Roberts V Neace Appellant Brief

Case: 20-5465 Document: 35 Filed: 06/29/2020 Page: 1
CASE NO. Nos. 20-5427/5465
UNITED STATES COURT OF APPEALS

for the SIXTH CIRCUIT
MARYVILLE BAPTIST CHURCH, INC.;
DR. JACK ROBERTS,
No. 20-5427
Plaintiffs–Appellants,
On Appeal from the
v. United States District
Court for the Western
ANDY BESHEAR, in his official capacity District of Kentucky
as Governor of the Commonwealth of Case No. 3:30-CV-00278
Kentucky,
Hon. David J. Hale
Defendant–Appellee.
_____________________________________________________________
THEODORE JOSEPH ROBERTS, et al., on
behalf of themselves and all others similarly
situated,
No. 20-5465
Plaintiffs-Appellants,
On Appeal from the United
v. States District Court for the
Eastern District of Kentucky
HONORABLE ROBERT D. NEACE, et al., Case No. 2:20-cv-00054
Defendants-Appellees. Hon. William O. Bertelsman

ROBERTS PLAINTIFFS/APPELLANT’S BRIEF
Christopher Wiest (KBA 90725) Thomas B. Bruns (KBA #84985)

25 Town Center Blvd, STE 104 4750 Ashwood Drive, Suite 200
Crestview Hills, KY 41017 Cincinnati, Ohio 45241
513-257-1895 513-312-9890
[email protected] [email protected]
Attorneys for Plaintiffs/Appellants Theodore Joseph Roberts, Randall Daniel, and

Sally O’Boyle, Plaintiffs in Case No. 20-5465
CORPORATE DISCLOSURE STATEMENT
Pursuant to FRAP 26.1, Plaintiffs/Appellants Theodore Joseph Roberts,
Randall Daniel, and Sally O’Boyle (together, the “Plaintiffs”) are not subsidiaries
or affiliates of a publicly owned corporation. There is no publicly owned
corporation, not a party to the appeal, which has a financial interest in the outcome.
ii
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT .................................................... ii
TABLE OF CONTENTS ...................................................................................... iii
TABLE OF AUTHORITIES ..................................................................................v
STATEMENT CONCERNING ORAL ARGUMENT ...................................... xi
JURISDICTIONAL STATEMENT .......................................................................1
STATEMENT OF THE ISSUES............................................................................1
INTRODUCTION....................................................................................................1
STATEMENT OF THE CASE AND FACTS .......................................................3
A. Background and COVID-19 Orders...............Error! Bookmark not defined.
B. The Plaintiffs attend Easter Sunday Church and come out of church to
find the Governor has targeted them for enforcement .....................................6
C. The Due Process Issues with the Governor’s orders.................................10
D. Subsequent Events ........................................................................................11
SUMMARY OF THE ARGUMENT ...................................................................13
ARGUMENT ..........................................................................................................13
I. The District Court erred in failing to grant an injunction where it
disregarded a published decision by this Court issued only two days before.
………………………………………………………………………………11
3
A. Preliminary injunction standard ..........................................................13
B. Plaintiffs demonstrated a likelihood of success on the merits on the
Free Exercise Claim, but the District Court disregarded the most recent
precedent of this Court in holding otherwise ...............................................14
C. Plaintiffs demonstrated a likelihood of success on the merits on the
Due Process Claim...........................................................................................26
D. The other injunction factors also warranted a grant of the
preliminary injunction ....................................................................................28
II. The case is not moot due to the changed orders ........................................29
A. Plaintiffs actually violated the mass gathering ban, subjected
themselves to criminal prosecution, and received a threat of that criminal
prosecution; as such, as to the in person corporate worship ban, the
iii
claims related to that ban are not moot, at least insofar as an injunction
prohibiting their criminal prosecution is concerned ...................................29
B. The voluntary cessation doctrine applies .............................................30
C. This case presents a classic case of capable of repetition yet evading
review................................................................................................................33
III. The Chief Justice’s concurring opinion in South Bay United Pentecostal
Church does not change the outcome ...............................................................34
A. Chief Justice Roberts’ concurrence on an order denying injunctive
relief pending appeal in the U.S. Supreme Court does not create any
precedent, much less binding precedent .......................................................37
B. There is no binding precedent to be created because five justices did
not join in a written opinion, particularly where other Justices who voted
to deny relief have repeatedly decried injunctions pending appeal in the
United States Supreme Court, instead electing to leave in place the Circuit
Courts of Appeals’ decisions while appeals are litigated ............................41
C. Other recent precedent from the Supreme Court suggests that it may
be differentiating cases in which there are total or near total bans from
protected activities, versus some limitations that are roughly
proportionate to other similar activities .......................................................42
D. Nothing has altered the binding precedent in this Circuit of Roberts
v. Neace, 958 F.3d 409 (6th Cir. 2020) ...........................................................43
IV. Boone County Attorney Neace is a proper party. ..................................44
CONCLUSION.......................................................................................................45
CERTIFICATE OF SERVICE ............................................................................46
APPENDIX -- DESIGNATION OF THE DISTRICT COURT RECORD ....... i
iv
TABLE OF AUTHORITIES
Cases:
Already, LLC v. Nike, Inc., 568 U.S. 85 (2013)..................................................... 30
Aristotle Pub. v. Brown, 61 F. App'x 186 (6th Cir. 2003)………….…………..... 14
Ashland, Inc. v. Oppenheimer & Co., 648 F.3d 461 (6th Cir. 2011)…….. 12, 13, 26
Barefoot v. Estelle, 463 U.S. 880 (1983) ……………..……………………... 37, 38
Barr v. E. Bay Sanctuary Covenant, 140 S. Ct. 3 (2019)………………………... 40
Bays v. City of Fairborn, 668 F.3d 814 (6th Cir. 2012)………………………..... 29
BMW of N. Am. v. Gore, 517 U.S. 559 (1996)………….……………………..... 27
Bowman v. Schwarzenegger, 2009 U.S. Dist. LEXIS 24678 (ED Cal 2009)…... 30
Brown v. Allen, 344 U.S. 443 (1953)............................................................. 37, 38
Cahoo v. SAS Analytics, Inc., 912 F.3d 887 (6th Cir. 2019)............................... 28
Cantwell v. Connecticut, 310 U.S. 296 (1940)………………………………... 15
Carey v. Piphus, 435 U.S. 247 (1978)……………………………………….... 26
Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520
(1993)………………………………………………………………. 15, 16, 17, 18
Citadel Corp. v. Puerto Rico Highway Authority, 695 F.2d 31 (1st Cir. 1982).. 42
City of L.A. v. Lyons, 461 U.S. 95 (1983)…………..………………………….. 31
City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982).......................... 30
City of Pontiac Retired Emps. Ass'n v. Schimmel, 751 F.3d 427 (6th Cir. 2014)..28
Elim Romanian Pentecostal Church, et al. v. J. B. Pritzker, Governor of Illinois,

No. 19A1046, 2020 WL 2781671 (May 29, 2020) ………………………... 42, 43
v
Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872
(1990)……………………………………………………………………... 15, 16
Fed. Election Comm'n v. Wisconsin Right To Life, Inc., 551 U.S. 449 (2007).. 33
First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (1978)………….……….... 33
Fraternal Order of Police Newark Lodge No.12 v. City of Newark, 170 F.3d 359
(3d Cir. 1999)…………………………………………………………….... 19, 20
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S.
167 (2000)……………………………………………………………………….. 31
Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985).... 36
House v. Mayo, 324 U.S. 42 (1945)…………..………………………………... 38
Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363 (1973) …………. 37
In re DeLorean Motor Co., 755 F.2d 1223 (6th Cir. 1985)………..…………….. 14
Jacobson v. Massachusetts, 197 U.S. 11 (1905)……………..…...……………... 36
Jones v. Caruso, 569 F.3d 258 (6th Cir. 2009) ………………………………..... 14
Kingdomware Tech., Inc. v. United States, 136 S. Ct. 1969 (2016) …………..... 33
Lux v. Rodrigues, 561 U.S. 1306 (2010)………………………………………... 40
Marks v. United States, 430 U. S. 188 (1977)...................................................... 41
Marshall v. United States, 414 U. S. 417 (1974)……………………………….. 36
Maryland v. Baltimore Radio Show, 338 U.S. 912 (1950)…………………...... 37
Maryland v. King, 133 S. Ct. 1 (2012)……………………………………….... 38
Maryville Baptist Church, Inc., et. al. v. Beshear, 957 F.3d 610 (6th Cir.
2020)…………………………………………………………………….... passim
vi
Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 138 S. Ct. 1719
(2018).............................................................................................................. 18
Mathews v. Eldridge, 424 U.S. 319 (1976)…………….…………………..... 26
McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844
(2005)………………………………………………………………………... 32
McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015)……………….…….. 31
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950)................ 26
In re Murchison, 349 U.S. 133, 136 (1955)………………………………….. 26
New England Health Care Employees Pension Fund v. Ernst & Young, LLP, 336
F.3d 495 (6th Cir. 2003)………………………………………………... 12, 13, 26
Norman-Bloodsaw v. Lawrence Berkely Lab., 135 F.3d 1260 (9th Cir 1998)..... 31
Olagues v. Russoniello, 770 F.2d 791 (9th Cir. 1985)………...……………….... 32
On Fire Christian Center, Inc. v. Fischer, 3:20-CV-264, 2020 U.S. Dist. LEXIS
65924 (WDKY April 11, 2020) ………………………………………………….. 2
Panetti v. Quarterman, 551 U.S. 930 (2007) ………………………...…….….... 24
Pierce v. Ducey, , 2019 WL 4750138, at *1 (D. Ariz. Sept. 30, 2019)… ...…….. 32
Porter v. Bowen, 496 F.3d 1009 (9th Cir. 2007)………….…………………….. 31
Ramsek v. Beshear, EDKY Case No. 3:20-CV-00036 ……………………... 12, 26
Respect Maine PAC v. McKee, 562 U.S. 996 (2010)……………………….. 35, 39
Russell v. Lundergan-Grimes, 784 F.3d 1037 (6th Cir. 2015)……………...….... 45
Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020)…………………………..... passim
Sacks v. Office of Foreign Assets Control, 466 F.3d 764 (9th Cir. 2006)….... 29, 30
vii
Salmi v. Sec'y of Health & Human Servs., 774 F.2d 685 (6th Cir. 1985)……... 44
South Bay Pentecostal Church v. Newsom, No. 3:20-cv-00865-BAS-AHG (S.D.

