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Executive Authority in a State of Emergency

November 16, 2020

By
Sarah Jackson Bishop
Member, Stoll Keenon Ogden PLLC
(502) 875-6245
sarah.bishop@skofirm.com

and

Connor Egan
Attorney, Stoll Keenon Ogden PLLC
(859) 231-3052
connor.egan@skofirm.com

On November 12, 2020, Kentucky’s Supreme Court issued an opinion in Beshear v. Acree, 2020-SC-0313-OA, an original action in the Supreme Court challenging Governor Andy Beshear’s authority to take certain actions through executive order during the Covid-19 pandemic. In multiple civil actions, private businesses and Kentucky Attorney General Daniel Cameron asserted that Governor Beshear failed to follow appropriate procedures in implementing his Executive Orders, thereby exceeding his constitutional and statutory authority.

In ultimately finding that nearly all of Governor Beshear’s actions were constitutionally acceptable, the Court addressed five distinct questions of law, each of which will be addressed below in turn.

Did the Governor Properly Invoke the Powers Granted to him Under KRS Chapter 39A?

Kentucky Attorney General Cameron argued that because KRS Chapter 39A defines emergency as, “any incident or situation which poses a major threat to public safety so as to cause, or threaten to cause, loss of life, serious injury, significant damage to property, or major harm to public health or the environment and which a local emergency response agency determines is beyond its capabilities,” the Governor did not have authority to declare a state of emergency and invoke KRS 39A powers because no local emergency response agency ever indicated that the public health threat was beyond its capabilities. KRS 39A.020(12)(emphasis added). The Court determined that the emergency powers provisions of KRS Chapter 39A were not intended to be limited by the definition of emergency and that there was no requirement for the Governor to consult with all 120 counties prior to declaring an emergency. The Court noted that where an emergency event was limited to a confined geographic area, it may be appropriate for the Governor to consult with local authorities, but for a statewide public health emergency, there is no such requirement. Ultimately, the Court determined that the COVID-19 pandemic constitutes the “occurrence” of a biological and etiological hazard as delineated in KRS 39A.010 and that it is inappropriate to focus on the definition of emergency set forth in KRS 39A.020(12) under principles of statutory construction.

Are KRS Chapter 39A’s Provisions relating to the Governor’s Emergency Powers an Unconstitutional Delegation of Legislative Authority?

Section 27 of Kentucky’s Constitution explicitly addresses separation of powers and prohibits any branch of government from exercising any power properly belonging to another. In reviewing statutes, the Court begins with the presumption that the statute as enacted is constitutional. Here the Court determined that to the extent the Governor invoked legislative power, it was power lawfully delegated to him by the legislature pursuant to KRS Chapter 39A. In upholding the Governor’s constitutional authority, the Court noted that Kentucky’s Constitution created a full time Governor, and only a part-time general assembly. As such, and combined with the legislature’s passage of SB 150 in the 2020 legislative session, which specifically addressed the Covid-19 emergency, the Court declined to adopt the strict separation of powers position advocated by the Attorney General. Because the legislature is in session for only limited periods each year, the Court found it virtually impossible for the legislature to be assigned a primary role in steering the Commonwealth through an emergency. While the Governor has the option of calling the General Assembly into special session, because Kentucky’s Constitution uses permissive language, the Court ruled that the Governor is not required to call a special session in the event of an emergency.

While the Court acknowledged the authority of the legislature to make laws, it found that such authority can be delegated by statute where there are procedural safeguards in place to prevent uncontrolled discretionary power. The Court found that KRS 39A contains adequate safeguards, as well as those contained in SB 150, to prevent unrestrained authority. Consequently, the Court held there was no violation of the separation of powers doctrine.

Was the Governor Required to Address the Covid-19 Emergency Through KRS Chapter 13A Emergency Regulations?

KRS 13A.190 provides for the promulgation of administrative regulations in the event of an emergency. The Attorney General and other plaintiffs challenged the Governor’s Executive Orders and emergency regulations as violative of KRS Chapter 13A. The Court found that the emergency powers granted to the Governor pursuant to KRS Chapter 39A do not require him to defer to KRS Chapter 13A procedures. The Court cited a specific provision of KRS Chapter 39A which states that, “…All existing laws, ordinances, and administrative regulations inconsistent with the provisions of KRS Chapters 39A to 39F, or of any order or administrative regulation issued under the authority of KRS Chapters 39A 58 to 39F, shall be suspended during the period of time and to the extent that the conflict exists.” KRS 39A.180(2). The Court found this provision controls and, therefore, during a state of emergency, KRS Chapter 39A authorizes the Governor to take action he deems necessary. To the extent KRS Chapter 13A requires more, it is suspended during the period of emergency.

