GOP lawmaker: Limit Beshear’s emergency orders, let Kentuckians sue over shutdown
A Republican state lawmaker seeks to restrict Democratic Gov. Andy Beshear’s power to issue broad executive orders during the coronavirus crisis, and she would let businesses damaged by the shutdown sue the state of Kentucky for relief if they believe Beshear overreached.
Rep. Savannah Maddox, R-Dry Ridge, has filed a floor amendment to her own House Bill 322 that would gut the contents of the bill and replace it with new language adding limitations to the emergency powers of Kentucky’s governor.
Maddox did not respond to requests seeking comment Wednesday. There were 198 confirmed cases of the novel coronavirus in Kentucky as of Beshear’s briefing Wednesday, including five deaths.
“There is not one of us who wants to suffer from a communicable disease, or to lose a friend, family member or member of the community to COVID-19 or any other virus,” Maddox wrote on Facebook last week, shortly before filing her amendment.
“What we do NOT want to do, however, is to fall prey to the mentality that our governor is ‘just following orders’ or to ever lose sight of the power that we relinquish to elected officials in the state and federal government to make decisions that impact our lives,” she wrote. “Only time will tell if we, as a Commonwealth, are responding to this crisis appropriately. There is no crystal ball to foresee if we will strike a balance between protecting public health and avoiding economic disaster.”
On Wednesday, responding to a flurry of critics on Facebook, Maddox added: “At the onset, I thought the Governor was doing a great job handling this situation. However, using the force of government to close 2/3 of Kentucky’s private businesses and picking winners and losers among said businesses is a different matter.”
The co-sponsor of the original HB 322, GOP Rep. Jerry Miller of Louisville, said on Wednesday that he has nothing to do with Maddox’s amendment.
“Savannah is the purest libertarian we have in the House, so with that in mind, it makes sense for her to file this sort of thing,” Miller said. “Her base is the Northern Kentucky Tea Party folks. From a purely libertarian viewpoint, I mean, I get it. But now’s not the time.”
As originally crafted, the House bill required better reporting of asset forfeitures by law enforcement agencies.
The floor amendment Maddox filed last Thursday would instead require a governor’s emergency orders during a “disease outbreak, public health threat or similar occurrence” to be “narrowly tailored towards meeting the exigencies of the emergency,” “no broader or burdensome than is necessary,” “actually issued in response to an emergency or immediate threat of an emergency” and “in effect no longer than is necessary to meet the exigency giving rise to the emergency.”
What happens if a governor oversteps those boundaries? Kentuckians could sue.
“Any person adversely effected by an emergency order may bring an action, individually or as a class action, for declaratory and injunctive relief, in the circuit court in the county in which the person resides or in which the person’s affected business is located,” the amendment states.
Circuit judges would have to hold a hearing within seven days — notwithstanding any other emergency orders largely shutting down the court system, such as one presently in effect — to determine if the governor had erred.
At these hearings, plaintiffs would argue “that their personal or business activities do not in fact present a substantial risk of furthering the emergency” or “that the personal or economic impacts of the emergency order ... are more severe than the impacts of the emergency.” The state would send lawyers to respond to the individual complaints and defend the emergency order.
The circuit judges could vacate the entire emergency order, change it to make it less burdensome or exempt the individual plaintiff and grant them attorney fees and court costs. The plaintiffs also could seek damages from the state government by applying to the Kentucky Claims Commission.
The legislature will resume its 2020 session on Thursday after a one-week break. Asked to comment on Maddox’s proposal, a spokeswoman for House Republican leadership said, “At this time, leadership’s priority is passing a responsible budget.”
House Democratic leaders, who represent a minority of lawmakers in the chamber, said they support Beshear’s actions.
“We think Governor Beshear is doing exactly what needs to be done during this time of unprecedented crisis. We see no merit in any effort to undermine that work, especially while we’re still in a state of emergency,” the Democrats said in a prepared statement.
Maddox is serving her first two-year term in the Kentucky House. According to her personal finance disclosure, filed Feb. 14, her only source of income is the General Assembly, while her husband works for the Kentucky Department of Fish and Wildlife Resources.
This story was originally published March 25, 2020 at 11:14 AM.
