Governor Andy Beshear (D-KY) obviously expects a complacent and mostly subservient Kentucky state court system to do his bidding, but, too bad for him, there is a federal judicial system as well.
Judge blocks Beshear’s mask mandate in at least one school, calling it ‘tyranny’
By Jack Brammer and Valarie Honeycutt Spears | Updated: August 20, 2021 | 9:08 AM EDT
A federal judge issued a temporary restraining order Thursday against Kentucky Gov. Andy Beshear’s mask mandate for students in a legal case involving about 20 families in a Campbell County Catholic school.
The ruling does not affect separate emergency regulations approved by the Kentucky Department of Education and the Kentucky Department for Public Health, so mask mandates remain in effect at all public schools in the state and at daycares and preschools.
Governor Beshear’s executive order was always an overreach, in that he applied it to private as well as public schools.
US District Court Senior Judge William O Bertelsman
Staley said the court ruled without hearing from the governor and with “absolutely no consideration of the consequences of exposure and quarantine that we will see — especially at a time when we are nearly out of staffed hospital beds statewide.”
Note that Miss Staley did not address the legality of the Governor’s order, but only that doing something like following the law might have negative consequences. It was the same argument the Governor made following oral arguments at the state Supreme Court in his effort to have several laws passed by the General Assembly declared unconstitutional. The Governor could call the General Assembly into a special session to consider new laws which might change things in the way he would like, but, of course, he won’t. On July 10, 2020, Mr Beshear stated that he wouldn’t involve the legislature because they wouldn’t do his bidding. Given that Republican candidates for the legislature ran against his abuse of authority in 2020, and the voters gave the GOP 14 additional seats in the state House of Representatives, and two in the state Senate, the Governor is right about one thing: the legislature would not only not go along with him, but would pass laws, over his veto, which would restrict him even further.
Judge Bertelsman was appointed by President Jimmy Carter in 1979, and, though he took senior status in 2001, has still handled notable cases, including the defamation lawsuit by Nicolas Sandmann against The Washington Post.
The Louisville Courier-Journal reported:
- Both parties have agreed the order should apply only to schools in the Diocese of Covington, according to Beshear’s spokeswoman Crystal Staley and the parents’ attorney, Brandon Voelker.
So far, the judge has not granted their request to narrow the ruling, Voelker told The Courier Journal. The current order makes no distinction between where the mandate can and cannot be enforced.
The Diocese of Covington could change its policy, and impose a mask mandate, as Bishop John Stowe of Lexington has done for all parochial schools in the diocese. Bishop Stowe also ordered that all diocesan employees be vaccinated as a condition of employment, and Catholic Center employees must wear masks, even if vaccinated.
- Following the ruling, the Diocese of Covington’s superintendent of schools Kendra McGuire told families they would be returning to a masks-optional policy.
Back to the Herald-Leader’s story:
- Bertelsman said in his five-page order that the plaintiffs are likely to succeed on the merits of their claims that Beshear’s mask executive order violates state law dealing with emergencies.
He said Beshear’s order would cause harm to children’s emotional well-being and academic growth.
“Such intangible and unquantifiable harm is irreparable because it cannot be measured or undone,” said Bertelsman. “A temporary restraining order is required to enjoin defendant’s actions and preserve the status quo until the court holds a hearing on the merits.”
Bertelsman chided Beshear for not following laws passed by the Kentucky General Assembly this year that outlined procedures for the governor to follow in making emergency orders.
“The executive branch cannot simply ignore laws passed by the duly-elected representatives of the citizens of the Commonwealth of Kentucky,” said the judge. “Therein lies tyranny. If the citizens dislike the laws passed, the remedy lies with them, at the polls.”
This is the problem. The Governor challenged several laws passed, over his vetoes, by the General Assembly, and the Governor’s toady, Franklin Circuit Judge Phillip Shepherd, issued injunctions against them. The state Supreme Court took up the cases, heard oral arguments on June 10th, but still has not released its ruling, 71 days, over ten full weeks, later.
Let’s be realistic here: the justices have already taken their decision, and Governor Beshear almost certainly knows the result. I have speculated — and it is speculation! — that the decision has gone against the Governor, and the normally friendly to Mr Beshear court, unable to find any legal justification for his claims, has simply delayed issuing the ruling, to give him a few weeks more. But it’s past time, and the Court needs to issue its ruling, so that these things can be put on more solid legal ground.