Kentucky Supreme Court Upholds Governor’s Virus Restrictions

Kentucky Gov. Andy Beshear walks through the state’s Emergency Operations Center in Frankfort in May. (Ryan C. Hermens/Lexington Herald-Leader via AP)

FRANKFORT, Ky. (CN) — A unanimous Kentucky Supreme Court ruled Thursday that the use of executive orders by Democratic Governor Andy Beshear to slow the spread of Covid-19 does not violate the state constitution.

The decision means that Beshear’s orders regarding masks, social distancing requirements and occupancy restrictions will remain in place as coronavirus cases spike across the Bluegrass State.

Beshear reported 2,700 new cases on Wednesday during a press conference, the state’s single highest daily total since the start of the pandemic.

In its opinion, Kentucky’s top court found Beshear had properly declared a state of emergency and that the governor’s office is vested with certain emergency powers that do not require the intervention of the state’s legislature, which convenes just once a year.

Republican Attorney General Daniel Cameron had intervened in the case, which was argued in September, and sided with several Boone County businesses who claimed Beshear’s orders exceeded the scope of his authority.

In a 103-page opinion issued Thursday morning, all seven justices on the state’s high court agreed that none of the orders exercised “absolute and arbitrary power” over the lives of Kentuckians.

Beshear spoke about the decision in a press conference Thursday morning and thanked his legal team, including attorney La Tasha Buckner, who argued the case.

“I want to remind everyone of what is at stake here,” the governor said, because a different result “would have eliminated every single safeguard.”

“Covid is spreading at an alarming rate and the last thing we ought to be doing is fighting with other,” he added. “These are my people, and my job, and really all of our jobs, is to protect one another.”

Beshear said he hoped the ruling would encourage those who have not been following the orders to have a “change of heart,” and emphasized that “managing this virus is probably the most important thing I will ever be asked to do in my professional life.”

The Florence Speedway, Beans Café and Little Links Learning filed suit in Boone County Circuit Court in June, arguing that Beshear’s fluctuating restrictions on business capacities and attendance limits constituted irreparable harm that entitled them to injunctive relief.

Circuit Judge Richard Brueggemann was set to grant the business owners’ motion before the state’s high court stepped in and stayed the injunction.

Thursday’s opinion was written by Deputy Chief Justice Lisabeth Hughes, and first addressed the manner in which Beshear declared the Covid-19 state of emergency.

Cameron argued the governor was required to consult with all 120 county governments before he could declare an emergency, and cited phrasing in a statute that said local emergency response teams needed to determine Covid-19 was “beyond [their] capabilities” before the governor could act.

The court disagreed, and ruled that because the governor has “ultimate authority” over all such response teams, he “is authorized to assume the ‘direction’ of those agencies and could simply deem it ‘necessary’ that they acknowledge that a pandemic is beyond their capabilities.”

Putting aside statutory interpretation, Hughes also said Cameron’s approach would produce an absurd result.

“The prospect that a governor would need to consult with and defer to 120 different local agencies before he or she could declare a statewide emergency in the face of an immediate and fast-moving threat to the entire Commonwealth strains rational understanding,” she wrote.

Cameron further argued the governor was required to call a special session of Kentucky’s legislature so the two could work together to address the pandemic, but the court reminded the attorney general that the statutory language in question is “permissive, not mandatory.”

“A legislature,” Hughes said, “that is not in continuous session and without constitutional authority to convene itself cannot realistically manage a crisis on a day-to-day basis by the adoption and amendment of laws.”

Regarding the specifics of Beshear’s multitude of Covid-19 related executive orders, the court explained that alterations or outright eliminations of the occupancy and distancing restrictions on the businesses who filed suit in Boone County prevent them from establishing the orders lack a reasonable basis or are arbitrary.

Meanwhile, all three businesses argued that a statewide mask mandate that could result in closures for those who fail to comply violated their due process rights, but the court rejected that argument for lack of standing.

The justices found that because none of the businesses in the case have been threatened with closure – or even a fine – they cannot establish an injury that allows them to challenge the mask mandate.

Cameron said in a statement Thursday morning that while the court sided against him, “there are still lingering issues” about executive authority that state lawmakers should consider in the next legislative session.

“I will always stand up for the constitutional rights of Kentuckians, and there has never been a more important time to do that than when the limits of executive power are being stretched and questioned,” the attorney general said.

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