State high court tells lower court to dissolve its injunction blocking laws legislature passed to limit governor's emergency powers

Kentucky Health News

Laws that the legislature passed last winter to put time limits on the governor's emergency powers should not have been blocked by a lower court, which now must remove the block and hear legal arguments in the case, says a unanimous Kentucky Supreme Court.

In an unusual Saturday ruling, the timing of which was not explained, all seven justices agreed that Franklin Circuit Judge Phillip Shepherd abused his discretion in blocking the laws, which limit emergency orders to 30 days and call for his emergency pandemic declaration to expire on June 28.

The ruling is "a momentous legal defeat" for Beshear, write Jack Brammer and Karla Ward of the Lexington Herald-Leader. However, it does not affect the key emergency measure now in effect, a mask mandate in public schools, imposed by a 270-day emergency regulation of the Beshear-appointed state school board. Beshear issued a broader 30-day order for all schools, preschools and child-care centers; a federal judge has blocked that order in at least one Northern Kentucky school.

While the Supreme Court ordered Shepherd to dissolve his injunction, "It is not certain when that will happen," reports Joe Sonka of the Louisville Courier Journal. The high court's 34-page decision left that unclear.

Meanwhile, the pandemic has resurged, setting new records several days this week and threatening hospital capacity, and Beshear has said he might need to issue other emergency orders such as a mask mandate.

The laws at issue limit emergency orders to 30 days unless extended by the General Assembly; allow businesses, schools, nonprofits and churches to stay open if they meet federal or state guidelines, whichever is least restrictive; and give the legislature more power over administrative regulations issued during an emergency.

Gov. Andy Beshear and Attorney General Daniel
Cameron at the latter's December 2019 swearing-in

Beshear, a Democrat, sued the Republican-controlled legislature and Attorney General Daniel Cameron, also a Republican, to keep the laws from taking effect. The governor argued that the legislation undercut the state's ability to respond to the pandemic and would thus lead to additional deaths.

Shepherd granted an injunction pending trial of the case, saying Beshear had presented substantial legal questions about the laws and the public would suffer immediate and irreparable harm without an injunction.

Cameron appealed, arguing partly that there was no justiciable issue and that the laws wouldn't prevent governors from responding to emergencies, but require them to work with other officials, including the General Assembly.

The court said the issue was whether emergency powers are derived from law, which the legislature may change, or from the constitution, which is interpreted by courts and can be changed by voters. It concluded, "The governor has no implied or inherent emergency powers beyond that given him by the legislature, who, as elected officials, serve at the behest of the commonwealth."

One of the laws requires the attorney general to approve a governor's suspension of statutes, which Beshear has done several times during the pandemic. Beshear argued that improperly limited his power, but the court ruled that the power was granted by the legislature, which has the power to limit it.

"Given the importance of the power to suspend laws, we see no valid reason why the General Assembly might not properly grant the power to two independently elected constitutional officers," the court said.

The court said Shepherd abused his discretion because the injunction "was unsupported by sound legal principles occasioned by an erroneous application of the law." As for the harm claimed by Beshear, "Non-enforcement of a duly-enacted statute constitutes irreparable harm to the public and the government."

Shepherd based his injunction partly on questions about the separation of powers among the three branches of government, saying the legislature had moved "from oversight and policymaking to micromanagement of administrative rules and orders."

The high court said Beshear's argument was off base, and "The General Assembly establishes the public policy of the commonwealth. . . . The trial court’s findings substituted its view of the public interest for that expressed by the General Assembly." But the high court did reserve for the future the question of whether a 30-day limit is too short.

The opinion was written by Justice Laurance Van Meter of Lexington. Justice Lisabeth Hughes of Louisville wrote a concurring opinion, in which Chief Justice John Minton of Bowling Green joined, emphasizing concern about the 30-day limit, saying it is a first in Kentucky law and needs a closer look.

"The 30-day limit operates as a 'kill switch' that essentially transfers the day-to-day management of emergencies to the legislature by rendering the executive branch powerless to act after thirty days, forcing the call of a special legislative session," the concurrence says, asking, "Can the legislature pass a law that de facto nullifies the governor’s constitutionally granted discretion regarding the calling and content of special legislative sessions and forces their recall, perhaps repeatedly as an emergency evolves over many months? This concept of time-limited executive emergency authority that relies on the recall of the legislature into special session appears throughout the 2021 legislation, raising serious constitutional questions that require further focused examination."

In an unusually personal conclusion, Hughes, a native of Princeton, wrote, "Whatever disagreements citizens may have about how best to address the seemingly limitless thorny issues raised by the pandemic, they are undoubtedly united in their desire to see our commonwealth travel as safely and quickly as possible to the other side, to find some semblance of normal again. As a justice, and more pertinently as a lifelong Kentuckian, I implore all parties to this matter to lay down their swords and work together cooperatively to finish this immensely important task for the benefit of the people they serve."

Kentucky Health News is an independent news service of the Institute for Rural Journalism and Community Issues, based in the School of Journalism and Media at the University of Kentucky, with support from the Foundation for a Healthy Kentucky.