we believe that alternatively if the if the case was not rendered moot at all it's time to take it or our injury aren't yours if you're saying you're not injured and we have standing anymore to carrier do you have standing to pursue an appeal i believe we do your honor because future litigation or any potential actions that the governor was going to take absent a mass gatherings order that related to kovan one thousand which the governor has expressly said he will not issue again but the order could have long term effects down the road on issues that public health officials may take on that so in that sense there isn't i mean that the district court's decision in that sense render some injury i suppose to the commonwealth relates to the mass gatherings order and the plaintiff's rights as they asserted them at the beginning of this action and that was to specifically gather at the capitol during the covert nineteen crisis while this claiming some kind of injury from the district court order and for the future applications i guess i'm just trying to work through those issues it seems a little bit sort of inconsistent the way you're right your honor and i understand and i'll try to be a little clearer in my answer here when we were addressing standing there and it when i was i was addressing that from the beginning of the case that we had standing to bring the appeal and to seek review of the district court's order this case being moved you believe the case should this court should declare the case moot and send it back to the district court if this court believes that the district court should address movements in the st instance we would be fine with that order your honor we understand it's procedurally awkward in the sense now that we brought the the prevailing party below has taken action that moves the case on appeal in this case it's the happenstance of coping nineteen we had an order that has been amended and changed throughout the entire summer after those opening months of covert nineteen and it was ultimately rescinded in its entirety in december the governor stated he would not reenter that order or any other order that would limit at any weight limit gatherings on the capitol grounds and so we're in a position where the preliminary injunction is in effect no party would be prejudiced by vacating that order and the appeal and the claims below it been rendered moot by that action and by the happenstance of covert nineteen creating a situation where the governor can implement more targeted limited measures and is withdrawing those measures as we vaccinate the public and hopefully move out of this pandemic in the next so that and in this instance your honor i mean there are multiple reasons to vacate that order the order is entered is erroneous the orders entered will have long standing a fax in the eastern district of so we would certainly do that if it was sent back but this court has the ability to vacate that order or not and i do recognize that it is the unique circumstance of of in this case the non prevailing party below asking for that relief but in the situation in kosovo that it's we think it's appropriate here because otherwise to seek review of these orders the governor could mean in some ways would be required to leave orders that had no longer had any moot i believe under the flexibility of the statute that this court would have the ability to vacate it under principles of equity in the sense that it just no longer has any effect and there shouldn't be any extending legal consequences from that preliminary injunction for future le against or for the parties in this case that are painted you're really are not directly saying this but what i understand you to say is what you're really interested in is us vacating that  the odd way from my perspective that you're asking us to do this as you say is you you admit the case is moot but then you say you want us to vacate it because of the order drop if our basis of vacating the underlying order is that it's wrong even though the case is moot then we've got to look at the merits and that to me that just doesn't make any sense where you are at i would say that principally we want this court to declare that the case isn't it this court we do believe if the court were to address the equity factors of considering to vacate we think it would if this court would then need to look at one of the equity factors is the legal consequences of this case  maybe you can turn to the merits we can maybe give you a little extra time but your friends on their side would say that this order when it was in existence was applied differently to different groups and would point to the governor appearing at one rally and seeing two seeming to approve one group brawling versus another group setting on the parking garage and suggesting that there might be future prosecution we we've disputed that in our in our briefs your honor and we believe that that are pretty hard to dispute you agree the governor showed up at the black last matter rally and addressed the crowd and didn't tell the crowd to go on if they were violations of the governor's ordinance correct a press conference that it was unsure whether he would enforce it against them and had made up his mind yet something along i believe he said at a press conference that what they were doing was violated the order and then someone asked if there would be consequences of that and i believe he said we'll see but the governor to these plaintiffs in this action below expressly told them that there would be no enforcement of that and the other problem with that your honor is that the plaintiffs throughout this entire process failed to comply with the existing state law that requires them to sim in an application to hold events on capitol grounds they didn't do that until it was that requirement was raised in a hearing at the district court so you have to  application that they ultimately did submit for the may rd rally after it was brought to their attention that they had not yet i don't believe that that is in the record i do know they submitted it and then there were negotiations for guarding that application and that was  tailoring of the of who is allowed to gather and who's not and i have almost sympathy for those in executive leadership who have to make really tough decisions but one might question barring people to get together to express their political gatherings when it exempted word normal operations of certain businesses in essential service providers where the gathering occurs either incidentally or as a need for to provide the service so  fans were not allowed to gather when this order was entered in chalons over the course of the summer the governor began loosening those restrictions to allow the bin spaces and larger places like that to open at limited capacity but at that point political protest them was allowed happen so that wasn't a direct compared her but to your