Cal. May 8, 2020)………………………………………………………………. 34
South Bay Pentecostal Church v. Newsom, No. 20-55533 (9th Cir. May 15,
2020).................................................................................................................... 35
South Bay Pentecostal Church v. Newsom, 19A1044 (May 29. 2020)….... passim
Southern Pac. Terminal Co. v. ICC, 219 U.S. 498 (1911)……………………... 33
Sunal v. Large, 332 U.S. 174 (1947)…………….……………………………... 38
Suster v. Marshall, 149 F.3d 523 (6th Cir. 1998)................................................ 14
Teague v. Lane, 489 U.S. 288 (1989)……………………………..………….... 37
Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707
(1981)………………………………………………………………………….. 15
Timmreck v. United States, 577 F.2d 372 (6th Cir. 1978), overruled on other
grounds by United States v. Timmreck, 441 U.S. 780 (1979)…………………... 24
Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017)
........................................................................................................................ 30-31
Turner v. Rogers, 564 U.S. 431 (2011)……………..………………………….. 33
Twumasi-Ankrah v. Checkr, Inc., 954 F.3d 938 (6th Cir. 2020)…………….... 12
United States v. Carver, 260 U.S. 482 (1923) ……………….……………...... 37
United States v. James Daniel Good Real Prop., 510 U.S. 4 (1993)……….... 28
U.S. v. Playboy Entm't Group, Inc., 529 U.S. 803 (2000)………….………... 14
United States v. Sanchez-Gomez, 138 S. Ct. 1532 (2018)……………...... 31, 32
viii
Ward v. Polite, 667 F.3d 727 (6th Cir. 2002)…………..……….... 19, 20, 22
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ……….... 14, 15
Wheaton College v. Burwell, 573 U.S. 958, 964 (2014)............................ 40
Winter v. Wolnitzek, 834 F.3d 681 (6th Cir. 2016)………………….…... 44
Statutes and Rules:
Statutes:
28 U.S.C. § 1292(a)(1) ...............................................................................................1
28 U.S.C. § 1332 ........................................................................................................1
K.R.S. 15.725..................................................................................................... 3, 44
K.R.S. 24A.110……………………………………………………………….. 3, 44
K.R.S. 39A.190……………………………………………………………………..4
K.R.S. 39A.990………………………………………………………………... 4, 29
K.R.S. 214.990……………………………………………………………………..4
K.R.S. 500.050…………………………………………………………………... 29
Rules:
S.Ct. R. Practice 10 ..................................................................................................39
Statutes:
https://govsite-assets.s3.amazonaws.com/gVhJiELFTjySR5TaGWvL_CHFS%20-
%205-9-2020%20Order.pdf (last visited 6/25/2020).... 12
ix
https://govsite-assets.s3.amazonaws.com/M0wewsTiSoSeuiMVdySy_CHFS%20-
%205-9-2020%20Order%20and%20Guidance-1-.pdf (last visited 6/25/2020).... 12
https://govstatus.egov.com/ky-healthy-at-work ... 12
https://govstatus.egov.com/kycovid19 (last visited 4/13/2020) ... 8
https://www.cdc.gov/coronavirus/2019-
ncov/community/organizations/index.html (last visited 4/13/2020); ... 7
https://www.cdc.gov/coronavirus/2019ncov/community/organizations/guidanceco
mmunity-faith-organizations.html (last visited 4/13/2020). ... 7
https://www.census.gov/quickfacts/fact/table/bullittcountykentucky,KY/PST04521
8 (last visited 4/13/2020).... 8
https://www.cnn.com/2020/05/02/health/coronavirus-second-wave-fall-
season/index.html (last visited 6/5/2020)... 34
https://www.foxnews.com/health/coronavirus-vaccine-may-never-come-health-
expert-warns (last visited 6/5/2020)..... 34
https://www.theguardian.com/world/2020/may/22/why-we-might-not-get-a-
coronavirus-vaccine (last visited 6/5/2020) ... 34
https://www.usatoday.com/story/news/2020/05/17/coronavirus-peak-america-
ready-second-wave-fall/3096338001/ (last visited 6/5/2020)... 34
https://www.washingtonpost.com/health/2020/04/21/coronavirus-secondwave-
cdcdirector/ (last visited 6/5/2020) ... 34
https://www.youtube.com/watch?v=SJVDhu38S68&feature=youtu.be (last visited

