor’s daily press conferences and press releases 4 had numerous
mentions of religious services and related admonitions regarding religious
restrictions. On Saturday, March 28, 2020, for example, one local official properly
characterized these statements during his press conferences as a “call out” of a local
church, and emailed the local health department on the issue. The health department
responded, saying “If you have an available police officer, can they swing by and
just do a visual…”. See Appendix 1, Emails with NKY Health Department (March
28, 2020). Emails reflect that the Governor directly contacted at least two judges-
executive on or about April 7 and April 9, 2020, regarding concerns about churches
holding services in their respective counties. See Appendix 1, Emails with Bullitt
and Jessamine County Health Departments (April 7 & April 9, 2020).
During this time, law enforcement was directed by the Governor’s Office to
take action against local churches who were refusing to follow the March 19, 2020,
shut-down Executive Order. In an email sent to numerous KSP officials throughout
the state, Kentucky State Police Commissioner Rodney Brewer, indicated: “I am
4 The daily press releases for at least ten dates between March 21, 2020 and April 12, 2020,
specifically mentioned issues related to houses of worship. The press releases are available for
review at: https://governor.ky.gov/news (last visited October 20, 2020).
10
attaching a flyer directed to me from the Governor’s office via the local health
department concerning churches in your post area that are expected to be non-
compliant…Please see that the following actions are taken regarding this situation:
Image 1. See Appendix 1, Email from Commissioner Brewer to KSP Officials (April
10, 2020). The following image were to be placed on any vehicles that were
observed at the churches:
11
Image 2. See Appendix 1, Email from Commissioner Brewer to KSP Officials (April
10, 2020). The email included an attachment listing not only Maryville Baptist
Church, but also: two other churches in Louisville; one in Falmouth; and, one in
Morgantown. These churches were to be monitored by Kentucky State Police, with
a “visible presence” “by at least two uniformed officers.” In addition, on April 11,
the COVID Shutdown flyer was forwarded to KSP officials to be used for an
unnamed “Hopkinsville Church.” Appendix 1, “Fwd: Church detail” KSP Emails
(April 11, 2020). No other responsive information was provided regarding the
outcome of this monitoring.
The “NOTICE” to be placed on the vehicles of any individuals attending a
church included the notation: “Please be advised that KRS 39A.990 makes it a Class
A misdemeanor to violate an emergency order.” The “NOTICE” also told people
that their license plate numbers were “[r]ecords maintained by the Commonwealth
are subject to disclosure under the Open Records Act.” Thus, the notice raised the
specter of both criminal prosecution, and that an individual’s license plate number
and attendance would be publicly released.
At the same time, the KSP received a “Church Protocol” document that was
being circulated “TO ALL Sheriffs,” and many local health officials, which listed
possible offenses that could be used to charge non-compliant church officials:
[L]aw enforcement officials can cite for violations of KRS 39A.180

