Cameron v. Beshear

• Decision Date: 21 August 2021
• Docket Number: 2021-SC-0107-I
• Citation: 628 S.W.3d 61
• Court: United States State Supreme Court — District of Kentucky
• Parties: Daniel J. CAMERON, in His Official Capacity as Attorney General of the Commonwealth of Kentucky, Movant v. Andy BESHEAR, in His Official Capacity as Governor of the Commonwealth of Kentucky; and Eric Friedlander, in His Capacity as Secretary of the Cabinet for Health and Family Services, Respondents

628 S.W.3d 61

Daniel J. CAMERON, in His Official Capacity as Attorney General of the Commonwealth of Kentucky, Movant

v.Andy BESHEAR, in His Official Capacity as Governor of the Commonwealth of Kentucky; and Eric Friedlander, in His Capacity as Secretary of the Cabinet for Health and Family Services, Respondents

2021-SC-0107-I

Supreme Court of Kentucky.

AUGUST 21, 2021

COUNSEL FOR MOVANT, ATTORNEY GENERAL: S. Chad Meredith, Matthew F. Kuhn, Brett R. Nolan, Office of the Attorney General.

COUNSEL FOR RESPONDENT, GOVERNOR: Amy D. Cubbage, S. Travis Mayo, Taylor Payne, Marc Farris, Laura C. Tipton, Office of the Governor.

COUNSEL FOR RESPONDENT, SECRETARY FRIEDLANDER: Wesley W. Duke, LeeAnne Applegate, Frankfort, Cabinet for Health and Family Services.

COUNSEL FOR ROBERT STIVERS, AS PRESIDENT OF THE KENTUCKY SENATE: David E. Fleenor.

COUNSEL FOR DAVID OSBORNE, AS SPEAKER OF THE HOUSE OF REPRESENTATIVES: David E. Lycan.

COUNSEL FOR LEGISLATIVE RESEARCH COMMISSION: Gregory A. Woosley.

OPINION OF THE COURT BY JUSTICE VANMETER

On transfer from the Court of Appeals, we are presented with Movant Attorney General Daniel Cameron's request for relief from a temporary injunction issued by the Franklin Circuit Court against implementation of House Bill (H.B.) 1,¹ Senate Bill (S.B.) 1,² S.B. 2,³ and House Joint Resolution (H.J.R.) 77⁴ which the General Assembly enacted during the 2021 regular session⁵ and which amend the Governor's power to respond to emergencies as granted in KRS⁶ Chapter 39A. We find that this matter presents a justiciable case or controversy but that the Franklin Circuit Court abused its discretion in issuing the temporary injunction. Accordingly, we remand this case to the trial court with instructions to dissolve the injunction.

I. Facts and Procedural Background

On March 6, 2020, in response to the COVID-19 pandemic, Respondent Governor Andy Beshear declared a state of emergency "by virtue of the authority vested in [him] by [KRS] Chapter 39A," i.e. , the "Statewide Emergency Management Programs" ( KRS §§ 39A.010 -990).⁷ Business owners subsequently challenged the Governor's authority to issue executive orders and emergency regulations in response to the COVID-19 pandemic, and in November 2020, this Court held that the executive orders were valid since the legislature had given the Governor the power to issue them under the Statewide Emergency Management Programs regime in KRS Chapter 39A. Beshear v. Acree , 615 S.W.3d 780, 802 (Ky. 2020). Further, at the onset of the pandemic, the legislature had approved the Governor's emergency declaration. Act of Mar. 30, 2020, ch. 73, 2020 Ky. Acts 310 (2020 S.B. 150). However, in Acree , we clarified that going forward, the General Assembly could limit the Governor's statutorily-derived emergency powers should it wish to. Id. at 812–13 (noting that "[w]hile the authority exercised by the Governor in accordance with KRS Chapter 39A is necessarily broad," many "checks [exist] on that authority," including "legislative amendment or revocation of the emergency powers granted the Governor[ ]").

During the 2021 regular session, the General Assembly responded to Acree by passing H.B. 1, S.B. 1, and S.B. 2 which restrict the Governor's ability to take unilateral action during declared emergencies. The Governor vetoed those bills and the General Assembly overrode his vetoes. The bills became effective on February 2, 2021.

