Kentucky Supreme Court hears executive powers cases

Less than 24 hours before Governor Andy Beshear says he will remove some pandemic restrictions, the Kentucky Supreme Court heard two cases that challenge the governor’s executive powers. One case relates to the executive order that forced businesses to close or limit their services, and the other case deals with three priority bills passed in the first week of the 2021 Regular Session of the General Assembly. The second case also includes House Joint Resolution 77, which required the state of emergency to end within 60 days from enactment.

The attorney general’s office argued that lawmakers passed the laws in reaction to the Supreme Court’s ruling last year that confirmed the governor’s emergency powers. Solicitor General Chad Meredith represented the attorney general and insisted that the General Assembly did precisely what the court recommended.

House Bill 1 allowed businesses, schools, and local governments to remain open for in-person services during the pandemic if they had a plan of action posted and met the least restrictive state or Centers for Disease Control and Prevention (CDC) requirements. The measure also allowed struggling employers to delay paying unemployment insurance without incurring interest or past-due penalties, ensured child visitations continued, and permitted visitation for long-term care patients or those in end-of-life situations.

Senate Bill 1 limited the governor’s emergency powers to 30 days without requiring legislative action. A local chief executive officer or legislative body could request an extension.

Senate Bill 2 limited the ability of the governor and governmental agencies to issue emergency regulations.

Governor Beshear vetoed House Bill 1, Senate Bill 1, and Senate Bill 2, but the General Assembly voted to override those vetoes. In early February, Beshear filed suit, arguing that the bills are unconstitutional.  Franklin Circuit Court Judge Phillip Shepherd responded with a temporary injunction that put the legislation on hold while awaiting attention from the Supreme Court.

The Governor’s general counsel, Amy Cubbage, claimed lawmakers gave themselves a veto over the governor’s emergency powers, overstepping the constitution.

The Supreme Court also heard a separate case on Thursday involving Goodwood Brewing. Cubbage argued that a lower court should not have ruled in favor of the brewing company’s lawsuit to halt pandemic restrictions. “The Scott Circuit Court’s order invited a public health catastrophe and pure chaos from a public health and legal perspective,” she told the justices.

Goodwood Brewing attorney Oliver Dunford described his clients as “small business owners who have been harmed by the governor’s executive orders and for whom the General Assembly recently amended the commonwealth’s emergency response laws.”

Governor Beshear announced last month that he would lift most COVID restrictions on June 11. Justices asked whether the point was now moot. Attorneys insisted that the issue may create precedent if a governor signs a future pandemic executive order.

There is no timetable for when the justices may issue a ruling.