(using UOR Code 02689 for any misdemeanor charge not covered by
12
other code). Disorderly conduct under KRS 525.060 may also fit, as a
subsection describes the element of “failing to disperse” when ordered.
The same guidance also noted that “[T]his is clearly a first amendment issue and any
action taken certainly has significant potential to result in litigation” and that “[t]here
is a potential for the need for force, although it is a very low potential.” Appendix 1,
“Fw: Church Protocol” Email to Rodney Brewer (April 10, 2020). All of this
information was circulated, and the potential actions were being planned at a time
when the Governor was noting in his press conferences that “99.8%” of houses of
worship were shut down. See Governor Press Release April 11, 2020 (available
online at https://governor.ky.gov/news (last visited October 20, 2020). 5
On Sunday, April 12, as has been well-documented publicly, Kentucky State
Police troopers placed the “NOTICES” on vehicles at Maryville Baptist Church, and
recorded the license plate numbers of those in attendance. Emails obtained from the
Kentucky State Police reflect, however, that several other churches were monitored
by Kentucky State Police troopers on April 12, 2020. KSP Commissioner Brewer
received email reports from Post 3 regarding the monitoring of churches located in
Barren County, Butler County, and Logan County.6 The following information was
conveyed by the troopers to Commissioner Brewer:
5
As can be seen in Image 5, reflecting totals from June, church congregations have proved to be a
very limited source of Kentucky COVID-19 cases. This appears to remain the case, even as
churches have reopened.
6
None of these counties were included in our records requests to local health departments, and
no further information is currently available beyond what is included in the KSP email.
13
Image 3. This information indicates that troopers observed these locations, in one
instance for approximately two hours, and in at least one instance, provided the
“NOTICE” document to those in attendance. The “NOTICE” document was
provided despite the fact that there were “only 9 people present and they were
practicing social distancing.”
The information related to the church surveillance by the Kentucky State
Police was sent directly by Commissioner Brewer to LaTasha Buckner, the Chief of
Staff for Governor Beshear. Chief of Staff Buckner received the surveillance reports
on April 13, 2020, and acknowledged receipt of the surveillance report within eleven
minutes of receipt. Appendix 1, Emails Between Buckner and Brewer (April 13,
2020). That same date, the General Counsel for the Cabinet for Health and Family
Services obtained a list of the license plate information, and advised the health
department that if the individuals did not “sign a voluntary quarantine form” that
14
“further steps” can be discussed. Appendix 1 “License plate info for church goers”
(April 13, 2020).
(2) State Health Officials
Several high-level state officials were directly involved in providing
documentation and advising the Bullitt County Health Department on the Maryville
Baptist Church incident. Emails were exchanged with Dr. Steven Stack, the
Commissioner of the Department for Public Health (DPH), Kelly Alexander, the
Chief of Staff for the DPH, and Wesley Duke, General Counsel for the Cabinet for
Health and Family Services. See, e.g., Appendix 1 “Enforcement Notice Served”
Email to Stack & Alexander (April 7, 2020). These officials were not, however, only
involved in Bullitt County, as they were tasked with statewide-level implementation
and enforcement efforts.
On Sunday, March 22, 2020, a mere three days after entry of the Executive
Order banning faith-based gatherings, a church in Northern Kentucky indicated to
its congregation that it intended to try to go forward with services. Church
correspondence obtained by the health department indicated that that services were
going to be limited to a certain number of people “[T]his is to keep the proper
distance between people to prevent contagion.” People were also requested to sign-
up online and were warned “[i]f you fail to sign up you may not be able to attend.”
15
This information was conveyed by the health department to Dr. Stack, who tellingly
responded:
Image 4. Appendix 1, Email from Stack to NKY Health Department (March 22,
2020). Following Dr. Stack’s comment that there was “no cure for ignorance or
obstinacy” the local health official indicated that “I need to talk to you in more detail
about this.” Id. No further communication on the subject is available, and the other
responding departments did not have additional direct correspondence with Dr.
Stack regarding similar issues. No Open Record request has, as of this time, been
sent to CHFS, DPH or Dr. Stack personally.
16
The responsive records included one document from the Kentucky
Department of Public Health, dated June 26, 2020. The following image appears in
the document:
Image 5. See Appendix 1 (June 26, 2020). This image reflects that, taking the
numbers at face value, as of June 26, 2020, there were 170 cases that were tied to
houses of worship, out of 14,859 cases total. Thus, by the Administration’s own
statistics, 1.1% of all COVID-19 cases in Kentucky were tied to churches. On the
other hand, 3,734 cases, or just slightly over 25% of cases, were tied to “long-term
case facilities” or “other congregate facilities.”
17
(3) Health Departments
As an initial matter, it deserves restating that many of the records from local
health departments reflect dedicated individuals trying to assist their local
communities with respect and fairness in their approach. The last email attached to
this report is a March 11, 2020, email that circulated among many health
departments. The document is from a local health official, who gave a list of
“suggestions” to local congregations, as well as his phone number and email. The
official went through a great number of practical solutions, framed as responsible
and reasonable ways that congregations could lessen the spread of COVID. See
Appendix 1, Church Suggestions Email (March 11, 2020). There were many emails
like this, where health officials appeared to do everything possible to be
accommodating and kind to pastors and congregations. As the restrictions from the
Governor’s Executive Orders were being put in place, many local health officials
