DANIEL J. CAMERON, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE COMMONWEALTH OF KENTUCKY 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
2021-SC-0107-I
Supreme Court of Kentucky
AUGUST 21, 2021
TO BE PUBLISHED
ON TRANSFER FROM COURT OF APPEALS NO. 2021-CA-0328
FRANKLIN CIRCUIT COURT NO. 2021-CI-00089
MOVANT: DANIEL J. CAMERON, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE COMMONWEALTH OF KENTUCKY
V.
RESPONDENTS: 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
OPINION OF THE COURT BY JUSTICE VANMETER
AFFIRMING IN PART, REVERSING IN PART AND REMANDING
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” (
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
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 CR10 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
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.
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
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
The Attorney General further asserts that no injury has occurred, pointing out that the challenged legislation does not prevent the Governor from responding to emergencies; it simply requires him to work collaboratively with other officials—including the legislature—in situations involving long-term emergencies. Not only is there no injury, the Attorney General argues that he certainly did not cause any injury to the Governor since the complained-of legislation was not enacted by him. See Sexton, 566 S.W.3d at 196 (holding that an injury must be “fairly traceable to the defendant‘s allegedly unlawful conduct” to create standing).
With regards to redressability, the Attorney General contends that the injunction issued by the trial court did not redress anything, as it did not restrain him or mandatorily direct him to do anything, as is required by a proper injunction. See, e.g., Commonwealth v. Mountain Truckers Ass’n, Inc., 683 S.W.2d 260, 263 (Ky. App. 1984) (requiring that injunctions “describe in reasonable detail the act to be restrained[]“); see also CR 65.01 (injunctive relief can only “restrict or mandatorily direct the doing of an act[]“). Therefore, the Attorney General argues that the Governor‘s alleged injury clearly cannot be redressed by any relief ordered against the Attorney General.
In response, the Governor maintains that he has constitutional standing to bring this suit because the General Assembly violated Section 69 of the Kentucky Constitution13 by delegating veto control to the Attorney General over the exercise of constitutionally-protected emergency powers that reside and remain with the Governor. Because S.B. 1 gives the Governor authority to suspend statutes but makes it contingent upon the Attorney General‘s approval, the Governor asserts he has standing to seek a temporary injunction enjoining the Attorney General from possessing or exercising this veto power over his exercise of emergency authority. The Governor further argues that this right is present: under S.B. 1, the Attorney General can exercise his veto right during an emergency and the Commonwealth was and is currently under a declared state of emergency. The Governor maintains that he need not wait until the Attorney General exercises his veto power since whether
As to causation, the Governor contends the Attorney General caused him injury when he assumed authority to veto the Governor‘s exercise of emergency authority. On redressability, the Governor contends that the trial court resolved this matter by staying implementation of the challenged legislation pending an adjudication on its constitutionality and enjoining the Attorney General from implementing or enforcing the suspension provision of S.B. 1.
In support, the Governor directs us to Board of Education v. Bushee, 889 S.W.2d 809 (Ky. 1994), a declaratory judgment action involving a clash between the legislature‘s delegation of authority to local school councils to “set school policy consistent with district board policy” and a Boone County Board of Education policy that required school councils to submit “for Board review and approval” a plan containing measurable goals and objectives for the upcoming school year. Id. at 810. Thus, the clash in Bushee involved the statutory delegation of certain authority to school councils and the Board of Education‘s policy that would have removed that authority. This Court held that the Boone County Board of Education‘s new policy of requiring its approval of certain plans submitted by local school councils presented a justiciable controversy, even though no such plan had yet been submitted for approval, since the Board‘s decision to approve or disapprove a particular policy or request had no impact on question of whether Board approval could be required at all. Id. at 811. The Bushee court noted that in a declaratory judgment action, this Court has long recognized that “the question is not one of a present controversy as contended by the Board, but rather whether there is a ‘justiciable controversy over present rights, duties or liabilities.‘” Id. (quoting Dravo v. Liberty Nat. Bank & Trust Co., 267 S.W.2d 95, 97 (Ky. 1954) (emphasis added)). “This is so although the effect of the judgment is prospective.” Id. (quoting Dravo, 267 S.W.2d at 97).
The Attorney General distinguishes Bushee on grounds that the case at bar deals with a grant of authority from the General Assembly and a subsequent alteration of that grant of authority by the General Assembly, rather than conflicting applicable rules or a conflict between governmental bodies. In other words, this case involves a statutory amendment by the one body authorized to amend the statute. But really, the conflict here is between the Governor‘s claimed executive authority under Section 69 and the legislature‘s authority per Section 15 to suspend statutes and delegate that suspension power to an agent such as the Attorney General.