4/16/2020). This statement can be found at between the 35:44-39:35 mark. ... 5, 6
x
STATEMENT CONCERNING ORAL ARGUMENT
This case involves an appeal of the constitutionality of a COVID-19 related
“mass gathering ban” related to in-person worship. As such, it presents important
issues for this Court and oral argument is warranted.
xi
JURISDICTIONAL STATEMENT
The District Court had federal question jurisdiction over Plaintiffs’ federal
constitutional claims under 28 U.S.C. §1331.
On May 4, 2020, the District Court granted in part and denied in part, a
preliminary injunction. [Opinion, RE#46, PageID#825-839, Injunction, RE#47,
PageID#840]. A timely notice of appeal was filed on May 4, 2020. [Notice of
Appeal, RE#48, PageID#841-858]. Accordingly, this Court has jurisdiction over
Plaintiffs’ appeal under 28 U.S.C. §1292(a)(1).
STATEMENT OF THE ISSUES
The appeal presents the following question:
(1) Did the District Court err in refusing to grant a preliminary injunction
restoring Plaintiffs’ ability to attend in-person church service and to
be free from prosecution for attending church?
(2) Did the District Court err in refusing to grant a preliminary injunction
on Plaintiffs’ due process claims as to the Governor’s mass gathering
ban?
INTRODUCTION
Plaintiffs – a regular congregant at the Maryville Baptist Church, Randall
Daniel, and two of his guests, Theodore Roberts and Sally O’Boyle – attended
Easter Sunday services at the Maryville Baptist church in defiance of the
1
Governor’s mass gathering ban. As the Western District of Kentucky recently
noted: “… an American [Governor] criminalized the communal celebration of
Easter.” [TRO Opinion, On Fire Christian Center, Inc. v. Fischer, 3:20-CV-264,
2020 U.S. Dist. LEXIS 65924 (WDKY April 11, 2020)]. “That sentence is one
that this Court never expected to see outside the pages of a dystopian novel, or
perhaps the pages of The Onion.” Id.
Following the threat of prosecution and being targeted for the same by
Defendants, Plaintiffs, by and through Counsel, filed suit seeking declaratory and
injunctive relief under the First Amendment’s Free Exercise Clause. They sought
a preliminary injunction to (i) be able to attend in-person church services without
fear of prosecution, and (ii) enjoin Defendants from criminally prosecuting or
quarantining Plaintiffs for having attended church on Easter Sunday. One of the
Plaintiffs, Mr. Roberts, also sought relief and a preliminary injunction below as to
Kentucky Governor Andrew Beshear’s travel ban, which the District Court found
was likely unconstitutional; the Governor has since repealed this ban.
The District Court, in a mixed opinion, granted a preliminary injunction on
the travel ban, but refused it as to in-person church worship. [Opinion, RE#46,
PageID#825-839, Injunction, RE#47, PageID#840].
2
STATEMENT OF THE CASE AND FACTS
A. Background and COVID-19 Orders
Plaintiffs are practicing Christians who testified to their sincerely held
religious beliefs concerning in-person worship, particularly on Easter Sunday.
[Am. Verified Compl, RE#6, PageID#72; Dec. Roberts, RE#7-2, PageID#150-155;
Declaration Daniel, RE#7-3, PageID#150-155; Declaration O’Boyle, RE#7-4,
PageID#160-164].
Defendants, who include Boone County Attorney and prosecutor Bob
Neace,1 Governor Andrew Beshear, and Secretary Friedlander, were all sued in
their official capacities as they all are intimately involved with the enforcement of
the challenged orders. [Am. Verified Compl, RE#6, PageID#72-73; Declaration
Roberts, RE#7-2, PAGEID#150-155].
By way of background, on March 19, 2020, in response to COVID-19, the
Governor issued an order (the “mass gathering ban”) that prohibited some, but not
all, public “mass gatherings.” [Am. Verified Compl., RE#6, PageID#74-75, and
Exhibit D thereto, PageID#99-100]. The Governor’s exercise in word play could
not be clearer. On the one hand, his order provided that “[a]ll mass gatherings are
1
Mr. Neace has the statutory duty to “attend the District Court in his county and
prosecute all violations whether by adults or by juveniles subject to the jurisdiction
of the regular or juvenile session of the District Court of criminal and penal laws
…” K.R.S. 15.725 (emphasis added). The District Court has jurisdiction over all
misdemeanors. K.R.S. 24A.110.
3
hereby prohibited.” But then, in paragraph 3 of the same order, he simply
exempted a number of purely secular activities from this definition. As
enumerated in paragraph 3, and for the avoidance of doubt, the order states that 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.” Id. “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.”2 Id.
The mass gathering ban referenced K.R.S. Chapter 39A and/or K.R.S.
Chapter 214 as authority for its promulgation. [Am. Verified Compl., RE#6,
PageID#76, and Exhibit D, PageID#99-100]. Both of those Chapters contain
criminal penalties. K.R.S. 39A.990 (Class A misdemeanor for any violations of
orders); K.R.S. 214.990 (Class B misdemeanor for any violations of orders).
K.R.S. 39A.190 gives police officers authority to “arrest without a warrant any
person violating or attempting to violate in the officer’s presence any order or
administrative regulation made pursuant to” KRS Chapter 39A. The Governor also
created the
2
Yet another notable exception was the Governor’s own daily press conference,
where reporters and members of the media engaged in a daily indoor mass
gathering. Presumably, the Governor would say this was simply a “typical office
environment” and, therefore, not a mass gathering under his order.
4
“COVID-19 Reporting Hotline” and requested that Kentuckians call it “for
complaints about noncompliance with coronavirus mandates.” Id. at PageID#81.
On March 22, 2020, the Governor and/or his designees shut down additional
“non-life sustaining” retail establishments to in-person traffic, but left other “life
sustaining” retail establishments open such as convenience stores selling lottery
tickets and six packs of beer. [See Am. Verified Complaint, RE#6-5, Exhibit E,
PageID#32-35]. On March 23, 2020, the Governor and/or his designees banned
most elective medical procedures. [See Am. Verified Complaint, RE#6-6, Exhibit
F, PageID#36-37]. On March 25, 2020, the Governor and/or his designees shut
down additional businesses for in-person work, while leaving others open. [See
Am. Verified Complaint, RE#6-7, Exhibit G, PageID#38-44].
In his evening briefings after promulgating the mass gatherings ban, the
Governor made clear that he was going to target religious services for quarantine
notices, apart from other gatherings. [Am. Verified Compl., RE#6, PageID#78;
Declaration Roberts, RE#7-2, PageID#150-155].3
Specifically, the Governor spoke about “mass gatherings,” but then admitted
he was talking about “less than seven churches” statewide. Id. He also admitted
that he had been “focused a lot on an individual church or pastor.” [Id. Video, at
3
https://www.youtube.com/watch?v=SJVDhu38S68&feature=youtu.be (last visited
4/16/2020). This statement can be found at between the 35:44-39:35 mark.
5
the 35:44-39:35 mark]. He admitted he was sending out enforcers to take and
record the license plate number of church attendees and then would force those
attendees to quarantine. Id. The Governor admitted that the prohibition on “mass
gatherings” applied to “in-church” services. Id. at 49:39-51:28. Further, in
response to a reporter’s questions, he stated that these enforcement activities
applied only to the Easter weekend services and church services. Id. at 1:08:00 to
1:08:07. Governor Beshear then carried out his threats. Id.
During the COVID-19 outbreak, Governor Beshear and the other Defendants
have actively enforced the Governor’s executive orders, including ordering
sheriff’s deputies to forcibly quarantine at least one Kentuckian who attempted to
travel. [Am. Verified Complaint, RE#6, ¶46, PageID#81; Declaration Roberts,
RE#7-2, PageID#150-155].
Multiple Kentuckians living in Louisville have been ordered to wear ankle
monitors to ensure compliance with their government-ordered quarantines, even
though those individuals have not tested positive for COVID-19. [Am. Verified
Complaint, RE#6, ¶47, PageID#81].
On the same day that the Governor instituted the Travel Ban, he also created
the “COVID-19 Reporting Hotline” and requested that Kentuckians call it “for
complaints about non-compliance with coronavirus mandates.” [Am. Verified
6
Complaint, RE#6, ¶48, PageID#81; Declaration Roberts, RE#7-2, PageID#150-
155].
B. The Plaintiffs attend Easter Sunday Church and come out of church to
find the Governor has targeted them for enforcement
On Easter Sunday, April 12, 2020, Plaintiffs TJ Roberts, Randall Daniel, and
Sally O’Boyle attended Easter church service at Maryville Baptist Church, in
Hillview, Bullitt County Kentucky. [Am. Verified Compl., RE#6, PageID#76;
Declaration Roberts, RE#7-2, PageID#150-155]. They each did so pursuant to
sincerely held religious beliefs that in-person church attendance was required,
particularly on Easter Sunday. [Id.; Declaration Roberts, RE#7-2, PageID#150-
155; Declaration Daniel, RE#7-3, PageID#156-159; Declaration O’Boyle, RE#74,
PageID#160-164].
While at the service, each ensured appropriate social distancing and took
other measures appropriate for the circumstances in accordance with CDC
Guidelines.4 Id. Among other things, they each sat six feet away from other
congregants at the service, wore masks covering their faces, and did not have
personal contact with others attending. Id. No evidence exists that anyone with
COVID-19 was in attendance at any of the April 12, 2020, Easter services. Id.;
4
https://www.cdc.gov/coronavirus/2019-
ncov/community/organizations/index.html (last visited 4/13/2020);
https://www.cdc.gov/coronavirus/2019ncov/community/organizations/guidancec
ommunity-faith-organizations.html (last visited 4/13/2020).
7
[Declaration Roberts, RE#7-2, PageID#150-155; Declaration Daniel, RE#7-3,
PageID#156-159; Declaration O’Boyle, RE#7-4, PageID#160-164].
Church leadership appeared to take the COVID issue seriously, in that they
had the choir and other celebrants of the service spaced six feet apart, and it
appeared that the church interior had been sanitized prior to the service.
[Declaration Roberts, RE#7-2, PageID#150-155]. At that time, there were between
11 and 50 persons in Bullitt County5 with a COVID-19 diagnosis, out of a
population of 81,676.6 [Declaration Roberts, RE#7-2, PageID#150-155]. In other
words, 0.06% of the population had a diagnosis. Id.
When Plaintiffs TJ Roberts, Randall Daniel, and Sally O’Boyle exited the
service, they found on their windshields the following notice (“Quarantine and
Prosecution Notice”), placed there by Kentucky State Troopers:
Id.
5
https://govstatus.egov.com/kycovid19 (last visited 4/13/2020)
6
https://www.census.gov/quickfacts/fact/table/bullittcountykentucky,KY/PST0452
18 (last visited 4/13/2020).
8
Other than sending state troopers to churches, the evidence established that
no enforcement action occurred as to other “mass gatherings” reported to the
Governor. Two witnesses provided uncontradicted declarations demonstrating the
selective targeting of the Plaintiffs’ exercise of their closely held religious beliefs
and practices. [Declaration Stanley, RE#7-5, PageID#165-166; Declaration Cox,
RE#7-6, PageID#156-159; Supp. Declaration Cox, RE#18-1, PageID#273274].
Not surprisingly, and without contradicting Plaintiffs’ proof, Defendants
placed evidence of record that they did enforce the Governor’s non-essential
business ban as to non-essential businesses. [Declaration Perry, RE#24-5,
PageID#373-375]. But, when it came to enforcement of the mass gathering ban,
Defendants engaged in a sleight of hand: they indicated they received 70
complaints, but did not indicate whether they responded to any of those 70
complaints. Id. Also, Defendants admitted that they dispatched state police to
faith-based mass gatherings, but did not state whether they dispatched state police
to any other “mass gatherings.” [Declaration Brewer, RE#24-4, PageID#371-372].
None of the Plaintiffs have displayed any symptoms of the COVID-19
disease and, to the best of their knowledge, they do not have the COVID-19
disease. [Am. Verified Compl., RE#6, PageID#79; Declaration Roberts, RE#7-2,
PageID#150-155; Declaration Daniel, RE#7-3, PageID#156-159; Declaration
O’Boyle, RE#7-4, PageID#160-164].
9
All of the Plaintiffs refuse to self-quarantine, as required by the Quarantine
and Prosecution Notice they received, unless and until they have a diagnosis of
having contracted COVID-19, which none of them have. Id. In light of these
notices, Plaintiffs TJ Roberts, Randall Daniel, and Sally O’Boyle reasonably fear
prosecution and/or the equivalent of house arrest if, in the exercise of their
constitutional rights, they should attend further in-person church services. Id.
C. The Due Process Issues with the Governor’s orders
The “mass gathering ban,” along with the Quarantine and Prosecution
Notice, do not provide any process at all to challenge the facts and circumstances
of such orders. [Am. Verified Complaint, RE#6 ¶¶42-44, PageID#80; Declaration
Roberts, RE#7-2, PageID#150-155].
The “mass gathering ban,” with its Quarantine and Prosecution Notice, and
other executive orders issued by the Governor do not provide any right or
opportunity for the individual Kentuckian to be heard if the individual is ordered to
be quarantined, or detained, or otherwise punished for violating the orders. [Am.
Verified Complaint, RE#6, ¶80, PageID#11; Declaration Roberts, RE#7-2,
PageID#150-155]. They also do not provide the individual Kentuckian with a right
to be heard by a fair and independent tribunal if the citizen is ordered to be
quarantined, or detained, or otherwise punished for violating those orders. Id. The
orders provide no right to appeal a quarantine, detention, or punishment. Id.
10
The orders do not provide Kentuckians with the right to present evidence,
the right to know the evidence opposing them, the right to cross-examine, the
opportunity for counsel, or the right to have a record. Id.
D. Subsequent Events
On May 4, 2020, the District Court granted in part and denied in part, a
preliminary injunction, and specifically declined to find relief as to in-person
worship. [Opinion, RE#46, PageID#825-839, Injunction, RE#47, PageID#840].
A timely notice of appeal was filed on May 4, 2020. [Notice of Appeal, RE#48,
PageID#841-858]. On May 6, 2020, Plaintiffs moved for an injunction pending
appeal. [R.12]. And on May 9, 2020, this Court granted that injunction pending
appeal, and ordered the decision published. [R.33].
In response to the motion for injunction pending appeal in this case, and this
Court’s published decision in Maryville Baptist Church, Inc., et. al. v. Beshear,
957 F.3d 610 (6th Cir. 2020), on May 9, 2020, Governor Beshear issued a modified
mass gathering ban that now permitted some in-person worship, but with numerous
11
restrictions including a limit of 33% occupancy capacity.7 More recently, on June
10, 2020, the Governor changed the limit for in-person worship to 50% capacity.8
As far as other events since the filing of this suit, the facts get far worse for
the Defendants. Specifically, Mr. Roberts was also a Plaintiff in a case involving
public protests in which most of the same Defendants were parties and some of the
same orders were challenged as those in this case. On a remand from this Court
for additional factfinding, Dr. Steven Stack, Kentucky’s Commissioner of Public
Health was deposed. That deposition reveals that the entirety of these orders were
issued not based on science, because risk of virus spread cannot be eliminated
without locking down everyone, but instead were based on value judgments by
politicians about the importance or value of particular activities. Ramsek v.
Beshear, EDKY Case No. 3:20-CV-00036, Deposition of Dr. Steven Stack at
[RE#43 in that case], at pp. 30,63,89-91. This Court can take judicial notice of that
deposition and the admissions within it. Ashland, Inc. v. Oppenheimer & Co., 648
7
https://govsite-
assets.s3.amazonaws.com/M0wewsTiSoSeuiMVdySy_CHFS%20-%205-9-
2020%20Order%20and%20Guidance-1-.pdf (last visited 6/25/2020); this Court
can take judicial notice of this link, as it is provided by the Government and
available from https://govstatus.egov.com/ky-healthy-at-work, a Kentucky website.
Twumasi-Ankrah v. Checkr, Inc., 954 F.3d 938, 947, n.3 (6th Cir. 2020).
8
https://govsite-
assets.s3.amazonaws.com/gVhJiELFTjySR5TaGWvL_CHFS%20-%205-9-
2020%20Order.pdf (last visited 6/25/2020).
12
F.3d 461, 467 (6th Cir. 2011); New England Health Care Employees Pension Fund
v. Ernst & Young, LLP, 336 F.3d 495, 501 (6th Cir. 2003).
SUMMARY OF THE ARGUMENT
The District Court erred in denying the preliminary injunction, both on Free
Exercise and Due Process grounds. The numerous secular exceptions allowed by
the Governor in his mass gathering ban should have compelled a similar exception
for religious services, but contrary to the First Amendment, did not. Apparently,
because in-person Church attendance, even on Easter Sunday, was not deemed
sufficiently important or worthy. Thankfully, the First Amendment and this Court
say otherwise. Further, these orders violate due process where they contain no
process whatsoever.
Finally, and anticipating argument from the Defendants, we also brief,
below: (1) the subsequent changes to the orders, and why those changes do not
render this case moot; (2) Chief Justice Roberts’ recent concurring opinion on a
U.S. Supreme Court denial of an injunction pending appeal; and (3) argument from
Mr. Neace that he is not a proper party.
ARGUMENT
I. The District Court erred in failing to grant an injunction where it

