Hon. Andrew Beshear, in His Official Capacity as Governor v. Hon. Glenn E. Acree, Judge Kentucky Court of Appeals ( 2020 )

RENDERED: NOVEMBER 12, 2020
TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0313-OA
HONORABLE ANDREW BESHEAR, IN PETITIONERS
HIS OFFICIAL CAPACITY AS
GOVERNOR OF THE
COMMONWEALTH OF KENTUCKY;
ERIC FRIEDLANDER, IN HIS
OFFICIAL CAPACITY AS SECRETARY
OF THE KENTUCKY CABINET FOR
HEALTH AND FAMILY SERVICES; DR.
STEVEN STACK, IN HIS OFFICIAL
CAPACITY AS COMMISSONER OF
THE KENTUCKY DEPARTMENT FOR
PUBLIC HEALTH; THE KENTUCKY
CABINET FOR HEALTH AND FAMILY
SERVICES; AND THE KENTUCKY
DEPARTMENT FOR PUBLIC HEALTH
ORIGINAL ACTION IN THE SUPREME COURT
v. ARISING FROM THE COURT OF APPEALS
CASE NO. 2020-CA-0834
BOONE CIRCUIT COURT CASE NO. 20-CI-00678
HONORABLE GLENN E. ACREE, RESPONDENTS
JUDGE, KENTUCKY COURT OF
APPEALS; AND HONORABLE
RICHARD A. BRUEGGEMANN,
JUDGE, 52ND JUDICIAL CIRCUIT,
BOONE CIRCUIT COURT
AND
FLORENCE SPEEDWAY, INC.; REAL PARTIES IN INTEREST
RIDGEWAY PROPERTIES, LLC, D/B/A
BEANS CAFE & BAKERY; LITTLE
LINKS LEARNING, LLC; AND
HONORABLE DANIEL J. CAMERON,
IN HIS OFFICIAL CAPACITY AS
ATTORNEY GENERAL
OPINION OF THE COURT BY JUSTICE HUGHES
REVERSING
INTRODUCTION
On March 6, 2020, as the COVID-19 global pandemic reached Kentucky,
Governor Andy Beshear declared a state of emergency pursuant to Executive
Order 2020-215. In the ensuing days and weeks, he issued additional
executive orders and emergency regulations to address the public health and
safety issues created by this highly contagious disease. In late June, three
Northern Kentucky business owners filed suit in the Boone Circuit Court
challenging various orders affecting the reopening of their respective
businesses as well as the Governor’s authority generally in emergencies.
Attorney General Daniel Cameron intervened as a plaintiff, and the parties
proceeded to obtain a restraining order that prohibited enforcement of certain
of the emergency orders.
In response to that action with its imminent injunction hearing and at
least one similar case elsewhere in the Commonwealth, this Court entered an
order on July 17, 2020, staying all injunctive orders directed at the Governor’s
COVID-19 response until those orders were properly before this Court, with full
record, pursuant to the direction of the Court. Having received briefs and
heard oral argument, this Court addresses five primary questions. We begin by
summarizing our answers to those questions.
2
I. 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?
Yes. KRS 39A.100 authorizes the Governor to declare a state of
emergency in the event of the occurrence of any of the situations or events
contemplated by KRS 39A.010, which includes biological and etiological
hazards such as the COVID-19 pandemic. Although the governing statutes do
not require resort to the definition of “emergency” in KRS 39A.020(12), if that
definition were applicable it would not inhibit the Governor’s authority. The
local emergency management agencies referenced in KRS 39A.020(12) “shall,
for all purposes, be under the direction . . . of the Governor when [he] deems
that action necessary.” KRS 39B.010(5). Thus, the Governor was authorized
to act without deference to any determination by a local authority or emergency
management agency. On March 30, 2020, the General Assembly acknowledged
the state of emergency declared by the Governor and “the efforts of the
Executive Branch to address . . . the outbreak of COVID-19 virus, a public
health emergency.” 2020 S.B. 150.
II. 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?
No. The Kentucky Constitution does not directly address the exercise of
authority in the event of an emergency except as to those events requiring the
military, the Governor being the “commander-in-chief of the army and navy of
this Commonwealth and of the militia thereof.” Ky. Const. § 75. However, our
Constitution, which provides for a part-time legislature incapable of convening
3
itself, tilts toward emergency powers in the executive branch. Section 80
provides the Governor “may, on extraordinary occasions, convene the General
Assembly” and may do so at a different place if Frankfort has “become
dangerous from an enemy or from contagious diseases.” (Emphasis added.)
