KY Laws Limiting COVID Governor’s Emergency Powers Valid

In a momentous legal defeat for Gov. Andy Beshear, the Kentucky Supreme Court, in a rare Saturday ruling, ruled on the Democratic governor’s challenge to Republicans-backed laws that limit his authority to issue emergency orders to help control the coronavirus pandemic.

In a 34-page order, the state’s highest court unanimously declared that the Franklin Circuit Court had abused its discretion by blocking the entry into force of the new laws and referred the case to the lower court to dissolve the injunction and hear legal arguments on the constitutionality of each law. .

The challenged legislation has been legally enacted and the governor’s complaint “does not present a substantive legal issue that would require suspending the effectiveness of the legislation,” the seven-member tribunal ruled.

Beshear had sought an injunction against the new laws, arguing that the legislation was undermining its ability to respond to the COVID-19 pandemic and creating a public health crisis that would lead to an increase in illness and death. The governor sued the legislature and Attorney General Daniel Cameron.

The Supreme Court, in a decision written by Justice Laurance B. VanMeter of Lexington, largely agreed with Cameron and lawmakers. Cameron argued that the challenged legislation does not prevent Beshear from responding to emergencies and simply requires him to work collaboratively with other officials – including the legislature – in emergencies that last longer than 30 days.

In a separate concurring opinion, Justice Lisabeth T. Hughes of Louisville said further consideration was needed for a law that requires the convening of the legislature in extraordinary session to deal with emergency executive authority. She said she hopes the Franklin Circuit Court will address this issue as the case continues to be litigated.

She added: “As a judge, and more aptly as a long-time Kentuckian, I implore all parties to this case to lay down their swords and work together cooperatively to complete this extremely important task for the benefit of the people. that they serve. “

A spokeswoman for the governor responded to the ruling on Saturday afternoon, saying Beshear “had the courage to make unpopular decisions in order to protect Kentuckians – the court took away much of his ability to do so at the future”.

Crystal Staley said in a statement that “the court order will dissolve the entire Kentucky state of emergency for the COVID-19 pandemic. This eliminates or endangers large sums of funding, the steps we have taken to increase our health care capacity, expanded meals for children and families, measures to combat COVID-19 in institutions long-term care, workers compensation for frontline workers who contract COVID-19 as well as the ability to fight price hikes. “

“This will further prevent the governor from taking additional measures such as a general mask warrant,” she said.

Staley said the administration is assessing whether to convene a special legislative session and “will work to determine whether the General Assembly will extend the state of emergency.”

“If it is called in special session, we hope that the General Assembly will do the right thing,” she said in the statement.

Republican House Speaker David Osborne and Senate Speaker Robert Stivers issued a joint statement saying they “continue to stand ready to work with the Governor, as we have been doing for nearly a year. year and a half, and dealing with what is a very real public health crisis. “

“After months of deliberation, the Supreme Court confirmed what the General Assembly has said throughout this case – the legislature is the only body with the constitutional power to enact laws,” they wrote. “Let’s be clear that today’s decision does not diminish the severity of this virus or its impact on our community, and the General Assembly will continue to work to uphold both the safety and rights of all Kentuckians.

“The General Assembly has made it clear on numerous occasions that its disagreements with Governor Beshear are based on process. This fact is affirmed throughout today’s ruling, in statements such as “the governor has no emergency power, implied or inherent, beyond that vested in him by the legislature.” and “the General Assembly establishes the public policy of the Commonwealth of Nations. “

Attorney General Daniel Cameron, a Republican, said he hoped Beshear “will now consult our General Assembly and find consensus on what is needed to protect Kentuckians”.

“For months, we have maintained that the governor must work with the General Assembly during the COVID-19 crisis,” he wrote. “Today, the Supreme Court unanimously accepted our position. It is not a new concept; in fact, it is the foundation of our system of government.

“The Court wrote that ‘[a]As we have noted time and time again, so many times that we need not quote, the General Assembly sets the public policy of the Commonwealth. ‘ Many Kentuckians share this sentiment and applaud the actions of our legislature. “

The Supreme Court had heard nearly two hours of argument in the case on June 11, a day before Beshear repealed many of its initial emergency regulations.

