By Tom Latek
Kentucky Today
The Kentucky Supreme Court heard oral arguments this week on two cases that involve Gov. Andy Beshear’s powers to issue executive orders during emergencies like the COVID-19 pandemic.
After declaring a state of emergency due to the pandemic in March 2020, Beshear issued numerous executive orders covering everything from allowing refills of non-narcotic prescriptions, to mandating the wearing of masks and limiting capacities and hours of operation at restaurants, bars and other venues.
Supreme Court hearing (Photo by Tom Latek/Kentucky Today
During the 2021 session, lawmakers passed several pieces of legislation that would limit the length of the orders and require legislative approval. The governor vetoed them, but the legislature overrode the vetoes, prompting Beshear to file suit at Franklin Circuit Court, where Judge Phillip Shepherd issued a statewide temporary injunction to prevent the legislation from taking effect.
At the same time, several businesses, including Goodwood Brewing, filed a lawsuit at Scott Circuit Court against the governor’s executive orders, and won a preliminary injunction. The Kentucky Supreme Court kept that from taking effect until they could address both cases together and agreed to hear directly, bypassing the Kentucky Court of Appeals.
Attorney Oliver Dunford of the Pacific Legal Foundation in Florida, who represented the businesses, said this case is important. “At stake is whether the governor has to follow the laws like everyone else in the Commonwealth. The new laws have restricted the governor’s emergency powers, and that’s the sole issue.”
When asked about the seemingly contrary rulings from two different circuit courts, Dunford responded, “That’s definitely a question the court has to consider. We believe that each circuit court has co-equal powers, and that one circuit court cannot bind another.”
Amy Cubbage, the general counsel for the governor, noted the high court decided a similar case in the governor’s favor last year. “This court should find that the Scott Circuit Court abused its discretion and should allow the governor, Cabinet for Health and Family Services and public health commissioner to complete the vital work that they are achieving.”
Chad Meredith with the attorney general’s office argued that there is no case.
“This court’s predecessor held almost a century ago that you cannot create a justiciable case or controversy, just by putting the attorney general’s name on a lawsuit. There is just no jurisdiction here. What we have here is just a difference of opinion about an abstract question of law.”
After the hearing, Gov. Beshear told reporters, “These emergency powers were not just an exercise in normal times, they were exercised in a time of a pandemic. Driven by COVID, 2020 was the deadliest year ever in the United States.”
He also noted that while the pandemic is not over, “We’re going to be able to take major steps to ease virtually every restriction that remains. It would have been irresponsible for a governor not to have the authority to take the actions that we’re taking here.”
Attorney General Daniel Cameron, in a statement after the hearing, said the governor challenged the new laws “simply because he did not like them.”
”The General Assembly is a separate, co-equal branch of government and legislators must be able to make changes to state law and alter the governor’s authority without the threat of lawsuits that have no cause or validity,” Cameron said.
Supreme Court Chief Justice John D. Minton, Jr., said they hoped to issue a ruling quickly.