The Attorney General further distinguishes Bushee on the basis that the parties in that case were on a collision course involving a concrete dispute with an impending deadline that could not be avoided. Here, the Attorney General argues that whether there will ever be a conflict is purely speculative and abstract. While a plaintiff might not have to incur harm before seeking a declaratory judgment, the Attorney General emphasizes that “[a] threatened injury must be ‘certainly impending.‘” Commonwealth v. Bredhold, 599 S.W.3d 409, 417 (Ky. 2020) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)).
However, the act of the Attorney General approving or disapproving the Governor‘s suspension of a statute has no effect on whether the General Assembly could lawfully require the Attorney General‘s
We find the present case more analogous to Jamgotchian and Jarvis than Foley. Whether the Governor‘s emergency power in this situation is statutorily or constitutionally derived is at the heart of the Governor‘s Complaint and thus presents a justiciable case or controversy.14
B. Temporary Injunction Not Warranted
To justify the grant of a temporary injunction, a plaintiff must satisfy the following, well-recognized requirements:
First, the trial court should determine whether plaintiff has complied with CR 65.04 by showing irreparable injury. This is a mandatory prerequisite to the issuance of any injunction. Secondly, the trial court should weigh the various equities involved. Although not an exclusive list, the court should consider such things as possible detriment to the public interest, harm to the defendant, and whether the injunction will merely preserve the status quo. Finally, the complaint should be evaluated to see whether a substantial question has been presented. If the party requesting relief has shown a probability of irreparable injury, presented a substantial question as to the merits, and the equities are in favor of issuance, the temporary injunction should be awarded. However, the actual overall merits of the case are not to be addressed in CR 65.04 motions.
Maupin v. Stansbury, 575 S.W.2d 695, 699 (Ky. App. 1978).
With respect to our review of the trial court‘s analysis under Maupin, generally, “a party seeking interlocutory relief from a trial court‘s decision to grant
To obtain an injunction, the Governor was required to show a probability of irreparable injury, present a substantial question as to the merits of his Complaint, and persuade the court that the equities balanced in favor of issuance.
1. Irreparable Injury.
Regarding irreparable injury, the Governor‘s argument essentially centers on the harm to his ability to protect the public during a global pandemic, and the claimed harm to the constitutional power and authority of his office. We emphasize that in our following discussion and analysis we do not question the Governor‘s good faith in taking steps he believes are necessary in dealing with the pandemic.15 That noted, underlying consideration of all our COVID decisions, as aptly stated by Justice William O. Douglas, “no doubt that the emergency which caused the [executive to take action] was one that bore heavily on the country. But the emergency did not create power; it merely marked an occasion when power should be exercised.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 629 (1952) (Douglas, J., concurring). Over the last forty years, this Court has been explicit that the Governor‘s powers, except in a limited number of instances expressly set forth in the Constitution, derive from statutes passed by the General Assembly. See, e.g., Commonwealth ex rel. Beshear v. Commonwealth ex. rel. Bevin, 498 S.W.3d 355, 369 (Ky. 2016) (stating “the Governor . . . is bound by the law[]“); Fletcher v. Commonwealth ex rel. Stumbo, 163 S.W.3d 852, (Ky. 2005) (rejecting Governor‘s claim of implied authority to expend unappropriated funds to provide essential services in an emergency); Brown v. Barkley, 628 S.W.2d 616, 621 (Ky. 1982) (detailing the seven sections of our Commonwealth‘s constitution expressly conferring powers and duties on the Governor).16 In fact, in
In Fletcher, we approvingly quoted the following,
The appeal, however, that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, although it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies.
. . .
[E]mergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them.
. . .
With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.
Fletcher, 163 S.W.3d at 871 (quoting Youngstown, 343 U.S. at 646, 649–50, 652, 655 (Jackson, J., concurring)).
Another rule of interpretation is that we “presum[e] that the challenged statutes were enacted by the legislature in accordance with constitutional requirements.” Acree, 615 S.W.3d at 805 (quoting Cornelison v. Commonwealth, 52 S.W.3d 570, 572 (Ky. 2001)). “A constitutional infringement must be ‘clear, complete and unmistakable’ in order to render the statute unconstitutional.” Caneyville Volunteer Fire Dep‘t v. Green‘s Motorcycle Salvage, Inc., 286 S.W.3d 790, 806 (Ky. 2009) (quoting Ky. Indus. Util. Customers, Inc. v. Ky. Utils. Co., 983 S.W.2d 493, 499 (Ky. 1998)). Considering that the General Assembly is the policy-making body for the Commonwealth, not the Governor or the courts, equitable considerations support enforcing a legislative body‘s policy choices. In fact, non-enforcement of a duly-enacted statute constitutes irreparable harm to the public and the government. See Boone Creek Props., LLC v. Lexington-Fayette Urb. Cnty. Bd. of Adjustment, 442 S.W.3d 36, 40 (Ky. 2014) (holding that the statute‘s enactment constitutes an implied finding by the legislature that the public interest required it). Whether the Governor has shown an irreparable injury is tied to his constitutional claims and the likelihood of success.
