COMMONWEALTH OF KENTUCKY

KENTUCKY SUPREME COURT

NO. 2021-SC-0228-T
(2021-CA-0702)

ANDY BESHEAR, in his official capacity as

Governor of the Commonwealth of Kentucky, et al. APPELLANTS/MOVANTS

On Appeal from Boone Circuit Court

v. Honorable Richard A. Brueggemann, Judge
Case No. 21-CI-00678

RIDGEWAY PROPERTIES, LLC, d/b/a

Beans Café and Baker, et al. APPELLEES/RESPONDENTS

MOTION FOR LEAVE TO FILE

NOTICE OF SUPPLEMENTAL AUTHORITY

Movants Andy Beshear, in his official capacity as Governor of the

Commonwealth of Kentucky, Eric Friedlander, in his official capacity as Secretary of the

Cabinet for Health and Family Services, and Dr. Steven Stack, in his official capacity as

Commissioner of the Kentucky Department for Public Health, by counsel, respectfully

request that the Court grant them leave to file the attached Notice of Supplemental

Authority to provide the Court with Executive Order 2021-585 that requires face

coverings be worn indoors in Kentucky schools and childcare settings, with certain

exemptions as set forth in the order, in further support of Movants’ Renewed Motion for

Interlocutory Relief Under CR 65.09(3), which is now fully briefed.

 Respectfully submitted,

S. Travis Mayo
Chief Deputy General Counsel
Laura C. Tipton
Deputy General Counsel
Taylor Payne
Deputy General Counsel
Marc Farris
Deputy General Counsel
Office of the Governor
700 Capitol Avenue, Suite 106
Frankfort, KY 40601
(502) 564-2611
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]

Counsel for the Governor

-and-

______________________________
Wesley W. Duke
Executive Director
Office of Legal Services
David T. Lovely
Deputy General Counsel
Cabinet for Health and Family
Services
275 East Main Street 5W-A
Frankfort, KY 40621
(502) 564-7042
[email protected]
[email protected]

Counsel for the Cabinet, Secretary

Eric Friedlander and Dr. Steven
Stack

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 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this pleading was served this 10th
day of August, 2021, by electronic mail and U.S. Mail upon the following: Hon.
Christopher Wiest, 25 Town Center Boulevard, Suite 104, Crestview Hills, Kentucky
41017; Hon. Thomas Bruns, 4750 Ashwood Drive, Suite 200, Cincinnati, Ohio 45241;
Hon. Zach Gottesman, 404 East 12 Street, First Floor, Cincinnati, Ohio 45202; Hon.
Victor Maddox, Hon. S. Chad Meredith, Hon. Brett R. Nolan, Hon. Aaron J. Silletto,
Hon. Heather L. Becker, Hon. Marc Manley, Office of the Attorney General, 700 Capital
Avenue, Suite 118, Frankfort, Kentucky 40601; and via U.S. Mail only to Hon. Richard
A. Brueggemann, Judge, Boone Circuit Court, Boone County Justice Center, 6025
Rogers Lane, Room 141, Burlington, Kentucky 41005; and the Kentucky Court of
Appeals, Attn: Clerk, 360 Democrat Drive, Frankfort, Kentucky 40601.

S. Travis Mayo

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 COMMONWEALTH OF KENTUCKY
KENTUCKY SUPREME COURT
NO. 2021-SC-0228-T
(2021-CA-0702)

ANDY BESHEAR, in his official capacity as

Governor of the Commonwealth of Kentucky, et al. APPELLANTS/MOVANTS

On Appeal from Boone Circuit Court

v. Honorable Richard A. Brueggemann, Judge
Case No. 21-CI-00678

RIDGEWAY PROPERTIES, LLC, d/b/a

Beans Café and Baker, et al. APPELLEES/RESPONDENTS

NOTICE OF SUPPLEMENTAL AUTHORITY

On Tuesday, August 9, 2021, Governor Andy Beshear issued Executive Order

2021-585, requiring face coverings be worn indoors in Kentucky schools and childcare

settings, with certain exemptions as set forth in the order. A true and correct copy of

Executive Order 2021-585 is attached hereto. As more fully explained therein, Movants

are taking this action consistent with the recommendations of the Centers for Disease

Control and Prevention (“CDC”). These measures are necessary in school and childcare

settings because of the dangerous spread of the Delta variant. While vaccines work to

prevent COVID-19, vaccines remain unavailable for approximately 661,500 Kentucky

children age 11 and under, and fewer than 34% of all eligible Kentucky children between

age 12 and 17 have received their first dose of a vaccine. Nearly four times as many

Kentuckians age 18 and under tested positive for COVID-19 in July (4,165) than in June

(1,197). The order is supported by the Kentucky Department for Public Health and every
local health department in Kentucky. It is further supported by the Kentucky Chamber of

Commerce, and by education officials, education leaders and education groups.

By its plain terms, Executive Order 2021-585 does not apply to Ridgeway

Properties, LLC (“Beans Café), the Appellee/Respondent, which is a restaurant, not a

school or childcare facility. The issuance of the Executive Order therefore does not

change that Beans Café lacks standing in this case.

Movants anticipate, however, that counsel for Beans Café will argue that the

injunction prohibits the Executive Order. As Movants have explained, Beans Café

appears to believe the Boone Circuit injunction applies to public health measures not at

issue in this case, and to non-parties to this case. 1 Beans Café’s ongoing and repeated

threats to seek contempt sanctions against Movants and their counsel demonstrate the

harm inflicted on Movants by the Boone Circuit Court’s permanent injunction.

As a result, the new Executive Order further shows that Movants have met the

standard for relief from the Boone Circuit injunction. In particular, staying the injunction

will have no effect on Beans Café, but will relieve Movants of the ongoing harm of the

repeated contempt threats and will serve the public interest by ensuring Movants can

protect Kentucky’s children. See Michigan State A. Philip Randolph Institute v. Johnson,

749 F. App’x 342, 344 (6th Cir. 2018) (stating that under analogous Fed. R. App. P. 8(a),

courts consider “(1) the likelihood that the party seeking the stay will prevail on the

merits—which, in the case of staying a permanent injunction, constitutes the likelihood of

1
Specifically, Beans Café has threatened the Kentucky Alcoholic Beverage Control Board with sanctions
for pursuing enforcement actions against licensees who are not parties to this action for violations that
occurred last year, under the public health measures upheld by this Court in Beshear v. Acree, 615 S.W.3d
780 (Ky. 2020).

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reversal; (2) the likelihood that the moving party will be irreparably harmed; (3) the

prospect that others will be harmed by the stay; and (4) the public interest in the stay.”).

Movants therefore respectfully request that this Court stay the Boone Circuit

Court’s permanent injunction, pending further briefing and a full appeal.

Respectfully submitted,

S. Travis Mayo
Chief Deputy General Counsel
Laura C. Tipton
Deputy General Counsel
Taylor Payne
Deputy General Counsel
Marc Farris
Deputy General Counsel
Office of the Governor
700 Capitol Avenue, Suite 106
Frankfort, KY 40601
(502) 564-2611
[email protected]
[email protected]
[email protected]
[email protected]

Counsel for the Governor

______________________________
Wesley W. Duke
Executive Director
Office of Legal Services
David T. Lovely
Deputy General Counsel
Cabinet for Health and Family
Services
275 East Main Street 5W-A
Frankfort, KY 40621
(502) 564-7042
[email protected]
[email protected]

Counsel for the Cabinet, Secretary

Eric Friedlander and Dr. Steven
Stack