The most significant it currently has in place is its August 10 executive order requiring almost all teachers, staff and students in K-12 schools, daycares and preschool programs in Kentucky to wear a mask indoors. . It applies for 30 days and leaves open the indefinite possibility of renewal. A U.S. district judge’s ruling on Thursday temporarily blocked that order in at least one school district. Beshear called for its dissolution.

On August 12, the state’s Board of Education implemented its own emergency regulations requiring a mask warrant for students for most of this school year, and the Department of Public Health made the same goes for daycare centers. A legislative panel has since found those regulations flawed, but Beshear overturned the decision. One of the new laws could limit these emergency regulations to 30 days.

]The Kentucky Department of Education said in a statement on Saturday that the decision did not affect the Kentucky Board of Education emergency regulation requiring masks in public schools.

“The KBE has acted under the authority set forth in KRS 156.160 to promulgate administrative regulations necessary or recommended for the protection of the health and welfare of public school students. This authority has not been examined by the Supreme Court in the opinions delivered today, ”the statement said. “Further, despite the Franklin Circuit Court injunction which the Supreme Court today deemed inappropriate, the KBE followed all of SB 2’s requirements for the promulgation of emergency regulations.

“Finally, the KBE policy is consistent with the language of HB 1 providing for the operation of a public school when a school” meets or exceeds all applicable guidelines issued by the Centers for Disease Control and Prevention or by the executive branch, according to the least restrictive. “”

The Kentucky School Boards Association said in a statement it was reviewing the Supreme Court ruling and urged “all education players” to respond slowly.

“Hot takes in the absence of a full understanding of the impact of the ruling on our public schools risks perpetuating further disinformation at a time when our schools and communities seek clarity,” the statement said in part.

Saturday’s Supreme Court ruling came as the Delta variant of COVID-19 rages statewide.

Last year, the state’s Supreme Court unanimously ruled that Beshear’s ordinances were legal, but that was before the legislature passed laws earlier this year restricting the governor’s powers.

This was Senate Bill 1, which limits Beshear’s ability to issue orders during a state of emergency to 30 days, unless it is extended by the General Assembly and requires the governor to obtain authorization from the Attorney General before suspending a law during an emergency; House Bill 1, which allows businesses, schools, nonprofits, and churches to stay open if they meet COVID-19 guidelines set by the federal Centers for Disease Control and Prevention or the Kentucky Executive Branch, whichever is less restrictive; and Senate Bill 2, a complementary bill to SB 1 to give the legislature more power over administrative regulations issued in emergencies.

Scott and Franklin circuit court cases were at issue in Saturday’s ruling.

The Franklin case involved Attorney General Cameron’s appeal against circuit judge Phillip Shepherd’s decision to temporarily block the four pieces of legislation passed this year by the General Assembly that restrict Beshear’s emergency powers.

In the Franklin case, Shepherd temporarily blocked Common House Resolution 77, keeping Beshear’s COVID-19 restrictions in effect. The resolution clarifies which of Beshear’s COVID-19 orders would remain in place if the legislature wins its legal fight against him. Shepherd had already temporarily blocked SB 1, SB 2 and HB 2 from taking effect.

The Scott case concerned Beshear’s appeal against circuit judge Brian Privett’s decision to temporarily prevent the state from enforcing some of Beshear’s decrees restricting the seating capacity and opening hours of several restaurants and breweries.

In the Scott case, Justice Privett’s preliminary injunction came in a lawsuit brought by Goodwood Brewing Company, doing business as Louisville Taproom; Frankfort Brewpub and Lexington Brewpub; Trindy is in Georgetown; and Kelmaro, doing business as The Dundee Tavern in Louisville.

Privett said his order meant Beshear could not issue or enforce new restrictions against these specific companies.

In another Supreme Court opinion written by Kenton County Judge Michelle Keller on Saturday, the court overturned Scott’s circuit court order that granted the temporary injunction and referred the case back to the lower court for the continuation of the procedure.

Herald-Leader editor-in-chief Valarie Honeycutt Spears contributed to this report.

Jack Brammer is the Frankfurt bureau chief for the Lexington Herald-Leader. He has been covering Kentucky politics and government since May 1978. He holds a master’s degree in communication from the University of Kentucky and is originally from Maysville, Ky.
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