The language is permissive, not mandatory. So emergency powers appear to
reside primarily in the Governor in the first instance, but to the extent they are
perceived as legislative, KRS Chapter 39A is a lawful delegation of that power
with sufficient standards and procedural safeguards to pass constitutional
muster. Kentucky has recognized the lawful delegation of legislative powers for
decades, and we decline to overrule that precedent, especially in circumstances
that would leave the Commonwealth without day-to-day leadership in the face
of a pandemic affecting all parts of the state. Notably, the General Assembly,
in 2020 Senate Bill 150, recognized the Governor’s use of the KRS Chapter 39A
emergency powers, directed him to declare in writing when the COVID-19
emergency “has ceased” and further provided: “In the event no such declaration
is made by the Governor on or before the first day of the next regular session
. . . the General Assembly may make the determination.”
III. Was the Governor Required to Address the COVID-19 Emergency
Solely Through Emergency Regulations Adopted Pursuant to KRS
Chapter 13A?
No. The General Assembly has specifically authorized the Governor in
KRS 39A.090, .100 and .180 to act through executive orders and regulations
that supersede “[a]ll existing laws, ordinances, and administrative regulations.”
KRS 39A.180(2). KRS Chapter 13A is not controlling in the event of a declared
4
emergency pursuant to KRS 39A.010(1). In any event, the procedural
safeguard of public notice is satisfied because KRS 39A.180 mandates that all
emergency orders and administrative regulations issued by the Governor or
any state agency “shall have the full force of law” when “a copy is filed with the
Legislative Research Commission,” just as occurs under KRS Chapter 13A.
IV. 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?
Only one subpart of one order, no longer in effect, was violative of Section
2. Property rights are enumerated in the Kentucky Constitution and are
entitled to great respect, but they are not fundamental rights in the sense that
all governmental impingements on them are subject to strict scrutiny,
particularly in the area of public health. As with all branches of government,
the Governor is most definitely subject to constitutional constraints even when
acting to address a declared emergency. In this case, however, the challenged
orders and regulations have not been established to be arbitrary, i.e., lacking a
rational basis, except for one subpart of one order regarding social distancing
at entertainment venues that initially made no exception for families or
individuals living in the same household. Executive orders in emergency
circumstances, especially where public health and safety is threatened, are
entitled to considerable deference by the judiciary. During the course of this
litigation, several of the orders and regulations at issue were superseded or
changed, rendering some of the challenges moot.
5
V. Did the Boone Circuit Court Properly Issue Injunctive Relief Prohibiting
Enforcement of the Governor’s Orders or Regulations?
No. Injunctive relief requires that a plaintiff prove irreparable injury,
establish that the equities favor issuance of the injunction and raise a
substantial question on the underlying merits, defined as a substantial
possibility that the plaintiff will ultimately prevail. Given our conclusion
regarding the lawful manner in which the Governor has responded to the
COVID-19 emergency, Plaintiffs have not raised a substantial question on the
merits with respect to their insistence that the Governor must first contact and
defer to local emergency response agencies pursuant to KRS 39A.020(12); their
separation of powers argument; their claim that KRS Chapter 13A controls
issuance of all executive orders and regulations; or their argument that the
Governor has exercised arbitrary powers in violation of Sections 1 and 2 of the
Kentucky Constitution. Even if some Plaintiffs arguably have established
irreparable harm to their businesses, that alone is insufficient to justify an
injunction precluding enforcement of emergency orders and regulations
directed to the protection of the health and safety of all Kentuckians. Applying
our time-honored injunction standard, the law and equities favor the Governor
in this matter.
Before turning to the facts of this case, we note that if Plaintiffs and the
Attorney General were successful on any one of the first three issues of law–
proper invocation of emergency powers, separation of powers among the three
branches of government or applicability of KRS Chapter 13A–it would be the
proverbial “knock-out punch” because it would undermine all of the Governor’s
6
COVID-19 response.1 Because the law does not support them on those issues,
their remaining argument that the Governor has acted arbitrarily in violation of
Sections 1 and 2 of the Kentucky Constitution requires consideration of certain
challenged individual executive orders and regulations. We do that below.
