Kentucky Supreme Court unanimously rules that Beshear's emergency orders to fight pandemic are legal and constitutional

By Melissa Patrick
Kentucky Health News

The Supreme Court of Kentucky has upheld, unanimously, Gov. Andy Beshear's authority to issue emergency regulations in the coronavirus pandemic. 

“The governor’s orders were, and continue to be, necessary to slow the spread of covid-19 and protect the health and safety of all Kentucky citizens,” said the 103-page opinion, written by Justice Lisabeth T. Hughes of Louisville, a native of Princeton.

"This type of highly contagious etiological hazard is precisely the type of emergency that requires a statewide response and properly serves as a basis for the governor's actions," Hughes wrote. ("Etiology" relates to the cause of a disease.)

Thursday's decision means that the governor's emergency pandemic orders, such as wearing a mask in public and capacity limits on businesses, will stand. 

Beshear called it a "decisive ruling" that is "about saving lives of Kentuckians."  

"Today's unanimous ruling sends a very clear, unambiguous message that the actions that my administration has taken are both legal and constitutional and fundamental to an effective response to a type of virus that requires a comprehensive statewide approach. Without, we lose more people," the governor said at a press conference. 

Beshear has argued that his orders are necessary to limit the spread of the virus, to safely open schools and the economy and to save lives. Attorney General Daniel Cameron has argued that the governor has exceeded his authority. He joined the case on the side of the businesses that sued to block the Democratic governor's orders. Another Republican, Agriculture Commissioner Ryan Quarles, supported their efforts.

But even with today's ruling,  Beshear will face an uphill battle during the upcoming legislative session as lawmakers in both chambers, which will have huge Republican majorities, have said they will limit the emergency powers given the governor by Chapter 39A of the Kentucky Revised Statutes. 

Beshear said an adverse ruling "would have eliminated every single safeguard we have here in Kentucky to keep you safe," such as the mask mandate, funding that allows public schools to hold classes virtually, capacity limits in businesses and event venues, and funding that allows first-line workers to get workers' compensation if they must quarantine because of exposure to the virus.

"We've seen over the past several weeks that covid is spreading at an alarming rate and the last thing that we ought to be doing is fighting with each other and trying to undo the steps that every public health official says are important to protect one another," he said. 

Kentucky reported a record high number of coronavirus cases Tuesday, 2,700, and the deaths of 1,604 Kentuckians have been attributed to covid-19. 

He added later, "Politics has no place in something like this because the virus doesn't care, doesn't care if you're a Democrat or Republican." 

Republican leaders quickly pushed back on the ruling on Twitter.

Senate Majority Floor Leader Damon Thayer said, "Rules unilaterally set by @GovAndyBeshear for restaurants & other businesses are arbitrary & capricious. They have destroyed jobs, harmed economic recovery & increased mental illness. Of course the liberal Supreme Court supports him. But the people’s voice will be heard."

Cameron's tweet said in part, "While the court disagreed with our position in this case, there are still lingering issues concerning KRS 39A and executive power that must be considered by the General Assembly in the upcoming legislative session. I look forward to working with the legislature on these matters." 

Quarles, who was part of the lawsuit regarding an agritourism business in Scott County, said, "I am disappointed in the court’s decision, which significantly reduces the voice of the General Assembly and citizens of the commonwealth. When the General Assembly returns in January, I hope they move quickly to restore the balance of our constitutional order back to the people."

Senate President Robert Stivers and House Speaker David Osborne issued statements that said they would review the ruling and make appropriate recommendations for the upcoming session. 

Stivers said they are reviewing the opinion “to see if we agree with the court on legislative grants of power to the governor, and power granted to him through the Kentucky Constitution. Upon reading and researching the opinion and these issues, I will propose an appropriate course of conduct for our chamber for the upcoming 2021 legislative session.”

Osborne said, “It appears that the court’s opinion provides further evidence of the great need to better define emergency powers granted by previous legislatures. Ultimately, the real issue is what can be done to ensure that the actions taken under a state of emergency follow the appropriate process, include necessary input, and provide consistent and logical guidance.”

Asked if he could do better in working with the General Assembly, Beshear said he could always do better, but added, "What I look for is a relationship that is mutual, where there can be give and take,  just not take and take. So I hope that there's an opportunity to build some of those bridges." 

Asked if he plans to issue more mandates in light of the ruling, Beshear said, "We've not been waiting on a decision to put anything in place or not to," but have been waiting to see the effectiveness of the recommendations for "red zones," where infection rates are the highest. He said what is really needed is more compliance with current orders.

And what about turning red-zone recommendations into mandates? "We're not there yet," Beshear said. "I don't have specific plans on it. We'll need to see first of all how well they work . . . If a community embraces these, then we believe that they will be really effective, but I'm not sure you get embracing from a mandate."