Deep Dive Episode 181 – State of Emergency? Kentucky’s Legislature vs. Governor

On June 10, the Kentucky Supreme Court heard a pair of cases to consider whether and to what extent the Commonwealth’s legislature may set parameters on the Governor’s exercise of emergency powers.

In March 2020, Kentucky Governor Andy Beshear declared a state of emergency related to the COVID-19 pandemic. Since then, he and other executive branch officials have issued executive orders, regulations, and other directives aimed at combatting the spread of the virus. On February 2 of this year, Kentucky’s General Assembly enacted a series of bills — over Governor Beshear’s vetoes — that amended the Commonwealth’s emergency powers laws. Under those laws, executive emergency orders that restrict private entities like businesses and churches lapse automatically after 30 days unless extended with the agreement of the legislature. Without legislative action, the Governor’s existing orders lapsed on March 4, 2021. The Governor maintains, however, that the new laws invade the executive’s authority to respond to emergencies and that he may continue to enforce emergency orders.

Two lawsuits followed. First, Governor Beshear sued the leaders of Kentucky’s legislature and the Attorney General and asked the court to declare that the new laws usurp his executive powers. Separately, Pacific Legal Foundation sued the Governor on behalf of three restaurant owners who challenge the Governor’s authority to continue the enforcement of business restrictions after March 4.

The judges in each case issued temporary injunctions. In the Governor’s case, a Franklin County judge suspended certain provisions of the new laws. In PLF’s case, a Scott County judge ordered the Governor to cease enforcement of orders against PLF’s clients. The order in the latter case has been put on hold, and both cases have been appealed. The Kentucky Supreme Court accepted “transfer” from the appellate court and ordered that the two cases be heard together.

Governor Beshear has announced the easing of restrictions, effective June 11. The parties dispute whether this latest directive from the Governor renders the case moot.

In this live podcast, Mitchel Denham (DBL Law) and Oliver Dunford (Pacific Legal Foundation) debate and discuss the implications of these cases.

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Transcript

Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.

[Music and narration]

 

Introduction:  Welcome to the Regulatory Transparency Project’s Fourth Branch podcast series. All expressions of opinion are those of the speaker. 

 

Colton Graub:  Good afternoon and welcome to The Federalist Society’s Fourth Branch Podcast for the Regulatory Transparency Project. My name is Colton Graub. I am the Deputy Director of RTP. As always, please note that all expressions of opinion are those of the guest speakers on today’s call.

 

If you would like to learn more about each our speakers and their work, you can visit RegProject.org where we have their full bios. After opening remarks and discussion between our panelists, we will go to audience Q&A, so please be thinking of the questions you’d like to ask.

 

This afternoon, we’re pleased to host this conversation discussing the current legal battle between Kentucky’s General Assembly and its governor over the governor’s exercise of emergency powers. We’re pleased to welcome two distinguished speakers to discuss and debate the implications of this topic.

 

Mitchel Denham is a Partner at DBL Law. Prior to joining the firm, Mitchel was the Assistant Deputy Attorney General in the Kentucky Office of the Attorney General. His remarks today are not on behalf of the Kentucky administration.

 

Oliver Dunford is an attorney at the Pacific Legal Foundation. Before joining PLF, Oliver clerked at the Ohio Supreme Court and the Ohio Court of Appeals. He spent more than a decade in private practice working on complex commercial litigation.

 

Mitchel and Oliver, welcome to the podcast.

 

Mitchel Denham:  Thank you.

 

Oliver Dunford:  Thanks very much, Colton. This is Oliver Dunford. I’m going to go first and present our case. And thanks, Colton, and thanks to The Federalist Society for hosting us. And I would like to thank Mitchel for stepping in here. As Colton mentioned, he’s not representing the governor here, and he’s not working on this litigation, but he very nicely joined us to present the arguments counter to mine, so thanks to Mitchel. 

 

As everyone knows by now, we’re in the ending stages, hopefully, of the COVID-19 pandemic. And last year, Governor Beshear in Kentucky issued an executive order in March declaring a state of emergency. And as will become important later, he issued this declaration by virtue of the authority vested in him by Chapter 39(a) of the Kentucky Revised Statutes. And so what I’d like to do is talk a little bit about what happened after that declaration, including the governor’s orders, and then the response by the General Assembly, and discuss the lawsuit that PLF brought on behalf of three restaurants to challenge the governor’s actions this year.

 

After the governor issued the state of emergency last March, he and other officials in the executive branch issued a number of orders and regulations that impacted small businesses, churches, travel. And as the governor mentioned, these powers that he exercised were vested in him by Chapter 39(a) of the Kentucky Revised Statutes. And Chapter 39(a) sets forth the emergency powers that the governor may execute during times of an emergency.

 

And one wrinkle in Kentucky, which some states share, is that the General Assembly is seated and in session only for a very small portion of the year. It’s a number of 60 days or 90 days, depending on the year. So last year after the governor declared a state of emergency, the General Assembly was in session for only a few more days after that, and from about April through the end of the year, the governor was acting on his own.