Before proceeding further, we first note that this case has been heralded as the
“face mask” case, but as Plaintiffs’ counsel acknowledged at oral argument,
that is not entirely accurate. Very little proof was elicited in the Boone Circuit
Court regarding face masks and the proposed final injunction order makes no
specific findings as to face masks other than the Plaintiffs’ asserted willingness
to require employees and customers to wear them and a passing reference to a
study comparing cloth masks to medical masks. In the end, the only face
mask issue presented to this Court is whether the penalty provisions in the
emergency regulation are enforceable. Second, although reference is made in
briefs and the Boone Circuit Court order to earlier restraints on religious
activities and elective medical procedures, neither of those issues is before us
in this case. The religious challenges have been litigated in federal court, and
no religious organization or health care provider has appeared in this case to
challenge the Governor’s COVID-19 response.2 With those clarifications, we
turn to what is before this Court.
1The actual declaration of emergency would only be undermined if the first or
second argument was successful.
2 Public perception that restrictions on nursing home or hospital visitation are
at issue in this case is also in error because those restrictions are not before us and in
any event stem from a combination of state and federal directives. See, e.g., Cabinet
for Health and Family Services, Provider Guidance Update: Phased Reduction of
Restrictions for Long Term Care Facilities (Oct. 7, 2020), https://chfs.ky.gov/cv19/
7
FACTS AND PROCEDURAL HISTORY
COVID-19 is a respiratory disease caused by a virus that transmits easily
from person-to-person and can result in serious illness or death. According to
the Centers for Disease Control and Prevention (CDC), the virus is primarily
spread through respiratory droplets from infected individuals coughing,
sneezing, or talking while in close proximity (within six feet) to other people.3
On January 31, 2020, the United States Department of Health and Human
Services declared a national public health emergency, effective January 27,
2020, based on the rising number of confirmed COVID-19 cases in the United
States.4 The CDC identified the potential public health threat posed by COVID-
19 nationally and world-wide as “high.”5
LTCFGuidancePhasedRestoration.pdf; Centers for Disease Control and Prevention
(CDC), Healthcare Facility Guidance, https://www.cdc.gov/coronavirus/2019-
ncov/hcp/guidance-hcf.html (last updated June 28, 2020); and Centers for Medicare
& Medicaid Services, Nursing Home Reopening Recommendations for State and Local
Officials, https://www.cms.gov/files/document/qso-20-30-nh.pdf-0 (last updated
Sept. 28, 2020).
3 In addition, a person possibly can contract COVID-19 by touching a surface or
object that has the virus on it and then touching their own nose, mouth or eyes. CDC,
How COVID-19 Spreads, https://www.cdc.gov/coronavirus/2019-ncov/prevent-
getting-sick/how-covid-spreads.html (last updated Sept. 21, 2020).
4 U.S. Department of Health and Human Services, Determination that a Public
Health Emergency Exists (Jan. 31, 2020), https://www.phe.gov/emergency/news/
healthactions/phe/Pages/2019-nCoV.aspx.
5 See Anne Schuchat, Public Health Response to the Initiation and Spread of
Pandemic COVID-19 in the United States, February 24-April 21, 2020 (May 8, 2020),
https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6918e2-H.pdf; CDC, Global
COVID-19, https://www.cdc.gov/coronavirus/2019-ncov/global-covid-19/ (last
updated Nov. 5, 2020). See also World Health Org., Novel Coronavirus (2019-nCoV):
Situation Report-13 (Feb. 2, 2020), https://www.who.int/docs/default-source/
coronaviruse/situation-reports/20200202-sitrep-13-ncov-v3.pdf.
8
On March 6, 2020, Governor Andy Beshear, under the authority vested
in him pursuant to KRS Chapter 39A, declared a state of emergency in
Kentucky. Executive Order 2020-215. Subsequently, all 120 counties in
Kentucky declared a state of emergency.6 After the statewide declaration,
Kentucky’s Cabinet for Health and Family Services (the Cabinet) began issuing
orders designed to reduce and slow the spread of COVID-19 and thereby
promote public health and safety. Those orders included directives such as
prohibiting on-site consumption of food and drink at restaurants, closing
businesses that encourage congregation, and prohibiting mass gatherings. As
knowledge regarding the heretofore unknown novel coronavirus (COVID-19)
grew, the Governor and the Cabinet modified their orders accordingly.7
On March 17, 2020, the Cabinet issued an order requiring all public-
facing businesses that encourage public congregation to close, including gyms,
entertainment and recreational facilities, and theaters.8 These emergency
measures worked to reduce COVID-19 cases by limiting gatherings where the
virus could be transmitted. The Governor announced on April 21, 2020, the
6 Kentucky Association of Counties, COVID-19 County Emergency Declarations
(Mar. 23, 2020), https://covid-19.kaco.org/covd-19-newsroom/covid-19-county-
emergency-declarations.