2. Substantial Questions on the Merits.
As to the potential for success on the merits of the Governor‘s Complaint, the extent of the Governor‘s exercise of emergency authority during the COVID-19 pandemic is confined to the statutory authority given to him by the legislature under
[T]o the extent that the Governor has any implied or inherent powers in addition to those the Constitution expressly gives him, it seems clear that such unexpressed executive power is subservient to the overriding authority of the legislature, and . . . the officers named in
Const. Sec. 91 have only such powers and duties as are assigned to them by legislative enactment or by executive order expressly authorized by statute.
Id. at 621 (holding that the Governor did not have constitutional power to issue an executive order to reorganize agencies when not authorized by the enabling statute and a related statute pursuant to which the order was issued). Further,
Whereas the judicial branch must be and is largely independent of intrusion by the legislative branch, the executive branch exists principally to do its bidding. The real power of the executive branch springs directly from the long periods between legislative sessions, during which interims the legislature customarily has left broad discretionary power to the chief executive.
“Practically speaking, except for those conferred upon him specifically by the Constitution, [the Governor‘s] powers, like those of the executive officers created by Const. Sec. 91, are only what the General Assembly chooses to give him.” Id. Thus, the Governor has no implied or inherent emergency powers beyond that given him by the legislature, who, as elected officials, serve at the behest of the Commonwealth.17
a. Separation of Powers.
The trial court found serious separation of powers issues under Sections 27 and 28, the constitutional provisions that mandate that strict separation of powers under our tripartite government, citing Legislative Research Commission ex rel. Prather v. Brown, 664 S.W.2d 907 (Ky. 1984). The trial court stated,
The legislature has every right, and even the duty, to adopt standards and rules to govern the Governor‘s exercise of emergency executive authority. But when the legislative role shifts from oversight and policymaking to micromanagement of administrative rules and orders there is a clash that implicates the separation of powers provisions of sections 27 and 28 of the Kentucky Constitution. See Legislative Research Commission v. Brown, 664 S.W.2d 907 (Ky. 1984). The challenged legislation here—HB1, SB 1 and SB 2—all raise serious separation of powers issues.
Order Granting Temporary Injunction Under CR 65.04, No, 21-CI-00089 (Franklin Circ. Ct. Mar. 3, 2021). This reliance on L.R.C. v. Brown is misplaced.
The precise issue in Brown was occasioned by the then statutory provisions that purported to give the General Assembly authority, through the L.R.C., to review and void executive branch administrative regulations. We held this review process was unconstitutional either as a legislative veto or as an impermissible extension of the legislative session.
By contrast, the current legislative review of administrative regulations is set forth in
As important as it is for a court to scrutinize the particular statute in toto, our statutory construction principles also mandate considering the statute in context with other statutes surrounding it. Petitioner F., 306 S.W.3d at 85–86 (statutory enactment to be read as a whole and also in context with other parts of statute). This comes as no surprise because given that the cardinal rule of statutory construction is discerning legislative intent, it is entirely logical for the judiciary to see what else our General Assembly has said on the particular topic underlying the controversy.
Id. at 721-22. Notwithstanding the deletion of the word “nonbinding,” our review of
Because the executive branch retains final say as to administrative regulations, the 2021 legislation does not violate Sections 27 and 28, or this court‘s holding in L.R.C. v. Brown. If the trial court‘s conclusion was based on what it termed the General Assembly‘s “micromanagement” of state government, the simple answer, of course, is that it did so during its constitutionally authorized annual session, and not during an out-of-session committee hearing. As we have noted time and again, so many times that we need not provide citation, the General Assembly establishes the public policy of the Commonwealth.
b. Power to Call Special Sessions.
The Governor argues that the legislation at issue requires him to call the legislature into session every thirty days in order for him to continue to exercise his emergency powers.
