As lawyers and protesters argue about his powers, Beshear says he'll see how in-person classes go before relaxing capacity rules

Solicitor General Chad Meredith argued for Attorney General Daniel Cameron before the Kentucky Supreme Court Thursday. At left is Latasha Buckner, Gov. Andy Beshear's general counsel and chief of staff. (Photo by Ryan C. Hermens, Lexington Herald-Leader)

By Al Cross
Kentucky Health News

As lawyers and protesters argued about his emergency powers, Gov. Andy Beshear said he is unlikely to relax any of his restrictions on business and venue capacity until most students and teachers are in schools for a while.

Beshear said person-to-person contacts are "going up significantly" as schools have resumed athletic events and some have restarted in-person classes. “Because of that we are not likely to increase capacity in different areas” until the state can ensure that relaxed rules would pose no increased risk for students and teachers, he said.

Beshear has recommended that in-person schooling not resume until Sept. 28, and has issued a guide to help local school officials make decisions about classes and athletic events, based on the prevalence of coronavirus cases in their county.

The governor announced 628 more cases of the virus in Kentucky, 76 of them in people 18 and younger. He said that was less than on recent Thursdays, but noted that the mortality rate of the covid-19 disease caused by the virus means that several of those people will die. He announced 11 more covid-19 deaths.

The share of Kentuckians testing positive for the virus remained under 4 percent, at 3.82%. "It’s not because we are testing folks that we do better, it’s because of our actions," he said. "We believe that mask mandate is working, and without it, our positivity rate would go up."

Beshear's July 9 order that masks be worn in public, and a host of other orders, was issued under the state of emergency that a law allows him to declare to protect the public from a long list of "major hazards," including ētiological hazards, which cause disease. The Kentucky Supreme Court heard arguments Thursday in cases challenging the legality and constitutionality of his orders.

Attorney General Daniel Cameron's case against Beshear was argued by Solicitor General Chad Meredith, who said he didn't think the emergency law "was intended to deal with general disease control; we have an entire statute that deals with that . . . The emergency powers are to allow for immediate response. . . . We're now dealing with a more general disease control," which would require Beshear to issue administrative regulations after public comment.

Beshear's general counsel and chief of staff, LaTasha Buckner, said Meredith was arguing "form over substance" because a general law allows Beshear to issue emergency regulations without a comment period or legislative review, as long as they are "rationally based."

Meredith said, "Process is what separates the rule of law from the despotic rule of one man," Meredith said, adding later, "It's the seriousness of this matter that counsels in favor of using a more deliberative process." He twice quoted Health Commissioner Steven Stack's description of the orders as having "breathtaking scope and implication."

The seven justices did not indicate when they would rule. "The hearing comes after the high court took control of two challenges in lower courts where judges ruled against Beshear's orders, but Thursday's hearing involved only a decision from Boone Circuit Court," the only one in which a judge has issued a final order," reports Deborah Yetter of the Courier Journal.

Protesters at State Capitol (CJ photo by Deborah Yetter)

"The hearing began as a noisy crowd gathered outside on the Capitol lawn, few wearing masks and some toting firearms, protesting such executive orders and demanding freedom," Yetter reports. "They had mostly dispersed by the end of the 90-minute hearing." The speakers included legislators and candidates.

Few if any protesters wore masks or practiced social distancing. Beshear said that refuted his critics' argument that "there doesn’t have to be a mandate. … Without intending to, they showed how important it is." He said protesting is fine, but “Do what’s necessary to protect the person who’s right beside you; do what’s necessary to protect the parent of the person who’s gonna go home."

Beshear said of the court case, "I still can't believe that these rules and restrictions have been challenged," because they are "supported by the White House, by public-health experts at every level with almost 100 percent agreement," and "just about every governor" has taken similar actions. "They’re the difference in how fast the virus spreads and how many people die."

As for the argument that his emergency powers have gone on too long, he said, “I can’t stop a worldwide health pandemic.”

