Beshear v. Acree, 111220 KYSC, 2020-SC-0313-OA

Docket Nº2020-SC-0313-OA
Opinion JudgeHUGHES JUSTICE
Party NameHONORABLE ANDREW BESHEAR, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE COMMONWEALTH OF KENTUCKY; ERIC FRIEDLANDER, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE KENTUCKY CABINET FOR HEALTH AND FAMILY SERVICES; DR. STEVEN STACK, IN HIS OFFICIAL CAPACITY AS COMMISSONER OF THE KENTUCKY DEPARTMENT FOR PUBLIC HEALTH; THE KENTUCKY CABINET FOR HEALTH AN...
AttorneyCOUNSEL FOR PETITIONER, HONORABLE ANDREW BESHEAR, IN HIS OFFICIAL CAPACITY AS GOVERNOR: Steven Travis Mayo La Tasha Arnae Buckner Samuel Robert Flynn Joseph Anthony Newberg Taylor Allen Payne Laura Crittenden Tipton Office of the Governor COUNSEL FOR PETITIONERS, ERIC FRIEDLANDER, IN HIS OFFICIAL...
Case DateNovember 12, 2020
CourtSupreme Court of Kentucky

HONORABLE ANDREW BESHEAR, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE COMMONWEALTH OF KENTUCKY; ERIC FRIEDLANDER, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE KENTUCKY CABINET FOR HEALTH AND FAMILY SERVICES; DR. STEVEN STACK, IN HIS OFFICIAL CAPACITY AS COMMISSONER OF THE KENTUCKY DEPARTMENT FOR PUBLIC HEALTH; THE KENTUCKY CABINET FOR HEALTH AND FAMILY SERVICES; AND THE KENTUCKY DEPARTMENT FOR PUBLIC HEALTH PETITIONERS

v.

HONORABLE GLENN E. ACREE, JUDGE, KENTUCKY COURT OF APPEALS; AND HONORABLE RICHARD A. BRUEGGEMANN, JUDGE, 52ND JUDICIAL CIRCUIT, BOONE CIRCUIT COURT RESPONDENTS

AND

FLORENCE SPEEDWAY, INC.; RIDGEWAY PROPERTIES, LLC, D/B/A BEANS CAFE & BAKERY; LITTLE LINKS LEARNING, LLC; AND HONORABLE DANIEL J. CAMERON, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL REAL PARTIES IN INTEREST

No. 2020-SC-0313-OA

Supreme Court of Kentucky

November 12, 2020

ORIGINAL ACTION IN THE SUPREME COURT ARISING FROM THE COURT OF APPEALS CASE NO. 2020-CA-0834 BOONE CIRCUIT COURT CASE NO. 20-CI-00678

COUNSEL FOR PETITIONER, HONORABLE ANDREW BESHEAR, IN HIS OFFICIAL CAPACITY AS GOVERNOR: Steven Travis Mayo La Tasha Arnae Buckner Samuel Robert Flynn Joseph Anthony Newberg Taylor Allen Payne Laura Crittenden Tipton Office of the Governor

COUNSEL FOR PETITIONERS, ERIC FRIEDLANDER, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE KENTUCKY CABINET FOR HEALTH AND FAMILY SERVICES; DR. STEVEN STACK, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE KENTUCKY DEPARTMENT FOR PUBLIC HEALTH; THE KENTUCKY CABINET FOR HEALTH AND FAMILY SERVICES; AND THE KENTUCKY DEPARTMENT FOR PUBLIC HEALTH: Wesley Warden Duke David Thomas Lovely Cabinet for Health and Family Services Office of Legal Services

COUNSEL FOR REAL PARTIES IN INTEREST, FLORENCE SPEEDWAY, INC.; RIDGEWAY PROPERTIES, LLC, D/B/A BEANS CAFE & BAKERY; AND LITTLE LINKS LEARNING, LLC: Christopher David Wiest

COUNSEL FOR REAL PARTY IN INTEREST, HONORABLE DANIEL J. CAMERON, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL: Heather Lynn Becker Barry Lee Dunn Marc Edwin Manley Stephen Chad Meredith Brett Robert Nolan Aaron John Silletto Office of the Attorney General

COUNSEL FOR AMICUS CURIAE, ROBERT STIVERS, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE KENTUCKY SENATE: David Earl Fleenor Office of the Senate President

OPINION

HUGHES JUSTICE

INTRODUCTION

On March 6, 2020, as the COVID-19 global pandemic reached Kentucky, Governor Andy Beshear declared a state of emergency pursuant to Executive Order 2020-215. In the ensuing days and weeks, he issued additional executive orders and emergency regulations to address the public health and safety issues created by this highly contagious disease. In late June, three Northern Kentucky business owners filed suit in the Boone Circuit Court challenging various orders affecting the reopening of their respective businesses as well as the Governor's authority generally in emergencies. Attorney General Daniel Cameron intervened as a plaintiff, and the parties proceeded to obtain a restraining order that prohibited enforcement of certain of the emergency orders.

In response to that action with its imminent injunction hearing and at least one similar case elsewhere in the Commonwealth, this Court entered an order on July 17, 2020, staying all injunctive orders directed at the Governor's COVID-19 response until those orders were properly before this Court, with full record, pursuant to the direction of the Court. Having received briefs and heard oral argument, this Court addresses five primary questions. We begin by summarizing our answers to those questions.

I. 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. Although the governing statutes do not require resort to the definition of "emergency" in KRS 39A.020(12), if that definition were applicable it would not inhibit the Governor's authority. The local emergency management agencies referenced in KRS 39A.020(12) "shall, for all purposes, be under the direction . . . of the Governor when [he] deems that action necessary." KRS 39B.010(5). Thus, the Governor was authorized to act without deference to any determination by a local authority or emergency management agency. On March 30, 2020, the General Assembly acknowledged the state of emergency declared by the Governor and "the efforts of the Executive Branch to address . . . the outbreak of COVID-19 virus, a public health emergency." 2020 S.B. 150.

II. 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. Kentucky has recognized the lawful delegation of legislative powers for decades, and we decline to overrule that precedent, especially in circumstances that would leave the Commonwealth without day-to-day leadership in the face of a pandemic affecting all parts of the state. Notably, the General Assembly, in 2020 Senate Bill 150, recognized the Governor's use of the KRS Chapter 39A emergency powers, directed him to declare in writing when the COVID-19 emergency "has ceased" and further provided: "In the event no such declaration is made by the Governor on or before the first day of the next regular session . . . the General Assembly may make the determination."

III. 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). In any event, the procedural safeguard of public notice is satisfied because KRS 39A.180 mandates that all emergency orders and administrative regulations issued by the Governor or any state agency "shall have the full force of law" when "a copy is filed with the Legislative Research Commission," just as occurs under KRS Chapter 13A.

IV. 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. Executive orders in emergency circumstances, especially where public health and safety is threatened, are entitled to considerable deference by the judiciary. During the course of this litigation, several of the orders and regulations at issue were superseded or changed, rendering some of the challenges moot.

V. 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...

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