Kentucky Supreme Court rules Beshear’s COVID-19 restrictions are legal
In a major victory for Gov. Andy Beshear, the Kentucky Supreme Court unanimously ruled Thursday that the Democratic governor’s emergency regulations to slow the spread of COVID-19 are legal.
The state’s highest court ruled in a 103-page decision that Beshear properly declared a state of emergency in March and validly invoked powers granted to him under the state constitution.
“The governor’s orders were, and continue to be, necessary to slow the spread of COVID-19 and protect the health and safety of all Kentucky citizens,” the court said in a decision written by Justice Lisabeth T. Hughes. “This type of highly contagious etiological hazard is precisely the type of emergency that requires a statewide response and properly serves as a basis for the governor’s actions ...”
The decision means dozens of emergency orders from the governor, ranging from a requirement for most Kentuckians to wear a mask in public to class sizes in child care centers, will remain in effect.
Fighting the regulations were several businesses represented by Republican Attorney General Daniel Cameron and Northern Kentucky attorney Chris Wiest. State Agriculture Commissioner Ryan Quarles, a Republican, supported their efforts. They questioned how Beshear’s restrictions were implemented.
Beshear, speaking at a news conference in the Capitol 90 minutes after the court decision was released, said he was “grateful not for a win but for the safety of Kentuckians.”
He said a ruling against his regulations “would have eliminated every single safeguard we have here in Kentucky to keep you safe.”
He mentioned the mask mandate supported by the White House, restrictions on indoor arenas where the coronavirus has spread, flexibility for schools using virtual learning, and leaving first responders without workers’ compensation when they have to quarantine.
“The last thing we ought to be doing is fighting with each other and trying to undo the steps that every public official says are important to protect each other,” he said, noting that more than 1,600 Kentuckians have died from the virus.
Beshear said he has no immediate plans to implement more restrictions because of the court’s decision.
He said the state is now focused on enforcing compliance with the regulations and recommendations he’s already put in place, including guidance to severely limit gatherings in about 80 “red zone” counties where the virus is spreading rapidly.
Will the legislature restrict Beshear’s powers?
Cameron, in a statement, said he has always believed the governor should be able to enact policies that protect the health of citizens, “but he must follow a process that allows for public input and respects the constitution.”
“While the court disagreed with our position in this case, there are still lingering issues” concerning the governor’s executive power that should be considered by the General Assembly in the upcoming legislative session, Cameron said. “I look forward to working with the legislature on these matters.”
Wiest, who represented a Northern Kentucky child care center, an auto race track and a bakery challenging Beshear’s COVID-19 orders, said the court decision was “an unfortunate result and one we disagree with.”
He said “it now falls squarely” on the legislature to deal with Beshear’s emergency regulations.
Several Republican lawmakers have said they plan in the 2021 General Assembly to rein in the governor’s authority to issue emergency regulations.
Beshear noted that the Supreme Court said in its ruling that “a legislature that is not in continuous session and without constitutional authority to convene itself cannot realistically manage a crisis on a day-to-day basis by the adoption and amendment of laws.”
Beshear said a “strong” executive branch is needed to deal with emergencies like COVID-19.
Some legislators have said the governor needs to share more information with them and seek their input.
Beshear said Thursday he hopes to develop a relationship with lawmakers “that is mutual, where there can be give-and-take and not just take-and-take. I hope there is an opportunity to build some of those bridges.”
Kentucky Senate President Robert Stivers, R-Manchester, said he is reviewing the court decision “to see if we agree with the court on legislative grants of power to the governor and power granted to him through the Kentucky Constitution.”
He will then “propose an appropriate course of conduct for our chamber for the upcoming 2021 legislative session.”
House Speaker David Osborne, R-Prospect, said “it appears that the court’s opinion provides further evidence of the great need to better define emergency powers granted by previous legislatures.”
“Ultimately, the real issue is what can be done to ensure that the actions taken under a state of emergency follow the appropriate process, include necessary input and provide consistent and logical guidance,” he said.
Court says the constitution is on Beshear’s side
The Supreme Court said KRS 39A mandates that all emergency orders and administrative regulations issued by the governor “shall have the full force of law” when a copy is filed with the Legislative Research Commission.
It said Beshear properly declared a state of emergency and that he has exercised authority lawfully delegated to him by the General Assembly “consistent with decades of Kentucky precedent, which we will not overturn.”
It also said a citizen legislature that meets part-time as the Kentucky legislature does, “generally leaves our General Assembly without the ability to legislate quickly in the event of emergency unless the emergency arises during a regular legislative session.”
The COVID-19 pandemic arose this year during the latter part of the regular session, after the deadline for introducing a new bill, the high court noted. But five amendments eventually passed, most notably a measure that acknowledged the governor’s declared emergency, it said.
“The legislature thereby signaled its awareness of the emergency and that the governor was undertaking to exercise the emergency powers under KRS Chapter 39A,” said the court. “Thus, even within the confines of limited legislative sessions, the timing of this particular emergency was such that the legislature had a few weeks to pass bills related to the COVID-19 pandemic and did so.”
The Supreme Court heard arguments about the legality of Beshear’s emergency COVID-19 regulations on Sept. 17, trying to determine if they should uphold or strike down rules that Beshear contends have saved thousands of lives.
La Tasha Buckner, representing the governor, said Beshear has the responsibility and legal authority to respond quickly to emergencies. If that were not the case, the governor could not respond immediately to floods, ice storms or any other emergency, she said.
Chad Meredith, solicitor general for Attorney General Cameron, said Beshear has “created his own legal code” in issuing voluminous regulations dealing with the coronavirus without following the process of issuing administrative regulations that the public and legislature can review.
Temporary restraining orders against some of Beshear’s orders were issued this summer by circuit judges in Boone and Scott counties. The Supreme Court took up only the Boone County case because it is the only case in which a lower court judge issued a final order. It will deal with the Scott County case later.
Cameron joined the plaintiffs in both Boone and Scott counties. State Agriculture Commissioner Quarles joined an agritourism business against Beshear in the Scott County case.
Kentucky Court of Appeals Judge Glenn Acree in July declined to stop the restraining orders and combined the two cases into one and assigned it to a three-judge appellate panel.
The governor’s attorneys then appealed to the Supreme Court, which put a hold on the restraining orders, leaving all of Beshear’s regulations in effect, and had the cases transferred to the high court.
On Thursday, the high court kept Beshear’s regulations in effect.
This story was originally published November 12, 2020 at 10:11 AM.
