Note: A previous version of this article reported the court had granted an injunction, when in fact it had only granted a restraining order pending a hearing on an injunction set for July 16. We regret the error.
BOONE COUNTY, Ky. (FOX19) - A Boone County judge has granted a restraining order temporarily halting enforcement of Gov. Andy Beshear’s executive orders on auto race tracks and child care centers after two Northern Kentucky businesses brought a suit against him.
The plaintiffs are Florence Speedway and Little Links to Learning Daycare Center.
Circuit Court Judge Richard A. Brueggemann heard arguments this week. His ruling, entered Thursday, can be read in full here.
The plaintiffs argued Beshear’s executive orders arbitrarily invade their liberty and property rights under the guise of police protection and on the premise of “a perpetual, potentially never-ending disease outbreak,” the ruling states.
“No Kentucky case has ever permitted the perpetual lockdown (i.e. quarantine and isolation) of healthy people, not to mention entire segments of Kentucky’s economy,” the plaintiff’s complaint reads.
According to the ruling, the plaintiff’s also argued Beshear’s quarantine authority is “meant only for persons shown to be ill with a serious, contagious disease.”
The orders are arbitrary as well, they said. In particular, Florence Speedway pointed to Beshear’s order that racetracks must prohibit fans, while a separate order allows attendance at outdoor auctions and indoor movie theaters, creating disparate treatment without a rationale.
“They insist this is the product of improper value judgments by the executive as to what business pursuit has sufficient value to be deemed essential,” Brueggemann summarized in his ruling. “Florence Speedway (claims) it cannot function without fans (...) present, and that it is in such a precarious situation that it will not likely survive if it cannot open within the upcoming week or so.”
Similar arguments were made by Little Links about teacher-to-child ratios in child care centers.
Kentucky’s auto race tracks were permitted to reopen June 1, and its child care centers were permitted to reopen June 15, both with restrictions that can be found on Kentucky’s reopening website.
The lawsuit was joined this week by Ky. Attorney General Daniel Cameron, who described the governor’s actions as “extensive micromanaging of the lives and livelihoods” of Kentuckians.
According to Cameron, the governor “has the right—indeed, the duty—to protect the Commonwealth and its citizens from a public health emergency. But, the law requires that the Governor’s actions and orders be targeted and proportional to the threat the Commonwealth is confronting.”
Beshear and the other defendants replied the plaintiffs’ claims are “dangerous” and “wrong.” They also argued, because the plaintiffs’ businesses are able to operate fully or partially, their grievances moot.
The plaintiffs are not of a protected class, the defendants said, and “the regulation of business operations does not impinge on fundamental rights.”
Brueggemann ruled in favor of the businesses, granting their request for a temporary restraining order against the orders in question.
Brueggemann agreed with the plaintiffs that the governor’s orders are “constitutionally suspect.”
He also agreed that the business regulations do impinge on the plaintiffs’ “concrete personal rights,” hence permitting the restraining order, for which immediate or irreparable harm is a criterion according to Kentucky jurisprudence.
“The Court finds that the entire loss of Plaintiffs’ business including the good will built up through years of serving customers would constitute irreparable harm,” Brueggeman wrote.
He continued: “As yet, it is unclear what criteria is being used to establish which businesses may survive versus those that must shutter. Attendance at movie theaters is allowed and (...) the governor has permitted horse races. But attending auto races is not allowed. These are all parts of Americana.”
According to Cameron, the court will now consider his claims that the governor has violated Kentucky’s constitution, acted arbitrarily and “failed to provide due process to those Kentuckians of whom he has taken away rights.”