Mass-gathering order too vague, unconstitutional: Judge

FRANKFORT, Ky. (WTVQ) – Gov. Andy Beshear was too vague in his order banning mass gatherings and in effect, limited in-person protests which is unconstitutional, a federal judge ruled Wednesday.

The 24-page order by U.S. District Judge Greg Van Tatenhove is similar to one issued in May by different judges concerning how the same order applied to churches.

The Lexington Herald-Leader first reported the ruling.

Beshear has argued the state didn’t stop anyone from protesting but rather simply tried to impose rules that would protect health and safety. But in that effort, the governor was both too vague and went too far, the judge noted.

Beshear cited a Supreme Court ruling in a California case that said elected officials and related experts were better suited to make health decisions than judges.

Tatenhove took that a step further.

“Trust us. That is the position the Governor takes in this case. Trust us, as policy makers, to make the best decisions for the citizens of the Commonwealth in responding to a pandemic. In large measure the Governor is right. The political branches, the policy makers, are far better provisioned than judges to gather the information needed to make informed decisions,” Tatenhove wrote in opening his order.

“But in one respect the Governor is wrong. His power is not absolute. When it comes to restrictions on our liberty, courts must not accept as sufficient whatever explanation is offered. In exercising its constitutional function, it is not enough to simply ‘trust’ the conclusion of the political process that a restriction is necessary or right.

“The teaching of the cases is clear. Even in times of crisis, the Constitution puts limits on governmental action. As explained below, a blanket prohibition on gathering in large groups to express constitutionally protected speech is unconstitutional. When liberty is at stake, policy makers must be more precise,” he said before launching into a detailed analysis of his decision.

The ruling — read it  ramsek ruling on consttutitonal issues june 24, 2020  — came in a lawsuit brought last month by four men — Tony Ramsek and Theodore Roberts, both of Boone County, Frank Harris, of Fayette County, and Tony Wheatley, of Mercer County.

They initially sought an injunction blocking enforcement of Beshear’s mass gathering order for a rally they were organizing for May 23.

Tatenhove denied that request and said they didn’t have standing to file the lawsuit because their rights had not been harmed yet. They appealed that decision to the United States Court of Appeals for the Sixth Circuit, which granted the injunction the morning of the rally, even though Beshear and others had said no effort would be made to block the event or any other similar event.

The Sixth Circuit then sent the case back to Tatenhove to consider the constitutional issues. That resulted in Wednesday’s ruling.

While he wasn’t specific, the judge said Beshear must change his order to include both the health and safety issues while staying within constitutional boundaries.

“No one has ever been prevented from exercising their First Amendment rights, but steps were taken to encourage people to protest safely during this pandemic,” Beshear spokesman Sebastian Kitchen said in response to Tatenhove’s ruling, according to the Herald-Leader.

“The people bringing this lawsuit participated in a rally where speakers advised those in the crowd to remove their masks and not practice social distancing and even stormed onto the front porch of the Governor’s Mansion in attempts to create fear,” he said, the newspaper reported. “The opinion admits that the U.S. Supreme Court has issued an opinion that the governor has acted appropriately, yet bent over backwards not to apply it.”

“We are pleased to see the court’s ruling yesterday that supports the right of Kentuckians to exercise free speech and peaceably assemble.” Kentucky Attorney General Daniel Cameron told the Herald-Leader in an e-mail. “We filed an amicus brief in this case because the constitutional rights of Kentuckians must be protected by our elected leaders and cannot be violated or cast aside, even during a pandemic.”

“Free speech and protests, like freedom of religion in church services, cannot be relegated to third-class status in public health orders, even in a pandemic,” concluded Chris Wiest, the attorney who represented the four men, told the newspaper.