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.

More:State officials react to state Kentucky Supreme Court ruling on governor's emergency powers

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.

The Franklin Circuit may also further adjudicate several constitutional aspects of the laws in question, such the 30-day expiration of emergency measures.

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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 justices made the unusual decision to release the rulings in a special rendition announced earlier Saturday morning, as their next scheduled rendition day was not until Thursday.

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 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.

State Agriculture Commissioner Ryan Quarles said the ruling shows the legislature sets public policy and "our constitutional order does not take a break during a pandemic."

"With this ruling, Governor Andrew Beshear should turn away from his lawless ways and his open disrespect for the People’s branch, and do what he should have done from the beginning: actually bring people together and lead," stated Quarles, who is considering a run for governor against Beshear in 2023.

State Auditor Mike Harmon, who has already declared his candidacy for governor, said the ruling "reaffirms the clear checks and balances that exist between the Executive and Legislative branches and how essential those are to prevent overreach by one side or the other."

"All this could have been avoided if the Governor would have simply communicated and worked with the members of the General Assembly in determining the best courses of action at the start of the pandemic," Harmon stated. "But instead, the Governor chose to take a path that did not include everyone at the table."

The new 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 two cases that are now pending before it, with counsel for 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 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," which remains in effect.

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This story will be updated.

Reach reporter Joe Sonka at jsonka@courierjournal.com and follow him on Twitter at @joesonka. Support strong local journalism by subscribing today at the top of this page.