indicated that they had to follow orders, even if some of them questioned whether
they had the authority to proceed.
While the most pressing concerns regarding First Amendment activity appear
to have direct involvement of state officials and state law enforcement, the records
obtained from local health departments did reveal that some local departments, in
response to the Governor’s Executive Orders, engaged in surveillance of churches,
18
and utilized local law enforcement resources to either assist in surveillance or in
closing down services.
For example, on March 21, 2020, a local health department requested that a
local official “have an officer stop by the church to ensure they do not have service.”
The local official responded: “Police stopped by a couple of times to ensure the
church was closed. By their 2nd visit it was mostly closed and empty.” Appendix 1,
“Re: Church violating the social distancing and public gathering orders” (March
21, 2020). It should be noted that, three days earlier, this same department had
received a report of 300+ people working in a large business “many have flu like
symptoms;” the only responsive document that is available states that the health
department official was “not sure if we should reach out to them to provide guidance
specifically or let it ride.” Appendix 1, “Voicemail Notification” (March 18, 2020).
On the same weekend, March 22, 2020, another county health department
specifically assigned several employees to go out and monitor churches on Sunday.
Image 6. Appendix 1 “FW: Churches” (March 22, 2020).
19
Our records request did not receive all reports from the employees who engaged in
the surveillance. However, the single report that was returned, noted that the
locations had been visited, how many cars were in the lot, and whether there were
signs on the doors. The employee noted that one church was having a service in the
parking lot, and it was “a stinking mess.” Appendix 1, “List of observation patrol
churches 3.22 10A-12P” (March 22, 2020).
The same county also indicated that it “would probably need” law
enforcement assistance in closing a church that had been having a service. Appendix
1, March 23, 2020 Email re: Church (March 23, 2020). An email from approximately
a week later regarding another church indicated that the department had “received a
multitude of complaints from citizens as well as law enforcement with pictures that
suggest the social distancing was not followed.” Appendix 1, Concerns (March 30,
2020).
Included in the documents received from the responding health departments
were, occasionally, communications from other health departments who were not
subject to the records request. The following items were of interest, based upon the
nature of the Treasury’s inquiry.
A non-responding health department indicated that at some point prior to
March 23, 2020, most likely either the 21st or the 22nd, the local Sheriff reached out
to directly contact a minister who had planned to have a service on the 22nd. Per the
20
email, “[T]he sheriff called the minister, and about an hour later, the minister posted
that the church would be closed.” Appendix 1, Enforcing Closures (March 23, 2020).
Earlier in the same email chain, a director from another local non-responding health
department indicated that “[o]ur issue is with churches – and no one feels
comfortable crossing that ‘religion’ line…”. Id.
During early April, when the Governor’s daily briefings and releases were
replete with references to church services, it is also instructive to note an email that
was circulated amongst all local health departments, from a District Director in a
non-responding health department. The email stated that the District Director was
“HIGHLY OFFENDED” by the fact that there were religious leaders who were
standing against the Governor’s orders. This Director indicated that “there is not a
religious leader in this country that I would hesitate to go toe-to-toe with to debate
saving lives by social distancing.” The Director further noted that “I’m taking the
reactions of our community members very personally.” This email was circulated to
at least one County Judge Executive, an official with CHFS, and numerous officials
in the local school systems, as well as all Local Health Department Directors
throughout the state. Appendix 1, FW: Situation Report (April 10, 2020).
21
B. Violations Related to “Non-Religious” First Amendment Exercise
On April 15, 2020, a crowd of approximately 100 individuals organized a
protest at the State Capitol during the Governor’s press conference. After this
protest, the Kentucky State Police restricted public access to areas around the
southeast side of the Capitol building, and placed barriers around certain areas.
These barriers had signage to the effect that the areas were “restricted zones” and
failure to adhere to them could result in criminal penalties. This event, along with a
later event on May 2, when KSP allegedly blocked off additional areas for “drive
through” protesting, resulted in a federal lawsuit. On June 24, 2020, United States
District Judge Gregory F. Van Tatenhove entered a Preliminary Injunction, finding
that the Governor’s actions related to First Amendment gatherings, had gone too far.
See Ramsek v. Beshear, 3:20-cv-00036-GFVT, Docket Entry 47 (E.D. Ky. June 24,
2020).
Unlike the religious exercise and assembly issues previously discussed, there
do not appear to be widespread violations of general, non-religious gatherings,
where people are attempting to exercise their First Amendment rights. Other than
the issues set forth in the Ramsek case, the only instance uncovered during a review
22
of documents was a single incident where a health department advised that a local
official “may” use police to break up a protest by parents who were protesting a
graduation cancellation, as it “technically goes against the Governor’s order related
to mass gatherings.” See Appendix 1, Emails May 7, 2020.
Indeed, by mid-June, high-level officials at CHFS emailed all local health
departments, and informed them that health departments were not to attempt
enforcement against the ongoing protests that were taking place in many areas
throughout the state. Appendix 1, Email from Wes Duke to LHDs (June 12, 2020).
23
APPENDIX 1
Emails & Records: Governor’s Office, CHFS,