Do the Challenged Orders Violate Section 1 or 2 of Kentucky’s Constitution as Arbitrary Exercises of Power?

The Court, addressing the specific Executive Orders at issue, determined that with one exception, they did not violate Kentucky’s Constitution. Notably, the Court ruled that, “orders in emergency circumstances, especially where public health and safety is threatened, are entitled to considerable deference by the judiciary.” Looking at the challenged orders, the Court specifically found as follows.

June 15, 2020 Order – Healthy at Work: Requirements for Childcare Facilities

The plaintiffs argued that the Governor’s June 15, 2020 Order, which prescribed specific and significant restrictions for child care providers, were unconstitutional arbitrary limitations on their rights because, among other things, they were more stringent than the requirements for the emergency popup childcare facilities (LDCs) the state sanctioned to provide childcare for hospital workers and other essential employees. The Court disagreed. It emphasized that LDCs were distinguishable from regular childcare facilities, specifically finding that LDCs “were literally emergency childcare for healthcare workers and first responders.” They were “limited to children of essential workers” and their rules were designed to accommodate these essential workers who were already subject to strict rules that reduced the risk of contracting Covid-19. By contrast, the Court reasoned that “regular Kentucky childcare facilities” served “the general population” and the limitations the Governor put in place were based on “articulated public health reasons, i.e., efforts to limit the spread of disease as a society in general was reopening.” Accordingly, the Court concluded that the Governor’s restrictions on childcare facilities were reasonable and that the plaintiffs had failed to meet their burden to establish a violation of Kentucky’s Constitution.

June 1, 2020 Order – Healthy at Work: Requirements for Automobile Racing Tracks.

The plaintiffs also argued that the Governor’s June 1, 2020 Order, which (1) limited attendance at race tracks to authorized employees and essential drivers and crews; (2) required all people at the track, including family members, to social distance; (3) limited food service to “carry out”; and (4) required PPE “with no exception” was arbitrary and unconstitutional. Importantly, the Court noted that all of the June 1st Order’s requirements were moot because they had been superseded by later orders with less stringent requirements. The Court did, however, note that the requirement that all attendees must social distance while on the premise was arbitrary to the extent it required members of the same household to social distance. However this too was mooted by a July 22, 2020 order which carved out an exception to the social distancing requirements in venue and event spaces for members of the same household.

May 22, 2020 Order – Healthy at Work: Requirements for Restaurants

The plaintiffs argued that the Governor’s May 22, 2020 Order’s requirements for restaurants, including social distancing requirements and reduced capacities along with allowing closure of businesses that did not enforce the personal protective equipment requirement, were arbitrary and unconstitutional. The Court noted that some of these requirements were later superseded. Accordingly, the only issues left for it to address were the social distancing and face coverings requirements. It then held that both of the remaining requirements were reasonable and passed constitutional scrutiny.

The requirement that all employees wear PPE and that all patrons social distance were deemed reasonable because, among other things, they were supported by existing Kentucky law. In particular, KRS 211.025 and KRS 211.180, which provide in part that, when combating infectious or contagious disease, the Cabinet for Health and Family Services, “shall take such action and adopt and enforce such rules and regulations as it deems efficient in preventing the introduction or spread of such infectious or contagious disease.” With this in mind, the Court noted the Order’s requirements had a scientific basis and were intended to combat a “highly contagious respiratory disease.” It also emphasized that this held true even if some medical professionals questioned the “efficacy of cloth masks.” The Court held that the closure penalty for non-compliance with the personal protective equipment requirement was not arbitrary. In particular, the Court explained that should a particular closure be objectionable, that party could always challenge the penalty through the courts. Given this mechanism for challenging any closure, the penalty itself was found to be constitutional.

Did the Boone Circuit Court Properly Grant Injunctive Relief Barring Enforcement of the Governor’s Executive Orders?

The Court found that the Boone Circuit Court erred in granting injunctive relief to the plaintiffs before it, which injunctive relief purported to bar enforcement of the Governor’s Executive Orders. The Court found that those plaintiffs did not meet the requirements for injunctive relief because, as discussed in the other sections of the opinion, there was not a substantial likelihood that they could succeed on their substantive claims. The Court also ruled that the equities weighed in favor of protecting public health over the individual rights of the plaintiffs.

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