Stage is set for KY Supreme Court to decide whether Beshear’s COVID-19 orders will stand
The COVID-19 pandemic “presents the gravest threat to public health in over a century,” and Gov. Andy Beshear also says state law gives him the tools to exercise his executive authority to protest the public and slow the spread of the virus.
But Republican Attorney General Daniel Cameron says the Democratic governor “simply does not have the authority to act as a one-man legislature, even during a pandemic.”
And Chris Wiest, an attorney for a Northern Kentucky child care center, an auto race track and a bakery challenging Beshear’s emergency COVID-19 orders and regulations, says the Kentucky Supreme Court now has the “opportunity to either stand with the rule of law, or bow to constitutional overreach.”
The seven justices of the state Supreme Court now have before them 302 pages of documents arguing whether Beshear’s emergency orders are constitutional during a pandemic that as of Friday has led to the deaths of 918 Kentuckians.
Briefs from the parties involved had to be submitted to the state’s highest court by 11:59 p.m. Friday.
The Supreme Court will hear arguments from the parties involved at 10 a.m. Sept. 17 and then will decide what is certain to be a historic case. It is not known how long it will take the Supreme Court to make a decision.
At stake are dozens of emergency orders ranging from a requirement for most Kentuckians to wear a mask in public to class size in child care centers.
Temporary restraining orders against some of the orders were issued this summer by circuit judges in Boone and Scott counties.
Beshear has a contract worth up to $250,000 in state funds with the Louisville law firm of Dressman Benzinger Lavelle to assist him in the lower court cases but not in the Supreme Court. DBL was the only respondent in a proposal the Beshear administration put out for the legal assistance.
The high court is only taking up 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 Ryan 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 asked the Supreme Court to tell Acree to order the circuit courts to dissolve the restraining orders, but the Supreme Court put a hold on all lower court rulings and had them transferred to the high court.
That set the stage for all the action to now be in the Kentucky Supreme Court. The case is styled Andrew Beshear v. Glenn E. Acree.
In his legal documents filed Friday night, Beshear said his “decisive measures” slowed the spread of COVID-19 and that state law — Kentucky Revised Statutes Chapter 39A — allows him to respond to emergencies.
“The existence of COVID-19 necessitated the issuance of a statewide emergency and statewide response to preserve resources and limit its spread,” said Beshear.
He also said emergency public health orders relying upon advice of public health officials are entitled to extraordinary deference by courts.
Cameron said in a release Saturday about his legal filings with the Supreme Court, “During the course of the pandemic, the governor has essentially created a new legal code by issuing more than 150 executive orders, guidance documents, and emergency regulations dramatically altering daily life for nearly every Kentuckian and Kentucky business.”
He said he recognizes Beshear’s intent to fight the virus, but “the Constitution and laws of the Commonwealth cannot be cast aside, even if it is done with good intention.”
The attorney general said any changes dealing with the virus “must strike a balance between furthering public health and protecting the constitutional rights of Kentuckians.”
He said he has offered his assistance and counsel to the governor during the pandemic to strike this balance, but Beshear has refused such offers.
Cameron argued before the Supreme Court in his legal brief that Beshear’s actions “disregard the constitutionally mandated separation of powers, which strictly prohibits a governor from exercising legislative power.”
He also said the governor’s executive orders violate Sections 1 and 2 of the Kentucky Constitution, which afford Kentuckians the right to earn a living and protect them from the accumulation and exercise of absolute and arbitrary governmental power.
“Many of the governor’s executive orders have led to legal challenges by Kentuckians, and courts at both the federal and state levels have ruled against the orders on numerous grounds. The governor has not won any of these cases,” said Cameron.
Wiest, of Crestview Hills, in arguing against Beshear’s orders for several Northern Kentucky businesses before the high court, said there is “unrebutted evidence of irreparable harm” to his clients “as the result of the governor’s unlawful issuance” of the orders.
“COVID-19 has uprooted Kentuckians’ way of life,” said Wiest, noting that it has changed the way we work and play and interact with others.
“Yet, this too shall pass,” he wrote. “This case asks whether COVID-19 will also uproot our commitment to the rule of law and our commitment to the Commonwealth’s organic document, our Constitution.”
This story was originally published August 29, 2020 at 1:19 PM.