Law Enforcement & Health Departments
City of Covington, Office of the Mayor

20 West Pike St., Covington, KY 41011
direct | 859-292-2127 main
fax 859-292-2137
Facebook | Twitter
www.covingtonky.gov
Sign up to receive our Eblasts
Disclaimer: Please note all content in this email may be subject to open records request.
From:
To: (LHD- Jessamine Co); LHD-Jessamine Co)
Cc: (LHD - Jessamine Co); (LHD - Jessamine Co); (LHD-
Jessamine Co)
Subject: ’s list of observation patrol churches 3.22 10A-12P
Date: Sunday, March 22, 2020 12:19:26 PM
St Athnasius- 7 cars in lot- sign on door

Ignite - service in parking lot but tons of ppl not doing social distancing - a stinking mess-
called
East Maple- closed- no sign
Faith Baptist- 3 cars and sign on door
Nichlolasville Christian- no cars and sign on door
St Luke- closed and sign
Nicholasville Church of Christ- no sign but no cars either
Jehova’s witness- closed- no sign but no cars
Generations- closed w sign on door
Harmony- 3 cars and practicing social distancing when dude in truck was talking to them
outside
New beginnings- closed no sign or cars
Sent from my iPhone

From: Stack, Steven J (CHFS DPH) on behalf of Stack, Steven J (CHFS DPH) <steven.stack@ky.gov>
To: @nkyhealth.org
Cc: Alexander, Kelly N (CHFS DPH)
Subject: RE: FW: from_the_pastor_coronavirus_letter_2.pdf [IMAN-DMS.FID583416]
Date: Sunday, March 22, 2020 6:07:49 PM
Thank you, ,

Sigh. No cure for ignorance or obstinacy.

Thanks for letting me know. I wish I had an answer to offer. One thing, certainly don’t send in any
armed officers. That would undermine our efforts to inspire people to be good citizens and do the
right thing.

Steve

Steven J. Stack, MD, MBA, FACEP
Commissioner
Kentucky Department for Public Health

From: @nkyhealth.org>
Sent: Sunday, March 22, 2020 5:15 PM
To: Stack, Steven J (CHFS DPH) <steven.stack@ky.gov>
Subject: Fwd: FW: from_the_pastor_coronavirus_letter_2.pdf [IMAN-DMS.FID583416]
**CAUTION** PDF attachments may contain links to malicious sites. Please contact the COT
Service Desk ServiceCorrespondence@ky.gov for any assistance.
, advised me to forward this email to you as a heads

up. We have history with this Church (Assumption) in Walton and are still in litigation. A
little over a week ago, we had checked to see if they were closed and it appeared they had.
We reviewed the steps they were taking that were consistent with the Governor's
recommendation. Evidently when the Governor ordered no faith-based gatherings, they
decided to go in a different direction (see attached). We learned about this from
last night. As you can see, our attorney has reached out to the
AG's office and will work with and the county attorney to determine the best next steps
to address.
Am happy to explain more as you see fit.

Firefox https://outlook.office.com/mail/inbox/id/AAQkADA4Yzg5MTRhLTg...
Enforcement Notice served

(LHD-Bullitt Co) @ky.gov>
Tue 4/7/2020 2:47 PM
To: Stack, Steven J (CHFS DPH) <steven.stack@ky.gov>
Cc: Alexander, Kelly N (CHFS DPH) <kelly.alexander@ky.gov>
Good a. ernoon Dr. Stack,
I wanted to give you a heads up. Unfortunately, today, we did have to serve the Pastor of Maryville Bap st
Church with an enforcement no ce to cease opera ons for mass gatherings. Our County A orney worked
with us on the wording of the no ce and he, along with our Judge Execu ve, have been in contact with the
Governor’s Office. When served the no ce, the Pastor informed our Environmental Supervisor that a lawsuit
was in the works and that he intends to hold service tomorrow evening. I want to assure you that we tried
reasoning and educa ng before we took this step. If you have any ques ons, please do not hesitate to call
me. My cell is .
I cannot thank you and your team enough for the support and guidance given to local health departments. So
proud to be a part of #TeamKentucky.
Happy Public Health Week,
Bulli County Health Department
Office:
Fax
Tell us: How are we doing? Please take our survey to let us know!
https://www.surveymonkey.com/r/33JXVVT
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contain confiden al informa on that is legally privileged and exempt from disclosure under applicable law. If the reader of this message is not the intended
recipient, you are no fied that any review, use, disclosure, distribu on or copying of this communica on is strictly prohibited. If you have received this
communica on in error, please contact the sender by reply e‐mail and destroy all copies of the original message.
1 of 1 6/22/2020, 10:26 AM
Active Churches 4/10/2020 11:21 AM
Church Address City Health Department Status