 

And a number of lawsuits were brought at that time, and those lawsuits involved, for the most part, challenges based on equal protection or arbitrariness of the particular orders. And so some businesses argued that, well, you’re allowing big box stores to stay open at greater capacity while you’re restricting the capacity of smaller businesses, for example.

 

There were also some First Amendment cases, and those were in federal court, but most of the cases, and certainly most of the cases in state courts in Kentucky, involved the kinds of equal protection and due process claims. And in those kinds of cases, courts defer greatly to the executive. In a First Amendment, case, for example, or a case involving discrimination based on race, courts would apply what’s called strict scrutiny in which case, it’s the government’s burden to prove that their actions were narrowly tailored to support a compelling government interest. And in those cases, often the challengers win.

 

In the kinds of cases, the majority of cases that were brought last year against Governor Beshear, however, Governor Beshear’s orders did not involve a suspect class such as any race, nor did it, again, most claims did not involve First Amendment violations. And in those kinds of cases, courts apply what’s called rational basis inquiry. And under the rational basis test, the burden is on the challenger to prove basically that there is no conceivable basis for the governor’s actions. Even the courts are allowed to say that, well, perhaps the governor could have been thinking this, or the government could have been thinking that when it adopted this rule or passed this legislation. And in those cases, often the governor wins. And last year, the governor did win many of those cases.

 

And in the fall, the Kentucky Supreme Court issued a decision called Beshear v. Acree. And the court largely rejected the challenges, and, like many courts across the country, the Kentucky Supreme Court found that the governor’s actions were rationally related to responding to the pandemic. And the court was reluctant to second-guess the executive’s actions in responding to the pandemic.

 

The governor argued, among other things, that the changing nature of the pandemic required quick responses by the executive branch. And he had, of course, over the course of the year, issued a number of orders, as I mentioned. And these orders changed over time in response to the, as the governor says, changing nature of the pandemic.

 

Among other restrictions were a series of regulations or directives placed on businesses, and then even more specific restrictions placed on certain types of businesses. So the Kentucky government, on its website, posted requirements for all entities, and then, over time, it also posted additional requirements for, among other things, restaurants. And those, again, changed over time, depending on the circumstances on the ground. Restaurants were closed twice last year for in-person service, which required and encouraged restaurants to offer more, perhaps, than they had in the past, to-go services. And the governor in one instance eased restrictions, allowing bars and restaurants to sell alcohol for off-site consumption.

 

Many restaurants closed. One of our client’s businesses was down 75 percent from the previous year. And so it did have a significant impact, of course. And the governor, of course — and we don’t contend that the governor acted in bad faith. We think that he acted as he did to protect the citizens of Kentucky from the pandemic. And as I mentioned earlier, the laws, Chapter 39(a) of the Kentucky Revised Statutes, did give the governor significant authority to address these kinds of problems.

 

However, from April through January of this year, the governor did act unilaterally and on his own because the law allowed him to, for the most part, and because the General Assembly wasn’t in power. When the General Assembly reconvened in January, their first items of business were amending the state’s emergency response laws. And among other things, and most relevant for our purposes, the new laws limited the governor’s executive orders and the executive branch’s emergency regulations.

 

And in each case, an executive order that restricted the operations of a private business, private school, churches, etc., were limited to 30 days unless extended by agreement with the General Assembly. And the same rule applied to emergency regulations. And one example of an emergency regulation that was adopted last year was a requirement that masks be worn in various venues, including restaurants.

 

With respect to the emergency orders that the governor issued himself, if one of those orders lapsed after 30 days, then the governor was not allowed under the terms of the new laws to reissue them. And in fact, the law precluded him from executing any of the powers provided under the Chapter 39(a) again once those orders lapsed. 

 

The governor vetoed these bills, and the General Assembly overrode the vetoes, and the laws became effective on February 2nd of this year. Therefore, without an extension by the General Assembly, the executive orders and the emergency regulations that had been in place lapsed automatically 30 days later, which was March 4th. And therefore, as of March 5th, we contend our clients, three restaurants in Kentucky, were permitted to reopen subject to the laws of the land, which included, of course, all the usual health and safety rules and regulations but no longer subject to the governor’s emergency orders and emergency regulations.

 

We filed suit a few days later on March 8th in Scott County, which is where one of our clients is. It’s Trindy’s restaurant in Georgetown. We also represented Goodwood Brewing and the Dundee Tavern. Dundee Tavern is in Louisville, and Goodwood has locations in a few different spots in the Commonwealth.

 

But before we filed, the governor filed his own lawsuit the day that the General Assembly overrode his vetoes. He filed suit in Franklin county and sued the leaders of the legislative branch as well as the attorney general, and he sought an injunction and a declaratory judgement stating that the new laws usurped his executive powers.

 

The governor obtained an injunction, a temporary injunction, and then in our case filed later, the governor argued that the order from the Franklin Circuit Court—and Mitchel will correct me if I’m wrong—but the circuit courts are the main trial courts in Kentucky. The governor argued in our case that the Franklin Circuit Courts temporary injunction prevented the Scott Circuit Court from considering our case and prevented us from seeking an injunction.