Since 1942, special sessions have been called 52 times.18 No doubt each involved some matter that the then-Governor believed could not wait for the regular session of the General Assembly. In a word, an emergency not theretofore addressed by the statutes. Typically, the remedy, as for all governors over the past 130 years of the 1891 Constitution, is to do the hard work of consulting with the General Assembly and agreeing on statutory amendment in advance of a special call. The General Assembly, as well as the Governor, are trustees of the Commonwealth‘s welfare. See Youngstown, 343 U.S. at 629
circumstances, nothing prohibits the Governor and General Assembly from agreeing on emergency powers in excess of 30 days.
These items noted, we do not believe this issue has been adequately addressed by the parties and therefore make no definitive pronouncement concerning the constitutionality of thirty-day limitation contained within the 2021 legislation.
c. Power to Suspend Statutes
The Governor argues that
The power to suspend statutes does not belong to the Governor. It belongs to the General Assembly.
Since this provision is a part of the Bill of Rights, the Governor could not suspend statutes even if he possessed “emergency” or “inherent” powers under Sections 69 and 81.
Ky. Const. § 26 (“To guard against transgression of the high powers which we have delegated, We Declare that everything in this Bill of Rights is excepted out of the general powers of government ....“). The suspension of statutes by a Governor is also antithetical to the constitutional duty to “take care that the laws be faithfully executed.”Ky. Const. § 81 .
Fletcher, 163 S.W.3d at 872. From this, we conclude that the power to suspend statutes ought to be exercised judiciously, soberly and upon due consideration.
Barkley is instructive in this regard, but not as the Governor argues. Under Section 15, the General Assembly might grant the Governor the power to suspend statutes. Or, it properly might grant that power to the Attorney General. See Barkley, 628 S.W.2d at 621 (stating “the officers named in [Section] 91 have only such powers and duties as are assigned to them by legislative enactment or by executive order expressly authorized by statute[]“). In Barkley, we recognized the Constitution framers created these independent, statewide-elected officers to “provide convenient receptacles for the diffusion of executive power.” Id. at 622. Given the importance of the power to suspend laws, we see no valid reason why the General Assembly might not properly grant the power to two independently-elected constitutional officers.
The Governor argues that the immediately following sentence in Barkley supports his argument that by doing so, the General Assembly has impermissibly “create[d] another executive officer or officers who will not be subject to [the Governor‘s] supremacy[.]” Id. The complete quotation is
As the Governor is the “supreme executive power,” it is not possible for the General Assembly to create another executive officer or officers who will not be subject to that supremacy, but it definitely has the prerogative of withholding executive powers from him by assigning them to these constitutional officers who are not amenable to his supervision and control.
Id. (emphasis added).20
d. Arbitrary Legislation
The trial court expressed that the 2021 legislation “presents questions as to whether the thirty-day limitation period for Executive Orders and [emergency regulations] are arbitrary under Section 2.” The Governor expands this concept by arguing the bills are arbitrary, vague and unenforceable, asserting the public‘s due process rights. In our view, the Governor has no standing to assert the public‘s due process rights. See Worldwide Equip., Inc. v. Mullins, 11 S.W.3d 50, 60-61 (Ky. App. 1999) (holding that motor vehicle seller had no standing to claim certain regulations and statutes were arbitrary, void as vague, and violative of due process since it was not charged with violation of that regulation/statute, and no party then in the action had been so charged).21
e. Special Legislation
The Governor argues that the 2021 legislation is special legislation in violation of Sections 59 and 60. His argument is that these bills grant businesses, schools, local governments and others the authority or power to exercise discretion as to what health care guidance to follow, citing Young v. Willis, 305 Ky. 201, 204-05, 203 S.W. 2d 5, 7 (1947). Any argument that the 2021 legislation constitutes special legislation in violation ofWe similarly reject the Governor‘s argument that Section 60,22 and our predecessor court‘s decision in Young, compels a finding of unconstitutionality. The claim is that the 2021 legislation permits localities or any number of other entities to establish
3. Balancing Equities
The trial court made extensive findings concerning the COVID-19 pandemic, its ongoing nature, and the good occasioned by the Governor‘s emergency measures.23 In balancing the equities, the trial court considered these facts, as well as its interpretation of the injury to the Governor‘s constitutional powers, juxtaposed with the 2021 legislation and the more localized approach to the pandemic that implementation of that legislation would entail. Our expression, however, in Acree that a global pandemic justified a statewide response, 615 S.W.3d at 808, in no way expressed or implied it was the sole method in dealing with the pandemic. In fact, we expressly held that the General Assembly could limit the Governor‘s statutorily-derived emergency powers should it wish to. Id. at 812–13. That noted, as we have discussed, the Governor‘s emergency powers derive from the statutes enacted by the General Assembly, not from our Constitution and not from his “inherent” powers. The trial court‘s findings substituted its view of the public interest for that expressed by the General Assembly. The fact that a statute is enacted “constitutes [the legislature‘s] implied finding” that the public will be harmed if the statute is not enforced. Boone Creek Props., 442 S.W.3d at 40. Thus, the public interest strongly favors adherence to the 2021 legislation.