Brooklyn Missionary Baptist Church 3130 Brooklyn Rd Morgantown Barren River/Butler LHD confirms church is open and refuses to
close; pastor is also doing door to door
visitation of members.
LHD confirms church is open and refuses to
Maryville Baptist Church 130 Smith Lane Louisville Bullitt close.
Kingdom Center 12610 Taylorsville Road Louisville Jefferson No word from LHD
Centennial Olivet Baptist Church 1541 W. Oak Street Louisville Jefferson No word from LHD
Falmouth Baptist Church 303 West Shelby Street Falmouth Three Rivers/Pendleton No word from LHD
Have a good night.
Begin forwarded message:
From: @KENTONCOUNTY.ORG>
Date: April 9, 2020 at 4:47:18 PM EDT
Subject: FW: Church Protocol
Sheriffs

Please see the attachment above and context from emails from legal
counsel that we have consulted. Please use this as a guide as everyone
situation is unique within their jurisdictions.

I agree with the advice given, and largely agree that the
health department should take the lead on the civil side,
with any cease and desist warnings or injunctive relief.
However law enforcement can cite for violation of KRS
39A.180 (using UOR Code 02689 for any misdemeanor
charge not covered by other code.) Disorderly conduct
under KRS 525.060 may also fit, as a subsection
describes the element of “failing to disperse” when
ordered. I mention this because in addition to the civil
remedies all law enforcement is charged with enforcing
these law, and when in consult with the County Attorney
and authorized by their employing Sheriff, citing to
Court or even arresting may be appropriate or necessary.

1. This is clearly a first amendment issue and any action
taken certainly has significant potential to result in litigation.
To that end, a court order is highly advised and self-initiated
activity is not advised. 2. Diplomacy and persuasion are the
preferred methods for compliance. 3. Even if a court order
is issued, the Sheriff has the ability to disregard it. However,
that too may have consequences. 3. There is a potential for
the need for force, although it is a very low potential. The
issuance of emergency and court orders do not relieve a
Sheriff or his deputies from the requirement that any force
used be objectively reasonable.

April 9, 2020
TO ALL Sheriffs:
We have received information from Sheriffs from across the Commonwealth about churches that are
having services or going to have services during the Holy Week. We have spoken to legal counsel in
reference what we should do. We have not seen any order specifically banning church services, although
this may change.
• Does your county have a protocol in place with the local Health Department to investigate a
gathering if a complaint is lodged?
• The local Health Department has been directed to take the lead and go to the Pastor or Minster
to speak to them about holding services.
• If the Pastor or Minister refuses and is going to continue, then the health department should go
to consult the appropriate state agency and the County Attorney to see what actions will be
taken. Will a criminal summons or warrant be issued for the Pastor or Minster if they hold
services? Will a court order be sought, directing the services be shut down?
• If a court order is issued directing the Sheriff or his deputy to shut down a church service, it is
highly suggested that the health department take the lead and request the services be shut
down voluntarily. If a court order is issued the sheriff should speak to the Judge issuing the
order before carrying out the court order, specifically addressing what action the Judge we
would like the Sheriff or his deputies to take. Those actions should be spelled out clearly in the
order, to include citing or arresting the Minster or Pastor, including the appropriate charge, or
allow services to continue and issuing a summons for the Minster or Pastor after the services.
• IT IS HIGHLY SUGGESTED THAT ANY ACTION TAKEN BY THE SHERIFF VIA A COURT ORDER
CLOSING DOWN A CHURCH SERVICE SHOULD BE VIDEO AND AUDIO RECORDED FROM THE
TIME YOU WALK ONTO THE CHURCHES PROPERTY UNTIL THE TIME YOU LEAVE THE CHURCH
PROPERTY.
• Sheriffs should meet with his or her legal counsel, the County Attorney, the health department
and the Judge to formulate a plan of action to prevent a future potential litigation on the
Sheriffs’ office and the County.

