Kentucky Supreme Court: New laws limiting Beshear’s emergency powers are valid

In a momentous legal defeat for Gov. Andy Beshear, the Kentucky Supreme Court in a rare Saturday decision ruled on the Democratic governor’s challenge of Republican-backed laws that limit his authority to enact emergency orders to help control the coronavirus pandemic.

In a 34-page order, the state’s highest court unanimously said Franklin Circuit Court abused its discretion in blocking the new laws from taking effect and sent the case back to the lower court to dissolve the injunction and hear legal arguments about the constitutionality of each law.

The challenged legislation was lawfully passed and the governor’s complaint “does not present a substantial legal question that would necessitate staying the effectiveness of the legislation,” the seven-member court ruled.

Beshear had sought injunctive relief against the new laws, arguing that the legislation undermined his ability to respond to the COVID-19 pandemic and created a public health crisis that would result in increased disease and death. The governor sued the legislature and Attorney General Daniel Cameron.

The Supreme Court in a decision written by Justice Laurance B. VanMeter of Lexington largely agreed with Cameron and lawmakers. Cameron argued that the challenged legislation does not prevent Beshear from responding to emergencies and simply requires him to work collaboratively with other officials — including the legislature — in emergencies that last longer than 30 days.

In a separate concurring opinion, Justice Lisabeth T. Hughes of Louisville said more examination is needed of a law that requires calling the legislature into special session to address executive emergency authority. She said she hopes Franklin Circuit Court will address this issue as the case continues to be litigated.

She added: “As a justice, and more pertinently as a lifelong Kentuckian, I implore all parties to this matter to lay down their swords and work together cooperatively to finish this immensely important task for the benefit of the people they serve.”

A spokeswoman for the governor responded to the decision Saturday afternoon, saying Beshear “has had the courage to make unpopular decisions in order to keep Kentuckians safe — the court has removed much of his ability to do so moving forward.”

Crystal Staley said in a statement that “the court’s order will dissolve Kentucky’s entire state of emergency for the COVID-19 pandemic. It either eliminates or puts at risk large amounts of funding, steps we have taken to increase our health care capacity, expanded meals for children and families, measures to fight COVID-19 in long-term care facilities, worker’s compensation for front-line workers who contract COVID-19 as well as the ability to fight price gouging.”

“It will further prevent the governor from taking additional steps such as a general mask mandate,” she said.

Staley said the administration is assessing whether to call a special legislative session and “will work to determine whether the General Assembly would extend the state of emergency.”

“If called into a special session, we hope the General Assembly would do the right thing,” she said in the statement.

Republican House Speaker David Osborne and Senate President Robert Stivers issued a joint statement, saying they “continue to stand ready to work with the governor, as we have for nearly a year and a half, and address what is a very real public health crisis.”

“After months of deliberation, the Supreme Court has confirmed what the General Assembly has asserted throughout this case — the legislature is the only body with the constitutional authority to enact laws,” they wrote. “Let us be clear that today’s ruling in no way diminishes the seriousness of this virus or its impact on our commonwealth, and the General Assembly will continue to work to maintain both the safety and rights of all Kentuckians.

“The General Assembly has made it clear on numerous occasions that its disagreements with Governor Beshear were founded in process. This fact is affirmed throughout today’s decision, in statements like ‘the Governor has no implied or inherent emergency powers beyond that given him by the legislature,’ and ‘the General Assembly establishes the public policy of the Commonwealth.’”

Attorney General Daniel Cameron, a Republican, said he hopes Beshear “will now consult with our General Assembly and find consensus on what is needed to protect Kentuckians.”

“For months, we have maintained that the governor must work with the General Assembly during the COVID-19 crisis,” he wrote. “Today, the Supreme Court unanimously agreed with our position. This is not a novel concept; in fact, it’s the bedrock of our system of government.

“The Court wrote that ‘[a]s we have noted time and again, so many times that we need not provide citation, the General Assembly establishes the public policy of the Commonwealth.’ Many Kentuckians share that sentiment and applaud the steps taken by our legislature.”