Thereafter, the Governor and Eric Friedlander, in his official capacity as Secretary of the Cabinet for Health and Family Services ("CHFS"),⁸ filed this declaratory action in Franklin Circuit Court seeking a declaration that the recently-passed legislation unconstitutionally infringes upon his executive powers under Sections 2, 27, 28, 36, 42, 55, 59, 60, 69, 75, 80 and 81 of the Kentucky Constitution. The Governor sought injunctive relief preventing enforcement of the legislation pending adjudication of its constitutionality, arguing that the legislation undermines state government's ability to respond to the ongoing COVID-19 pandemic and creates a public health crisis that will result in increased disease and death. The Governor sued Speaker of the House David Osborne, Senate President Robert Stivers, the Legislative Research Commission ("LRC"), and Attorney General Daniel Cameron. The legislative defendants (Osborne, Stivers, and LRC) filed motions to dismiss based on legislative immunity, which the Franklin Circuit Court denied.⁹

Following an evidentiary hearing, the Franklin Circuit Court temporarily enjoined implementation of the challenged legislation, finding that the Governor had presented substantial legal questions concerning the validity of the legislation, the Governor and the public would suffer immediate and irreparable harm in the absence of injunctive relief, and the public interest and the balance of the equities required the granting of injunctive relief. The Attorney General filed for CR ¹⁰ 65.07¹¹ relief with the Court of Appeals to vacate the temporary injunction, arguing that the Franklin Circuit Court lacked jurisdiction to issue the temporary injunction since the Complaint does not present a justiciable issue and the Governor lacks standing.

Not long after the trial court granted injunctive relief, the General Assembly passed H.J.R. 77 ratifying and extending many of the Governor's executive orders and regulations for periods of time ranging from 30 to 90 days, but terminating all other COVID-related orders and regulations. The Governor vetoed that resolution, and the General Assembly overrode his veto. Most significantly, the General Assembly explicitly included Executive Order 2020-215, the Governor's original emergency declaration, as one of the executive actions which would expire in ninety days, or by June 28, 2021. The Governor then sought modification of the temporary injunction to cover HJR 77, to which the Attorney General objected. The Franklin Circuit Court granted the Governor's request and put a hold on the implementation of HJR 77 as well. The Attorney General immediately filed for CR 65.07 relief with the Court of Appeals to vacate the modified injunction. The Court of Appeals recommended transfer of the case to this Court, which we accepted on an expedited basis due to these issues being of great and immediate statewide importance.

II. Analysis

Two questions are presented for our review: (1) whether this lawsuit presents a justiciable case or controversy and (2) if justiciable, whether a temporary injunction was warranted.

A. Justiciability

The Declaratory Judgment Act allows a plaintiff to seek, and Kentucky courts to issue, a declaration of rights when an "actual controversy" exists. KRS 418.040. Specifically, that Act states:

In any action in a court of record of this Commonwealth having general jurisdiction wherein it is made to appear that an actual controversy exists, the plaintiff may ask for a declaration of rights, either alone or with other relief; and the court may make a binding declaration of rights, whether or not consequential relief is or could be asked.

An actual, justiciable controversy is "a condition precedent to an action under our Declaratory Judgment Act." Freeman v. Danville Tobacco Bd. of Trade, Inc. , 380 S.W.2d 215, 216 (Ky. 1964). See also Ky. Const. § 112 (5) (limiting circuit court jurisdiction to "justiciable causes"). Plaintiffs who have standing to seek a declaration of rights include "[a]ny person ... whose rights are affected by statute[.]" KRS 418.045.

Constitutional standing is an essential element of a justiciable case or controversy. Commonwealth Cabinet for Health & Fam. Servs., Dep't for Medicaid Servs. v. Sexton ex rel. Appalachian Reg'l Healthcare, Inc. , 566 S.W.3d 185, 196 (Ky. 2018). Indeed, "all Kentucky courts have the constitutional duty to ascertain the issue of constitutional standing, acting on their own motion, to ensure that only justiciable causes proceed in court[.]" Id. at 192. Constitutional standing is "defined by three requirements: (1) injury, (2) causation, and (3) redressability." Id. at 196. Specifically,

A plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief. [A] litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent.... The injury must be ... distinct and palpable, and not abstract or conjectural or hypothetical. The injury must be fairly traceable to the challenged action, and relief from the injury must be likely to follow from a favorable decision.

Id. (internal quotations and footnotes omitted). "If a case is not justiciable, specifically because the plaintiff does not have the requisite standing to sue, then the circuit court cannot hear the case." Id.

The Attorney General maintains that the Governor lacked standing to bring this lawsuit as he requests a non-justiciable advisory opinion and improperly seeks relief against legislative acts of the General Assembly, which the Attorney General asserts are not appropriate subjects of injunctive relief. CR 65.01 ; CR 65.04. The Attorney General argues that the only provision of the challenged legislation applicable to him, the suspension power of S.B. 1 (which gives the Attorney General authority to approve, or disapprove, any suspension of statute deemed necessary by the Governor to respond to an emergency) is a legislative function that per Section 15 of the Kentucky Constitution¹² can be delegated by the legislature to other parts of government to exercise that power. The Attorney General points to this Court's repeated recognition that "when the General Assembly expressly grants to another branch the power to suspend a law, that branch constitutes the General Assembly's authority for purposes of Section 15 and that branch's execution of a suspension of the laws does not violate Section 15." Commonwealth ex rel. Beshear v. Bevin , 575 S.W.3d 673, 679 ...