Judge rules in Beshear’s favor, blocks laws limiting governor’s COVID-19 powers
Franklin Circuit Judge Phillip Shepherd temporarily blocked three new laws Wednesday that limit the Kentucky governor’s powers to deal with emergencies, such as the coronavirus pandemic.
In a 23-page order that is a legal victory for Gov. Andy Beshear and a defeat for the Kentucky General Assembly, the judge granted Beshear’s motion for a temporary injunction and partially stayed the effectiveness of the three new laws the legislature approved earlier this year.
“We appreciate the order,” said Beshear in a statement. “The ability to act and react quickly is necessary in our war against the ever-changing and mutating virus.”
“Recently, we have been having productive conversations on a wide range of topics with legislative leaders,” he said. “We will attempt to work with them on this and other topics now and in the future.”
There were no immediate comments from legislative leaders or from the office of Republican Attorney General Daniel Cameron, who defended the laws in court. An appeal is expected.
Shepherd said the court “is mindful that the challenged legislation seeks to address a legitimate problem of effective legislative oversight of the governor’s emergency powers in this extraordinary public health crisis” but “is also mindful that the governor and the secretary (Health and Family Services Secretary Eric Friedlander) are faced with the enormous challenge of effectively responding to a world-wide pandemic that has resulted in the deaths of thousands of Kentuckians and over 500,000 people in the United States.”
The judge said all parties in the case “are acting in good faith to address public policy challenges of the utmost importance” but “the governor has made a strong case that the legislation, in its current form, is likely to undermine or even cripple, the effectiveness of public health measures necessary to protect the lives and health of Kentuckians from the COVID-19 pandemic.”
He said the court expects Beshear to continue to adjust requirements set forth in his executive orders and emergency regulations to relax these requirements as conditions warrant and the public health concerns abate.
“But the court believes those decisions should be made based on medical and scientific evidence, not on arbitrary deadlines imposed by statutes irrespective of the spread of the virus,” Shepherd wrote.
The three new laws at issue are:
▪ House Bill 1, which allows businesses, schools, nonprofits and churches to stay open if they meet COVID-19 guidelines set by either the federal Centers for Disease Control and Prevention or Kentucky’s executive branch, whichever is least restrictive.
▪ Senate Bill 1, which would limit the governor’s emergency orders, such as one that requires Kentuckians to wear a face covering in public, to 30 days unless the legislature extends them. It also says the attorney general would have to sign off on the suspension of state law in an emergency, and it removes the ability of the governor and secretary of state to decide the manner in which an election is conducted during an emergency.
▪ Senate Bill 2, a companion bill to SB 1, would give the legislature more power over administrative regulations issued during an emergency.
Shepherd had earlier issued a temporary restraining order against HB 1.
He had strongly urged the Democratic governor and the top two legislative leaders — Senate President Robert Stivers and House Speaker David Osborne, both Republicans — to try to find a way to resolve their differences.
Beshear’s lawsuit challenged the three laws the General Assembly approved over Beshear’s vetoes. All three bills contained emergency clauses and thus immediately became law.
The governor claimed in his lawsuit that the laws are unconstitutional and hurt his ability to protect all Kentuckians from COVID-19 and other emergencies.
The laws have been defended by Victor Maddox from the attorney general’s office. The governor’s general counsel, Amy Cubbage, recently noted that the current executive orders dealing with COVID-19 would expire March 4 unless the legislature extends them or the court rules in Beshear’s favor.
The Kentucky Supreme Court last year ruled that Beshear’s COVID-19 orders were legal. Legislators wanted more input into the orders and have tried this year to approve more laws to accomplish that.
Shepherd said in his order Wednesday that the court “recognizes that a serious conflict between the executive and legislative branches of government is at the root” of Beshear’s lawsuit.
He said Beshear has shown “that the challenged legislation infringes on the authority of the executive branch of state government, and crosses the line between proper legislative oversight and improper legislative micro-management.”
The dispute between the two branches is “highly complex” and additional facts, expert opinion, testimony and legal briefing will be necessary to fully and fairly adjudicate, said Shepherd.
He noted that the attorney general has indicated he will contest the issue of whether Beshear has standing to file the lawsuit.
“But until all those legal and factual issues are resolved,” said Shepherd, “the court is faced with a dilemma: should the court allow the new legislation to go into effect immediately, and thus effectively wipe out all of the executive orders, regulations and public health rules that are currently in effect to ‘sunset’ in the absence of legislative approval?”
If the court allowed that to happen, said the judge, “this would result in a chaotic legal environment in which everyone would make their own rules, and state and local health officials would be barred from any kind of effective enforcement of statewide standards and rules.”
The result, said Shepherd, “would be an invitation to disaster.”
For now, he said, Beshear’s executive orders and regulations “shall remain in full force and effect” until the governor amends or terminates them.
This story was originally published March 3, 2021 at 3:31 PM.
