I was surprised, and a bit frustrated, when I heard that the Kentucky Supreme Court finally released its ruling on Governor Andy Beshear’s (D-KY) attempts to have declared invalid several laws passed by the General Assembly, over his vetoes, which restricted his emergency powers. Why frustrated? Because I wanted to write about them earlier, but I had to pick up the family at the airport in Louisville, and I had no computer available to me!

But the ruling? Not frustrated about that at all, save for the inordinate amount of time it took.

Kentucky Supreme Court: New laws limiting Beshear’s emergency powers are valid

By Jack Brammer and Karla Ward | August 21, 2021 | 3:43 PM EDT



Governor Andy Beshear (D-KY)

In a momentous legal defeat for Gov. Andy Beshear, the Kentucky Supreme Court in a rare Saturday decision ruled on the Democratic governor’s challenge of Republican-backed laws that limit his authority to enact emergency orders to help control the coronavirus pandemic.

In a 34-page order, the state’s highest court unanimously said Franklin Circuit Court abused its discretion in blocking the new laws from taking effect and sent the case back to the lower court to dissolve the injunction and hear legal arguments about the constitutionality of each law.

The challenged legislation was lawfully passed and the governor’s complaint “does not present a substantial legal question that would necessitate staying the effectiveness of the legislation,” the seven-member court ruled.

Which is what I have been saying all along!

Beshear had sought injunctive relief against the new laws, arguing that the legislation undermined his ability to respond to the COVID-19 pandemic and created a public health crisis that would result in increased disease and death. The governor sued the legislature and Attorney General Daniel Cameron.

The Supreme Court in a decision written by Justice Laurance B. VanMeter of Lexington largely agreed with Cameron and lawmakers. Cameron argued that the challenged legislation does not prevent Beshear from responding to emergencies and simply requires him to work collaboratively with other officials — including the legislature — in emergencies that last longer than 30 days.

The Governor’s argument was simple: he just had to have the authority he claimed, because COVID-19 was so serious! Work collaboratively with other officials? On July 10, 2020, Mr Beshear stated that he wouldn’t involve the legislature because he believed that they wouldn’t do his bidding.

Beshear was asked at Friday’s news conference on COVID-19 why he has not included the legislature in coming up with his orders. He said many state lawmakers refuse to wear masks and noted that 26 legislators in Mississippi have tested positive for the virus.

And now he has found out that he isn’t a dictator!

Republican candidates for the General Assembly ran against the Governor’s authoritarian decrees, and the voters of the Commonwealth rewarded the GOP with 14 additional seats in the state House of Representatives, and two more seats, out of 17 up for election, in the state Senate. Republicans hold a 75-25 majority in the House, and 30-8 majority in the Senate. It takes only a ‘constitutional majority,’ more than 50% of the full membership of each chamber, to override a gubernatorial veto, not a ²/₃ supermajority, as people are familiar with when it comes to the federal government, but the GOP has more than a ²/₃ majority in each chamber.

A spokeswoman for the governor responded to the decision Saturday afternoon, saying Beshear “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.”

Crystal Staley said in a statement that “the court’s 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.”

“It will further prevent the governor from taking additional steps such as a general mask mandate,” she said.

And that, of course, is exactly what Kentucky’s voters were trying to do, what they wanted done, when they gave Republicans such strong majorities in the General Assembly.

Miss Staley continued to say that the Governor is assessing whether calling the legislature into special session — the Governor has the authority to call our part-time legislature into special session, but the legislature itself does not have the authority to call itself back into session — would do any good, whether the General Assembly would give him anything he wants. The Governor’s toady jurist, Franklin Circuit Judge Phillip Shepherd, who always sided with Mr Beshear when he was Attorney General, trying to frustrate then Governor Matt Bevin’s (R-KY) actions, blocked House Joint Resolution 77, in which the legislature authorized extensions of some of the Governor’s executive orders, because HJR 77 assumed that Senate Bill 1, which limited the Governor’s emergency decrees to 30 days without legislative approval for extension, was valid, and Judge Shepherd had stayed that law as well. HJR 77 did not grant approval to extend the hated mask mandate.

The legislature, in fact, indicated a willingness to work with the Governor, but Judge Shepherd didn’t want any of that!