7 We note at the outset that some of the challenged orders in this case were
issued by the Cabinet, and others were issued by the Governor. Therefore, references
to the challenged orders will include orders issued by both the Governor and the
Cabinet, unless otherwise noted.
8 Other public-facing businesses required to close included salons and concert
venues. Certain essential businesses were permitted to stay open, such as businesses
providing food, banks, post offices, hardware stores, and health care facilities. These
businesses were subject to minimum requirements, such as maintaining social
distance between persons and regularly cleaning commonly touched surfaces.
9
“Healthy at Work” initiative, a phased reopening plan based on criteria set by
public health and industry experts to help Kentucky businesses reopen safely.
On May 11, 2020, the Commonwealth began reopening its economy and the
Cabinet issued minimum requirements that all public and private entities were
required to follow, such as maintaining social distance between persons,
requiring employees to wash hands regularly, and routinely cleaning and
sanitizing commonly touched surfaces.
On May 22, 2020, restaurants were permitted to reopen for in-person
dining, subject to 33% maximum capacity for indoor dining. Pertinent to the
underlying case, the Cabinet issued an order on June 3, 2020, allowing
automobile racing tracks to reopen with specific requirements, such as only
allowing authorized employees and essential drivers on the premises, utilizing
social distancing, implementing cleaning and disinfecting procedures, and
requiring the use of personal protective equipment (PPE) in certain instances.9
Florence Speedway, Inc., an automobile racing track in Walton,
Kentucky, filed a complaint in the Boone Circuit Court on June 16, 2020,
against the Northern Kentucky Independent Health District (NKIHD), the
organization charged with enforcing public health orders in Northern Kentucky.
The complaint requested judicial review of a series of orders issued by the
9 Personal protective equipment refers to equipment worn for protection from
COVID-19 and includes equipment such as face coverings, eye protection, gowns, and
gloves. CDC, Optimizing PPE Supplies, https://www.cdc.gov/coronavirus/2019-
ncov/hcp/ppe-strategy/index.html. In its June 1, 2020 requirements for automobile
racing tracks, the Cabinet required that employees, racing crews, and emergency
medical crews use appropriate face coverings and other PPE (last updated July 16,
2020).
10
Governor and the Cabinet, alleging violations of multiple provisions of the
Kentucky Constitution. Florence Speedway sought declaratory and injunctive
relief deeming the orders unconstitutional and enjoining NKIHD from enforcing
them.
Shortly thereafter, Florence Speedway filed an amended verified class
action complaint that included Ridgeway Properties, LLC, d/b/a Beans Cafe &
Bakery (Beans Cafe), located in Dry Ridge, Kentucky, and Little Links Learning,
LLC (Little Links), a childcare center in Fort Wright, Kentucky, as Plaintiffs
(collectively referred to as Plaintiffs).10 In addition to NKIHD, the June 22,
2020 amended complaint included Dr. Lynne Sadler (District Director of the
NKIHD), Governor Beshear, the Cabinet, Eric Friedlander (Secretary of the
Cabinet), and Dr. Steven Stack (Commissioner of Public Health) as Defendants.
Plaintiffs assert that the challenged orders (1) violate Section 1 of the Kentucky
Constitution, which protects the rights of life, liberty, pursuit of safety and
happiness, and acquiring and protecting property; (2) are arbitrary, in violation
of Section 2 of the Kentucky Constitution; (3) violate the separation of powers
provisions in Sections 27 and 28 of the Kentucky Constitution; (4) exceed the
Governor’s statutory authority to act pursuant to KRS 39A.100; and (5) are
Theodore J. Roberts was included as a Plaintiff in the amended complaint.
