TONY RAMSEK, FRANK HARRIS, THEODORE JOSEPH ROBERTS, and TONY WHEATLY v. ANDREW G. BESHEAR, Governor of Kentucky, ERIC FRIEDLANDER, Acting Secretary of the Cabinet for Health and Family Services, and STEVEN STACK, Commissioner for the Kentucky Department of Public Health, in their official capacities only
No. 20-5749
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
March 3, 2021
21a0053p.06
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). Appeal from the United States District Court for the Eastern District of Kentucky at Frankfort. No. 3:20-cv-00036—Gregory F. Van Tatenhove, District Judge. Argued: January 12, 2021. Decided and Filed: March 3, 2021. Before: SUHRHEINRICH, McKEAGUE, and READLER, Circuit Judges.
ARGUED: Taylor Payne, OFFICE OF THE GOVERNOR, Frankfort, Kentucky, for Appellants. Christopher Wiest, CHRIS WIEST, ATTORNEY AT LAW, PLLC, Crestview Hills, Kentucky, for Appellees. ON BRIEF: Taylor Payne, Travis Mayo, Laura Tipton, Amy D. Cubbage, Marc Farris, OFFICE OF THE GOVERNOR, Frankfort, Kentucky, Wesley W. Duke, David T. Lovely, CABINET FOR HEALTH AND FAMILY SERVICES, Frankfort, Kentucky, for Appellants. Christopher Wiest, CHRIS WIEST, ATTORNEY AT LAW, PLLC, Crestview Hills, Kentucky, Thomas B. Bruns, BRUNS, CONNELL, VOLLMAR & ARMSTRONG, LLC, Cincinnati, Ohio, Robert A. Winter, Jr., Fort Mitchell, Kentucky, for Appellees. Matthew F. Kuhn, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Amicus Curiae.
CHAD A. READLER, Circuit Judge. Over the last year, governments at all levels have employed a range of precautionary measures in an attempt to curb the COVID-19 pandemic. In Kentucky, Governor Andrew Beshear‘s pandemic response included instituting a “Mass Gathering Order.” By its terms, the Order prevented groups larger than ten in number from assembling for certain purposes.
Challenging that Order in federal court, plaintiffs alleged that the Order, both facially and as applied, violated their First Amendment rights to free speech and assembly. Later developments would reveal that, at least in an as-applied context, plaintiffs had been the victims of a textbook First Amendment violation, given Governor Beshear‘s content-based application of the Order. For while Governor Beshear discouraged plaintiffs—through means including the threat of prosecution—from holding a mass gathering at the State Capitol to express their views opposing his COVID-19-related restrictions, he at the same time welcomed a large group of Black Lives Matter protestors to the State Capitol, even going so far as to speak to those protestors despite their plain violation of the Order.
On related grounds, the district court preliminarily enjoined enforcement of the Order. But before that decision could be fully litigated before us, Governor Beshear withdrew the Order. That action renders this appeal moot, as we are without a live controversy to resolve. To the extent plaintiffs claim that a threat of prosecution for their past violations of the Order keeps the broader case alive, we remand the case to the district court to determine what further relief, if any, is proper.
BACKGROUND
Kentucky confirmed its first case of COVID-19 nearly a year ago, on March 6, 2020. That same day, Governor Beshear declared a State of Emergency. See
While broad in scope, the Order left many activities unaffected. Locations permitted to operate “normal[ly]” included “airports, bus and train stations, medical facilities, libraries, shopping malls and centers, or other spaces where persons may be in transit” along with “typical office environments, factories, or retail or grocery stores[.]” According to Governor Beshear, those activities were exempted because of their “life-sustaining” nature.
1. An incident between Governor Beshear and, as they describe themselves, a group of “opponents of the unconstitutional shutdown,” gave rise to this lawsuit. On April 15, 2020, approximately 100 individuals, including Tony Ramsek, gathered on the grounds of the State Capitol to protest Governor Beshear‘s restrictions ordered in response to the COVID-19 pandemic. The protest coincided with Governor Beshear‘s daily press briefing held to address developing public health-related issues. Despite the press conference taking place inside the State Capitol, the protestors’ voices could be heard in the background.