 

We argued that the Franklin Circuit Court’s order bound only the parties to that case, and we were not parties to that case, and therefore, we argue that our case can still go forward just as a claim brought in a federal court in Kentucky wouldn’t bind a decision or it wouldn’t bind a judge with different parties in a federal court in California. 

 

The trial judge in our case agreed with us, issued a temporary injunction against the governor, and precluded him from enforcing, against our clients only, the executive orders and regulations that lapsed by operation of law, and it also precluded him from reissuing those rules — I’m sorry, from issuing at least the executive orders. 

 

The governor immediately appealed and obtained a stay from the court of appeals which, therefore, meant that our injunction lasted for only a week. And the court of appeals recommended that the Kentucky Supreme Court take the case, which it agreed to do. And it also agreed to hear the governor’s separate case from Franklin County.

 

And last week, the Kentucky Supreme Court heard oral argument in both cases. The issue in the governor’s case was whether or not the governor had standing and had a justiciable controversy. The attorney general argued in that case that the governor was seeking merely an advisory opinion, which is a fancy way of saying that the governor really didn’t have a case. He just wanted the court to issue kind of a case opinion without binding anybody on the constitutional validity of the new laws.

 

In our case, the question was whether the Scott Circuit Court abused its discretion in issuing the injunction. Our argument was simple, that the legislature sets the policy for the Commonwealth. As I mentioned earlier, the governor’s original executive order was issued by virtue of the authority vested in him by Chapter 39(a). And so we argued that the governor’s authority remains subject to the requirements and limits in Chapter 39(a), and that those new limits are simply part of the emergency response policy that the governor must now follow.

 

The governor claims that the importance of the pandemic requires that these laws not be so limited. He claims that there is inherent executive authority to respond to emergencies such as this and that the General Assembly improperly limited his authority. In the Kentucky constitution, of course, this is basically at bottom a separation of powers case. The Kentucky constitution vests the legislative power in the General Assembly. And the legislative power according to the Kentucky Supreme Court is the policymaking power, and that power remains exclusively with General Assembly.

 

The Kentucky constitution vests the executive power in the governor, and the Constitution also expressly obligates the governor to take care that the laws are faithfully executed. And so we argued that the emergency response policy of the Commonwealth was set by the General Assembly which amended the new laws earlier this year, and that the governor’s obligation to take care that the laws be faithfully executed included those new laws adopted in January.

 

And finally, of course, the constitution vests the judiciary with the power to say what the law is. So our argument at bottom was that the governor must follow the laws just like everybody else. He may disagree with the policy adopted by the general assembly, but his obligation is to follow it. Of course, he did file that lawsuit challenging the constitutionality of the laws, and that is a dispute that the Kentucky Supreme Court should resolve.

 

But as we see it, there is no inherent authority in the governor to allow him to basically run an emergency policy on his own without any restraints put upon him by the General Assembly. The 30 day limit, again, may not be great policy. We have no opinion on that, but it is the policy adopted by the General Assembly, and the governor, therefore, is required to follow it.

 

And with that, I’ll turn it over to Mitchel.

 

Mitchel Denham:  Thank you, Oliver, and thank you Colton, and thank you to The Federalist Society for hosting this today. As Colton said at the beginning, I’m not here on behalf of the administration. I was asked to do this and am happy to oblige, and I appreciate you all having me today. And I also want to congratulate Oliver, who had an oral argument on this case at the Supreme Court last Thursday, so this is very fresh in his mind, obviously. I’m catching up a little bit.

 

But I also want to give a shoutout to Amy Cubbage, the governor’s general counsel, for her work on this case, and the other lawyers of the administration’s work on this case. She actually argued two cases in front of the Supreme Court last Thursday, one related to this case and one that’s similar, the Franklin Circuit Court injunction that Oliver mentioned, she argued that as well. So congratulations to both of them. They both did a wonderful job. 

 

So I want to begin with that Franklin Circuit Court case because that kind of frames the procedural posture of this case. But even before that, I think we need to remember the state of the pandemic at the time these cases started in the lower courts this spring. And I picked a date, March 1st, which is two days before the Franklin Circuit Court issued its injunction. On that day, there were 405,000 cases of COVID-19 having been identified in Kentucky since the pandemic began. There were 509 new cases on that day, and a total death count at the time of 4,652 deaths.

 

Obviously, I don’t think anyone disputes this. We were in the midst, still, of this deadly pandemic. The positivity rate at that time was almost 5 percent. And while the state of the pandemic was improving, the Commonwealth was by no means out of the woods. For example, numerous variants of the virus were being discovered and spreading. It was unknown how the vaccines would react to these variants. Even though they had been shown to be effective and are effective, it was unknown how they would react to the variants. Fortunately, we’ve discovered that they are effective against the variants as well. But at the time, it was unclear. And one example of this is Michigan that saw a spike in hospitalizations in mid-April because of the surge driven by the variants. And this was after their legislature took similar action that Kentucky legislatures much later did.