10
Roberts suffers from asthma and alleged that mask usage presents a threat to his
health. He was originally a party to the suit because he sought to challenge the mask
usage requirements for barber shop patrons. However, on June 25, 2020, Governor
Beshear amended the requirements for barbershops, making mask wearing for
customers recommended, but not required. Roberts sought to be dismissed from the
case on June 29, 2020. It is unclear whether he was dismissed by the trial court, but
in any event, he is not named as a party in this appeal.
11
illegal because they violate the procedures outlined in KRS Chapter 13A for the
adoption of regulations.
The amended complaint alleges specific issues with particular orders as
they pertain to each business. Florence Speedway alleges that only allowing
authorized employees and essential drivers and crews on the speedway
premises is arbitrary and discriminatory because outdoor gatherings are safer
than indoor gatherings, such as those in restaurants and bowling alleys, which
are allowed at 33% capacity. With outdoor grandstands for spectators,
Florence Speedway maintains it could operate at 33% capacity and use social
distancing measures and contrasts its restrictions to the requirements for
outdoor auctions which have no attendance limitations. Additionally, Florence
Speedway challenges limiting its food service to “carry-out only” as arbitrary
and discriminatory given that restaurants are permitted to operate at 33%
capacity indoors. Finally, Florence Speedway claims that requiring PPE with
no exceptions is arbitrary and prevents it from complying with the Americans
with Disabilities Act.11
Beans Cafe raises issues with the requirement that employees must wear
PPE (unless it would jeopardize their health) whenever they are near other
employees or customers. The cafe alleges there are no requirements for
employees working in the hot kitchen to wear masks, yet face masks are
11 42 U.S.C. §§ 12101-12213 (2009).
12
required for other employees.12 According to allegations in the amended
complaint, little scientific basis exists for requiring face masks because cloth
face masks do not protect the wearer, rendering the requirement arbitrary. The
amended complaint also alleges that it is arbitrary and capricious to limit
restaurants to 33% indoor capacity and require six feet of distance between
customers because these requirements make it difficult, if not impossible, for
restaurants to make a profit.
Little Links’s allegations pertain to childcare facility restrictions. Center-
based childcare programs, like Little Links, were closed on March 20, 2020,
but Limited Duration Centers (LDCs) were permitted to open. LDCs are
childcare programs that provide temporary emergency childcare for employees
of health care entities, first responders, corrections officers and Department for
Community Based Services’s workers.13
12 The requirements for restaurants state that “Restaurants should ensure
employees wear face masks for any interactions with customers, co-workers, or while
in common travel areas of the business (e.g., aisles, hallways, loading docks,
breakrooms, bathrooms, entries and exits). Restaurant employees are not required to
wear face masks while alone in personal offices, while more than six (6) feet from any
other individual, or if doing so would pose a serious threat to their health or safety.” It
is unclear why Beans Cafe states that employees working in the kitchen do not have to
wear face masks–whether, due to the hot temperatures, it would pose risks to their
health to cover their faces, or whether they are spaced further than six feet apart. As
written, the regulation makes no distinction between employees in the kitchen and
those working elsewhere in a restaurant.
13 On May 8, 2020, Inspector General Adam Mather issued supplemental
guidance for verification of employment for childcare within an LDC. Comparing it to
the March 19 guidance, it expands those able to use the LDCs. It provides that
“Employees of a health care entity, First Responders (Law Enforcement, EMS, Fire
Departments), Corrections Officers, Military, Activated National Guard, Domestic
Violence Shelter Workers, Essential Governmental Workers, large structured physical
plants employing 1000 staff or more, and Grocery Workers will be required to submit
verification of employment . . . .” Cabinet for Health and Family Services – Office of
13
All childcare programs were permitted to reopen on June 15, 2020,
subject to several requirements, including the following: (1) all childcare
programs must utilize a maximum group size of ten children per group; (2)
children must remain in the same group of ten children all day without being
combined with another classroom; (3) childcare programs may not provide
access to visitors or students conducting classroom observations; (4) adults
must wear a face mask while inside a childcare program unless doing so would
represent a serious risk to their health or safety or they are more than six feet
away from any other individual; and (5) children five years of age and younger
should not wear masks due to increased risks of suffocation and strangulation.
Childcare programs were authorized to recommend to the parents of children
over five years of age that their child wear a mask.