To prevent interference with future press conferences, the Kentucky State Police restricted the public‘s ability to access the side of the Capitol building where the Governor delivered his daily briefings. Officers placed barriers around the area and attached a sign stating: “Pursuant to
2. As these events were unfolding at the State Capitol, Governor Beshear was entangled in litigation challenging other aspects of the Order. On May 2, 2020, we granted an injunction on appeal to allow faith-based mass gatherings that would otherwise have violated the Order, so long as the gatherers remained in their vehicles. See Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610, 616 (6th Cir. 2020) (per curiam). A week later, we granted an injunction that permitted in-person faith-based services that would otherwise have violated the Order. Roberts v. Neace, 958 F.3d 409, 416 (6th Cir. 2020) (per curiam).
Not long thereafter, Ramsek and a handful of other “opponents of the unconstitutional shutdown” filed suit to enjoin enforcement of the Order preliminarily and permanently to the extent it prohibited protests by more than ten persons on Capitol grounds. According to Ramsek, the Order, both on its face and in application, violated plaintiffs’ First Amendment guarantees of assembly and free speech. The Order, Ramsek emphasized, allowed certain kinds of large gatherings, for example, at a shopping mall or an accounting firm, but not at the State Capitol. Ramsek also highlighted the specific protests he and others had engaged in at the Capitol, as well as Governor Beshear‘s response, which included placing blockades on Capitol grounds and increasing the presence of State Police as well as instructing the protestors to stay in their vehicles in a parking garage. The district court denied preliminary injunctive relief on the ground that Ramsek did not have standing. The district court also denied an injunction pending appeal.
Ramsek appealed those decisions to this Court. We in turn concluded that Ramsek had standing and granted in part his motion for an injunction pending appeal. Ramsek v. Beshear, No. 20-5542, at 3, 6 (6th Cir. May 23, 2020) (Order). As we explained there, Ramsek
3. An intervening series of events thickened the legal plot underlying Ramsek‘s claims. Less than two weeks after we preliminarily enjoined drive-in and drive-through protests, but before the district court granted the preliminary injunction regarding in-person protests, a protest in support of “Black Lives Matter” took place at the Capitol. During that demonstration, hundreds of individuals gathered on the Capitol lawn. Yet far from attempting to dissuade this group of protestors, Governor Beshear instead attended the rally, even going so far as to speak to the large crowd assembled at the Capitol. And far from raising the specter of prosecution after the fact, Governor Beshear instead tweeted a picture of him standing before the large, non-socially distanced crowd on the Capitol lawn. A second picture showed him reaching over a column to sign an autograph. Neither at the time of the protest nor during the course of this litigation has Governor Beshear asserted that the Black Lives Matter protest was permitted under his Order. Much to the contrary, his top health expert acknowledged that Governor Beshear in fact violated the Order by attending the Black Lives Matter protest.
4. On June 24, the district court extended the preliminary injunction of the Order to in-person protests. Ramsek v. Beshear, 468 F. Supp. 3d 904, 921 (E.D. Ky. 2020). Employing
Governor Beshear appealed the decision. But before the case could be argued in this Court, the Governor rescinded the Order. In response, we ordered briefing on whether a live controversy exists. On that front, Ramsek argues that the case is not moot because he could still be prosecuted for his prior violations of the Order. As a result, he says, this case is not moot while the statute of limitations has yet to run. Governor Beshear, on the other hand, believes the case is moot because the Order is “off the books,” and because he has asserted that he would not enforce the Order against those engaging in expressive conduct. Nonetheless, Governor Beshear asks that we vacate the preliminary injunction. He cites two grounds to support that request. One is that the equities favor vacatur. The other is that “the injunction would continue to have an ‘adverse effect’ on Defendants and the people of the Commonwealth they represent” were it permitted to stand, a claim Governor Beshear makes despite likewise disclaiming any future attempt to resuscitate the Order.
ANALYSIS
1. At the heart of Ramsek‘s case is a claim that Governor Beshear‘s Mass Gatherings Order violated his right to assemble and to free speech protected by the First Amendment to the United States Constitution. Those bedrock constitutional guarantees ensure “the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means.” De Jonge v. Oregon, 299 U.S. 353, 365 (1937) (holding that a state may not violate the right to peacefully assemble). Ramsek claims that the Order was unconstitutional on its face, meaning that, in the First Amendment context, he must “demonstrate . . . that a substantial number of instances exist in which the [law] cannot be applied constitutionally.” Speet v. Schuette, 726 F.3d 867, 873 (6th Cir. 2013)
As to the latter claim, Ramsek highlights the fact that while the Order was used as a means to discourage him and his colleagues from protesting at the State Capitol to oppose Governor Beshear‘s COVID-19-related measures, it was not invoked against Black Lives Matter protestors who engaged in a similar effort, albeit with a different message, one that sought to bring awareness to the use of violence against the Black community. Notable here is the fact that Ramsek‘s claims turn on Governor Beshear‘s very own actions. At the same time he left open the possibility of an enforcement action against Ramsek and his fellow “anti-lockdown” protestors due to their gathering on Capitol grounds, Governor Beshear personally greeted the Black Lives Matter protestors when they gathered at the Capitol. In fact, Governor Beshear went so far as to speak to the latter group, and to later promote through social media their protest and his participation therein. Threatening sanctions based upon the content of a group‘s political speech is a quintessential violation of the rights of free speech and assembly.
