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Kentucky Supreme Court Upholds Governor’s Power to Order COVID-19 Lockdowns but Legislators Balk

On November 12, 2020, the Kentucky Supreme Court rendered a unanimous decision that upheld executive orders and regulations issued by Governor Andy Beshear in response to the COVID-19 pandemic, finding them a legitimate use of the governor’s executive authority that did not violate the Kentucky Constitution. However, the decision has prompted a legislative backlash that may lead to an attempted curtailment of the governor’s emergency powers.

Beshear, a Democrat, declared a state of emergency in Kentucky on March 6 because of the COVID-19 pandemic. Subsequently, he issued multiple executive orders directed at various businesses, schools and other facilities throughout the state. These orders restricted hours of operations, who could and could not be admitted to places of business and how many customers could be admitted or served.

Several businesses — including a restaurant, a day care center and an automotive racetrack — sued the governor, seeking injunctions against the restrictions under state administrative law. The Kentucky Attorney General intervened in the suit on the side of the businesses. In July, the Supreme Court ordered the executive orders and regulations to be stayed until the court heard the cases on the merits.

In its 103-page opinion, the court stated:

  • The governor properly declared an emergency and validly invoked the emergency powers granted to him under Kentucky Revised Statute Chapter 39A.
  • Chapter 39A does not violate the separation of powers provisions of the Kentucky Constitution.
  • The governor was not required to address the COVID-19 emergency solely through the emergency regulations adopted under Chapter 13A.
  • The executive orders and regulations issued by the governor did not violate the Kentucky Constitution’s provisions protecting the property rights of state residents.

Republicans were not happy. Senate Majority Leader Damon Thayer went on Twitter, calling the Democratic governor’s orders “arbitrary & capricious.” He further tweeted that the governor’s actions “have destroyed jobs, harmed economic recovery & increased mental illness.” Republican Agriculture Commissioner Ryan Quarles said that when “the General Assembly returns in January, I hope they move quickly to restore the balance of our constitutional order back to the people, where it rightly belongs.”

Will the majority Republican legislature amend Chapter 39A when the legislature reconvenes? Certainly, some Kentuckians feel that Governor’s executive orders are excessive and heavy-handed. However, as of the end of November, 2020, there were over 164,000 coronavirus cases and over 1,900 COVID-related deaths in Kentucky. Hopefully, politicians from both sides will make decisions that benefit the public health and welfare of all Kentuckians.

At Hemmer DeFrank Wessels, PLLC in Kentucky, we are continuously monitoring the progress of government actions addressed to the COVID-19 crisis. Our attorneys are here to answer your questions about the legal effects of the quarantine and other coronavirus-related measures amid these ever-changing circumstances. Call our Fort Mitchell office at 859-344-1188 or contact us online to arrange a consultation.

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