The most prominent he has in place now is his Aug. 10 executive order requiring almost all teachers, staff and students in K-12 schools, child care and pre-kindergarten programs across Kentucky to wear a mask indoors. It applies for 30 days and leaves open the indefinite possibility for renewal. A U.S. district judge’s ruling Thursday temporarily blocked that order in at least one school district. Beshear has asked that it be dissolved.

The state Board of Education on Aug. 12 implemented its own emergency regulations requiring a mask mandate for students for most of this school year, and the Department for Public Health did the same for child care facilities. A legislative panel has since found those regulations deficient, but Beshear overrode that decision. One of the new laws might limit those emergency regulations to 30 days.

That order included not just public schools, over which the state Board of Education has some authority, but private schools and private daycare centers.

The state Board of Education claimed that today’s decision has no legal impact on their emergency regulations, which run for 270 days, the entire school year. I had previously speculated that Governor Beshear already knew that he lost his case with the Supremes, and pushed to get those regulations put in place to that his authoritarian decrees would continue despite the loss. The Kentucky School Boards Association urged that interested parties go slow in responding, which means that they don’t want anybody filing lawsuits challenging the KBoE’s emergency regulations.

Of course, the KBoE acted because, after the Governor urged, but did not mandate, that local school boards institute mask mandates, some local boards chose against such mandates, so the Governor, who had asked for cooperation decided that he was just going to make it an order.

However, this is not a complete victory. The state Supreme Court remanded the decision back to Judge Shepherd^[1]Cameron v Beshear, 2021-SC-0107-I (2021), page 2., with an order to dissolve the injunctions, but that does not in any way prevent the Governor’s toady from finding for Mr Beshear again.

This part is important:

Another rule of interpretation is that we “‘presum[e] that the challenged statutes were enacted by the legislature in accordance with constitutional requirements.’” Acree, 615 S.W.3d at 805 (quoting Cornelison v. Commonwealth, 52 S.W.3d 570, 572 (Ky. 2001)). “A constitutional infringement must be ‘clear, complete and unmistakable’ in order to render the statute unconstitutional.” Caneyville Volunteer Fire Dep’t v. Green’s Motorcycle Salvage, Inc., 286 S.W.3d 790, 806 (Ky. 2009) (quoting Ky. Indus. Util. Customers, Inc. v. Ky. Utils. Co., 983 S.W.2d 493, 499 (Ky. 1998)). Considering that the General Assembly is the policy-making body for the Commonwealth, not the Governor or the courts, equitable considerations support enforcing a legislative body’s policy choices. In fact, non-enforcement of a duly-enacted statute constitutes irreparable harm to the public and the government.^[2]Cameron v Beshear, 2021-SC-0107-I (2021), pages 16-17.

The Court affirmed that it is the General Assembly which makes the laws, not the Governor.

But here’s the kicker:

These items noted, we do not believe this issue has been adequately addressed by the parties and therefore make no definitive pronouncement concerning the constitutionality of thirty-day limitation contained within the 2021 legislation. . . . .^[3]Cameron v Beshear, 2021-SC-0107-I (2021), page 22.

In sum, considering that the challenged legislation was lawfully passed, the Governor’s Complaint does not present a substantial legal question that would necessitate staying the effectiveness of the legislation. And as the equities clearly favor implementation of the legislation pending an adjudication of its constitutionality, we conclude that the Franklin Circuit Court abused its discretion in finding otherwise. Thus, we remand this case to the Franklin Circuit Court with instructions to dissolve the injunction. This case is reversed and remanded to the Franklin Circuit Court for further proceedings consistent with this Opinion. In the event certain sections of the 2021 legislation may be ultimately found invalid, the likely remedy may be severability.^[4]Cameron v Beshear, 2021-SC-0107-I (2021), page 27.

If, upon hearing the arguments at trial, Judge Shepherd decides that the 30 day limit in Senate Bill 1 is unconstitutional, it could, once again, empower the Governor to issue draconian decrees. We waited half a year for the state Supreme Court to rule that Judge Shepherd’s injunctions were improper, half a year in which the authority of the General Assembly in passing the laws was violated, half a year in which some of our constitutional rights were violated. The Court made clear that the Governor’s authority is not implicit, but is defined by the state legislature, so it would be a high bar that the Governor would have to clear to argue successfully that Senate Bill 1 is unconstitutional, but, with a sycophant judge like Mr Shepherd, anything is possible.