 

So that’s where we were at the state of the pandemic. And of course, the governor could not, and I don’t think anyone expected him to sit idly by and watch people suffer and watch the healthcare system get overwhelmed. Just last year, as Oliver mentioned, in Beshear v. Acree, the Supreme Court had ruled that the governor was well within his authority to issue executive orders to protect the public health during the pandemic. 

 

That case originated from a challenge to the executive orders from the attorney general and some private parties that made its way through various circuit courts in the Commonwealth, Boone County and Scott County. They culminated at the Supreme Court after the Scott Circuit Court issued an injunction prohibiting the governor from enforcing some of his executive orders, and a Boone Circuit Court had indicated that it was going to issue an injunction.

 

And the Kentucky Supreme Court took the extraordinary step under its constitutional authority to oversee the court of justice to put all of those injunctions on hold prior to the Supreme Court being able to hear the case, which it did. It heard oral arguments in September of last year and issued a ruling afterwards. And it found that the governor’s executive orders during the emergency were executive in nature, not legislative in nature. And it derived that from the Kentucky constitution Section 75, Section 80, Section 81, and others.

 

And it held, though, even if, to remove all doubt, even if this authority was derived from the legislature that the legislature had validly delegated that authority to the governor through KRS Chapter 39(a) and other statutes such as 13(a) and other statutes that appeared in the public health code. They were not an unconstitutional suspension of statutes.

 

The governor had followed the parameters set forth in those statutes, and all of the orders were still subject to judicial review for arbitrariness, due process, and equal protection under Sections 1 and 2 under the Kentucky constitution. So any arguments that the governor was acting unilaterally or under some type of authority that he didn’t necessarily have under the constitution, they were still subject to review for arbitrariness, due process, and equal protection.

 

The test for that, as Oliver mentioned, is a rational basis test, and the court looked at the Jacobson v. Massachusetts case from the U.S. Supreme Court. It’s a 1911 case from the United States Supreme Court. And also, Kentucky case law that held that public health orders during an emergency only required that those orders be reasonably based on the emergency. 

 

So that was the backdrop as the legislature came back into session at the beginning of the year in 2021. So fast-forward, then. The General Assembly passed a plethora of bills which attempted to remove the governor’s authority. And remember, the Supreme Court had just held that this authority was executive in nature.

 

As far as the details of those bills, I won’t get into those except to say that they essentially rewrote the emergency statutes and purported to remove nearly all the governor’s executive authority and provide it to the oversight of the General Assembly. One of those bills, House Joint Resolution 77, actually extended the emergency 90 days from its enactment, and that’s still actually in effect, which is set to end on June 30th. That’s assuming that it is a valid law.

 

Faced with the ongoing and continuing pandemic, because the pandemic did not stop simply because the legislature met and passed statutes, the governor sought judicial review of the new laws in Franklin Circuit Court. And Franklin Circuit Court is Frankfort where the state capital is located, the seat of Kentucky’s government. The governor did not want to merely thumb his nose at the new laws, but he also had to deal with this pandemic, so he brought a facial challenge to the constitutionality of the newly enacted legislation.

 

If the court said the laws were constitutional, then the governor would abide by those. But if the court said they were not constitutional, then the governor would proceed as previously determined by the Kentucky Supreme Court in Beshear v. Acree. So to that end, not only did he file a declaratory judgement action, he sought injunction so that he could maintain the status quo while the merits of the case were making its way through the court system and he could continue to fight the pandemic based on the expert advice from the public health experts. 

 

And on March 3rd, the Franklin Circuit Court did issue an injunction enjoining the attorney general and the General Assembly from enforcement of the new legislation that purportedly took away the governor’s ability to quickly respond to the emergencies. So as it relates to the merits of that, which I’ll get into very briefly because the merits issues are the same in Scott Circuit Court and in Franklin Circuit Court. Essentially, the court following Beshear v. Acree found that there was a substantial question on the merits as related to whether or not the legislature had impeded on the governor’s authority under the Constitution, his executive authority, to issue executive orders during states of emergency.

 

And part of the reason for this is because the legislature, as Oliver mentioned, is a part-time legislature. They only meet once a year. Every other year, they meet for a long session that ends on April 15th, and the other year ends on March 30th. So they only meet for a short period of time every year, and they have no ability to enact legislation and act quickly on information that’s received. This is the point of the governor having the authority to adopt emergency measures. So that was one of the basis for the Franklin Circuit Court issuing the injunction. There’s others that I won’t get into today. 

 

After that injunction was issued, that brings us to this case which I’ll call the Goodwood Brewing case. And as we know, the Scott Circuit Court issued an order subsequent to the Franklin Circuit Court one which was essentially diametrically opposed to the Franklin Circuit Court injunction. It prohibited the governor from enforcing the public health emergency executive orders against the plaintiffs, and this included the declaration of the state of emergency.