We cannot reach a claim‘s merits, however, if there is no case or controversy. See
Governor Beshear contends that this appeal is now moot in light of his decision to rescind the Order. In the district court, Ramsek secured a preliminary injunction of the Order, the purpose of which “is to prevent any violation of [Ramsek‘s] rights before the district court enters a final judgment.” See Ohio, 969 F.3d at 309. Whether Governor Beshear‘s appeal of the preliminary injunction is moot thus “depends on whether there remains a reasonable possibility
2. While the appeal of the preliminary injunction decision has been mooted by the Order‘s withdrawal, that does not necessarily render the entire case moot. After all, mootness as to this appeal may not speak to mootness of the underlying case. See Ohio, 969 F.3d at 309 (citing Univ. of Tex. v. Camenisch, 451 U.S. 390, 394–95 (1981)) (emphasizing “the distinction between mootness as to a preliminary-injunction appeal and mootness as to the case as a whole”). As to the underlying case, Ramsek believes that a live dispute remains. All parties agree that Ramsek violated an executive order, a misdemeanor under
That worry gives us enough pause to decline to find the entire case moot. We accept Governor Beshear‘s representation that he will not enforce the Order against Ramsek (or any others who engaged in expressive conduct that violated the Order). But enforcement of the Order to discourage or halt protesting differs from prosecuting one for violating the Order. And it is not clear that Governor Beshear has the authority to control prosecution decisions. The Kentucky State Police seemingly could file a criminal complaint and seek to arrest Ramsek for a past violation on its own accord. See
It bears noting, however, that as currently postured, the federal courts may not be positioned to grant Ramsek the freedom he seeks from the threat of arrest and prosecution. Neither the Kentucky State Police nor any county attorney in the Commonwealth is a party to this suit. Given the uncertainty over these various underlying questions surrounding the threat of prosecution, we withhold judgment on whether the case as a whole is moot, whether any amendment to the complaint is appropriate, and whether further injunctive relief is necessary to protect Ramsek‘s rights. The district court, in the first instance, can wade through these and any other remaining issues between the parties on remand. E.g., Compl. at ¶ 98, Ramsek, 468 F. Supp. 3d at 904 (requesting attorney fees and costs).
3. Having concluded that the appeal is moot, we turn to Governor Beshear‘s request that we vacate the preliminary injunction. As the Supreme Court has explained in its Munsingwear line of cases, “[a] party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment.” U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 25 (1994); see also United States v. Munsingwear, Inc., 340 U.S. 36, 39–40 (1950). The Munsingwear doctrine serves to prevent a lower-court judgment from having preclusive effect when the merits are unable to be considered on appeal. See Radiant Glob. Logistics, Inc. v. Furstenau, 951 F.3d 393, 397 (6th Cir. 2020) (per curiam). And according to Governor Beshear, the “vagaries of circumstance” associated with the fluid COVID-19 pandemic required the Order to be lifted, leaving it unfair to allow the injunction to stand despite being mooted.
Two considerations, however, weigh against Governor Beshear‘s request. One is that we typically do not vacate a preliminary injunction in that it “has no preclusive effect.” Id. (quotation omitted). Another is that equity does not support vacatur when the losing party is the cause of a case becoming moot. See U.S. Bancorp Mortg. Co., 513 U.S. at 25. Having lost in the district court, Governor Beshear then withdrew the Order before his appeal could be resolved, vitiating the need for this Court to examine the lawfulness of the preliminary injunction. With that in mind, it would be unfair to then reward Governor Beshear by vacating
CONCLUSION
We dismiss this appeal for lack of jurisdiction, as the appeal is now moot. We remand the case to the district court to decide what further relief, if any, is appropriate.