Kentucky governor notches another court victory for his emergency COVID-19 orders

Franklin Circuit Judge Phillip Shepherd has added another legislative measure to the temporary injunction he issued earlier this year to block laws that limit Gov. Andy Beshear’s powers to deal with the coronavirus pandemic and other emergencies.

The judge’s nine-page order handed down late Wednesday afternoon temporarily blocks House Joint Resolution 77. The move keeps Beshear’s COVID-19 restrictions in effect, including the mask mandate.

The resolution, sponsored by House Speaker David Osborne, was enacted by the legislature to implement 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.

Shepherd temporarily blocked SB 1 and two others laws earlier this year.

In blocking the resolution, Shepherd said, “In general, it appears that the General Assembly has ratified the governor’s actions related to economic relief for regulated businesses and professions but has attempted to impose a general termination of executive authority to impose public health restrictions (such as masking in public, social distancing, seating capacity or limitations on public gatherings.)“

“Whether HJR 77 represents a valid exercise of legislative authority or an unconstitutional usurpation of executive authority” is a legal issue that supports the issuance of a temporary injunction, Shepherd said.

The judge called Beshear’s existing executive orders and emergency regulations “proper responses to a public health crisis.”

“They should remain in full force and effect until the entry of a final judgment or until after notice and a hearing on any motion to terminate any such specific executive action,” he said.

Shepherd denied without prejudice Beshear’s request to block parts of House Bill 192, the executive branch budget bill that prohibits spending funds on certain COVID-19 regulations and activities.

The judge said the issue was not ready to be argued in court. He noted that the current budget bill, which remains in effect until July 1, contains no restrictions. The new budget bill, HB 192, takes effect July 1.

The governor may alter or amend the application of COVID-19 regulations prior to July 1, said Shepherd.

“In any event, the court should be able to fully address the merits of those claims prior to the end of the current fiscal year on June 30, 2021,” said Shepherd.

“If those claims have still not been resolved by June 30, 2021, the court will allow all parties notice and the opportunity to be heard on this request for injunctive relief and will issue a ruling on that part of the plaintiff’s motion prior to July 1, 2021.”

Shepherd also directed the parties in the lawsuit to meet and confer within the next two days to resolve any concerns related to the implementation of Senate Bill 148. The measure limits the state’s authority to reduce class sizes at child care centers in an emergency.

Besides SB 1, the three new laws Shepherd temporarily blocked previously were 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, and Senate Bill 2, a companion bill to SB 1 to give the legislature more power over administrative regulations issued during an emergency.

Of Shepherd’s ruling, House Minority Floor Leader Joni Jenkins, D-Louisville, said she was “certainly pleased.”

As the COVID-19 cases “continue their welcome decline, and with every Kentucky adult now eligible for a vaccine, we are coming out of the pandemic the same way we went into it: with caution and decisions grounded in science. That is why Kentucky has been a national leader in this fight from the beginning,” said Jenkins.

“We’re seeing the need for restrictions dropping each day, and Governor Beshear is acting accordingly. My hope is that we continue down this prudent path so we do not see spikes other states are starting to have. We’ve come too far to backtrack and should not set an arbitrary date to stop what is clearly working.”