 

Now, the Franklin Circuit Court injunction was issued statewide against the enforcement of the new laws. The Scott Circuit Court injunction then was issued as it relates specifically to the plaintiffs in that litigation, but those plaintiffs were located in three different counties, Scott, Jefferson, and Fayette.

 

So essentially what you have is the potential for a patchwork of different public health measures applied in different counties to different individuals, which is just not a feasible option if you are the public health commissioner, or the secretary of the Cabinet for Health and Family Services, or the governor when you’re attempting to create a coordinated campaign to help stop the pandemic, get people vaccinated, keep the virus and the variants from spreading, which was part of the basis the Supreme Court used in Beshear v. Acree to find that the orders were executive in nature. 

One important point about procedurally in the Scott Circuit Court is that the injunction was entered without a hearing. Instead, it was decided solely on the verified complaint filed by the plaintiffs. In other words, the court issued an injunction preventing public health measures during the middle of a pandemic without taking any evidence.

 

So the issue before the Supreme Court that was argued last week in the Goodwood case was whether the Scott Circuit Court abused its discretion by issuing its injunction. In Kentucky, we have what we refer to as the Maupin standard for injunctions. Maupin is a 40-plus year old Kentucky court of appeals case which outlined the factors the court must consider when determining whether or not to issue an injunction. And those factors are, has the petitioner suffered irreparable harm, has the petitioner raised a substantial question on the merits, and do the equities fall in favor of the party seeking the injunction? That’s what we call or refer to as the balance of equities test.

 

Why did the Scott Circuit Court abuse its discretion in entering the injunction? Well, first, it ignored the preceding statewide temporary injunction issued by the Franklin Circuit Court. That injunction was pending before the lawsuit was filed in Scott County. And because this injunction had been entered, there could not have been and was not a substantial legal question before the Scott Circuit Court. There is no doubt that the enforcement of the laws were enjoined. And therefore, it’s crystal clear that the governor was not violating any statute at that time.

 

There was not at the time of the hearing — well, of the oral arguments, rather, because there was no hearing. At the time of the oral arguments in Scott Circuit Court, there was no substantial question on the merits before the court. So that is why the action in Scott County amounted to an impermissible collateral attack on the Franklin Circuit Court’s injunction. And under Kentucky law, a party cannot collaterally attack the judgement of another court in a sister court. It must be addressed in that court and attack that judgement head on. And the rule is applicable to injunctions just as it is in final judgements. So in ignoring the Franklin Circuit Court’s injunction, this action and the subsequent temporary injunctions by Scott Circuit Court amounted to a collateral attack.

 

Second, the respondents did not show irreparable harm. They argued that a violation of the Constitution is sufficient in and of itself to show irreparable harm. And while that might be true in some cases, it is not here because, number one, there was already an injunction in place, finding that there was a substantial question that the laws were unconstitutional and holding them in abeyance pending the merits. And two, there was no evidence of a specific harm to the respondents placed before the Scott Circuit Court.

 

In addition to this, even if the respondents were correct on the merits and all of the legislature’s actions were constitutional, the state of emergency was extended by the legislature through June 30 in House Joint Resolution 77, which is one of the acts that was challenged. So even under the plaintiffs’ theory, they would still be subject to all of the executive orders until, one, June 30, or two, if the governor decided to lift them prior to June 30, which he did last week on Friday.

 

And it was entirely speculative as to what would happen on June 30. Remember, we’re in a very fluid public health crisis that changes daily and requires immediate decisions by those who have the authority and the wherewithal to provide for those decisions and provide for the public health. So it’s speculative what would have happened and what orders the plaintiffs or anyone would be under on June 30, which was actually shown and proved by the governor’s lifting of the restrictions on June 11. 

 

Third, the equities in this case clearly fall in favor of the governor. On this note, it’s important to remember that there was no hearing and no proof taken. Even though the governor’s counsel asked for that in Scott Circuit Court, there was no proof taken. But let’s remember, again, where we are at the time the injunction was issued on April 9, 2021. Total number of cases, 432,000. New cases on that day, 744. Total number of deaths from the pandemic, 6,223. Four new deaths that day. The positivity rate had thankfully dropped to just under 3 percent.

 

But again, the effects of the variants were still unknown. They were still spreading. Michigan was about to see an increase. India had seen a horrific and is still in the midst of a horrific catastrophe. So there’s really no debate whether or not these emergency actions were needed to ward off and fend off the effects of the pandemic.

 

All of this, especially the need for a consistent and coordinated public health approach that was key to the decision in Beshear v. Acree was ignored by the Scott Circuit Court. I want the audience here to think about this a little bit, the aspect of this injunctive relief. A party here gets sued in court, asking to be restrained from doing something that the Supreme Court just months before had said it had the constitutional authority to do. And it has an order from a sister court stating that it can do exactly what it’s doing. But the court, the new court, court number two, won’t even allow it to put on evidence and does not consider the harm to the party opposing the injunction before it issues the injunction. So it’s that procedure that led to the arguments last week before the Kentucky Supreme Court. 

