Court of Appeals declines to stop judges’ rulings against Beshear’s COVID-19 orders
Gov. Andy Beshear suffered a legal setback Monday when a Kentucky Court of Appeals judge denied his request to stop immediately two lower court rulings against his COVID-19 emergency orders.
Judge Glenn E, Acree said he was not expressing any opinion as to the merits of Beshear’s claims on the two lower court rulings and that a three-judge panel of the Appeals Court will have to consider those.
Beshear spokeswoman Crystal Staley said the appellate court decision will mean more cases of COVID-19 in Kentucky.
“When the United States is seeing record numbers of positive COVID-19 cases every day, and states like Texas have multiple reports from childcare facilities of staff and children sick with the virus, now is not the time to ignore guidance from health care experts,” she said.
“Right now, 500-plus businesses can operate without any safety requirements, including even handwashing, and daycares can decide to have class sizes that are not safe. Kentucky is already experiencing increasing cases and this ruling means we will see more spread of the virus.”
The rulings involved in Acree’s decision came from two separate circuit courts. Acree said he combined them because Beshear’s request opposing them present the same issues and involve many of the same problems.
The cases involve rulings by Boone Circuit Judge Richard A. Bruegemann and Scott Circuit Judge Brian Privett.
Bruegemann issued a restraining order against Beshear in placing restrictions on the number of people at automobile racetracks and day care centers. It sought by several businesses and Attorney General Daniel Cameron.
Scott Circuit Judge Brian Privett issued a temporary restraining order last week in a lawsuit filed by Agriculture Commissioner Ryan Quarles and Evans Orchard and Cider Mill in Georgetown. It challenged Beshear’s restrictions on crowds at certain businesses. Cameron joined the plaintiffs in the lawsuit.
Besides issuing a restraining order on Beshear’s restrictions for 548 agritourism businesses registered with the state Department of Agriculture, the judge said before Beshear could issue or enforce any executive order related to the COVID-19 emergency that he declared March 6, “the governor or other person authorized by the governor shall specifically state the emergency that requires the order, the location of the emergency, and the name of the local emergency management agency that has determined that the emergency is beyond its capabilities.”
Beshear called the judge’s order “reckless” and criticized those who brought and supported it. He asked the Court of Appeals to stop it.
In Monday’s 25-page ruling, Court of Appeals Chief Judge Acree said the state’s court “have always been cautious and conservative” in granting such relief.
He said that type of relief “bypasses the regular appellate process and requires significant interference with the lower courts’ administration of justice.”
Acree said restraining orders are “intended to be short-lived.”
“That this season of our history is temporarily in flux does not alone justify a similar fluidity in our procedural or substantive jurisprudence,” he said.
He added that Beshear has “failed to offer a reason why Kentucky courts should not apply our laws and procedures in these troubled times the same as when our times are tranquil, just as we apply laws and procedures equally to pauper and prince.”
Acree acknowledged that COVID-19 can cause severe breathing problems and even death. As of 4 p.m. Sunday it had killed 625 Kentuckians.
But the judge also said Kentuckians “have taken measures they believe must be taken to protect themselves, those they know and love and those they are yet to meet.”
He said those steps have kept Kentucky ranked among states with the lowest per capita incidence of the virus.
Acree’s ruling has no effect on Beshear’s mandatory mask-in-public order that took effect statewide 5 p.m. last Friday.
Cameron is asking Scott Circuit Judge Privett to rule on its legality. A hearing is scheduled for Thursday.
Cameron, Senate President Robert Stivers and House Speaker David Osborne said in a joint statement that Acree’s ruling “affirms that the Constitution and state law must be upheld and applied consistently.”
They said Beshear should let the cases proceed in Boone and Scott Circuit Courts “without additional attempts to bypass the normal legal process. While there may be a need to adopt various policies to address an emergency situation, they should never come at the expense of the state’s laws or the constitutional rights of Kentuckians.”
Sean Southard, a spokesman for Agriculture Commissioner Quarles said, “While today’s ruling didn’t deal with the merits of the argument being made by Commissioner Quarles and Evans Orchard, it’s important to realize what the case is actually about. It is about the process by which the administration has implemented public health restrictions, not about Centers for Disease Control guidelines.
“We believe everyone should follow Centers for Disease Control guidelines, including mask-wearing. But the administrative law on the books allows for the government to issue emergency regulations that go in effect immediately and also protect the right of individuals and businesses to participate in the rule-making process. This case isn’t about policy or politics; it’s about process.”
Kentucky Republican Party spokesman Mike Lonergan said, “This lawsuit was never about the mask order —rather that the governor must follow the law when issuing executive orders. We’re pleased to see the Court of Appeals decision, and applaud Attorney General Daniel Cameron and Agriculture Commissioner Ryan Quarles for fighting to ensure Kentucky’s laws are upheld.”
The Kentucky Democratic Party said in a release Monday that a new poll conducted July 7-10 by Garin-Hart-Yang research shows 69 percent of Kentuckians supports Beshear’s handling of the pandemic. The governor has support with every single major demographic, including 77 percent of independents.
Additionally, 73 percent of Kentuckians supports his order on requiring masks in indoor settings and some outdoor mass gatherings. That includes 66 percent of independents and 58 percent of Republicans.
This story was originally published July 13, 2020 at 12:36 PM.
