Kentucky Supreme Court Unanimously Upholds Executive COVID Response Orders

On November 12, 2020, the Supreme Court of Kentucky, overruling a lower court, unanimously upheld Governor Andy Beshear’s authority to issue executive orders in an emergency. Attorney General Daniel Cameron had joined three Northern Kentucky business owners in contesting executive orders issued by Governor Beshear in response to the COVID-19 pandemic. The plaintiffs argued that the restrictions exceeded Governor Beshear’s constitutional powers.

The court limited its opinion to the issues before it, making note of certain hot button issues it was not addressing. In regard to masks, the court only ruled on whether the penalty provisions in the emergency regulation are enforceable. The court also did not address restraints on religious activities, since those issues were not before the court and the issue had previously been litigated in federal court. The court also did not address restraints on elective medical procedures.

Governor Beshear’s actions were challenged in relation to KRS Chapter 13A and provisions of the Constitution of Kentucky. The court ruled that Governor Beshear properly declared a state of emergency pursuant to KRS 39A.100, which authorizes the governor to declare a state of emergency in the event of the occurrence of any of the situations or events contemplated under KRS 39A.010. The plaintiffs argued that KRS Chapter 13A limits the governor’s powers under KRS Chapter 39. The court ruled that nothing in the text of KRS 39A requires consideration of Chapter 13A or promulgation of regulations. Simply put, “the Governor can choose to act solely through executive orders.” Further, the court found that Governor Beshear’s executive orders do not violate Sections 1 or 2 of the Kentucky Constitution because they are not arbitrary. Finally, the court ruled that the Boone Circuit Court’s ruling, which granted injunctive relief prohibiting enforcement of Governor Beshear’s orders or regulations, was improper because the plaintiffs were unable to prove that they suffered irreparable injury. The court held that, “[e]ven 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.” The Supreme Court of Kentucky’s full opinion can be found here.