Gov. Matt Bevin's administration violated the law by limiting access to the Kentucky Capitol for members of the Poor People's Campaign advocacy group, Attorney General Andy Beshear said Monday in a legal opinion.
The opinion said the Kentucky State Police and the state Finance and Administration Cabinet failed to have a new procedure for limiting access vetted by the administrative regulation process, as they do for such subjects as parking illegally at the Capitol.
The opinion was requested by Democratic state Reps. George A. Brown Jr. of Lexington and Attica Scott of Louisville. They were joined by 27 of their colleagues in the Kentucky General Assembly.
"Although we recognize that the KSP and the Finance Cabinet must have the flexibility and discretion to respond to imminent threats to the security and welfare of persons working or otherwise using state-owned buildings, this is not a case involving such an imminent threat that the promulgation of administrative regulations was impossible," said the opinion.
Sign Up and Save
Get six months of free digital access to the Lexington Herald-Leader
Opinions of the attorney general do not have the force of law, though they can be cited in court and "public officials are expected to follow them," according to the website of the Office of the Attorney General.
Scott said the opinion "gives the Poor People's Campaign a major tool to use in a court challenge."
She noted that all legislators who sought the opinion were Democrats and expressed hope that the legislature's interim Committee on State Government will "take up, review and back the opinion." Scott is a member of that committee.
House Minority Leader Rocky Adkins, D-Sandy Hook, said any policy changes about who is allowed to enter the Capitol should be publicly vetted beforehand.
"We need to make sure we're not violating anyone's First Amendment rights to be heard by those who serve them," Adkins said.
The anti-poverty demonstrators tried several times in recent weeks to to enter the Kentucky Capitol but were told by police that only two members could enter at a time.
Kentucky is the only state in the country that has denied Poor People's Campaign participants access to their statehouse, said its leaders. They also said the group is exploring legal options.
"Hallelujah. It would take a good man like Andy Beshear to get this right," said Tayna Fogle of Lexington, an official with the Poor People's Campaign in Kentucky.
She said the group's leaders will meet with a legal advisor "on what our next step should be." The opinion may be tested with several members of the group trying to enter the Capitol at the same time, she said.
Kentucky State Police spokesman Josh Lawson said in an email that "the Attorney General’s opinion suggests that KSP should promulgate a regulation to respond to fluid security and safety threats. As the state’s top law enforcement agency, KSP must be able to implement real-time safety protocols to respond to the situation on the ground to protect visitors, employees, and protestors alike. Even the Attorney General’s opinion recognized that KSP must have “flexibility and discretion” in performing its duties to protect the public."
For six consecutive Mondays, several dozen of the anti-poverty demonstrators met on the Capitol grounds to call for changes in economic, racial, environmental and tax policies to help poor people.
Similar protests were held in dozens of other states, culminating late last month at a national rally at the U.S. Capitol in Washington, D.C.
The Kentucky protests began drawing attention after the group was told it could not congregate inside the Capitol.
Kentucky State Police limited access to the protesters to only two at a time after some members of the group blocked traffic near the Capitol and entered restricted property at the nearby Governor's Mansion. The group said the requirement is unconstitutional because it only applies to them.
State police said groups must obtain a permit from the state to hold rallies in the Capitol but the Poor People's Campaign has declined to seek such a permit.
Beshear's opinion said it does not appear that any of the rules and policies for use of the Capitol and its grounds have gone through the administrative regulation process.
It said the Finance Cabinet has a regulation for parking at the Capitol. "Thus, it should come as no surprise that a regulation similarly is required for public access to and use of state-owned buildings and grounds."
The Poor People's Campaign scheduled its events on the Capitol grounds a week apart, said the opinion. "Therefore, there was ample time for the Finance Cabinet and/or the KSP to avail themselves of the procedures for emergency administrative regulations."
The Rev. William J. Barber II of North Carolina, national co-chairman of the Poor People's Campaign, came to the Kentucky Capitol twice and charged Bevin with hypocrisy for swearing on a Bible to uphold the Constitution and then refusing to let people into the Capitol to criticize the government.
"We were never going to let an arbitrary ruling aimed at silencing our voices stop us from joining together and speaking out," said Barber and Poor People's Campaign co-chairwoman Liz Theoharis.
They added: "Coming days after a federal judge blocked Kentucky's attempt to impose work requirements on Medicaid recipients, it's clear the tide is turning in Kentucky, and that the voices of the poor will be heard."
The Rev. Megan Huston, an official in the Kentucky campaign and minister at Bowling Green's First Christian Church, said the group will use the ruling "to mobilize voters in the November elections against those who will not help the poor."