disregarded a published decision by this Court issued only two days
before.
1. Preliminary injunction standard
13
When deciding whether to issue a preliminary injunction, a court must
consider the following four factors: (1) Whether the movant has demonstrated a
strong likelihood of success on the merits; (2) Whether the movant would suffer
irreparable harm; (3) Whether issuance would cause substantial harm to others;
and (4) Whether the public interest would be served by issuance. Suster v.
Marshall, 149 F.3d 523, 528 (6th Cir. 1998). These "are factors to be balanced,
not prerequisites that must be met." In re DeLorean Motor Co., 755 F.2d
1223, 1229 (6th Cir. 1985).
When analyzing a motion for preliminary injunction, "the 'likelihood of
success' prong is the most important [factor] and often determinative in First
Amendment cases." Jones v. Caruso, 569 F.3d 258, 277 (6th Cir. 2009); see also
Aristotle Pub. v. Brown, 61 F. App'x 186, 188 (6th Cir. 2003). With respect to the
‘likelihood of success’ prong, and because First Amendment rights are at issue, it
is the Defendants, not Plaintiffs, who bear the burden of establishing the
constitutionality of the challenged legislation. U.S. v. Playboy Entm't Group, Inc.,
529 U.S. 803, 816 (2000).
2. Plaintiffs demonstrated a likelihood of success on the merits on the

Free Exercise Claim, but the District Court disregarded the most
recent precedent of this Court in holding otherwise
The First Amendment protects the “free exercise” of religion, and
fundamental to this protection is the right to gather and worship. See W. Va. State
14
Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943); Cantwell v. Connecticut, 310
U.S. 296 (1940). Because of this fundamental protection, “a law burdening
religious practice that is not neutral or not of general application must undergo the
most rigorous of scrutiny.” Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508
U.S. 520, 546 (1993). The requirements to satisfy this scrutiny are so high that the
government action will only survive this standard “in rare cases,” and the
government bears the burden of proof. Id.
This fundamental protection applies regardless of how others feel about the
wisdom or value in exercising these rights, such as whether one considers them
essential or not, or life sustaining or not. “Although the practice of [in-person
church service during a COVID-19 outbreak] may seem abhorrent to some,
religious beliefs need not be acceptable, logical, consistent, or comprehensible to
others in order to merit First Amendment protection.’” Id. at 531, quoting Thomas
v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 714 (1981).
As the Supreme Court observed in Hialeah, “[i]n addressing the
constitutional protection for free exercise of religion, our cases establish the
general proposition that 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.” 508 U.S. 520, 531,
quoting Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S.
15
872 (1990). “Neutrality and general applicability are interrelated, and, as becomes
apparent in this case, failure to satisfy one requirement is a likely indication that
the other has not been satisfied.” Id. However, a law failing to satisfy both of
these requirements must be justified by a compelling governmental interest and
must be narrowly tailored to advance that interest. Id.
The Hialeah Court began by addressing neutrality. It noted that “to
determine the object of a law, we must begin with its text, for the minimum
requirement of neutrality is that a law not discriminate on its face.” Id. at 533.
Specifically, “a law lacks facial neutrality if it refers to a religious practice without
a secular meaning discernible from the language or context.” Id.
Here, the “mass gathering ban” bans all faith-based mass gatherings, but
then exempts a list of purely secular ones. As noted, the Governor’s mass
gathering ban initially provides that “[a]ll mass gatherings are hereby prohibited,”
and then goes on to define “[m]ass gatherings” to 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.” (emphasis
added). So, the calling out of faith-based gatherings here demonstrates the lack of
neutrality on its face. But making the matter even more problematic, and for the
avoidance of any doubt, the only exemption is for a number of purely secular
16
activities.
Specifically, the mass gathering ban continues: “[f]or 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.” (emphasis added).9 In
other words, the plain text of the Governor’s mass gathering ban leaves no doubt it
lacks facial neutrality. At this point, the Defendants cannot meet their burden of
constitutionality.
But, even if the law were facially neutral, which it is not, the inquiry does
not end “with the text of the laws at issue.” Hialeah, 508 U.S. 520, 534. Mere
“facial neutrality is not determinative.” Id. That is because the Free Exercise
Clause even "forbids subtle departures from neutrality," and "covert
suppression of particular religious beliefs." Id. (emphasis added). “Official action
that targets religious conduct for distinctive treatment cannot be shielded by mere
compliance with the requirement of facial neutrality.” Id. "The Court must survey
9
These de jure exceptions are only for secular purposes. There are no faith-based
exceptions. As noted, there appeared to be at least one de facto exception as the
Governor’s own daily press conference involving reporters and members of the
media.
17
meticulously the circumstances of governmental categories to eliminate, as it were,
religious gerrymanders." Id.
Any under-inclusivity and/or overbreadth of the challenged legislation is
constitutionally significant. Id. at 535-539. Thus, where government restricts
conduct protected by the First Amendment (which certainly is the case here), but
“fails to enact feasible measures to restrict other conduct producing substantial
harm or alleged harm of the same sort, the interest given in justification of the
restriction is not compelling.” Id. at 546-547.
In other words, if crowded conditions allowing for more easy transmission
of the corona virus are the concern here, then the permissibility of mass gatherings
at waiting areas located inside airports, bus and train stations, as well as the
continued operation of shopping malls, medical facilities, libraries, and
convenience stores, all demonstrate a significant under-inclusivity problem. Once
again, and the Governor’s word play aside, quite clearly the requirement of general
applicability is not met here where there is no ban on gatherings of 10 or more at
those secular establishments exempted from the mass gathering ban, but where
harm “of the same sort” can quite easily occur.
Next, even if the challenged orders were facially neutral and generally
applicable, which they are not, it is also not permissible under the First
Amendment to target enforcement towards religious groups to the exclusion of
18
other groups. Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 138 S. Ct.
1719, 1731 (2018). As in Masterpiece, the Governor’s enforcement action of
sending armed state troopers to an Easter service to place Quarantine and
Prosecution Notices on people’s windshields, and to not do so at other non-exempt
“mass gatherings,” demonstrates a Free Exercise violation.
In Ward v. Polite, 667 F.3d 727, 738 (6th Cir. 2002), this Court observed that
“[i]f the law appears to be neutral and generally applicable on its face, but in
practice is riddled with exemptions or worse is a veiled cover for targeting a belief
or a faith-based practice, the law satisfies the First Amendment only if it
‘advance[s] interests of the highest order and [is] narrowly tailored in pursuit of
those interests.” Id. Ultimately, this Court properly concluded that “at some point,
an exception-ridden policy takes on the appearance and reality of a system of
individualized exemptions, the antithesis of a neutral strict scrutiny.” Id. In other
words, “a double standard is not a neutral standard.” Id.
In rendering its decision, the Ward Court favorably cited then Judge Alito’s
opinion in Fraternal Order of Police Newark Lodge No.12 v. City of Newark, 170
F.3d 359,365-67 (3d Cir. 1999) (Alito, J.) (invalidating a police department policy,
ostensibly adopted to promote unity within the department, that only barred some
officers from growing beards where the policy exempted officers who could not
19
shave for medical reasons, but not officers who could not shave for religious
reasons).
Here, as was the case in both City of Newark and in Ward, the Governor’s
mass gathering ban is “riddled with exemptions” for secular “mass gatherings,” but
bans all faith-based “mass gatherings,” such as in-person church services. As such,
it violates the Free Exercise Clause. Likewise, the Governor’s uneven and targeted
enforcement carried out with state police dispatched to churches, but not to other
locations where violations of the mass gathering ban were repeatedly reported, as
well as the Governor’s own damning admissions at his news conference of
targeting church services, raise identical concerns to those tackled by this Court in
Ward and should result in the same outcome.
The Governor’s mass gathering ban is nothing more than an unconstitutional
attempt to redefine some mass gatherings as not “mass gatherings” by simply
saying so (someone needs to tell the Corona virus about these exempt locations).
This “word play” becomes quite clear as it is undisputed the order contains no
restrictions on the total number of people who are permitted to be waiting in
airports, bus and train stations, or to be at medical facilities, libraries, shopping
malls, shopping centers, and other spaces where persons may stay for lengthy
periods of time. Significantly, the order contains no restrictions on the amount of
time those people can be stationary/sitting at these locations. These
20
“individualized exemptions” clearly demonstrate the discriminatory nature of the
Governor’s order.
Take air travel: passengers go to the airport, per airline and TSA
recommendations, an hour before their flights. Generally, passengers are crowded
in a confined area at their gates to hear any boarding announcements and to simply
wait for their flights. Then, they board their planes (or buses or trains as far as
those exemptions are concerned) and they sit in close proximity to others (less than
a foot apart), for hours at a time. Despite this reality, and with a stroke of the
Governor’s pen, somehow these are not mass gatherings. Why? Because the
Governor says so. A value judgment has been made that this travel is essential,
whereas the exercise of closely held religious liberty is not.
And office environments and factories? Again, people frequently
congregate in those settings. However, there is no limit on how long someone can
stay in those settings, and no limit on the number of people who can be in those
settings. Yet again, a value judgment has been made: paid work (well at least
some of it) is essential. The exercise of closely held religious liberty is not.
That leaves us with the two recent, published decisions. First, Maryville
Baptist Church, Inc., et. al. v. Beshear, 957 F.3d 610 (6th Cir. 2020). As this Court
observed in Maryville “[d]iscriminatory laws come in many forms.” Id. “Outright
bans on religious activity alone obviously count.” Id. But “[s]o do general bans that
21
cover religious activity when there are exceptions for comparable secular
activities.” Id. “As a rule of thumb, the more exceptions to a prohibition, the less
likely it will count as a generally applicable, nondiscriminatory law.” Id., citing
Ward, 667 F.3d at 738. "At some point, an exception-ridden policy takes on the
appearance and reality of a system of individualized exemptions, the antithesis of a
neutral and generally applicable policy and just the kind of state action that must
run the gauntlet of strict scrutiny."
Id. at 740.
Leaving no doubt about the appropriate level of scrutiny, this Court then
stated that “the Governor's orders do not seem to survive strict scrutiny,
particularly with respect to the ban on outdoor services.” Id. “The question, then,
is one of general applicability.” Id.
Then this Court observed:
The real question goes to exceptions. The Governor insists at the outset that
there are "no exceptions at all." Appellee Br. at 21. But that is word play.
The orders allow "life-sustaining" operations and don't include worship
services in that definition. And many of the serial exemptions for secular
activities pose comparable public health risks to worship services. For
example: The exception for "life-sustaining" businesses allows law firms,
laundromats, liquor stores, and gun shops to continue to operate so long as
they follow social-distancing and other health-related precautions. R. 1-7 at
2-6. But the orders do not permit soul-sustaining group services of faith
organizations, even if the groups adhere to all the public health guidelines
required of essential services and even when they meet outdoors. Id.
(emphasis added).
22
But restrictions inexplicably applied to one group and exempted from