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addressed and may contain confidential information that is legally privileged and exempt from disclosure under applicable law. If the
reader of this message is not the intended recipient, you are notified that any review, use, disclosure, distribution or copying of this
communication is strictly prohibited. If you have received this communication in error, please contact the sender by reply e-mail and
destroy all copies of the original message.

the service begins.

· License plate numbers should be recorded for those vehicles present at each gathering.
· A list containing the name and address of each vehicle owner should be forwarded to your
respective Troop Major by the close of business April 13th in order that the local health
department can formally send out notices of violation.

I appreciate your continued efforts as we try to minimize the spread of the COVID-19. Please feel
free to contact me should you have any questions or concerns at .

Commissioner Rodney Brewer
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601

“Good is the enemy of great”
---Jim Collins

I am attaching a flyer directed to me from the Governor’s office via the local health department concerning churches in
your post area that are expected to be non‐compliant to the current Executive Order regarding public gatherings during
the COVID pandemic this weekend. Please see that the following actions are taken regarding this situation:
 A visible presence at or near the parking lot entrance by at least two uniformed troopers utilizing at least one
marked SP as attendees are entering the parking lot for any in‐person services that may occur on April 10th and
12th (Friday & Sunday);
 PPE masks and gloves may be utilized but are not mandatory;
 Units are not expected to enter the actual church building;
 Copies of the attached flyer concerning COVID guidelines and a self‐imposed quarantine by those in attendance
should be placed on the windshield of each car in the parking lot after the service begins.
 License plate numbers should be recorded for those vehicles present at each gathering.
 A list containing the name and address of each vehicle owner should be forwarded to your respective Troop
Major by the close of business April 13th in order that the local health department can formally send out notices
of violation.

I appreciate your continued efforts as we try to minimize the spread of the COVID‐19. Please feel free to contact me
should you have any questions or concerns at .

Commissioner Rodney Brewer
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601

“Good is the enemy of great”
‐‐‐Jim Collins

3
RE: license plate info for church goers

Duke, Wesley W (CHFS OLS) <WesleyW.Duke@ky.gov>
Mon 4/13/2020 4:35 PM
To: (LHD-Bullitt Co) @ky.gov>
Sounds good. Do you have the addresses for the non‐Bulli County people on the list?
From: (LHD‐Bulli Co) @ky.gov>

Sent: Monday, April 13, 2020 4:26 PM
To: Duke, Wesley W (CHFS OLS) @ky.gov>
Subject: RE: license plate info for church goers
Dr. Stack agreed that cer. fied le er was sufficient as to avoid the “honeybee” effect and to decrease exposure

to our staff.
From: Duke, Wesley W (CHFS OLS) @ky.gov>
To: (LHD‐Bulli Co) @ky.gov>
Cc: Alexander, Kelly N (CHFS DPH) @ky.gov>
Subject: RE: license plate info for church goers
It is my understanding that for the Bulli County individuals the LHD needs to a empt to go to the

residence and get them to sign a voluntary quaran ne form. If they will not just let me know and we can
discuss further steps.
From: (LHD‐Bulli Co) @ky.gov>

To: Duke, Wesley W (CHFS OLS) @ky.gov>
Cc: Alexander, Kelly N (CHFS DPH @ky.gov>
Subject: license plate info for church goers
Good a ernoon Mr. Duke,
Could you please contact me regarding the handling of license plate informa on? My cell phone is
. I’ve a ached a le er that was changed to address the situa on and the self‐monitor restricted
movement agreement.
Here’s the breakdown of the license plates that were recorded at Maryville Bap st Church:
33 recorded (including duplicated license plates)
13 Bulli County
7 Jefferson
2 Nelson
1 Grayson
1 Boone
1 Chris an
1 Sco
1 Rowan
1 Whitley
3 out of state (Maine, Massachuse s, and Colorado)
1 of 2 6/22/2020, 10:11 AM
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** Internal Work Document **
2019 Novel Coronavirus Key Points