Conversely, LDCs were not subject to the ten children group size
limitation and were instead subject to a premises requirement of thirty square
feet per child. Presumably, if an LDC was particularly large, it could exceed
the ten children per group requirement that was imposed on center-based
childcare facilities.
Little Links alleges that the ten children per group requirement
constitutes a significant limitation on the operation of a childcare facility and
forces many providers to operate their businesses at a loss. Additionally,
Inspector General, Coronavirus (COVID-19) – Interim Guidance for Verification of
Employment for Child Care within a Limited Duration Center (May 8, 2020),
https://chfs.ky.gov/cv19/ChildCareguidance.pdf.
14
requiring that children remain in the same group all day poses issues for end-
of-the-day operations because childcare centers are not permitted to combine
children from the same household in the same room, a customary practice in
the childcare industry. Little Links alleges that the fact that these children will
be in the same car and household together makes this requirement arbitrary.
The prohibition on visitors, according to Little Links in its amendment to the
motion for temporary injunction, arbitrarily prevents tours for prospective
clients. Lastly, the adult mask requirement presents significant issues in a
childcare setting because it is difficult for adults in masks to comfort upset
children or assist children in the learning process because non-verbal
communication is typically used.
Several of the challenged orders and regulations changed after the filing
of the amended complaint, some following the conclusion of injunction
proceedings in the circuit court. As of September 1, 2020, center-based
childcare programs and LDCs became subject to the same requirements with
the promulgation of 922 Kentucky Administrative Regulation (KAR) 2:405E.
The regulation permits both center-based childcare programs and LDCs to
maintain a maximum group size of fifteen children14 but maintains the
requirement that children remain in the same group throughout the day
without combining with another group. In addition, the regulation allows tours
to potential clients after regular operating hours if no children are in the facility
14 The group size applies to children age twenty-four months and older.
15
during the tour and the provider ensures all affected areas are cleaned after the
conclusion of the tour. The regulation also provides that childcare providers
shall not divide classroom space using a temporary wall in a manner that
results in less than thirty-five (35) square feet of space per child. 922 KAR
2:405E.15 Further, as of September 1, 2020, the stated purpose for LDCs is “to
provide temporary emergency childcare for nontraditional instruction during
traditional school hours to meet instructional needs.”16
On June 22, 2020, the requirements for restaurants were amended,
allowing an increase from 33% to 50% indoor dining capacity. On June 29,
2020, the public-facing businesses order was amended to allow venues and
event spaces, including Florence Speedway, to reopen to the public. The
amendment allows 50% of the maximum capacity permitted at a venue,
assuming all individuals can maintain six feet of space between them with that
level of occupancy. Additionally, if the venues operate any form of dining
service, those services must comply with the requirements for restaurants and
bars.
See also Cabinet for Health and Family Services – Office of the Inspector
15
General, Novel Coronavirus (COVID-19) Limited Duration Centers Frequently Asked
Questions (Sept. 1, 2020), https://chfs.ky.gov/cv19/FAQLDC.pdf (indicating that each
LDC location should account for thirty-five square feet per child).
Cabinet for Health and Family Services – Office of the Inspector General,
16
supra n.15; compare with Cabinet for Health and Family Services – Office of the
Inspector General, Novel Coronavirus (COVID-19) Limited Duration Centers Frequently
Asked Questions (Mar. 2020), https://childcarecouncilofky.com/wp-
content/uploads/2020/03/FAQ-LDCe-003.pdf (identifying LDC to be a center
approved to provide temporary emergency childcare to health care employees, first
responders, corrections officers and DCBS workers). See 922 KAR 2:405E.
16
On June 24, 2020, Plaintiffs filed in the Boone Circuit Court case an
emergency motion for a restraining order pursuant to Kentucky Rule of Civil
Procedure (CR) 65.03 and a temporary injunction pursuant to CR 65.04.
Alleging irreparable damage to their respective businesses, Plaintiffs requested
the circuit court enjoin all further enforcement of the challenged orders.
