In a rare Saturday rendition, the Kentucky Supreme Court issued a unanimous opinion concluding that the Franklin Circuit Court abused its discretion by granting Governor Andy Beshear a temporary injunction on legislation that limits executive emergency powers. Central to the controversy are Senate Bill 1, House Bill 1, Senate Bill 2, and House Joint Resolution 77 passed by the 2021 Kentucky General Assembly that significantly amend the governor’s emergency powers.
Governor Beshear filed a lawsuit in Franklin Circuit Court to challenge the constitutionality of the legislation as an infringement of executive authority. Franklin Circuit Court Judge Phillip Shepherd granted Governor Beshear a temporary injunction to postpone the effective date of the legislation. Judge Shepherd’s order found in part that the public would suffer irreparable harm were the legislation to become effective.
Attorney General Daniel Cameron appealed the temporary injunction alleging that the temporary injunction was contrary to state law. The Kentucky Supreme Court agreed on different legal grounds, basing its decision on decades of court precedent that have consistently found that the governor’s authority is substantially derived from statutes enacted by the General Assembly. Contrary to the governor’s position, the court determined that the true irreparable harm faced by the public and the government is “non-enforcement of a duly-enacted statute” caused by the temporary injunction.
Despite the strong rebuke from the court, the decision does not end Governor Beshear’s constitutional challenge to the validity of SB 1, HB 1, SB2, and HJR 77. Instead, the decision simply requires Franklin Circuit Court to dissolve the temporary injunction to allow the legislation to take effect pending the outcome of the case.
It will take some time before Franklin Circuit Court lifts the temporary injunction. The court should issue an order around mid-September that provides more information and guidance as to the effective dates of the legislation. Local governments have plenty of time to prepare for the legislation to go into effect.
House Speaker David Osborne and Senate President Robert Stivers released a joint statement following the rendering:
“After months of deliberation, the Supreme Court has confirmed what the General Assembly has asserted throughout this case – the legislature is the only body with the constitutional authority to enact laws. Let us be clear that today’s ruling in no way diminishes the seriousness of this virus or its impact on our Commonwealth, and the General Assembly will continue to work to maintain both the safety and rights of all Kentuckians. The General Assembly has made it clear on numerous occasions that its disagreements with Governor Beshear were founded in process. This fact is affirmed throughout today’s decision, in statements like ‘the Governor has no implied or inherent emergency powers beyond that given him by the legislature,’ and ‘the General Assembly establishes the public policy of the Commonwealth.’
“Despite his historic inability to recognize these facts, we continue to stand ready to work with the Governor, as we have for nearly a year and a half, and address what is a very real public health crisis.”
As of the writing of this article, Governor Andy Beshear has yet to publicly comment on the decision. The governor will hold a news conference Monday afternoon “to discuss the coronavirus in Kentucky.”
SB 1, HB 1, and HJR 77 each contain provisions with a direct impact on local government, whereas SB 2 addresses the process and procedures to adopt executive branch administrative regulations. SB 1, HB 1, and HJR 77 as applied to local governments are described below. For a more comprehensive summary of SB 2 and all legislation from the 2021 Kentucky General Assembly that impacts local governments, you can review the KLC 2021 Legislative Update here.
SB 1 is codified in KRS 39A.090. KRS 39A.090 limits the effective period of unilateral executive orders, administrative regulations, or directives issued by the governor under a state of emergency to 30 days unless otherwise extended by the General Assembly. This limitation applies to orders, regulations, or directives that impose mandatory quarantine or isolation requirements or that place restrictions on in-person meetings or functioning of elementary, secondary, or postsecondary educational institutions; private businesses or nonprofit organizations; political, religious, or social gatherings; places of worship; or local governments.
Any other requirements or restrictions necessary to respond to a qualified emergency under KRS Chapter 39A can be extended beyond the 30 days at the request of a local government. A local government can request that executive orders, administrative regulations, or directives issued by the governor remain in effect for a specified period to exceed 30 days, for that local government only.
Executive actions requested by local governments under KRS 39A.090(2)(b) must be requested in writing by the chief executive officer or legislative body.
A local government’s authority to declare a state of emergency under KRS 39B.070 remains unchanged.
HB 1 is noncodified legislation, which means that it is not published as a Kentucky Revised Statute. Instead, HB 1 is emergency legislation that is effective through January 31, 2022.
HB 1 authorizes any business, for-profit or nonprofit organization, association, school or school district, or local government to remain open and operation through January 31, 2022, despite any state law or executive order, through the adoption of a comprehensive plan. An entity may create and adopt its own comprehensive plan or utilize a plan from a local or state government, chamber of commerce, trade association, or any other recognized affiliate organization. A valid comprehensive plan under this legislation must meet the following criteria:
- meet or exceed all applicable Centers for Disease Control and Prevention (CDC) or executive branch guidance, whichever is least restrictive;
- describe in detail how the plan fosters the safety of employees, customers, attendees, and patrons, including social distancing requirements; and
- be posted in a conspicuous place on the main entrance door of the entity’s physical location and on the website if the entity maintains a website.
The measure provides that a state or local agency shall not enforce restrictions that exceed CDC or executive branch guidelines, whichever are least restrictive.
HB 1 also prohibits the Labor Cabinet from assessing or collecting interest and penalties on unpaid employer contributions for unemployment insurance under KRS 341.300 through December 31, 2021.
HJR 77 is another noncodified piece of legislation that nevertheless has the force and effect of law. On or before June 28, 2021, the measure ends all of Governor Beshear’s executive orders declaring a state of emergency in response to COVID-19.
For local governments, the primary impact of HJR 77 is the expiration of Senate Bill 150 and the effect on open records and open meetings. However, most cities already operate under current law as though SB 150 is no longer in effect.
KLC previously notified our members that on June 24, 2021, the Kentucky Office of Attorney General issued an advisory opinion that altered open records and open meetings guidance. The advisory opinion recommended that public agencies adopt the requirements for HB 312 for managing open records and conduct open meetings under KRS 61.800-61.848 as though the state of emergency ended on June 28, 2021. Cities that have not yet taken these steps should do so by mid-September at the latest.
KLC will continue to monitor cases impacting our cities and provide information as it becomes available. Please contact the Municipal Law Department at KLC with any questions at (800) 876-4552.