 

And one final point that I need to bring up is mootness. The governor did lift those restrictions on June 11, last week, so the vast majority of this case might end up being considered moot. The only thing that’s not currently is that the legislature — even if the laws are valid, as Oliver argues, the legislature had extended the state of emergency to June 30. And the governor’s executive order — he did not rescind his state of emergency executive order primarily so that the Kentucky citizens can reap the benefit of any type of federal assistance that’s still coming through congressional acts or otherwise.

 

So that’s where we are now currently. We’re waiting for the Supreme Court to issue a ruling on the injunction. There’s also the Franklin Circuit Court case that was argued last week that dovetails into this. And with that, I’ll give it back over to Colton. Thank you.

 

Colton Graub:  Thank you, Mitchel. Thank you, Oliver. Oliver, do you have any response that you’d like to give, or should we transition to audience Q&A?

 

Oliver Dunford:  I’d like to say a few things briefly. Mitchel, like the governor, focused primarily on policy and procedure. And again, the policy that the General Assembly adopted may not be a good one. The Supreme Court last fall did talk about a unified response to the pandemic. But that’s the General Assembly’s job to decide. And if the General Assembly decides that a 30 day limit on the governor’s unified response is enough, that’s the policy.

 

Also, I’ve no dispute that the governor was executing executive laws. We don’t question that. The question is whether the statutes allow him to exercise executive power. And without the statutes, the governor wouldn’t have any emergency response powers to execute in the first place. In the Acree litigation, the governor himself said that Chapter 39(a) did not violate the separation of powers. Instead, it defined the governor’s executive authority during times of an emergency. And so the amended laws simply redefine that executive authority.

 

The Supreme Court in Acree also said that the governor’s authority under the previous version of Chapter 39(a) was necessarily broad, but the Court approved that authority because of the Constitution’s checks, which included legislative amendment or revocation of the emergency powers granted the governor. So the Supreme Court recognized that the legislature could revoke the governor’s emergency powers; therefore, it certainly can restrict them.

 

With respect to the Franklin Circuit Court’s injunctive order, I don’t think the statewide nature of the injunction has any bearing on the analysis. But if it does, the Franklin Circuit Court did not issue a statewide injunction until after the Scott Circuit Court had issued its injunction. It amended its order after the Scott Circuit Court injunction to address, as Mitchel mentioned, House Joint Resolution 77, which did extend the state of emergency.

 

And on that point, at the hearing in front of the Scott Circuit Court, I did note to the court that the General Assembly had extended the state of emergency, and therefore, we withdrew our request for that order to be enjoined. But our proposed order did include it, and so it was included in the final order. We have asked the Supreme Court to allow the Scott Circuit Court to amend that part of the order. As we’ve said from the beginning, we want to be subject to the laws of the land as adopted by the General Assembly.

 

And if the General Assembly has extended the state of emergency, then we’ll certainly abide by that, although, as Mitchel mentioned, it does end on June 30, which is one reason, perhaps, that the case will not be moot. The governor’s counsel argued that the case is not moot, although it wants to treat the injunction in our case as effectively moot but wants the case to continue so it can get a ruling on the merits, at least in the Franklin Circuit Court case.

 

With respect to the hearing, it’s just not true that the Scott Circuit Court didn’t take evidence. The governor’s counsel appeared at the hearing unprepared. The court handled all of the other motions that day first and gave us as much time as we needed to make our case. The civil rules in Kentucky say that we need to provide evidence by, among other things, a verified complaint, which is what we provided. And the governor asked for a delay to present evidence on the potential harms of an injunction. But the governor, six weeks earlier in the Franklin Circuit case, had presented just that evidence, and so it had no excuse to come to the Scott Circuit Court hearing unprepared to present that evidence. 

 

And regardless, Mitchel mentioned the equities. The governor himself cannot suffer any harm. He is a constitutional officer who has obligations along with the power, and he has no right to exercise a certain amount of power. He has certain powers granted to him by the Constitution, and the rest is granted to him by statute. He cannot complain that by statute his powers have been limited outside of the powers granted to him by the Constitution. But the Constitution doesn’t grant him any emergency powers except, as the Kentucky Supreme Court noted, those that involve the use of the military. The overwhelming majority of the powers that the governor — or the emergency orders that governor has issued over the last year had nothing to do with the emergency.

 

And finally, with respect to the equities, I would note that the General Assembly’s adoption of new policy has to be considered in that analysis. While the courts cannot ignore the potential harmful effects of the pandemic—although, again, the governor presented no evidence, despite the opportunity to do so—the courts should also consider the public policy adopted by the General Assembly who are elected by the people. And so the people apparently want the governor’s lockdown orders restricted, want his emergency powers reigned in. And that’s what the General Assembly did. And so I think those must be included in any analysis of the equities. 

 

And with that, I’ll let Mitchel respond if he wants to.

 

Mitchel Denham:  Sure, thanks. And I’ll just be brief. I wasn’t at the Scott Circuit Court proceedings, but it’s certainly rare for circuit courts in Kentucky for a motion for a temporary injunction, particularly one of this nature, to be heard on a motion on our docket at the foot of the docket, which it’s understandable why the governor’s office would have asked for a hearing where they would be able to present evidence in order to show that the orders are compliant with Sections 1, 2, and other sections of the Constitution.

