By Anthony Pernice

Since the beginning of the COVID-19 pandemic, one of the central questions in Kentucky has been whether mitigation orders issued by the Executive Branch exceed their authority under applicable law. The Kentucky Supreme Court has finally offered a definitive answer to this question. Beshear v. Florence Speedway was a direct appeal taken up by the Kentucky Supreme Court from a ruling in Boone and Scott Circuit Courts various mandates were held to be unconstitutional. It is important to note the mandates were not challenged on Federal Constitutional grounds.  In reaching the decision that these mandates were within the power of the Governor, the Kentucky Supreme Court examined five key questions:

1. 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?

KRS 39A.100 authorizes the Governor to declare a state of emergency under certain conditions. COVID-19 fits the definition of an emergency as contemplated by the statute. The Kentucky General Assembly itself declared COVID-19 a public health emergency when it passed 2020 S.B 150.

2. 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?

The Kentucky Supreme Court determined these mandates as issued by the governor did not represent an unconstitutional violation of separation of powers. The Kentucky Constitution does not specifically address the emergency powers of the governor beyond the use of the military. However, the General Assembly in Kentucky is part-time and has no power to convene itself to address emergent issues. There was a clear delegation of this power to the Executive Branch by the passage of KRS Chapter 39A. Kentucky Courts have long upheld the power of the General Assembly to delegate such power and there was no reason to overturn such precedent. The General Assembly is free to modify KRS Chapter 39A once convened.

3. Was the Governor Required to Address the COVID-19 Emergency Solely Through Emergency Regulations Adopted Pursuant to KRS Chapter 13A?

There is no requirement for the Governor to act solely through other provisions regarding emergency administrative regulations. Under KRS 13A.190 Emergency Regulations may only be promulgated under certain circumstances and must be temporary in nature. Because of the power delegated by the General Assembly through KRS 39A.180, orders issued under this chapter have the full force of law separate and apart from KRS Chapter 13.

4. 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?

While property rights of individuals and businesses are to be granted great respect, they do not fall into the category of fundamental rights. Orders issued under the provisions of KRS 39A need only show that they have a rational basis linking them to efforts to slow the spread of the COVID-19.

5. Did the Boone and Scott Circuit Courts Properly Issue Injunctive Relief Prohibiting Enforcement of the Governor’s Orders or Regulations?

Kentucky law requires that a Plaintiff show irreparable injury, and a chance of success on the merits in order to demonstrate the need for injunctive relief. The Court determined that since it was upholding the powers of the Governor under KRS 39A there was no need for an injunction. Further, courts located in Boone and Scott Counties were not properly positioned to evaluate mandates that applied to all Kentuckians statewide.

By answering the above questions, the Kentucky Supreme Court reached the unanimous conclusion that the Governor could issue such mandates under power granted to him by the General Assembly. However, the Governor’s power is not limitless.  The Court would address further orders should they exceed the powers granted under KRS Chapter 39A.

If you have any questions regarding the legal consequences of business enterprises and relationships, please contact any member of Reminger’s Commercial Litigation Practice Group.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.


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