III. Conclusion
The trial court emphasized that “[t]he Governor has alleged irreparable injury to his constitutional powers and made preliminary showing that the bills impair the exercise of his constitutional duty.” As discussed, these findings are largely unsupported by sound legal principles because they are occasioned by erroneous interpretations of the constitutional authority of the Governor and law. As a result, we find that the trial court‘s issuance of injunctive relief was improper.
In sum, considering that the challenged legislation was lawfully passed, the Governor‘s Complaint does not present a substantial legal question that would necessitate staying the effectiveness of the legislation. And as the equities clearly favor implementation of the legislation pending an adjudication of its constitutionality, we conclude that the Franklin Circuit Court abused its discretion in finding otherwise. Thus, we remand this case to the Franklin Circuit Court with instructions to dissolve the injunction. This case is reversed and remanded to the Franklin Circuit Court for further proceedings consistent with this Opinion. In the event certain sections of the 2021 legislation may be ultimately found invalid, the likely remedy may be severability.
All sitting. All concur.
HUGHES, J., CONCURS BY SEPARATE OPINION IN WHICH MINTON, C.J., JOINS:
I concur with the lead opinion‘s conclusion that a blanket injunction essentially precluding enforcement of any of the 2021 legislation should not have issued in this matter. The Attorney General insists this
This point bears emphasis because the Attorney General has not briefed in this Court, or in the trial court for that matter, the merits of the various constitutional challenges but has stood on his position that the case presents no justiciable controversy.
As we recognized in Acree, the Kentucky General Assembly granted specific emergency powers and authority to the Governor in
That said, in Acree this Court did not conclude that all emergency powers are lodged solely in the legislature. Emergency powers are not expressly mentioned in our state Constitution but we discerned “[t]he implied tilt of the Kentucky Constitution toward executive powers in time of emergency . . . given our government‘s tripartite structure with a legislature that is
Historically, the Governor and various agencies of the executive branch including the Cabinet for Health and Family Services and the Division of Emergency Management have managed emergencies on a day-to-day, evolving basis, relying on the statutory guidelines provided by the legislature and executive branch administrative expertise. The executive branch has acted through the Governor‘s issuance of executive orders and various emergency administrative regulations. The legislature‘s emergency management involvement has been confined to the exercise of its traditional law-making function. Thus, during the 2020 and 2021 legislative sessions the General Assembly passed laws addressing various COVID-19 emergency issues, approving and supplementing some of the Governor‘s directives while limiting and discontinuing others. The 2021 legislation extends the legislature‘s reach and control beyond the laws passed in the constitutionally-mandated sessions, curtailing the Governor‘s powers through a thirty-day limit on the exercise of his emergency authority. The thirty-day limit operates as a “kill switch” that essentially transfers the day-to-day management of emergencies to the legislature by rendering the executive branch powerless to act after thirty days, forcing the call of a special legislative session. This type of special legislative session trigger has no antecedent in Kentucky law to my knowledge and requires careful constitutional analysis. Is it consistent with our current constitutional framework? Can the legislature pass a law that de facto nullifies the Governor‘s constitutionally-granted discretion regarding the calling and content of special legislative sessions and forces their recall, perhaps repeatedly as an emergency evolves over many months?24
This concept of time-limited executive emergency authority that relies on the recall
In closing, 7,477 Kentuckians have lost their lives to COVID-19 as of August 19, 2021. That number is considerably higher than the entire population of my Western Kentucky hometown and the cities where many Kentuckians live and work. The death toll does not even account for the
hundreds of thousands of citizens whose lives have been irrevocably changed by the impact of the disease on their own lives, their families and their communities. And still the COVID-19 scourge continues with coronavirus cases and hospitalizations increasing these past few weeks. Whatever disagreements citizens may have about how best to address the seemingly limitless thorny issues raised by the pandemic, they are undoubtedly united in their desire to see our Commonwealth travel as safely and quickly as possible to the other side, to find some semblance of normal again. As a Justice, and more pertinently as a lifelong Kentuckian, I implore all parties to this matter to lay down their swords and work together cooperatively to finish this immensely important task for the benefit of the people they serve.
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
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