 

And one of the reasons they would have done that is because the hearing in Franklin County on this case lasted all day. The hearing in Boone County on this case in a subsequent proceeding lasted all day. Last fall, when these orders were challenged — I’m sorry, last summer when these orders were challenged, there was a hearing in Boone Circuit Court that lasted until 11 p.m. There was another hearing — no, I think that may have been it, but there may have been others.

 

But that’s perfectly understandable why they would say to the court, “This is going to take a while, Judge. Let us put on some proof.” And for the court not to allow it I think plays into the Supreme Court. And the Supreme Court justices, several of them asked questions about the proceedings below and were concerned about whether or not there was ample opportunity to present evidence. So that’s on the procedural issue.

 

As far as the equities go, again, the courts are required to consider the three factors listed in Maupin before it issues an injunction. And part of that, and a very important part of that, is the balancing of the equities. And here, there was, apparently from the order, no balancing of the equities which considered what the Supreme Court had previously stated was an extraordinarily important part of the response to the pandemic, which is a coordinated and consistent statewide approach to the public health of the citizens of the Commonwealth, which is based on the public health experts not only in Kentucky, such as Dr. Stack, who is the Commissioner of Public Health, but also the CDC, the White House, who had provided guidance, and others.

 

So that, again, is an extraordinarily important part of determining whether or not an injunction should be issued, which leads to the point that the governor’s counsel argued that the Scott Circuit Court abused its discretion, which is the standard of review on injunctions. 

 

And then, I do disagree with Oliver’s reading of the Beshear v. Acree case. I think it’s clear that the Court stated that the response to emergencies are executive in nature. And the legislature can provide for some parameters on that, but it cannot take that authority away and oversee it to the extent where it takes away the governor’s executive authority, which is what the General Assembly appears to have done in Senate Bill 1 and Senate Bill 2, House Bill 1, and House Joint Resolution 77, which were the laws that were challenged in Franklin Circuit Court that did issue its injunction.

 

And I do also disagree with Oliver that the injunction from Franklin Circuit Court was not a statewide injunction. I believe it was, and I will say that the ending of that injunction order did not use the term “statewide” initially. It was amended to include that, to add that later. But the entirety, if you read the injunction, makes it clear that it’s based on the arguments that were made before it that would make it applicable to the entire state, including what I’ve already mentioned several times, which is the language the Supreme Court used in Beshear v. Acree related to a consistent, coordinated plan to combat the pandemic.

 

So with that, I think I’ve covered enough.

 

Colton Graub:  Thank you, Mitchel. Thank you, Oliver. We’ll now open the floor to audience questions. We have one that has come in, and I will read it. It’s for Mitchel. It reads, “In the most recent case, does the governor put forth any limiting principle? It sounds like the argument is that the governor can declare an emergency and nothing can be done by the other branches. Under the governor’s argument, who determines that something is an emergency? What stops the governor from declaring chronic problem emergencies to avoid the legislature when he can’t get bills passed?”

 

Mitchel Denham:  Yeah. So again, the procedural posture of this case did not make its way to a determination of the merits yet. It is still related to the temporary injunction standard. So as far as what the governor’s position is going to be and whether or not the limiting principle — I’m just not in a position to say.

 

However, it is clear that the Kentucky Constitution itself provides limiting principles under Sections 1 and 2. In other words, the governor cannot issue an order whether he has the authority or not, and the legislature cannot issue laws under their authority that would violate equal protection, arbitrariness, or due process. And depending on whom those orders affect, there are various standards of review, whether it be strict scrutiny, rational basis, or intermediate scrutiny, those in and of themselves are limiting principles.

 

So any type of argument that the governor would be using an executive power during a state of emergency in an autocratic-type fashion falls flat because of the already limiting principles in the Constitution. And then, of course, there’s limiting principles in the federal Constitution as well, First Amendment in particular, that would prohibit any type of action in violation of that.

 

And again, I’m not read up on the briefing in the lower courts because I didn’t make an appearance in that case. I’m certain that there is extensive briefing that’s going to take place in the event that it gets back down and it’s not moot.

 

Colton Graub:  Thanks, Mitchel. We have a question for either panelist, so I will just open it up to either of you. The question is, “Would the governor have emergency powers in the absence of KRS 39(a)? KRS 39(a) was referenced as the source of the governor’s authority in the text of all the emergency orders issued.” 

 

Oliver Dunford:  This is Oliver. There’s some, as the Kentucky Supreme Court said that he has some emergency powers with respect to those that involve the military. Otherwise, it appears that everything has to come from the statutes, and so that’s why he cited it.

 

As I mentioned, his initial orders said only Chapter 39(a). He later invoked the Constitution as well, but it doesn’t appear to be any other than those that involve the use of the military. And the Kentucky Supreme Court has said that the governor’s powers are, aside from those expressly granted by the Constitution or necessarily implied are created by  the General Assembly. And Mitchel may have a different view.