6-26-2020
KENTUCKY1 UNITED STATES2 WORLD3

State of Emergency declared March 6, 2020 Risk to Americans is widespread WHO declared pandemic on March 11, 2020
14,859 2,414,870 9,473,214

Cases (↑242) Cases (↑40,588) Cases (↑177,012)
553 124,325 484,249

Deaths (↑7) Deaths (↑2,516) Deaths (↑5,116)
3.7% 5.1% 5.1%

Mortality Rate Mortality Rate Mortality Rate
119 counties 56 states + territories 215 countries

with at least one case with at least one case with at least one case
1Kentucky Department for Public Health

2The Centers for Disease Control and Prevention https://www.cdc.gov/coronavirus/2019-ncov/cases-in-us.html
3The World Health Organization https://www.who.int/emergencies/diseases/novel-coronavirus-2019/situation-reports/
Hello All, This is with the Health Dept. I would like to give you basic
information about the Corona Virus(COVID-19) and offer you the opportunity to ask questions
anytime. You can call me back on my phone listed below or email. You can also go to the
Health Dept facebook or website and find general information.
To my knowledge there are currently no cases of the COVID-19 virus in or Kentucky.

However, we should think about the precautions we use for the Flu as a general ongoing
precaution. Most people recover from this virus or have a mild case however at this time there
is no vaccination for the virus so more severe cases could happen. Given there is no vaccination
at this time, see the following suggestions as things you can consider.
Here are suggestions for you to consider in your services:

Social distancing- how can you rearrange your sitting arrangements so people can still attend
the service but not sit next directly next to each other?
Hand Shake/hugging- encouraging your congregation to refrain from this particularly during
outbreak times is very beneficial. One of the ways that viruses spread the easiest is by people
putting their hands on their faces/mouth after having a virus on their hands. I realize
eliminating hand shakes/hugging would possibly anger some people, but this is a great way to
help your congregation stay healthy.
On line Services- some churches already have this option and this is a great way in an outbreak
to have people still participate in the service without being present in the building. I realize if
people aren't in the building that other things might be affected, i.e.-offering, communion, etc.
but this is a option.
Communion- many churches pass the bread plate and everyone grabs a piece of bread out of it.
While quick, this also allows everyone to touch multiple pieces of bread while grabbing their
own. This is a great way to spread germs. I may be wrong but I think the bread/juice can be
bought in separate packages that each individual gets that eliminates this issue. If you are a
church that everyone drinks out of the same cup for the juice, obviously this can spread germs
quickly as the mouth is a gateway to the immune system for germs.
Extra cleaning- I'm sure that churches regularly clean on a weekly basis. Adding extra cleaning
of surfaces particularly in childcare rooms, pews and classrooms can help stop the spread of
viruses.
Hand Washing- Encourage your congregation to wash hands frequently or use hand sanitizer if
hand washing is not possible. This is vital if you have meals at the church, work in the childcare
area, cooking food for members, etc.
Coughing/Sick-encourage all members who are sick or show signs of sickness to stay home
from the service.
Personal Health- please have a conversation with your congregation about everyone being
responsible for their own health. Obviously anyone can get sick at anytime including disease.
One of the best prevention methods each of us has is being as healthy as we can to build our
immune system. This discussion would include healthy eating, exercise, rest, physical exams,
etc.
While any of us can get a disease at anytime, I truly believe that helping our congregations be as
healthy as possible is part of the kingdom work!
Please call/email/text me anytime and I will be glad to discuss options with you at anytime.
Health Dept
APPENDIX 2
Executive Orders
,,-
CABINET FOR HEALTH AND FAMILY SERVICES

OFFICE OF LEGAL SERVICES
Andy Beshear 275 East Main Street, 5W-B Eric C. Friedlander

Governor Frankfort, KY 40621 Acting Secretary
502-564-7905
502-564-7573 Wesley W. Duke
www.chfs.ky.gov
General Counsel
ORDER
March 19, 2020
On March 6, 2020, Governor Andy Beshear signed Executive Order 2020-215, declaring a state of
emergency in the Commonwealth due to the outbreak of COVID-19 virus, a public health emergency.
Pursuant to the authority in KRS 194A.025, KRS 214.020, KRS Chapter 39A, and Executive Orders
2020-215 and 2020-243, the Cabinet for Health and Family Services, Department of Public Health,
hereby orders the following directives to reduce and slow the spread of COVID-19:
1. All mass gatherings are hereby prohibited.
2. 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.
3. For the avoidance of doubt, a mass gathering does 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. It
also does not include typical office environments, factories, or retail or
grocery stores where large numbers of people are present, but maintain
appropriate social distancing.
4. Any gathering, regardless of whether it is a mass gathering prohibited under

this Order, shall to the extent practicable implement Centers for Disease
Control guidance, including:
• maintaining a distance of 6 feet between persons;
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Case: 20-6341 Document: 27 Filed: 11/28/2020 Page: 1