Cameron told journalists, "Even in the midst of a pandemic, the constitution is not suspended."

Election update: Secretary of State Michael Adams appeared at the briefing to remind Kentuckians of election deadlines: Oct. 5 to register to vote, and Oct. 9 to apply for an absentee ballot. In-person, no-excuse, no-appointment voting begins under emergency regulations Oct. 13.

"This is going to be the most convenient election Kentucky has ever had," Adams said. "You can vote on Saturdays." He encouraged voters to vote early. Absentee ballots must be postmarked by Election Day, Nov. 3, and received by Nov. 6.

State Board of Elections Director Jared Dearing explained the absentee-ballot process and warned that misinformation about voting is circulating. The video of the news briefing is on Beshear's Facebook page; Dearing starts about 12 minutes into the video, after Lt. Gov. Jacqueline Coleman and Adams.

Beshear complimented Adams, Dearing and the election board: "Both these gentlemen are a credit to the Commonwealth, and I appreciate their work."

In other covid-19 news Thursday:

• The 11 fatalities from covid-19 were a 70-year-old woman and a 78-year-old man from Daviess County; three men, 75, 83 and 93, from Fayette County; an 84-year-old man from Franklin County; a 76-year-old woman from Jackson County; an 82-year-old woman from Jefferson County; two women, 77 and 90, from Madison County; and an 83-year-old woman from Webster County.
• Counties with 10 or more new cases were Jefferson, 89; Christian, 54; Fayette, 52; Warren, 34; Madison, 33; Daviess, 28; Union, 18; Ohio, 16; Hardin and McCracken, 15 each; Laurel, 14; Henderson. 12; Calloway, 11; and Barren, 10.
• In long-term-care facilities, the state reported 56 more cases among residents and 31 among employees, making the active-case totals 578 and 377, respectively, and three more deaths. Noting the staff cases, Beshear said, “I’m proud of them; it’s incredibly brave, and we appreciate them.” Asked if the facilities are a challenge, he said, “By and large the long-term-care facilities have been responsive when there's been a problem.”
  
• The state's daily report said 515 people were hospitalized with covid-19 in Kentucky, 113 of them in intensive care.
• Beshear said the second tranche of additional $400 a week in unemployment benefits was going out Thursday night and the last one will go out "in the next several days."
• Mary Harville, the newly appointed CEO of the Kentucky Lottery, said was doing well during the pandemic because casinos have been shut down. She said it ended the fiscal year June 30 "very well, with another record-breaking year."
  
• Coleman said three regions of the state "have pots of money waiting" for applicants to the Team Kentucky Fund, created to help people who have suffered financially due to the pandemic. “They are the Owensboro area, the counties that surround Louisville and the Big Sandy area,” Coleman said. Go to teamkyfund.ky.gov to apply.
• CVS announced it would open 19 new sites in Kentucky to offer free self-swab tests for the virus, in addition to seven it has already. The new ones will be in Benton, Bowling Green, Columbia, Crestwood, Danville, Franklin, Harlan, Harrodsburg, Hazard, Lexington (2000 Harrodsburg Rd.), London, Louisville (13900 Shelbyville Rd., 3997 Seventh St. Rd. and 5300 S. Third St.), Mayfield, Mount Sterling, Owensboro, Somerset and South Williamson. Patients must schedule in advance at CVS.com.
• A study reported by the Centers for Disease Control and Prevention in late June found that "U.S. adults reported considerably elevated adverse mental health conditions associated with covid-19. Younger adults, racial/ethnic minorities, essential workers, and unpaid adult caregivers reported having experienced disproportionately worse mental health outcomes, increased substance use," and more contemplation of suicide. The CDC recommended that health agencies "increase intervention and prevention efforts to address associated mental health conditions."
• The Kentucky School Boards Association donated 80,000 cloth masks to the Family Youth Resource and Service Centers in local school systems.