FRANKFORT — With Gov. Andy Beshear's power to issue emergency orders at stake, lawyers for Kentucky Attorney General Daniel Cameron and several Northern Kentucky businesses went before the state Supreme Court Thursday challenging orders Beshear imposed after the COVID-19 pandemic hit Kentucky in March.
At issue are dozens of such orders ranging from limits on crowd sizes at public events and class sizes at child care centers to workers' compensation and funding for public schools. A key question is whether Beshear can require most Kentuckians wear a mask in public to limit spread of the coronavirus.
The hearing began as a noisy crowd gathered outside on the Capitol lawn, few wearing masks and some toting firearms, protesting such executive orders and demanding freedom. They had mostly dispersed by the end of the 90-minute hearing.
Beshear's lawyer argued at Thursday's hearing that he is empowered to issue such orders in a public health emergency by state law and the Kentucky Constitution.
"The governor has taken swift and decisive action to help protect the state during the state of emergency," said La Tasha Buckner, Beshear's general counsel. "While, sadly, we’ve lost over 1,000 people to this virus, we know that these measures have worked."
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In a court filing, Buckner said such authority has been recognized for more than a century, citing a 1911 ruling by Kentucky's high court upholding then-Gov. Augustus Willson's order for the state militia to detain Caldwell County "night riders," a group of vigilantes initially organized to fight controls on tobacco pricing.
But lawyers for Northern Kentucky businesses including the Florence Speedway, a day care center and a restaurant, and Cameron, argued the governor had exceeded his authority and caused harm to owners through forced closures and limits on crowd sizes.
Lawyer Chad Meredith, representing Cameron, said the governor has the authority to act in emergencies but Beshear has exceeded it.
"For going on seven months now, the governor has been issuing executive orders to control the lives of citizens of the commonwealth," Meredith said. "And they keep coming. In the United States of America, the ends do not justify the means."
Added Meredith: "The governor’s position is as extreme as it can be. He thinks he can exercise unfettered, unilateral control over citizens' lives and livelihoods."
Christopher Wiest, a lawyer for the Northern Kentucky businesses, said the restrictions exceed the governor's authority and are causing harm to the businesses.
"This case is not about depriving the governor of the tools needed to fight COVID-19," he said. "We have never disputed they may enact reasonable public health regulations."
Afterwards, Wiest said he couldn't predict when or how the court might rule on the case.
"It really touches on the extent of executive power in the commonwealth," he said. "I think they are going to take their time."
Cameron, speaking to reporters after the hearing, said he doesn't doubt that Beshear is well-meaning but believes he has exceeded his authority with orders that affect peoples' lives.
"There are a lot of folks hurting out there and we have to be cognizant of that," Cameron said.
Beshear on Wednesday, just hours before the hearing, gave a blunt assessment of the impact of the challenge.
"If they win, more people are going to die," he said during a COVID-19 update at the Capitol. "I don't get it. If they win, we still lose."
The seven justices, socially distanced on the bench and all wearing masks, listened and occasionally interjected with questions.
Justice Lisbeth Hughes wondered about restricting the governor's powers, noting the current circumstances.
"We're dealing with a once-in-100-year event," Hughes said. "The 1918 flu pandemic was the last time our country was affected like this."
And Justice Michelle Keller questioned assertions that Beshear has usurped power that should be used by Kentucky's part-time legislature or exercised through the more detailed process of creating administrative regulations. She wondered how that would work in an emergency.
"Let's say there was a Sarin gas leak," Keller said. "Let's say there was a nuclear incident."
Keller noted the law being challenged covers a "panoply of disasters" where the governor can issue emergency orders.
"I don't know if you want to call in our government officials in various cabinets and staff that work for them and everybody else to come in if Sarin gas has been released so they can do some regulations," she said.
The hearing comes after the high court took control of two challenges in lower courts where judges ruled against Beshear's orders. But Thursday's hearing involved only a decision from Boone Circuit Court. Meanwhile, the Supreme Court has allowed all Beshear orders to remain in effect.
Opponents to the orders of the governor, a Democrat, include Cameron and state Agriculture Commissioner Ryan Quarles, both Republicans. Quarles has sided with a cider mill and event venue in his home county (Scott) challenging the rule on crowd sizes.
The Supreme Court on Thursday addressed only the challenge from Boone County because that is the only case in which a lower-court judge has issued a final order.
In July, Boone Circuit Judge Richard Brueggemann declared Beshear's emergency COVID-19 orders unconstitutional, but by then, because the Supreme Court had already taken control of the dispute, the order had no effect.
On July 17, the Supreme Court announced it was taking over jurisdiction of the legal challenges, citing "the need for a clear and consistent statewide public health policy and recognizing that the Kentucky legislature has expressly given the governor broad executive powers in a public health emergency."
For now, the Supreme Court has delayed acting on the Scott County challenge that argues the limits on crowds and public gatherings are harmful to the agritourism businesses.
Minton's order said that case isn't ready for review because Scott County Judge Brian Privett has yet to enter a final order in the case, although he had issued a temporary restraining order that would have blocked Beshear's executive orders.
But that order also was blocked when the Supreme Court took over the cases.
Minton's order said the Supreme Court will defer review of that case until the Scott County judge issues a final order or until the high court decides the case from Boone County.
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While the pending cases would affect all of Beshear's executive orders, much of the attention has focused on his order in July for people to wear a mask in public to prevent the spread of the highly contagious respiratory virus.
Beshear has extended the mask order for another 30 days, and in recent days, he and Dr. Steven Stack, the state's public health commissioner, have repeatedly advised Kentuckians to wear facial coverings in public, along with frequent hand washing and avoiding crowds, to try to keep COVID-19 under control.
On Wednesday, Dr. Robert Redfield, director of the U.S. Centers for Disease Control and Prevention, repeated that advice, saying, "The best defense we currently have against this virus are the important mitigation efforts of wearing a mask, washing your hands, social distancing and being careful about crowds."
Both Cameron and Quarles have said they do not object to wearing masks to prevent the spread of COVID-19 but question the procedures Beshear used to issue that and other orders.
Reach Deborah Yetter at dyetter@courier-journal.com or 502-582-4228. Find her on Twitter at @d_yetter. Support strong local journalism by subscribing today: courier-journal.com/subscribe.
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