point about offices and essential services i think the governor took advice from federal counterparts of certain groups that needed to remain open in a public health crisis  part of the decisions for office based things were that there were other requirements in place requiring offices to telework as much as possible while still being able to provide essential services and so there were there were measures in place that we were just in the same way the mass gatherings order was put in that we were hoping would be followed that we did recognize that shutting down potentially lawyers offices or accounting office could be detrimental to the public health in the sense that people need to access services to for future medical care or instances like that so it's a very difficult line we're having to draw all and obviously the governor is opening days of this pandemic is doing it  action i want to start unless the corps wanted to address the merits with the move this issue because i think that it is important but address and i wanted to specifically talk about who has the burden on these issues and the governor has the burden on these issues to both prove minutes it's been described as a heavy burden and in terms of the exceptions and there's a there's a case i wanted ill be put back on it's whether it's capable of repetition here the governor can certainly put these orders back on with the stroke of pat yesterday at the governor's press rate the thirty two minute mark your honour's a reporter asked the governor with cases on the rise whether he would reimpose restrictions on the problem and his response was well they're looking at case trends he says continue to rise they don't class that was and they would look at doing so that's an admission by the governor publicly in the same way  demonstrates that this case is not new because the circumstances are possibly changing and these plaintiffs could be subject to the same action again in terms of a restriction on their ability to gather engage in political speech and when we look at the governor's healthy at work website we see in bold a reminder the people should be quote prepared for state local public health workers to be extended to mentor changes needed to protect public health this means we may move between different phases during this pandemic  you know these are government statements your honor that demonstrate the possibility of this being put back on when we go back to the burden and again under for under the supreme u s supreme court decision or friends of earth it's the governor's burden to make sure that it's quote absolutely clear the restriction w if all the facts were exactly the same when this order was reimposed if that was to happen then i can understand why you would want direction from the courts that you can't reimpose that order but it just seems to me and this the problem with this whole pandemic is the fluid nature of how things are are going in that seemed to be what stream court was concerned with too so if if we're talking when we're trying to figure out whether this is capable of repetition am i right that the facts upon which the order is based and the terms of the order and the comparisons in the order all would have to be the same certainly any for in the free speech cases your honor the comparative has become critically important i do not i do not believe that they're necessarily as important in this case because we're not only dealing with the notion of you know the how does whatever we do today assuming this case for a moment is not moot how do how do we address what restrictions are appropriate or inappropriate under the st amendment when you don't know what the order was going to be you don't know what the compared to hers are going to be it just seems to me that this is all speculation your honor i do not believe that there needs to be the exact same compared or as i think you know if there are there general comparison of predicting you know putting a blanket ban on gatherings of the capital that's going to raise issues i would also point out that in this was the issue in the th let's just hypothetically assume that there is a complete ban that's imposed for whatever reason but let's also say assume in the hypothetical that that completely ban extends to all arguable compare and it's supported based upon public health considerations at that point do you have do you still have your st among claims i think you do your honor under word because of the of alternatives you do in this case and that makes it a little bit different than the church cases freedom of exercise i would point this out your honour's and this was a commitment in my imes i know i'm sort of pursuing this with you but use you then turn to others and there are adequate alternatives so you'd have to know would you not in advance what the adequate alternatives would be nine hundred dollars stand how you reject out and drive thru rd floor of a garage a block or two away in terms of trying to influence representatives in the government i get that but you don't know what the all what the other if the governor was smart he would come up with a new different more appropriate alternative means of x of expression winning and yet your honor for almost nine and a half months he did not do that in this case and i think that that is also an indicator of where we've been and i think you know what we what we saw instead were efforts the injunction in the district court you know it an effort to obtain a stay and i think to some degree i do think past court's injunction and one of the things that was interesting in one of the cases that he cited it was a th circuit case was the kind of case where what the district court did in that case was a didn't vacate the injunction instead it sort of dissolved it going forward kept people who violated the repealed statutes campaign finance case in that case repealed statute from being prosecuted and so in that does you know get to why it merits decision is necessary  here i we believe of course the governor would be free to dismiss his appeal but these plaintiffs in the absence of an one hundred leave are technically subject to prosecution and by the way it's not the governor's decision as to whether or not these plaintiffs will be prosecuted those are made by the county attorney's probably the county attorney in franklin county and there's never been any indication that in the absence of an injunction that county attorney would not is no question but that the governor's actions in this case i mean this was not even an expiration of an order this was governor resending in order his actions are what made this case move and under those two u s supreme court cases they suggest t and if the court were to do that i mean we would you know we could go and fight this fight about permanent injunction you know another day in the back would would suggest doing so or at least ensuring that there was an injunction