Meanwhile, in a similar case challenging the constitutionality of the
COVID-19 emergency orders, Ryan Quarles, the Commissioner of Agriculture,
and Evans Orchard and Cider Mill, LLC (Evans Orchard), filed a complaint in
Scott Circuit Court on June 29, 2020. The Attorney General intervened in that
action. As the Commissioner of Agriculture, Quarles is charged with promoting
agritourism in Kentucky and assisting with sustaining the industry’s viability
and growth, including the 548 agritourism businesses currently operating in
the Commonwealth. Evans Orchard is a family-owned business that operates
“agritourism attractions,” like pick-your-own fruits, a retail market that sells
food products, a cafe and bakery, and an event barn for weddings and other
events. Evans Orchard alleged that it would be unable to operate profitably
certain aspects of its business while the COVID-19 emergency orders remain in
effect. Generally, the complaint alleges that the orders are unconstitutional for
the same reasons raised in the Boone County litigation.
On June 30, 2020, the Governor responded in opposition to the Plaintiffs’
restraining order/injunction motion, emphasizing the public health measures
he and other public officials have taken to slow the escalation of COVID-19.
Citing the injunction standard, Governor Beshear argued that Plaintiffs failed
17
to demonstrate a substantial question on the merits of the case because they
have no absolute right to operate free from health and safety regulations; failed
to establish immediate, irreparable injury; and did not have the equities in
their favor given the potential harm to public health and safety if the injunction
issued. Additionally, he argued the orders are a valid use of the
Commonwealth’s police power and the Governor’s statutory authority to
respond to emergencies. The Governor also noted that since the complaint was
filed, the orders were amended to allow restaurants to increase their indoor
seating capacity from 33% to 50% and that venues, like the Florence
Speedway, could now host 50% of their normal maximum capacity.
Attorney General Daniel Cameron filed a motion to intervene in the
Boone Circuit Court action and simultaneously filed an intervening complaint
on June 30, 2020.17 The Attorney General’s intervening complaint mirrored
several of Florence Speedway’s, Beans Cafe’s, and Little Links’s arguments, and
sought the following declarations: KRS Chapter 39A is an unconstitutional
delegation of lawmaking authority; the Governor’s orders are arbitrary and
invalid because they exceed his statutory authority; the Governor’s orders must
17 According to the Attorney General, the motion to intervene was filed pursuant
to CR 24.01 and CR 24.02 to protect the rights of Kentucky citizens. The
Commonwealth has a statutory right to intervene under KRS 15.020, which states
that the Attorney General shall “enter his appearance in all cases, hearings, and
proceedings in and before all other courts, tribunals, or commissions in or out of the
state . . . in which the Commonwealth has an interest.” Attorney General Cameron
also asserted that the trial court should grant permissive intervention pursuant to CR
24.02 because the Commonwealth sought to assert claims against the same group of
state officials as the original complaint for violating the constitutional rights of
Kentucky citizens.
18
be promulgated under the provisions of KRS Chapter 13A; and the Governor’s
orders violate various sections of the Kentucky Constitution. He also filed a
motion for a restraining order on July 1, 2020. The motion asserted that the
Governor did not comply with KRS Chapter 39A in declaring an emergency and
raised several allegations regarding the legality of the chapter, specifically
noting the lack of any time limitations on the Governor’s executive orders and
suspension of laws.
Additionally, the Attorney General argued that Governor Beshear lacked
authority to declare a state of emergency pursuant to KRS 39A.100(1) because
KRS 39A.020(12) 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.” (Emphasis added.) The Attorney
General argued that Governor Beshear failed to establish that any local
emergency response agency had determined that the situation caused by
COVID-19 was “beyond its capabilities.” According to the Attorney General,
this clause of the statute demonstrates the public policy of the legislature that
disaster and emergency response be addressed first as a local matter, so that
those closest to the scene of an “emergency” are entrusted with coordinating
the response.
The Boone Circuit Court conducted a hearing on the motion for a
restraining order on July 1, 2020. No witnesses were called, but the Plaintiffs
19
provided the trial court with copies of the Healthy At Work Requirements for
Automobile Racing Tracks, effective June 1, 2020; the Healthy At Work
Requirements for Venue and Event Spaces, effective June 29, 2020; and the
Attorney General opinion OAG-19-021.18 The next day, the trial court granted
Plaintiffs’ motion for an emergency restraining order and enjoined the Governor
and the Cabinet from enforcing the June 1, 2020 requirements for automobile
racing tracks, specifically holding that automobile racing tracks can operate at
50% capacity so long as all individuals could maintain six feet of distance
between households. The trial court also enjoined the Governor and the
Cabinet from enforcing the June 8, 2020 requirements that limit group sizes in
childcare facilities to ten children and require children to remain in the same
group all day. The restraining order specifically states that childcare programs
shall be permitted to maintain a maximum group size of twenty-eight children.