another do little to further these goals and do much to burden religious
freedom. Assuming all of the same precautions are taken,… Why can
someone safely walk down a grocery store aisle but not a pew? And why
can someone safely interact with a brave deliverywoman but not with a stoic
minister? The Commonwealth has no good answers. While the law may take
periodic naps during a pandemic, we will not let it sleep through one. Id.
Plaintiffs here “do not seek to insulate themselves from the Commonwealth's
general public health guidelines.” Id. “They simply wish to incorporate them into
their worship services.” “They are willing to practice social distancing.” Id. “They
are willing to follow any hygiene requirements.” Id. “The Governor has offered no
good reason so far 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. “Are they not often the same people, going to work
on one day and attending worship on another?” Id. “If any group fails, as assuredly
some groups have failed in the past, the Governor is free to enforce the social-
distancing rules against them for that reason.” Id.
“Risks of contagion turn on social interaction in close quarters; the virus
does not care why they are there.” Id. “So long as that is the case, why do the
orders permit people who practice social distancing and good hygiene in one place
but not another?” Id. “If the problem is numbers, and risks that grow with greater
numbers, then there is a straightforward remedy: limit the number of people who
can attend a service at one time.” Id.

23
Here, Governor Beshear offers no good reason, or any reason at all, for
refusing to trust the congregants who promise to use care in worship just the same
way he “trusts accountants, lawyers, and laundromat workers to do the same.” Id.
These pronouncements by this Court were only 2 days old when the District
Court rendered its utterly astounding decision and analysis on the likelihood of
success, and its finding that the Governor’s order was neutral and generally
applicable. [Opinion, RE#46, PAGEID#825-839]. In a half-hearted attempt at
consideration of this Court’s directives, the District Court poorly reasoned that this
Court “expressly limited its holding to drive-in church services,” and “[had this]
Court felt that such a broader injunction was warranted, it was within its power to
so order. This Court thus does not find that opinion to control the outcome here.”
[Opinion, RE#46, PAGEID#833-834].
In contrast, this Court in Maryville did not find that the Governor’s orders
were neutral and generally applicable. Rather, this Court found that the
Governor’s orders likely violated the First and Fourteenth Amendments and were
discriminatory violations of the Free Exercise Clause, “especially with respect to
drive-in services.” And, while the “especially” language demonstrated the
overreach of the Governor’s ban as applied to drive-in services, this Court in no
way limited its holding to such services.
24
In fact, in rejecting the application of strict scrutiny, the District Court
violated the bedrock foundation of our legal system that a “District Court, of
course, [is] bound by Circuit precedent.” Panetti v. Quarterman, 551 U.S. 930,
961 (2007); Timmreck v. United States, 577 F.2d 372, 373 n.6 (6th Cir. 1978),
overruled on other grounds by United States v. Timmreck, 441 U.S. 780, (1979)).
That, in turn, leaves us with this Court’s published opinion in this case.
Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020). This Court quoted its decision in
Maryville, concluding that the challenged order did, in fact, violate the First
Amendment due to the exceptions in the Governor’s order that favored secular
activity over similar faith-based activity. This Court also found that:
In the week since our last ruling, the Governor has not answered our
concerns that the secular activities permitted by the order pose the same
public-health risks as the kinds of in-person worship barred by the order. As
before, the Commonwealth remains free to enforce its orders against all who
refuse to comply with social-distancing and other generally applicable public
health imperatives. All this preliminary injunction does is allow people—
often the same people—to seek spiritual relief subject to the same
precautions as when they seek employment, groceries, laundry, firearms, and
liquor. It's not easy to decide what is Caesar's and what is God's in the
context of a pandemic that has different phases and afflicts different parts of
the country in different ways. But at this point and in this place, the
unexplained breadth of the ban on religious services, together with its haven
for numerous secular exceptions, cannot co-exist with a society that places
religious freedom in a place of honor in the Bill of Rights: the First
Amendment. Id. at 416.
25
The record below reveals no such justifications.10 The First Amendment’s
guaranty of Free Exercise was violated and Plaintiffs established that they were
entitled to the preliminary injunction.
3. Plaintiffs demonstrated a likelihood of success on the merits on the

Due Process Claim
“[T]here can be no doubt that at a minimum [procedural due process]
require[s] that deprivation of life, liberty or property by adjudication be preceded
by notice and opportunity for hearing appropriate to the nature of the case.”
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). “A fair
trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349
U.S. 133, 136 (1955). The Supreme Court has explained that “in deciding what
process constitutionally is due in various contexts, the Court repeatedly has
emphasized that ‘procedural due process rules are shaped by the risk of error
inherent in the truth-finding process….’” Carey v. Piphus, 435 U.S. 247, 259
(1978) (citing Mathews v. Eldridge, 424 U.S. 319, 344 (1976)). Moreover,
In actuality, it gets far worse for the Defendants. Dr. Stack’s deposition in
10
Ramsek v. Beshear, reveals that the entirety of these orders were issued not based
on science, because risk of virus spread cannot be eliminated without locking down
everyone. Instead, these orders, ultimately, were based on value judgments by
politicians about the importance or value of particular activities. Ramsek v.
Beshear, EDKY Case No. 3:20-CV-00036, at RE#43 (in that case), at pp.
30,63,89-91. This Court can take judicial notice of that deposition and the
admissions within it. Ashland, Inc. v. Oppenheimer & Co., 648 F.3d 461, 467 (6th
Cir. 2011); New England Health Care Employees Pension Fund v. Ernst & Young,
LLP, 336 F.3d 495, 501 (6th Cir. 2003).
26
“Elementary notions of fairness enshrined in our constitutional jurisprudence
dictate that a person receive fair notice not only of the conduct that will subject
him to punishment, but also of the severity of the penalty that a State may impose.”
BMW of N. Am. v. Gore, 517 U.S. 559, 574 (1996).
The executive order in question has none of that. It has no means for a
detention, quarantine or punishment to be reviewed by a neutral official. If the
Governor orders sheriff’s deputies stationed outside a Kentuckian’s home to
enforce a quarantine, or if another elected official orders an ankle monitor strapped
to a Kentuckian’s ankle in a form of house arrest, an accused Kentuckian must at
least have the right to be heard before an unbiased tribunal. See Mullane, supra.
Given the extraordinary power wielded by the government here – the
claimed power to deprive people of foundational constitutional rights – additional
due process protections are merited. Kentuckians should have the right to present
evidence, the right to know the evidence opposing them, the right to cross-
examine, the opportunity for counsel, and the right to have a record. In the most
basic sense, these orders violate procedural due process. As such, Plaintiffs have a
substantial likelihood of success on their constitutional claims.
Defendants contended below that Plaintiffs receive due process when they
violate the self-quarantine order and are prosecuted or are forcibly quarantined by
court order. They contend that this is all the process that is due.
27
These post-deprivation hearings are constitutionally inadequate. Pre-
deprivation hearings must be afforded. In United States v. James Daniel Good
Real Prop., 510 U.S. 4 (1993), the Supreme Court was clear that before property
could be forfeited, notice and a hearing was required. This Court is likewise clear
that due process generally requires a pre-deprivation hearing, subject to exceptions
not applicable here. Cahoo v. SAS Analytics, Inc., 912 F.3d 887 (6th Cir. 2019).
4. The other injunction factors also warranted a grant of the

preliminary injunction
As this Court observed in Roberts, “[p]reliminary injunctions in
constitutional cases often turn on likelihood of success on the merits, usually
making it unnecessary to dwell on the remaining three factors.” 958 F.3d 409 at
416, citing City of Pontiac Retired Emps. Ass'n v. Schimmel, 751 F.3d 427, 430
(6th Cir. 2014) (en banc) (per curiam). “Just so here.” Id. The failure to enjoin
unconstitutional activities “inflicts irreparable harm by prohibiting them from
worshiping how they wish.” Id. So does the failure to enjoin Defendants from
prosecuting Plaintiffs for their free exercise. “As for harm to others, an injunction
appropriately permits religious services with the same risk-minimizing precautions
as similar secular activities, and permits the Governor to enforce social-distancing
rules in both settings.” Id. “As for the public interest, treatment of similarly
situated entities in comparable ways serves public health interests at the same time
28
it preserves bedrock free-exercise guarantees.” Id., citing Bays v. City of Fairborn,
668 F.3d 814, 825 (6th Cir. 2012).
II. The case is not moot due to the changed orders
Anticipating either the Defendants, or the Court, raising the mootness issue,
Plaintiffs do not believe that this case is moot and, even if it is (or more
specifically even if part of it is), it meets the requirements set forth under the
“capable of repetition, yet evading review” doctrine warranting a resolution on the
merits.
A. Plaintiffs actually violated the mass gathering ban, subjected