relief to prevent prosecution going work your honour's on this on the merits again i think our point is that we think the district court got it wrong on content neutrality and i did want to address that i do agree with that your honor i do we believe that the orders actually facially invalid in part because of the exceptions and we took dr stack's deposition in this case to the public health commissioner he admitted that that was the mass gathering order you know restricted other orders left it and one of the one of the compared is and this was the one that i really want to harp on because i think it makes a lack of contest a tragedy clear on the face is out there auctions that the governor allowed in the governor you know people could gather in scream back and forth just like in an auction dr stack admitted this is never a great thing and there's no material difference between that in protest activity in kind of a worst case scenario in terms of what was allowed and what's was content neutral and we believe the district court erred in that regard compared made very very clear before we even get to the viewpoint discrimination that we believe occurred in terms of the governor literally was photographed welcoming the b l m rallies with had on your clients if it did and to set that up you know we just had a case called pleasantview where we decided not to reach the merits of an order because it's going to it's going to expire or not really been applied at all so that circumstance there was a group that wanted to get a political year political and or gathering so they might do it but they didn't cite any actual gathering that they had tried to have that have been curtailed are getting that they have had they're worried is going to be prosecuting the future gere case needs a little different governor's conduct there is your honor and certainly this is not this this court's st look at this case this this this case came up in an injunction pending appeal context right around the time that it was brought and the evidence of record which which was not about it was that there were police vehicles that blocked egresses in the dresses for these protesters the evidence of record was that there were barricades that were set up with criminal prosecution notices the blocked portions of the capital for these protesters the evidence was that the governor following these protests made statements about we'll see in terms of prosecution all of those by the way your honor our forms of unfortunate which this court held in the injunction pending appeal which doesn't require that the plaintiff in this case be dragged off and handcuffed so to speak but our actions that that chill speech and this court found these plaintiffs had standing in the injunction pending appeal because of that record evidence which was never about it and so you know i would suggest that it does not require that these plaintiffs be criminally prosecuted but there were and certainly indications there were public on the nations by the governor about their gathering on television meant to curtail and show their speech also at multiple press cite at the page id number where that was in our briefing as well where these notices were i would note that at least for one of these plaintiffs he was actually one of the church attendees that in response to one of the same mass gathering orders received a quarantine a prosecution notice that with that and here on it in pleasantview which was decided less than a month ago and this court held that when a law is off the books and replaced by new order that no longer injures the plaintiffs the case is moot in pleasantview it was the exact new order to keep people from getting together yeah so that was of those a very thoughtful panel that issued that decision so i don't quarrel with their reasoning but i do see a little difference not just here from about this on the other side between that you know there is a group they want together politically in their home and they said they might do it and they're worried about enforcing the order but here we have some water into the rich and this group has tried to get out of it it have gathered couple of times they say they've been shelled in some respects and so i see some distinctions between for the factual of that case versus this i agree your honor there are distinctions but the distinctions favor in a much clearer finding here that the actions will not repeat themselves or that the plaintiffs were not harmed in this case we literally have evidence in the record that plaintiffs gathered every single time they intended to gather despite the mass gatherings order in effect we have evidence that the governor during the beginning of this litigation expressly told the plaintiffs they will not be prevented from gathering at the capitol and they will not be prosecuted for gathering at the capitol pursuant to the mass gatherings order and what the plaintiffs here in this case have done is they've confused two distinct issues and that's the mass gatherings order which is a covert nineteen related measure to prevent large groups of people from gathering together and spreading this disease with existing state law requires anyone that's going to hold an event the capital to apply with finance  administration cabinet to inform the cabinet how many people they expect to it and whether whether there will be vendors or anything of that nature and where they're seeking to hold the event on capitol grounds plaintiffs never did that in the situation so the barriers in that blocking of gresson ingress to the capital at different times you know we dispute when that occurred your honor but in the record here plaintiffs took a picture of the barrier which has a sign posted on it saying that the kentucky state police had arrested this barrier pursuant to the state of the existing state law and that barrier on it from the record it's clear a group of individuals gathered right outside of the governor's window office window while he was conducting a press conference to scream and chant and disrupt that press conference no one's doubting that they weren't expressing their st amendment rights in doing that but government through this state law has the ability to pardon off partition off certain areas of the capital so that public business mistal occur and that's all that occurred here they engage in areas to allow driving and services the parking lot is the only place that can happen if plaintiffs would have petitioned and sought an application to drive around the loop of the capital that would have been permitted if anything was prevented it was because no one knew they were coming and we were blocking it off for purposes of allowing the governor to conduct this press conference without being interrupted by chance so that he could actually convey important messages to the citizens about coven nineteen to thank you very much traffic argument to any of my colleagues have