 

Mitchel Denham:  Well, I think that Section 39(a), whichever iteration, did provide for procedural safeguards. And that’s not to say that the new 39(a) is constitutional for some of the limitations that it requires. For example, the oversight of the legislature and the permission that the governor has to seek from the attorney general, I think, are clearly contrary to the court’s opinion in Acree.

 

But having said that, the ability of the legislature to provide for some type of procedural safeguards, generally speaking, is okay. And in this regard, you’d want those procedural safeguards in place to ensure compliance with — whether the General Assembly did it or whether or not the governor did it by executive order to ensure compliance with Sections 1, 2, and 3 of the Constitution.

 

Colton Graub:  Thanks, Mitchel. Thanks, Oliver. We have one more question. I will pose it to either of you. We do have to wrap up shortly, so if you would like to just move to closing remarks, just let me know.

 

The question is, “If the state needs to have a unified approach, shouldn’t the governor be required to conform to the legislature’s policies? That would have been a unified state approach. And if enough of the legislature voted to remove the statutory emergency powers, the people of the state disagree with the governor’s response to COVID. If the legislature can’t limit statutory executive powers, do the people have any ability left to check executive tyranny?” That can go to either of you, or neither of you, depending on whether you’d like to answer, and closing remarks.

 

Oliver Dunford:  This is Oliver. I’ll answer in part of my closing remarks. Thanks again, Colton and The Federalist Society, and thank you again, Mitchel, for jumping in here.

 

I think there is some point, of course, that the General Assembly could invade the executive authority, but I don’t think that any of the iterations of Chapter 39(a), including the present one, have done that. And I do think that the people have to act through their elected representatives to limit the governor’s powers. And again, I think that’s the basis of our case, that the governor’s powers come with express obligations to take care that the laws be faithfully executed.

 

The laws include the amendments to Chapter 39(a) that the General Assembly adopted over his vetoes. The governor may not like the policy, but he is obligated to enforce it. And so yes, I agree that this is how the people have to address the governor’s actions. And so at the end of the day, we believe that this is a simple case that the governor must follow the law, just like everybody else. 

 

And with that, I’ll let Mitchel respond. Thanks, everyone.

 

Mitchel Denham:  Thank you, Oliver. And thank you, Colton. I appreciate your invitation today and the opportunity to speak to this group.

 

I don’t think that Governor Beshear believes that he doesn’t have to comply with the law. And that’s the reason that he went to Franklin Circuit Court and sought the injunction in order to make sure that he was compliant with the law, whichever law is validly in effect at the time. 

 

As it relates to the question that the participant asked, there are numerous ways in which citizens can effectuate and advocate for their rights. One of those is through their representatives at the ballot box. Another is through the court system. Like I said, if the actions were arbitrary, capricious, violation of due process or equal protection under the Kentucky or federal Constitution, then those individuals or businesses or anyone who has standing can challenge. So there’s those ways to put a check on the power of the Commonwealth, whether that be the governor acting, the legislature acting, or someone acting at their behest.

 

So this is not an instance where the sky is falling, and by virtue of issuing orders to protect the public health, there is an autocratic administration. In fact, it’s the opposite. The Supreme Court of the United States and the Kentucky Supreme Court have applied for a century the reasonable basis or rational basis test to public health orders, and those have been upheld through numerous courts, and that’s where we are.

 

I think that when we get down to it, this case is about protecting the public. And when you do that, there’s going to be some people who, all of us actually, our lives have been disrupted. But it does not necessarily mean that your liberty has been taken away, and it doesn’t necessarily mean that you have been wronged.

 

So when you look at in in the broad perspective, and I can’t say it any better than the Kentucky Supreme Court said it in Beshear v. Acree, which is that—I’ll find the quote—that “the legislature in our state provided by the Constitution is a part-time legislature incapable of convening itself during states of emergency, which is why the governor and his appointees need to be able to act with flexibility during times like this that are extraordinary.”

 

Fortunately, we are seeing the end of it. And I think on Friday of last week, the lifting of the restrictions was a great moment here in Kentucky that was due to the fact that the governor had taken responsible and measured actions during the course of the pandemic to help protect Kentucky citizens. Now, Kentucky is poised to move forward with a right now booming economy in a recovery that will hopefully be something like we’ve never seen before. And that is in large part due to the actions of Governor Beshear in protecting the public health during the once in a century pandemic.

 

Again, Colton, thank you for allowing me to participate. And Oliver, thank you for the debate.

 

Colton Graub:  Thank you, Mitchel. Thank you, Oliver. Back at you. We are very grateful to you both for your time today and for the insightful discussion on this important topic. We welcome listener feedback by email at rtp@regproject.org. Thank you for joining us. This concludes today’s call. 

 

[Music]

 

Conclusion:  On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at RegProject.org.

 

[Music]

 

This has been a FedSoc audio production.

Mitchel Denham

Partner

DBL Law


Oliver Dunford

Attorney

Pacific Legal Foundation


Regulatory Process
State & Local

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