themselves to criminal prosecution, and received a threat of that
criminal prosecution; as such, as to the in-person corporate worship
ban, the claims related to that ban are not moot, at least insofar as an
injunction prohibiting their criminal prosecution is concerned
Plaintiffs violated the Governor’s mass gathering ban by attending Easter
Sunday church service and, as a consequence, received the prosecution and
quarantine notice. [Verified Am. Complaint, RE#6, ¶¶ 28, 33, PageID#76-78].
Their violation of the Governor’s order is a Class A misdemeanor. K.R.S.
39A.990. The statute of limitations of two years has not yet passed. K.R.S.
500.050. Under prevailing case law, as to declaratory relief and injunctive relief
related to this in-person worship, the matter is not moot. Sacks v. Office of Foreign
Assets Control, 466 F.3d 764 (9th Cir. 2006) (violation of repealed statute does not
29
foreclose relief if the statute was violated); Bowman v. Schwarzenegger, 2009 U.S.
Dist. LEXIS 24678 (ED Cal 2009) (same).
B. The voluntary cessation doctrine applies
Governor Beshear’s sudden, “voluntary” shift from the complete ban on
religious worship enshrined in his mass gathering ban, which he has vigorously
defended in this Court and the Circuit Court, is not enough to remove his conduct
from review:
It is well settled that a defendant's voluntary cessation of a challenged

practice does not deprive a federal court of its power to determine the
legality of the practice. Such abandonment is an important factor bearing on
the question whether a court should exercise its power to enjoin the
defendant from renewing the practice, but that is a matter relating to the
exercise rather than the existence of judicial power.
City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982)
(emphasis added).
We have recognized, however, that a defendant cannot automatically moot a

case simply by ending its unlawful conduct once sued. Otherwise, a
defendant could engage in unlawful conduct, stop when sued to have the
case declared moot, then pick up where he left off, repeating this cycle until
he achieves all his unlawful ends. Given this concern, our cases have
explained that a defendant claiming that its voluntary compliance moots a
case bears the formidable burden of showing that it is absolutely clear the
allegedly wrongful behavior could not reasonably be expected to recur.
Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (emphasis added)
(internal quotation marks and citation omitted).
Applying this “formidable burden,” the Supreme Court held in Trinity
Lutheran Church of Columbia, Inc. v. Comer that a state governor’s “voluntary
30
cessation of a challenged practice does not moot a case unless ‘subsequent events
ma[ke] it absolutely clear that the allegedly wrongful behavior could not
reasonably be expected to recur.’” 137 S. Ct. 2012, 2019 n.1 (2017) (modification
in original) (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services
(TOC), Inc., 528 U.S. 167, 189 (2000)). Here, Governor Beshear “has not carried
the ‘heavy burden’ of making ‘absolutely clear’ that [he] could not revert to [his]
policy,” ie., where he can reimpose his ban on in-person religious worship
services, because his sudden change in policy is neither permanent nor irrevocable.
See City of L.A. v. Lyons, 461 U.S. 95, 101 (1983).
Neither the plain language nor the regulatory context of the revised orders
demonstrates any authority to bind the Governor irrevocably against further orders.
See id.; Porter v. Bowen, 496 F.3d 1009, 1017 (9th Cir. 2007).
Moreover, the Governor has “neither asserted nor demonstrated that [he]
will never resume the complained of conduct.” Norman-Bloodsaw v. Lawrence
Berkely Lab., 135 F.3d 1260, 1274 (9th Cir 1998); see also McCormack v. Herzog,
788 F.3d 1017, 1025 (9th Cir. 2015) (“[W]hile a statutory change ‘is usually
enough to render a case moot,’ an executive action that is not governed by any
clear or codified procedures cannot moot a claim.” (emphasis added)). Cf. United
States v. Sanchez-Gomez, 138 S. Ct. 1532, 1537 n.* (2018) (holding, where
government intends to reinstate old policy, “the rescission of the policy does not
31
render this case moot”); Pierce v. Ducey, No. CV-16-01538-PHX-NVW, 2019 WL
4750138, at *1 (D. Ariz. Sept. 30, 2019) (“A voluntary cessation joined with a
threat to do it again is the paradigm of unsuccessful blunting of power to
adjudicate . . . .”); McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545
U.S. 844, 871 (2005) (rejecting counties’ mere “litigating position” as evidence of
actual intent of county policies).
A case is not moot where, as here, the Governor “did not voluntarily cease
the challenged activity because he felt [it] was improper,” and “has at all times
continued to argue vigorously that his actions were lawful.” Olagues v.
Russoniello, 770 F.2d 791, 795 (9th Cir. 1985); Pierce, 2019 WL 4750138, at *5
(“[W]hen the government ceases a challenged policy without renouncing it, the
voluntary cessation is less likely to moot the case.”).
Thus, “[t]here is nothing in the parties’ submissions or the record to
demonstrate the Governor changed his mind about the merits of Plaintiff[s’]
claim.” Pierce, 2019 WL 4750138, at *6. “The Governor did not experience a
change of heart that may counsel against a mootness finding.” Id.
Furthermore, “[g]iven the importance of the issues at bar . . . the public
interest in having the legality of the Governor’s behavior settled weighs against a
mootness ruling.” Id. at *7.
32
C. This case presents a classic case of capable of repetition yet evading

review
Not only can the Governor not carry his burden under the voluntary
cessation doctrine, but this case also “fit[s] comfortably within the established
exception to mootness for disputes capable of repetition, yet evading review.” Fed.
Election Comm'n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 462 (2007).
“The exception applies where ‘(1) the challenged action is in its duration too
short to be fully litigated prior to cessation or expiration, and (2) there is a
reasonable expectation that the same complaining party will be subject to the same
action again.’” Id. Both circumstances are present here. Given the rapidly
changing COVID-19 landscape, there is no question that the duration of the
Governor’s ban on in-person Church attendance was always going to be “too short
to be fully litigated prior to cessation or expiration.” However, with any
resurgence of COVID-19 cases, the ban could easily be repeated.
This sort of case was destined to be too short to be fully litigated. See
Kingdomware Tech., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (two years
is too short, exception applies); Turner v. Rogers, 564 U.S. 431, 440 (2011) (12
months is too short, exception applies); First Nat. Bank of Boston v. Bellotti, 435
U.S. 765, 774 (1978) (18 months is too short, exception applies); Southern Pac.
Terminal Co. v. ICC, 219 U.S. 498, 515 (1911) (two years is too short, exception
applies).
33
Given some expert predictions of a second wave of coronavirus in the fall,11
and perhaps beyond that, with some indications that a vaccine may not ever be able
to be developed,12 there is, indeed, a threat that these same parties may be subject
to the same unconstitutional actions again.
III. The Chief Justice’s concurring opinion in South Bay United

Pentecostal Church does not change the outcome
Because we anticipate the Defendants, and possibly the Court to raise it,
Plaintiffs do not believe that the recent decision of Chief Justice Roberts in South
Bay United Pentecostal Church changes the outcome.
On May 8, 2020, the South Bay United Pentecostal Church and its Bishop
filed suit in the U.S. District Court for the Southern District of California
challenging California Governor Gavin Newsome’s COVID-19 related orders
related to in-person church worship. South Bay Pentecostal Church v. Newsom,
No. 3:20-cv-00865-BAS-AHG (S.D. Cal. May 8, 2020). The Plaintiffs moved for
a temporary restraining order, which was denied. They appealed that ruling to the
11
https://www.cnn.com/2020/05/02/health/coronavirus-second-wave-fall-
season/index.html (last visited 6/5/2020);
https://www.washingtonpost.com/health/2020/04/21/coronavirus-secondwave-
cdcdirector/ (last visited 6/5/2020);
https://www.usatoday.com/story/news/2020/05/17/coronavirus-peak-america-
ready-second-wave-fall/3096338001/ (last visited 6/5/2020).
12
https://www.theguardian.com/world/2020/may/22/why-we-might-not-get-a-
coronavirus-vaccine (last visited 6/5/2020);
https://www.foxnews.com/health/coronavirus-vaccine-may-never-come-health-
expert-warns (last visited 6/5/2020).
34
Ninth Circuit and the panel, in a 2-1 decision, denied them an injunction pending
appeal, but set the matter down for expedited briefing, which presently is
occurring. South Bay Pentecostal Church v. Newsom, No. 20-55533 (9th Cir. May
15, 2020). Perhaps recognizing that a U.S. Supreme Court review was possible,
Governor Newsome then substantially amended his stay at home order on May 25,
2020 to now permit in-person church worship, but with 25% capacity occupancy
limits.13
The South Bay Pentecostal Church Plaintiffs then filed an application for
injunctive relief pending appeal in the United States Supreme Court, solely as
relates to the occupancy limits, which application was denied on a 5-4 vote. South
Bay Pentecostal Church v. Newsom, 19A1044 (May 29, 2020). Four of the
Justices who voted to deny relief, Justices Ginsburg, Breyer, Sotomayor, and
Kagan, offered no explanation at all for their votes. Only Chief Justice Roberts did
with a concurring opinion that was not joined by the other four Justices.
Chief Justice Roberts first observed that under U.S. Supreme Court
precedent:
“Such a request demands a significantly higher justification than a request

for a stay because, unlike a stay, an injunction does not simply suspend
judicial alteration of the status quo but grants judicial intervention that has
been withheld by lower courts.” Respect Maine PAC v. McKee, 562 U.S.
996 (2010) (internal quotation marks omitted). This power is used where
“the legal rights at issue are indisputably clear” and, even then, “sparingly
13
https://covid19.ca.gov/pdf/guidance-places-of-worship.pdf
35
and only in the most critical and exigent circumstances.” S. Shapiro, K.

