459 F.Supp.3d 833
E.D. Ky.2020Background
- Governor Andy Beshear issued a series of COVID-19 executive Travel Orders that initially required 14-day self-quarantines for Kentuckians returning from or non-residents entering the Commonwealth; those orders were later rescinded and replaced by Executive Order 2020-315 (the Third Travel Order), which uses permissive language and "allows travel into or out of the Commonwealth."
- Private plaintiffs W.O. and M.O., Kentucky residents who regularly travel out of state to see family, brought a pre-enforcement challenge alleging the Orders unconstitutionally burden interstate travel.
- Kentucky Attorney General Daniel Cameron intervened to challenge the Travel Orders on behalf of the people of Kentucky; the court earlier allowed intervention but reserved ruling on constitutional standing.
- The court found Kentucky law (Commonwealth ex rel. Beshear v. Bevin) authorizes the Attorney General to sue to challenge executive actions, and recognized the asserted federal right (interstate travel) as a cognizable federal interest.
- The private plaintiffs could not show a credible threat of prosecution: no history of enforcement under the Travel Orders, no warning letters, and the Governor did not refuse to disavow enforcement; the Third Travel Order’s permissive language and the absence of enforcement indicators (hotline alone insufficient) undermined their pre-enforcement standing claim.
- Holding: W.O. and M.O. were dismissed with prejudice for lack of Article III standing; Attorney General Cameron’s claims may proceed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Attorney General has Article III standing to challenge the Travel Orders | AG asserts a federal right (constitutional right to interstate travel) and authority under Kentucky law to sue on behalf of the Commonwealth | Governor argued that travel restrictions may be permissible for public health and questioned standing but did not raise sovereign immunity here | AG has Article III standing; Kentucky law authorizes AG to sue to vindicate citizens’ federal rights |
| Whether private plaintiffs (W.O. & M.O.) have pre-enforcement standing to sue | W.O./M.O. claim intent to travel, fear prosecution under the Travel Orders, and therefore injury-in-fact | Governor points to rescission/revision (Third Travel Order), no enforcement history, and permissive quarantine language undermining any credible threat | Private plaintiffs lack standing: failed to show a credible threat of prosecution (no enforcement history, no warnings, Governor did not refuse to disavow enforcement); dismissed with prejudice |
| Whether the Third Travel Order actually prohibits Plaintiffs’ intended travel | Plaintiffs contend prior orders proscribed their travel; they assume Third Order still proscribes some travel | Governor notes Third Order is permissive and expressly allows travel, merely requests self-quarantine if staying in-state | Court did not resolve whether the Third Order definitively proscribes travel; analysis focused on lack of credible threat so the question was not decided |
Key Cases Cited
- Virginia Office for Prot. & Advocacy v. Stewart, 563 U.S. 247 (2011) (analyzing when a state actor may sue fellow state officials and the related requirements)
- Saenz v. Roe, 526 U.S. 489 (1999) (recognizing constitutional right to travel among the States)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (pre-enforcement standing: threatened future enforcement can support injury-in-fact if certainly impending or substantial risk)
- McKay v. Federspiel, 823 F.3d 862 (6th Cir. 2016) (identifying factors to establish credible threat of prosecution in pre-enforcement challenges)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (injury-in-fact must be concrete and particularized)
- Commonwealth ex rel. Beshear v. Bevin, 498 S.W.3d 355 (Ky. 2016) (Kentucky Supreme Court holding the Attorney General may initiate suits challenging executive actions' constitutionality)
- Plunderbund Media, L.L.C. v. DeWine, [citation="753 F. App'x 362"] (6th Cir. 2018) (applying pre-enforcement standing principles)
- Bennett v. Spear, 520 U.S. 154 (1997) (standing requires injury-in-fact, causation, redressability)
- Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984) (state-law allocation of authority relevant to whether a state actor may litigate in federal court)