Kentucky Supreme Court will look at cases involving executive powers

Published 4:19 pm Saturday, April 17, 2021

By TOM LATEK

Kentucky Today

FRANKFORT, Ky. (KT) –  Two separate cases involving Gov. Andy Beshear’s powers to issue executive orders related to the COVID-19 pandemic will be heard by the Kentucky Supreme Court.

One case involves three bills passed by the General Assembly this year, which the governor vetoed and whose veto was overridden.

House Bill 1 states in part that any business, for-profit or not-for-profit organization, local government, association, or any school or school district, public, private, or religiously affiliated, may remain open and fully operational for in-person services so long as it adopts an operating plan that either meets or exceeds guidance issued by the Centers for Disease Control and Prevention or by the executive branch, whichever is least restrictive.

Senate Bill 1 limits any emergency order or regulation to 30 days, unless the General Assembly approves an extension.  That means that if an order was issued when lawmakers were not in session, would have to be called to Frankfort for a special legislative session, which costs over $60,000 per day, and would likely have to last at least five days.

SB 2 Would limit emergency Administrative Regulations to 30-days, and documentation would have to be submitted to justify the regulation.

Beshear filed suit against the three bills at Franklin Circuit Court, where Judge Phillip Shepherd granted a temporary injunction sought by the governor, to keep the measures from being implemented until the merits of the case are heard.

The high court will extend its review to a second pandemic-related case, filed in Scott County by Goodwood Brewing, which operates breweries, taprooms and restaurants in Louisville, Frankfort, Lexington and Georgetown, challenging the Governor’s actions.

Scott Circuit Judge Brian Privett temporarily blocked those restrictions, but the state Court of Appeals stayed Privett’s temporary injunction, meaning it won’t take effect until the case is resolved.   

The seven Supreme Court justices unanimously agreed to transfer the appeals of both lower court rulings directly to them, bypassing the Court of Appeals, and established an expedited hearing schedule on them, which they are combining into one case.

The schedule directs both sides to file their initial briefs, no longer than 50 pages, with the high court by May 5; and response brief, no longer than 25 pages in length by May 25.  While the Supreme Court normally takes reply briefs by both sides to the respective second filing, this time they will not accept them, and will hold oral arguments on June 10.

Last November, the justices unanimously ruled that the governor has the constitutional authority to issue orders to help save lives.

Beshear’s office has said, “The governor has followed the advice of the Centers for Disease Control and Prevention, the White House Coronavirus Task Force and public health experts; and many other governors across the country are taking similar actions to protect the health and lives of children and families.”