Geller, T. Bishop, E. Hartnett & D. Himmelfarb, Supreme Court Practice
§17.4, p. 17-9 (11th ed. 2019) (internal quotation marks omitted) (collecting
cases). (emphasis added).
He next observed:
Although California’s guidelines place restrictions on places of worship,

those restrictions appear consistent with the Free Exercise Clause of the
First Amendment. Similar or more severe restrictions apply to comparable
secular gatherings, including lectures, concerts, movie showings, spectator
sports, and theatrical performances, where large groups of people gather in
close proximity for extended periods of time. And the Order exempts or
treats more leniently only dissimilar activities, such as operating grocery
stores, banks, and laundromats, in which people neither congregate in large
groups nor remain in close proximity for extended periods. (emphasis
added).
And finally, he observed:
The precise question of when restrictions on particular social activities

should be lifted during the pandemic is a dynamic and fact-intensive matter
subject to reasonable disagreement. Our Constitution principally entrusts
“[t]he safety and the health of the people” to the politically accountable
officials of the States “to guard and protect.” Jacobson v. Massachusetts,
197 U.S. 11, 38 (1905). When those officials “undertake[] to act in areas
fraught with medical and scientific uncertainties,” their latitude “must
be especially broad.” Marshall v. United States, 414 U. S. 417, 427 (1974).
Where those broad limits are not exceeded, they should not be subject to
second-guessing by an “unelected federal judiciary,” which lacks the
background, competence, and expertise to assess public health and is not
accountable to the people. See Garcia v. San Antonio Metropolitan Transit
Authority, 469 U. S. 528, 545 (1985). That is especially true where, as here,
a party seeks emergency relief in an interlocutory posture, while local
officials are actively shaping their response to changing facts on the ground.
The notion that it is “indisputably clear” that the Government’s limitations
are unconstitutional seems quite improbable.
36
Justice Kavanaugh, joined by Justices Thomas, and Gorsuch, would have granted
the application for the “extraordinary remedy” and joined in an opinion that
heavily quoted this Court’s decision in Roberts v. Neace, 958 F.3d 409, 414 (CA6
2020). Justice Alito voted to grant the extraordinary relief, without writing an
opinion.
A. Chief Justice Roberts’ concurrence on an order denying injunctive relief

pending appeal in the U.S. Supreme Court does not create any precedent,
much less binding precedent.
It is bedrock U.S. Supreme Court jurisprudence that the denial of certiorari
“imports no expression of opinion on the merits of a case.” United States v.
Carver, 260 U.S. 482, 490 (1923) (Holmes, J.); Hughes Tool Co. v. Trans World
Airlines, Inc., 409 U.S. 363, 366, n. 1 (1973); Brown v. Allen, 344 U.S. 443, 489-
497 (1953). The "variety of considerations [that] underlie denials of the writ,"
Maryland v. Baltimore Radio Show, 338 U.S. 912, 917 (1950) (opinion of
Frankfurter, J.), counsels against according denials of certiorari any precedential
value. “Concomitantly, opinions accompanying the denial of certiorari cannot
have the same effect as decisions on the merits.” Teague v. Lane, 489 U.S. 288,
296 (1989).
Not surprisingly, the same view pertains to orders relating to stays or
injunctions pending appeal. Barefoot v. Estelle, 463 U.S. 880, 907 (1983), n.5,
(dissent by Marshall and Brennan). In Barefoot, they observed:
37
“While the Fifth Circuit followed a procedure in Brooks v. Estelle similar to

that employed here, this Court's denial of Brooks' application for a stay and
petition for certiorari before judgment does not constitute a precedent
approving this procedure. Denials of certiorari never have precedential
value, see, e. g., Brown v. Allen, 344 U.S. 443, 497 (1953); Sunal v. Large,
332 U.S. 174, 181 (1947); House v. Mayo, 324 U.S. 42, 48 (1945), and the
denial of a stay can have no precedential value either since the Court's order
did not discuss the standard that courts of appeals should apply in passing on
an application for a stay pending appeal.”
Unlike injunctive relief in the Courts of Appeals which apply the well-
known four-part injunction test, the U.S. Supreme Court’s requirements for
obtaining stays and injunctions pending appeal are a herculean, uphill climb for
parties seeking such relief, because such relief is uniquely and highly disfavored in
this nation’s highest court. In fact, the standard for a stay in the Supreme Court,
which is more forgiving than the standard for an injunction pending appeal,
requires that a party demonstrate (1) "a reasonable probability" that the Supreme
Court will grant certiorari, (2) "a fair prospect" that the Court will then reverse the
decision below, and (3) "a likelihood that irreparable harm [will] result from the
denial of a stay." Maryland v. King, 133 S. Ct. 1 (2012). So, bound up in the
ability to even obtain a stay is a showing of a “reasonable probability” that the
Supreme Court will grant certiorari. As anyone who is a Supreme Court watcher
knows, good luck!14
14
For several reasons that are readily apparent from even a cursory observation of
the procedural posture of South Bay Pentecostal Church, and an understanding of
38
Even Chief Justice Roberts, in his single Justice concurrence in South Bay
Pentecostal Church, noted that obtaining injunctions pending appeal in the
Supreme Court are more of an impossibility than obtaining stays. “Such a request
demands a significantly higher justification than a request for a stay because,
unlike a stay, an injunction does not simply suspend judicial alteration of the status
quo but grants judicial intervention that has been withheld by lower courts.”
Respect Maine PAC v. McKee, 562 U.S. 996 (2010) (internal quotation marks
omitted). This power is only used where “the legal rights at issue are indisputably
clear,” and even then it is only used “sparingly and only in the most critical and
exigent circumstances.” S. Shapiro, K. Geller, T. Bishop, E. Hartnett & D.
Himmelfarb, Supreme Court Practice §17.4, p. 17-9 (11th ed. 2019) (internal
quotation marks omitted) (collecting cases). (emphasis added).
In fact, and for some U.S. Supreme Court Justices, there exists a default
presumption that such relief will almost never be granted regardless of the merits
the grounds under which the Supreme Court grants certiorari, it is highly unlikely
that the South Bay Pentecostal Church case was or is likely to be reviewed by the
Supreme Court. First, the record in that case was scant in the trial court: a
temporary restraining order, which the Governor did not have the opportunity to
respond to before its denial, which makes that case a particularly inappropriate
vehicle to obtain full court review; second, the dissent in the Ninth Circuit makes it
likely that the South Bay Pentecostal Church case may be an appropriate case for
en banc review in the Ninth Circuit, which would militate against certiorari; and
third, these issues are still percolating in the lower Circuit Courts of Appeal, and
the Supreme Court typically will not grant review of a case until the Circuit split
more fully develops. See, also, S.Ct. R. Practice 10.
39
of the issue. Barr v. E. Bay Sanctuary Covenant, 140 S. Ct. 3 (2019) (Justices
Sotomayor and Ginsburg commenting "[t]he lower courts’ decisions warrant
respect," and denying stay). And, Chief Justice Roberts has previously opined that
the presence of a Circuit split alone (the situation that has developed with respect
to Coronavirus related restrictions) is itself grounds to deny an injunction pending
appeal, given the “sufficiently clear” standard that must be met in the U.S.
Supreme Court for injunctions pending appeal. Lux v. Rodrigues, 561 U.S. 1306,
1308 (2010). Likewise, Justices Ginsburg, Sotomayor, and Kagan are on record as
adopting the view that “differences of opinion among lower courts as proof
positive that the standard has not been met.” Wheaton College v. Burwell, 573
U.S. 958, 964 (2014).15
So, this reality regarding the relevant, almost insurmountable standard of the
Supreme Court is as much a justification and explanation for the denial of an
injunction pending appeal in South Bay Pentecostal Church as anything else.
Further, given the other four Justices’ refusal to join the Chief Justice’s concurring
opinion, appears to be the case. There is simply no precedent here for anyone,
much less the Governor, to rely upon. Chief Justice Roberts, of all people, would
15
Recent opinions relating to orders from these Justices reference deference to the
lower court orders.
https://www.supremecourt.gov/opinions/19pdf/19a1034_new_kifl.pdf (last visited
6/2/2020).
40
agree. In fact, his opinion makes clear that the only issue even involved in South
Bay Pentecostal Church concerned occupancy limits for in-person church
attendance, not the ability of a state to ban all manner of constitutionally protected
faith-based activity.
B. There is no binding precedent to be created because five justices did not

join in a written opinion, particularly where other Justices who voted to
deny relief have repeatedly decried injunctions pending appeal in the
United States Supreme Court, instead electing to leave in place the
Circuit Courts of Appeals’ decisions while appeals are litigated
Even if precedent were created from the denial of an injunction pending
appeal, and even ignoring that a fair reading of that decision appears to be one of
deference to lower appellate courts generally, it is notable, and indeed critical, that
the Chief Justice’s concurring opinion did not garner the support from four other
justices. This, in turn, presents a classic issue under Marks v. United States, 430 U.
S. 188 (1977), for determining the holding of a decision of the Supreme Court
when there is no majority opinion. Under the Marks rule, “[w]hen a fragmented
Court decides a case and no single rationale explaining the result enjoys the assent
of five Justices, the holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the narrowest grounds.” Id., at
193.
Given the lack of any explanation for their ruling by Justices Ginsburg,
Sotomayor, Breyer, and Kagan, and their prior pronouncements regarding the lack
41
of precedential value of a denial of an injunction pending appeal, the narrowest
interpretation here is one of mere deference to the lower courts. Again, nothing in
South Bay Pentecostal Church can change the status quo for this case.
C. Other recent precedent from the Supreme Court suggests that it may be
differentiating cases in which there are total or near total bans on
protected activities, versus cases where there are some limitations that are
roughly proportionate to those applicable to other similar activities
Circuit Courts of Appeals have long cautioned against judicial tea leaf
reading from concurring and other opinions. Citadel Corp. v. Puerto Rico
Highway Authority, 695 F.2d 31, 33, n.4 (1st Cir. 1982). Tea leaf reading is no
less difficult – and no more appropriate – here. On May 29, 2020, the Supreme
Court decided a motion for an injunction pending appeal of Governor Pritzker’s
orders from Illinois in Elim Romanian Pentecostal Church, et al. v. J. B. Pritzker,
Governor of Illinois, No. 19A1046. Like Governor Newsome, mere hours before
his response was due, Governor Pritzker changed his orders from a total ban on in-
person corporate worship, to a policy of total re-opening of churches with social
distancing. The Church replied that the Governor could simply re-enact his orders.
And in response, the entire Supreme Court said this:
The application for injunctive relief presented to Justice Kavanaugh and by

him referred to the Court is denied. The Illinois Department of Public Health
issued new guidance on May 28. The denial is without prejudice to
Applicants filing a new motion for appropriate relief if circumstances
warrant.
42
Elim Romanian Church v. Pritzker, No. 19A1046, 2020 WL 2781671, at *1 (May
29, 2020) (emphasis added).
The Supreme Court did not say “denied, and by the way, your claims have
no merit.” Again, tea leaf reading is not appropriate. From this very small sample,
it is impossible to discern what, if anything, the majority of that Court believes the
appropriate framework is. But, if tea leaf reading is to be engaged in, and in
looking at both decisions, one can make the argument that while the Supreme
Court currently does not have an appetite for prematurely delving into the issue of
particular conditions on in-person worship and whether or not they constitute equal
treatment, it very well may have an appetite to review and perhaps reverse
complete or near complete bans on long protected, faith based activities,
particularly in cases that involve the review of a permanent injunction posture.
Again, simply anticipating Defendants’ argument, this entire line of analysis
appears to be an exercise of inappropriate judicial tea leaf reading.
D. Nothing has altered the binding precedent in this Circuit of Roberts v.

