Laws targeting Beshear’s power should not have been blocked, Kentucky Supreme Court says
The Kentucky Supreme Court ruled Saturday the Franklin Circuit Court was wrong to issue an injunction in March blocking several bills limiting the scope of Gov. Andy Beshear’s power to issue emergency orders, remanding it back to the court to be dissolved.
The unanimous ruling is mostly a victory for the Republican-dominated Kentucky General Assembly and Attorney General Daniel Cameron, who argued the legislation passed earlier this year to limit the governor’s power was constitutional and should not have been blocked.
A spokeswoman for the governor said the ruling would hamstring the administration’s efforts to protect public health in the face of rising COVID-19 cases and hospitalizations, adding that Beshear will now consider calling a special session to extend the now-dissolved state of emergency.
Beshear was successful in receiving the injunction in March to block several bills that would force his emergency orders and regulations to address the COVID-19 pandemic to expire after 30 days unless extended by a vote of the legislature.
Those laws will go back into place once the Franklin Circuit dissolves the injunction, though it is not certain when that will happen.
In a relatively minor victory for Beshear, the Supreme Court also ruled in a related case that a Scott Circuit injunction attempting to block Beshear from issuing future orders involving pandemic-related restrictions is vacated, as courts are “not empowered to enjoin possible future violations” of the law.
The ruling also comes just two days after U.S. District Court Judge William Bertelsman issued a temporary restraining order to block the enforcement of a new emergency order by Kentucky Gov. Andy Beshear, who required masks to be worn inside all schools and child care facilities due to the recent alarming increase of COVID-19 cases and hospitalizations.
The restraining order against the mask mandate currently applies to all private schools in Kentucky, though masks are still required inside public K-12 schools and child care facilities because of separate emergency regulations issued days after Beshear’s new order by the Kentucky Board of Education and Kentucky Department of Public Health.
A spokeswoman for the Kentucky Department of Education released a statement declaring the Supreme Court’s new opinion “has no impact” on the board’s emergency regulation to require masks in public schools, as it acted under the authority of a separate state statute that was not reviewed by the court.
The KDE added that its mask regulation also followed all of the requirements of Senate Bill 2 — one of the challenged laws setting a 30-day expiration on emergency regulations — and is consistent with House Bill 1, another challenged law allowing organizations to follow CDC guidelines related to the pandemic.
“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,'” KDE spokeswoman Toni Konz Tatman stated.
Crystal Staley, the spokeswoman for Beshear, said the Supreme Court 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,” Staley stated. “It will further prevent the governor from taking additional steps such as a general mask mandate.”
Staley added the Beshear administration “will work to determine whether the General Assembly would extend the state of emergency as we assess whether to call a special session.”
“The Governor 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,” Staley said. “If called in to a special session, we hope the General Assembly would do the right thing.”
Saturday’s ruling was praised by Republicans elected officials throughout the state who have been critical of the governor’s emergency actions throughout the pandemic.
Attorney General Cameron, whose office challenged the Franklin Circuit injunction before the Supreme Court, said Saturday’s ruling shows the court unanimously agrees with him that the governor must work with the legislature during the COVID-19 crisis, which is “the bedrock of our system of government.”
“We hope the Governor will now consult with our General Assembly and find consensus on what is needed to protect Kentuckians,” Cameron stated.
In a joint statement, Republican Senate President Robert Stivers and House Speaker David Osborne said the ruling confirmed what they had long asserted: “The legislature is the only body with the constitutional authority to enact laws.”
The Republican leaders said despite Beshear’s “historic inability to recognize these facts, we 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.
“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,” Stivers and Osborne stated. “The General Assembly has made it clear on numerous occasions that its disagreements with Governor Beshear were founded in process.”
The Kentucky Education Association, a professional association representing teachers across the state, issued a statement calling it “unfortunate that the Kentucky Supreme Court had no choice but to uphold hyper-partisan actions of the 2021 General Assembly” in the face of the delta variant.
“Politicizing public health policy is obviously dangerous,” stated the KEA. “Emergency action by Gov. Beshear to mandate masking in our schools may have very well have averted a far worse health disaster for our students and their families.”
The majority opinion of Justice Laurance B. VanMeter said the challenged legislation was lawfully passed by the General Assembly, and Judge Shepherd’s injunction was based on “erroneous interpretations of the constitutional authority of the Governor and law.”
“The Governor has no implied or inherent emergency powers beyond that given him by the legislature, who, as elected officials, serve at the behest of the Commonwealth,” VanMeter wrote.
In her separate concurring opinion that was joined by Chief Justice John Minton, Justice Lisabeth T. Hughes wrote that a substantial question still remains on the 30-day limit on emergency orders and regulations, which the attorney general’s office has yet to engage on the merits of and could still be at play in the Franklin Circuit.
“This concept of time-limited executive emergency authority that relies on the recall of the legislature into special session appears throughout the 2021 legislation, raising serious constitutional questions that require further focused examination,” Hughes wrote.
The Supreme Court ruling follows a winding road of litigation over the past year challenging the governor’s emergency powers and the legislation.
Here’s how the issue got to this point:
- In June, The Supreme Court heard oral arguments in the two cases they eventually ruled on Saturday, with counsel for Gov. Andy Beshear challenging the legislation to limit his emergency powers and several businesses challenging his orders that were in place earlier this summer to mandate masks and capacity limits.
- The Supreme Court issued a unanimous ruling in November to uphold Beshear’s authority to make such emergency orders, which had been challenged by Attorney General Daniel Cameron.
- In response to that unanimous ruling, the Republican-dominated General Assembly passed several bills in January amending the statute the governor used to make his emergency orders, requiring they and other emergency regulations expire after 30 days unless extended by a vote of the legislature.
- Beshear sued to challenge those new laws, receiving an injunction from Franklin Circuit Court Judge Phillip Shepherd to block their enforcement and keep his orders in place, as well as an injunction over subsequent legislation to end many emergency regulations.
- The Franklin Circuit decision was then appealed up to the Supreme Court, along with a Scott Circuit ruling for several restaurants and a brewery challenging Beshear’s mask mandate and capacity limits, which expired a day after the justices heard oral arguments for both cases in June.
- Two days before those oral arguments, another judgment from the Boone Circuit instead upheld the new laws that had been enjoined by the Franklin Circuit, ruling they blocked the governor’s COVID-19 emergency orders and enjoining him from issuing new ones.
- In late July — with COVID-19 on the rise with the delta variant — counsel for Beshear sought from the Supreme Court an order staying the Boone Circuit inunction as the governor considered new emergency restrictions.
- The Supreme Court had not yet issued a stay when Cameron’s office submitted a filing with the court last week following Beshear’s new mask mandate for schools, urging the court not to stay the Boone Circuit injunction.
- On Thursday, U.S. District Court Judge William Bertelsman issued a temporary restraining order blocking the governor’s new mask mandate, which was sought by the Diocese of Covington six days earlier.
- Attorneys for Beshear filed an emergency motion Friday to dissolve the temporary restraining order, stating the court “was neither provided nor apprised that the state legislation passed during the 2021 Regular Session is enjoined by the Franklin Circuit Court statewide” — an injunction that remains in effect as of Saturday, but has now been remanded back to the court to be dissolved.