In a unanimous decision, the Supreme Court of Kentucky has affirmed the constitutionality of Governor Andy Beshear’s executive orders related to the pandemic.
In the past summer, a lower court granted a restraining order against some of the executive orders, which was then appealed to SCOKY. The Court then issued a stay of all injunctive orders until the case could be brought before the Court.
The case was argued earlier before the Court, and the ruling was handed down today.
Summary of the five findings of the Supreme Court of Kentucky
Here are five questions answered by the Court, as taken from the court filing.
Did the Governor properly declare a state of emergency and validly invoke the emergency powers granted to him in Kentucky Revised Statute (KRS) Chapter 39A?
Yes. KRS 39A.100 authorizes the Governor to declare a state of emergency in the event of the occurrence of any of the situations or events contemplated by KRS 39A.010, which includes biological and etiological hazards such as the COVID-19 pandemic.
Is KRS Chapter 39A with its provisions regarding the Governor’s powers in the event of an emergency an unconstitutional delegation of legislative authority in violation of the separation of powers provisions of sections 27 and 28 of the Kentucky Constitution?
No. The Kentucky Constitution does not directly address the exercise of authority in the event of an emergency except as to those events requiring the military, the Governor being the “commander-in-chief of the army and navy of this Commonwealth and of the militia thereof.” Ky. Const. § 75. However, our Constitution, which provides for a part-time legislature incapable of convening itself, tilts toward emergency powers in the executive branch. Section 80 provides the Governor “may, on extraordinary occasions, convene the General Assembly” and may do so at a different place if Frankfort has “become dangerous from an enemy or from contagious diseases.” (Emphasis added.) The language is permissive, not mandatory. So emergency powers appear to reside primarily in the Governor in the first instance, but to the extent they are perceived as legislative, KRS Chapter 39A is a lawful delegation of that power with sufficient standards and procedural safeguards to pass constitutional muster.
Was the Governor required to address the covid-19 emergency solely through emergency regulations adopted pursuant to KRS Chapter 13A?
No. The General Assembly has specifically authorized the Governor in KRS 39A.090, .100 and .180 to act through executive orders and regulations that supersede “[a]ll existing laws, ordinances, and administrative regulations.” KRS 39A.180(2). KRS Chapter 13A is not controlling in the event of a declared emergency pursuant to KRS 39A.010(1).
Do the challenged orders or regulations violate sections 1 or 2 of the Kentucky Constitution because they represent the exercise of “absolute and arbitrary power over the lives, liberty and property” of Kentuckians?
Only one subpart of one order, no longer in effect, was violative of Section 2. Property rights are enumerated in the Kentucky Constitution and are entitled to great respect, but they are not fundamental rights in the sense that all governmental impingements on them are subject to strict scrutiny, particularly in the area of public health. As with all branches of government, the Governor is most definitely subject to constitutional constraints even when acting to address a declared emergency. In this case, however, the challenged orders and regulations have not been established to be arbitrary, i.e., lacking a rational basis, except for one subpart of one order regarding social distancing at entertainment venues that initially made no exception for families or individuals living in the same household.
Did the Boone Circuit Court properly issue injunctive relief prohibiting enforcement of the governor’s orders or regulations?
No. Injunctive relief requires that a plaintiff prove irreparable injury, establish that the equities favor issuance of the injunction and raise a substantial question on the underlying merits, defined as a substantial possibility that the plaintiff will ultimately prevail. Given our conclusion regarding the lawful manner in which the Governor has responded to the COVID-19 emergency, Plaintiffs have not raised a substantial question on the merits with respect to their insistence that the Governor must first contact and defer to local emergency response agencies pursuant to KRS 39A.020(12); their separation of powers argument; their claim that KRS Chapter 13A controls issuance of all executive orders and regulations; or their argument that the Governor has exercised arbitrary powers in violation of Sections 1 and 2 of the Kentucky Constitution. Even if some Plaintiffs arguably have established irreparable harm to their businesses, that alone is insufficient to justify an injunction precluding enforcement of emergency orders and regulations directed to the protection of the health and safety of all Kentuckians. Applying our time-honored injunction standard, the law and equities favor the Governor in this matter.
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