The Supreme Court had heard nearly two hours of arguments in the case on June 11, a day before Beshear repealed many of his initial emergency regulations.

The most prominent he has in place now is his Aug. 10 executive order requiring almost all teachers, staff and students in K-12 schools, child care and pre-kindergarten programs across Kentucky to wear a mask indoors. It applies for 30 days and leaves open the indefinite possibility for renewal. A U.S. district judge’s ruling Thursday temporarily blocked that order in at least one school district. Beshear has asked that it be dissolved.

The state Board of Education on Aug. 12 implemented its own emergency regulations requiring a mask mandate for students for most of this school year, and the Department for Public Health did the same for child care facilities. A legislative panel has since found those regulations deficient, but Beshear overrode that decision. One of the new laws might limit those emergency regulations to 30 days.

]The Kentucky Department of Education said in a statement Saturday that the decision has no bearing on the Kentucky Board of Education’s emergency regulation requiring masks in public schools.

“The KBE acted under authority set forth in KRS 156.160 to promulgate administrative regulations necessary or advisable for the protection of the health and welfare of public school students. This authority was not reviewed by the Supreme Court in the opinions issued today,” the statement said. “Furthermore, despite the Franklin Circuit Court injunction the Supreme Court found improper today, the KBE followed all requirements of SB 2 for the promulgation of emergency regulations.

“Finally, the KBE’s regulation is consistent with the language of HB 1 providing for public school operation when a school ‘meets or exceeds all applicable guidance issued by the Centers for Disease Control and Prevention or by the executive branch, whichever is least restrictive.’”

The Kentucky School Boards Association said in a statement that it was reviewing the Supreme Court decision and urged “all education stakeholders” to take a slow approach in responding.

“Hot takes absent a full understanding of the ruling’s impact on our public schools risk perpetuation of more misinformation in a time where our schools and communities are seeking clarity,” the statement said in part.

Saturday’s Supreme Court ruling came as the Delta variant of COVID-19 is raging across the state.

The state Supreme Court last year unanimously ruled that Beshear’s orders were legal, but that was before the legislature passed laws earlier this year restricting the governor’s powers.

They were Senate Bill 1, which limits Beshear’s ability to issue orders during a state of emergency to 30 days unless extended by the General Assembly and requires the governor to get permission from the attorney general before suspending any statute during an emergency; 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.

At issue in Saturday’s ruling were cases from Scott and Franklin circuit courts.

The Franklin case involved Attorney General Cameron’s appeal of Circuit Judge Phillip Shepherd’s decision to temporarily block the four legislative measures the General Assembly enacted this year that curb Beshear’s emergency powers.

In the Franklin case, Shepherd temporarily blocked House Joint Resolution 77, keeping Beshear’s COVID-19 restrictions in effect. The resolution specifies which of Beshear’s COVID-19 orders would remain in place if the legislature wins its legal fight against him. Shepherd had already temporarily blocked SB 1, SB 2 and HB 2 from taking effect.

The Scott case involved Beshear’s appeal of Circuit Judge Brian Privett’s ruling to temporarily block the state from enforcing some of Beshear’s executive orders restricting crowd capacity and operating hours at several restaurants and breweries.

In the Scott case, Judge Privett’s preliminary injunction came in a lawsuit brought by Goodwood Brewing Company, doing business as Louisville Taproom; Frankfort Brewpub and Lexington Brewpub; Trindy’s in Georgetown; and Kelmaro, doing business as The Dundee Tavern, in Louisville.

Privett said his order meant Beshear could not issue or enforce new restrictions against those specific businesses.

In another Supreme Court opinion written Saturday by Justice Michelle Keller of Kenton County, the court vacated the Scott Circuit Court order that granted the temporary injunction and sent the case back to the lower court for further proceedings.

Herald-Leader staff writer Valarie Honeycutt Spears contributed to this report.

Republicans react to Kentucky Supreme Court decision that limits Beshear’s power