(Reuters) - When Kentucky residents brought a suit earlier this month that challenged the constitutionality of Gov. Andy Beshear’s executive order restricting interstate travel, they named not only Beshear but also the state’s attorney general, Daniel Cameron, as defendants. The complaint, filed in federal court in Frankfort, and an accompanying preliminary injunction motion alleged that the AG, a Republican, was working alongside the governor, a Democrat, to enforce the policy, which barred Kentucky citizens from leaving the state except as required for work, grocery shopping or other essential purposes.
Cameron argued in an April 10 brief that he shouldn’t have been named in the suit because he hadn’t actually done anything to enforce the governor’s order, which is in the purview of local prosecutors, not the state AG. Then on Monday, he took a big step beyond his brief: The AG asked U.S. District Judge Gregory Van Tatenhove to allow him to switch sides and join the plaintiffs in challenging Governor Beshear’s order.
“The governor’s travel ban impermissibly violates the fundamental right of every Kentucky citizen to interstate travel,” the motion said. “This being the Attorney General’s position, he should be realigned as a plaintiff.”
“We have never seen this happen in any of our constitutional cases before,” said plaintiffs’ lawyer Brian O’Connor of Santen & Hughes, who explained that he’s had cases in which state AGs backed plaintiffs – but has never litigated a case in which a government official sought to change sides. O’Connor said that his clients, a husband and wife suing under their initials, W.O. and M.O., for fear of retaliation, support the AG’s motion. If it’s granted, he said, his firm will litigate the suit alongside Cameron.
Interestingly, there’s a bit of a tradition in recent Kentucky politics for the AG and the governor to be at odds. Beshear was the state attorney general before he was elected governor in 2019. As AG, he repeatedly sued Republican governor Matt Bevin for allegedly overstepping his authority.
In a press conference Tuesday to announce his motion to switch sides in the travel restriction case, Cameron also questioned the constitutionality of Kentucky’s restrictions on large-scale religious services, which fall under the state’s general bar on mass gatherings during the COVID-19 outbreak. Earlier this month, U.S. District Judge Justin Walker of Louisville cited the First Amendment in a TRO opinion (2020 WL 1820249) allowing the On Fire Christian Center to hold a drive-in religious service, but that case targeted the city of Louisville’s prohibition on drive-in religious gatherings. A preliminary injunction motion in a separate case challenging the constitutionality of Kentucky’s statewide bar is pending before U.S. District Judge William Bertelsman of Covington.
Governor Beshear noted at a COVID-19 briefing on Tuesday that he did not want to get into a political back-and-forth over the state’s COVID-19 response. He pointed out that Judge Van Tatenhove denied an early motion for a temporary restraining order in the travel restriction case in which the AG is now siding with the plaintiffs. “I’m not trying to set rules that are difficult, and I’m not trying to set rules that are controversial,” Beshear said. “I’m just trying to set rules that save people’s lives.”
Judge Van Tatenhove held an April 14 hearing by phone on the plaintiffs’ preliminary injunction motion in the travel case but has not ruled on either that motion or AG Cameron’s motion to switch sides. The governor’s lawyers have argued that U.S. Supreme Court precedent dating back to 1879’s Bowditch v. City of Boston (101 U.S. 16) and 1905’s Jacobson v. Massachusetts (197 U.S. 11) confirms that governors have authority to restrict civil liberties to avert health emergencies. But during the hearing, the judge asked whether any case law specifically supports travel restrictions.
In a filing Tuesday, Beshear’s lawyers cited the 11th Circuit’s 1996 decision in Smith v. Avino (91 F.3d 105), which addressed a curfew adopted by Florida’s governor after Hurricane Andrew. The 11th Circuit ruling said that “in an emergency situation fundamental rights such as the right to travel . . . may be temporarily limited or suspended.” But in response, plaintiffs’ lawyers from Santen & Hughes said Hurricane Andrew curfews were “a far cry from the overbroad ban on interstate travel imposed by Governor Beshear on all Kentuckians.”