(Originally posted in the MOKP Newsletter, which if you are not subscribed to, you should be! Good information here. Also, see the other story about the ruling on Friday.)
We have updates on two of the lawsuits we’ve been following. They are both Maryville Baptist Church related, one where the church and its pastor are the plaintiffs and one where three attendees are the plaintiffs and sued to block the mass gathering order AND the travel ban. Maryville Baptist Church lost their motion for a temporary injunction at the trial level and has appealed to the Sixth Circuit Court of Appeals. This is an appeal from Western District of Kentucky Judge David Hale’s ruling.
Maryville Baptist Church appeal
As mentioned, Maryville did not prevail on their motion for a temporary injunction, so they have appealed.
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The 6th Circuit panel:
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Sutton: George W. Bush appointee, clerked for Powell and Scalia, wrote the opinion upholding the SSM ban (was overturned by SCOTUS in Obergefell).
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Senior Judge McKeague: George W. Bush appointee
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Nalbandian: Trump appointee, Federalist Society member
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The appellate court does not typically hear appeals for temporary injunctions and restraining orders because of their short duration, but there is a four-part test for when they can hear an appeal: “We review four factors when evaluating whether to grant a stay pending appeal: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009).
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The court spends a lot of time saying that the first factor is met, stating that Beshear’s order is discriminatory because other big parking lots have not been targeted. The court’s problem seemed to be with banning even drive-thru services (but we WERE allowed to have drive-thru services). Maryville was still having regular services with people outside of their cars.
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Though the court states that the other factors are met, it does not go into detail with respect to the other three factors.
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BUT, the court then says: “[W]e are inclined not to extend the injunction to in-person services at this point. We realize that this falls short of everything the Church has asked for and much of what it wants. But that is all we are comfortable doing after the 24 hours the plaintiffs have given us with this case.” So the Court is granting an injunction to the extent the order prohibits drive-in services (which it doesn’t). But the Court upholds the district court’s denial of an injunction for in-person services.
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I don’t really think the 6th Circuit had the facts right, but this is because there was no briefing because this was just a motion for a temporary injunction. Had this been a ruling on the merits, both sides would have written briefs detailing the procedural history and facts of the case, as well as their arguments on the law.
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The district court will now be able to decide this case on the merits (though it will likely be moot on May 20th).
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With respect to this injunction ruling, it seems as if both sides feel like they won.
Maryville attendees’ lawsuit
Two arguments, the right to travel and First Amendment/RFRA. This is an Eastern District case.
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Right to travel: On March 30, Beshear issued an order banning out-of-state travel except for work, getting groceries, caring for a loved one, health care, or when required by a court order.
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A federal judge, Judge Bertelsman, granted a preliminary injunction in the case on Monday. Judge Bertelsman is a senior judge for the U.S. District Court for the Eastern District of Kentucky. He is a Carter appointee and has been senior status since 2000. Senior status is like semi-retirement. You still get paid but you can take a reduced caseload.
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The preliminary injunction means the order cannot be enforced while the lawsuit is pending. He said the right to travel from one state to another is “firmly embedded” in U.S. jurisprudence” and that “[t]he restrictions infringe on the basic right of citizens to engage in interstate travel, and they carry with them criminal penalties.” The opinion also stated, “Not only is there a lack of procedural due process with respect to the travel ban, but the above examples show that these travel regulations are not narrowly tailored to achieve the government’s purpose.”
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The judge is correct that there is a constitutional right to travel; the Supreme Court has recognized this in many cases and because of this, any government action that infringes on the right to travel gets looked at with heightened scrutiny.
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BUT that does not mean that any restriction on travel is unconstitutional. It depends on how strong the state interest is and whether the restriction is narrowly tailored.
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The judge also says the order lacks procedural due process. There are two types of constitutional due process: substantive and procedural due process. Substantive due process protects you from government interference with fundamental rights. Procedural due process requires fair procedures before the government can infringe on someone’s liberty. So that would be like, the right to be heard by an unbiased tribunal, the right to call witnesses and introduce evidence, etc.
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So the judge is saying, there aren’t adequate procedures in place if someone allegedly violates the order.
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The judge also said that minor changes to the order would alleviate constitutional issues.
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The ruling upheld the part of the order about mass gatherings.
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Also important to note, this is just the temporary injunction, not the final ruling on the merits.
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Beshear issued a new one Wednesday that looks just like Ohio’s.
Resources
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