KY judge blocks Beshear’s COVID-19 orders at some restaurants and bars

A Kentucky judge has temporarily blocked the state from enforcing some of Gov. Andy Beshear’s executive COVID-19 orders against several restaurants and breweries.

The preliminary injunction issued Friday by Scott Circuit Judge Brian Privett runs counter to recent actions by Franklin Circuit Judge Phillip Shepherd, which blocked the implementation of new laws that would have ended some of Beshear’s emergency restrictions against the coronavirus pandemic.

Oliver Dunford, an attorney with Pacific Legal Foundation who represented the businesses, said the differing rulings “probably will expedite all this going to the Kentucky Supreme Court for a final court decision.”

“We are thrilled that Judge Privett issued the injunction, which prevents the governor from enforcing the restrictive orders against our clients,” said Dunford “The order recognizes that the governor is obligated to follow the laws, just like everyone else.”

Beshear spokeswoman Crystal Staley said late Friday afternoon that Privett’s ruling has been appealed to the Kentucky Court of Appeals.

In a 13-page order, Privett noted that the Kentucky legislature this year voted to rein in Beshear’s powers during emergencies like the pandemic. Beshear successfully sought an injunction against the new laws from Judge Shepherd, allowing him to continue enforcing his mandate to wear facial coverings in public places and other regulations.

“This action, at its most basic level, is simple,” said Privett in his order “The governor has two kinds of power: those given to him in the Constitution, and those given to him by the legislature under statute. The emergency powers of the governor at issue in this case are not inherent.”

Privett ruled 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.

Dunford said the lawsuit was filed in Scott County because of Trindy’s and the other restaurants joined it.

“The issues in this case are not just about these specific businesses being able to operate, but touch on the interests of the entire commonwealth still in the midst of COVID-19 infection,” said the judge. “Under the law, this court must balance those interests with the interests of the plaintiffs. With the public interest in mind, this court is issuing an order that is very narrow.”

Privett said his order means Beshear is enjoined against issuing or enforcing new restrictions against only these businesses.

“It does not affect every business in the commonwealth, or schools, or masks, or any other issue,” Privett wrote. “It only states that under the law, these specific businesses’ rights have and continue to suffer harm and they should be relieved under the current state of the law.”

Privett also noted that it is likely the Kentucky Court of Appeals will stay his order very quickly, and then send the case to the Supreme Court, along with the Franklin Circuit Court ruling.

The judge said he has “great respect” for the Franklin Circuit Court but he “cannot be bound by the decisions of a sister court.”

Privett said he had offered Beshear’s attorneys a delayed effective date to give them time to file a petition in the Court of Appeals but they declined.

“If this order will have no practical effect, then why is the Court issuing it?” wrote Privett. “Because with the appellate courts taking such quick action in review, any risk to public health, or confusion, is lessened, and this case can proceed on principle only. These are great, fundamental issues of law and rights and fairness.

“The Franklin Circuit case involves only the governor and the General Assembly. By issuing this temporary injunction, the court gives these plaintiff businesses, the business community, and general citizenry of the commonwealth a real say in the matters.”

Last year, Beshear asked Privett to disqualify himself from hearing a case involving Beshear’s COVID-19 executive orders and have a special judge appointed.

Privett had issued a temporary restraining order against Beshear’s crowd restrictions at certain businesses. The order came in a lawsuit filed by Agriculture Commissioner Ryan Quarles and Evans Orchard and Cedar Mill, an agritourism site in Georgetown. Attorney General Daniel Cameron joined the plaintiffs in the suit.

Beshear said Privett’s social media posts and political activities “show that he has a personal friendship and professional relationship” with Quarles.

Privett’s order last year also attempted to limit the governor’s ability to sign future executive orders dealing with the coronavirus pandemic unless they follow certain procedures.

The Kentucky Supreme Court last year unanimously ruled that Beshear’s orders were legal but that was before the legislature’s measures this year that restricted the governor’s powers.

Pacific Legal Foundation, based in Arlington, Va., has been working with legislatures across the country, including Kentucky, to rein in what it says are governors’ excessive emergency powers. It is a national non-profit legal organization.