COMMONWEALTH OF KENTUCKY, ex rel Attorney General Daniel Cameron

ANDREW G. BESHEAR, in his official capacity as Governor of the

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

AMICUS CURIAE BRIEF OF

/s/ Noah R. Friend

IDENTITY, INTEREST & AUTHORITY TO FILE AMICUS ...........................1

STATEMENT REQUIRED BY FED R. APP. P. 29(2)(4)(E) ..............................3

SUMMARY OF THE ARGUMENT .....................................................................4

A. Appellant Has Previously Used Executive Orders to Discriminate Against

CERTIFICATE OF SERVICE ...............................................................................17

CERTIFICATE OF COMPLIANCE ......................................................................18

APPENDIX (Treasurer’s Report)

Raney v. Stovall, 361 S.W. 2d 518 (Ky. 1962)……….. .....................................7

Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020) .................................................10

Ky. Rev. Stat. § 41.010 ...........................................................................................7

UNICEF, Averting a Lost COVID Generation: A Six-Point Plan to Respond,

Maryville Baptist Church v. Beshear, 3:20-cv-278 Memorandum in Support of

November 20, 2020 K-12 Public Health Report………………………………….13

IDENTITY, INTEREST & AUTHORITY

(A) IDENTITY & INTEREST OF THE MOVANT

The Movant is the elected State Treasurer of the Commonwealth of Kentucky.

see also, Ky. Rev. Stat. § 41.010 et seq.

development, promulgation, and enforcement of the Defendant-Appellant Andrew

Beshear’s (hereinafter “Appellant”) Executive Orders involves the expenditure of

conclude that Executive Order 2020-969 constitutes a further unwarranted and

unconstitutional incursion upon religious liberty by the Appellant.

(B) RELEVANCE OF BRIEF FOR AMICUS CURIAE

As part of her official responsibilities as State Treasurer, the Movant’s office

has extensively reviewed thousands of pages of documents and communications

regarding COVID-19 restrictions imposed upon First Amendment religious exercise

to the Interim Joint Committee on Judiciary of the Kentucky General Assembly on

significant direct communications involving high-level members of the Appellant’s

of the Appellant’s executive orders. These communications add perspective to the

orders issued by the Appellant.

(C) AUTHORITY TO FILE AMICUS BRIEF

STATEMENT REQUIRED BY FED. R. APP. P. 29(a)(4)(E)

The District Court properly determined that Appellant’s Executive Order

2020-969 violates the First Amendment of the United States Constitution.

The Appellant’s prior conduct throughout the COVID-19 pandemic has

reopening private, religious schools, are so unduly burdensome as to likely constitute

and possibly beyond.

“This is not a highly nuanced, sophisticated response. This is a fear-

“Sigh. No cure for ignorance or obstinacy.”

are choosing to enforce COVID-19 closures: broad, fear-driven responses, backed

by an underlying refusal to recognize either the constitutional rights at stake, or the

reasoned, scientific approach to combating the COVID-19 pandemic. The Appellant

as well as vital distinctions as to how COVID-19 impacts different communities and

institutions. Indeed, a recent UNICEF report notes:

UNICEF, Averting a Lost COVID Generation: A Six-Point Plan to Respond,

of Communications (November, 2020) available online at

childrens-day-data-and-advocacy-brief-2020.pdf (last visited November 28, 2020).

The Appellant’s unduly harsh policy closing private religious schools is

unconstitutional and continues to risk irreparable damage to faith-based schools, and

the individuals who attend and support these institutions.

A. APPELLANT HAS PREVIOUSLY USED EXECUTIVE ORDERS TO

As the elected State Treasurer of the Commonwealth of Kentucky, amicus is

responsible for assuring that the expenditures of the Commonwealth of Kentucky