Neace, 958 F.3d 409, 414 (6th Cir. 2020)
Can a concurring opinion of a single Justice denying an injunction pending
appeal in an unrelated case overturn the holdings in Roberts v. Neace, 958 F.3d
409, 414 (6th Cir. 2020), and its sister decision, Marysville Baptist Church v.
Beshear, 957 F.3d 610 (6th Cir. 2020)? To pose the question is to answer it. Those
decisions remain published decisions of the Sixth Circuit Court of Appeals so, until
43
or unless explicitly overruled by the Supreme Court or the Sixth Circuit sitting en
banc, they remain binding precedent on further panels of the Sixth Circuit. Salmi
v. Sec'y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985).
IV. Boone County Attorney Neace is a proper party
Boone County Attorney Robert Neace has argued below that he is not a
proper party to this matter. He makes that argument because he did not personally
participate in threatening to enforce against the Plaintiffs. The Sixth Circuit,
however, has been clear that a letter not unlike the notice posted on the windows of
these Plaintiffs constituted a credible threat of enforcement. Winter v. Wolnitzek,
834 F.3d 681, 687-688 (6th Cir. 2016).
That Mr. Neace did not issue the letter, and it was issued at the behest of
Governor Beshear and Secretary Friedlander is of no moment: the letter threatened
criminal enforcement, and it is undisputed Mr. Neace’s office is the only office that
can bring criminal charges for the Class A misdemeanor threatened in the
windshield notice. K.R.S. 15.725(2) (county attorney “shall attend the District
Court and prosecute all violations” subject to the district court jurisdiction); K.R.S.
24A.110 (District Court jurisdiction over misdemeanors). Mr. Neace has a
statutory duty to enforce “all” violations. His office accepts complaints from the
public on violations. [Declaration Wiest, RE#37, PageID#718-719]. This
statutory authority, and the acceptance of complaints from the public, is sufficient
44
to give rise to a credible threat of enforcement. Russell v. Lundergan-Grimes, 784
F.3d 1037, 1049-1050 (6th Cir. 2015).
CONCLUSION
The judgment of the District Court denying the preliminary injunction
seeking to overturn the ban on in-person church worship, and preclude Defendants
from criminally enforcing the mass gathering ban against the Plaintiffs/Appellants
should be should be reversed as further explained in this brief.
Respectfully submitted,
/s/Christopher Wiest___________
Christopher Wiest (KBA #90725)
25 Town Center Blvd, Ste. 104
Crestview Hills, KY 41017
513-257-1895
(859) 495-0803 (fax)
[email protected]
/s/ Thomas B. Bruns_____________

Thomas B. Bruns (KBA #84985)
Bruns, Connell, Vollmar & Armstrong, LLC
4750 Ashwood Drive, Suite 200
Cincinnati, OH 45241
(513) 312-9890
(513) 800-1263 (fax)
[email protected]
and
/s/ Robert A. Winter, Jr. _________

Robert A. Winter, Jr. (KBA #78230)
P.O. Box 175883
Fort Mitchell, KY 41017-5883
45
(859) 250-3337
[email protected]
Attorneys for Plaintiffs/Appellants
46
CERTIFICATE OF COMPLIANCE WITH

FED. R. APP. P. 32(a)(7)(B) AND 6TH CIRCUIT RULE 32(a)
This brief complies with the type-volume limitations of Fed. R. App. P.
32(a)(7)(B) because it contains 12,506 words, excluding the parts of the brief
exempted by 6th Cir. R. 32(a) and/or Fed. R. App. P. 32(f).
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in proportionally spaced typeface using Microsoft Office
Word 7.0 in 14-point Times New Roman font.
CERTIFICATE OF SERVICE
I hereby certify that on this 29th day of June, 2020, the foregoing Brief was
filed electronically. Notice of this filing will be sent to all parties for whom counsel
has entered an appearance by operation of the Court’s electronic filing system.
Parties may access this filing through the Court’s system.
47
APPENDIX -- DESIGNATION OF THE DISTRICT COURT RECORD
Plaintiffs/Appellants, pursuant to Sixth Circuit Rule 30(g), designate the
following filings from the district court’s electronic record:
Document Description Record Entry PAGEID

No.
Amended Verified Complaint (with RE#6 70-120
exhibits)
Plaintiffs’ Motion for Emergency RE#7 123-190

Restraining Order and Preliminary
Injunction with Declarations attached
Supplemental Affidavit of Carrie Cox RE#18-1 273-274
Opposition of Robert Neace to RE#23 294-322
Preliminary Injunction
Opposition of Governor Beshear and RE#24 323-384
Secretary Friedlander to Preliminary
Injunction
Plaintiffs’ Reply to their Motion for RE#30 514-528
Preliminary Injunction
Declaration of Wiest RE#37 716-722
Amicus Brief, KY OAG RE#43 804-817
Opinion and Order RE#46 825-839
Injunction RE#47 840
Notice of Appeal RE#48 841-858
/s/Christopher Wiest____________
Christopher Wiest

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Case: 20-5465 Document: 35 Filed: 06/29/2020 Page: 1

CASE NO. Nos. 20-5427/5465

UNITED STATES COURT OF APPEALS

Defendants-Appellees. Hon. William O. Bertelsman

Christopher Wiest (KBA 90725) Thomas B. Bruns (KBA #84985)

Attorneys for Plaintiffs/Appellants Theodore Joseph Roberts, Randall Daniel, and

CORPORATE DISCLOSURE STATEMENT

Pursuant to FRAP 26.1, Plaintiffs/Appellants Theodore Joseph Roberts,

or affiliates of a publicly owned corporation. There is no publicly owned

Already, LLC v. Nike, Inc., 568 U.S. 85 (2013)..................................................... 30

Aristotle Pub. v. Brown, 61 F. App'x 186 (6th Cir. 2003)………….…………..... 14

Barefoot v. Estelle, 463 U.S. 880 (1983) ……………..……………………... 37, 38

Barr v. E. Bay Sanctuary Covenant, 140 S. Ct. 3 (2019)………………………... 40

Bays v. City of Fairborn, 668 F.3d 814 (6th Cir. 2012)………………………..... 29

BMW of N. Am. v. Gore, 517 U.S. 559 (1996)………….……………………..... 27

Brown v. Allen, 344 U.S. 443 (1953)............................................................. 37, 38

Cantwell v. Connecticut, 310 U.S. 296 (1940)………………………………... 15

Carey v. Piphus, 435 U.S. 247 (1978)……………………………………….... 26

City of L.A. v. Lyons, 461 U.S. 95 (1983)…………..………………………….. 31

City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982).......................... 30

Elim Romanian Pentecostal Church, et al. v. J. B. Pritzker, Governor of Illinois,

First Nat. Bank of Boston v. Bellotti, 435 U.S. 765 (1978)………….……….... 33

Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985).... 36

House v. Mayo, 324 U.S. 42 (1945)…………..………………………………... 38

In re DeLorean Motor Co., 755 F.2d 1223 (6th Cir. 1985)………..…………….. 14

Jacobson v. Massachusetts, 197 U.S. 11 (1905)……………..…...……………... 36

Jones v. Caruso, 569 F.3d 258 (6th Cir. 2009) ………………………………..... 14

Lux v. Rodrigues, 561 U.S. 1306 (2010)………………………………………... 40

Marks v. United States, 430 U. S. 188 (1977)...................................................... 41

Marshall v. United States, 414 U. S. 417 (1974)……………………………….. 36

Maryland v. Baltimore Radio Show, 338 U.S. 912 (1950)…………………...... 37

Maryland v. King, 133 S. Ct. 1 (2012)……………………………………….... 38

Mathews v. Eldridge, 424 U.S. 319 (1976)…………….…………………..... 26

McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015)……………….…….. 31

In re Murchison, 349 U.S. 133, 136 (1955)………………………………….. 26

Olagues v. Russoniello, 770 F.2d 791 (9th Cir. 1985)………...……………….... 32

Panetti v. Quarterman, 551 U.S. 930 (2007) ………………………...…….….... 24

Porter v. Bowen, 496 F.3d 1009 (9th Cir. 2007)………….…………………….. 31

Ramsek v. Beshear, EDKY Case No. 3:20-CV-00036 ……………………... 12, 26

Respect Maine PAC v. McKee, 562 U.S. 996 (2010)……………………….. 35, 39

Russell v. Lundergan-Grimes, 784 F.3d 1037 (6th Cir. 2015)……………...….... 45

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

South Bay Pentecostal Church v. Newsom, No. 3:20-cv-00865-BAS-AHG (S.D.

Southern Pac. Terminal Co. v. ICC, 219 U.S. 498 (1911)……………………... 33

Sunal v. Large, 332 U.S. 174 (1947)…………….……………………………... 38

Suster v. Marshall, 149 F.3d 523 (6th Cir. 1998)................................................ 14

Teague v. Lane, 489 U.S. 288 (1989)……………………………..………….... 37

Turner v. Rogers, 564 U.S. 431 (2011)……………..………………………….. 33

Twumasi-Ankrah v. Checkr, Inc., 954 F.3d 938 (6th Cir. 2020)…………….... 12

United States v. Carver, 260 U.S. 482 (1923) ……………….……………...... 37

U.S. v. Playboy Entm't Group, Inc., 529 U.S. 803 (2000)………….………... 14

United States v. Sanchez-Gomez, 138 S. Ct. 1532 (2018)……………...... 31, 32

Wheaton College v. Burwell, 573 U.S. 958, 964 (2014)............................ 40

Winter v. Wolnitzek, 834 F.3d 681 (6th Cir. 2016)………………….…... 44

Statutes and Rules:

28 U.S.C. § 1292(a)(1) ...............................................................................................1

28 U.S.C. § 1332 ........................................................................................................1

S.Ct. R. Practice 10 ..................................................................................................39