In its July 2 order, the trial court determined that two of the Plaintiffs
were entitled to injunctive relief. The trial court was satisfied that the
impending loss of business, including the goodwill built up through years of
serving customers, constituted irreparable harm and that the equities favored
Florence Speedway and Little Links. Additionally, the trial court determined
that Florence Speedway and Little Links sufficiently established that a
18 The Attorney General’s opinion discussed whether a county judge or county
executive could invoke the emergency powers of KRS Chapters 39A-39F to fill the
position of County Road Supervisor in the absence of action by the Fiscal Court. The
Attorney General opined that this type of vacancy does not constitute an “emergency”
as contemplated by KRS Chapters 39A-39F.
20
substantial question exists on the merits of their claim because “it is unclear
what criteria is being used to establish which businesses may survive versus
those that must shutter.” The trial court specifically identified the fact that
attendance at movie theaters is allowed, and the Governor has permitted horse
races, yet attending automobile races is not allowed. The trial court scheduled
a hearing for July 16, 2020 to hear the Attorney General’s motion for a
restraining order and Plaintiffs’ motion for a temporary injunction.
In response, on July 6, 2020, the Governor filed a petition for a writ of
mandamus in the Court of Appeals, along with a motion for intermediate relief
pursuant to CR 76.36(4). The petition sought a writ to (1) mandate that the
Boone Circuit Court dissolve the July 2, 2020 restraining order; (2) prohibit the
Boone Circuit Court from hearing the Attorney General’s motion for a
restraining order and the temporary injunction motion of the remaining
Plaintiffs; and (3) grant intermediate relief staying enforcement of the July 2,
2020 restraining order during the pendency of the writ action. The Governor
argued that a writ was necessary because the restraining order negated the
statewide public health response to the spread of COVID-19. Further, not only
was the restraining order contrary to law but it dangerously eliminated
restrictions put in place based on the guidance of public health officials. The
Governor insisted that the trial court’s decision would inevitably lead to more
COVID-19 cases, illnesses, and deaths.
Meanwhile the Scott Circuit Court entered an order on July 9, 2020,
enjoining the Governor, and others, from enforcing an executive order against
21
Evans Orchard or any other agritourism business in Kentucky. In addition,
the order also stated that prior to issuing any other executive order pursuant
to KRS Chapter 39A, the Governor must “specifically state the emergency that
requires the order, the location of the emergency, and the name of the local
emergency management agency that has determined that the emergency is
beyond its capabilities.” The Governor also filed a petition for a writ of
mandamus with respect to the Scott Circuit Court action, seeking relief similar
to that sought in the Boone Circuit Court action.
In the interest of judicial economy, Court of Appeals Judge Glenn Acree
issued a consolidated order addressing both the Boone County and Scott
County cases and denied intermediate relief in both on July 13, 2020. Judge
Acree determined that CR 65, which allows a party to move to dissolve a
restraining order, provided the Governor with a swift and adequate remedy,
rendering a writ inappropriate. Additionally, he determined that any injury
resulting from the Boone Circuit Court order could be rectified at the scheduled
July 16, 2020 hearing. The Court of Appeals’ order reflects that a three-judge
panel would promptly consider the merits of the Governor’s petitions for a writ
of mandamus.
That same day, Plaintiffs filed an amendment to their motion for a
temporary injunction to address new and supplemental orders and regulations
issued by the Governor and the Cabinet. Plaintiffs argued that the revised
orders were arbitrary and capricious, specifically identifying the six-foot
distance requirement and the group size requirements for childcare centers.
22
Plaintiffs noted that LDCs were not subject to the Cabinet’s orders. Little Links
asserted that the prohibition against visitors poses a significant problem
because it prevents Little Links from conducting tours for new families seeking
childcare services. Florence Speedway and Beans Cafe also argued that the
statewide mask regulation, 902 KAR 2:190E, which states that businesses in
continuing violation of the regulation can be immediately shut down, is not
authorized by law.
On July 14, 2020, the Governor petitioned for a writ of mandamus in
this Court and sought intermediate relief pursuant to CR 76.36(4) and CR 81,
specifically requesting that this Court dissolve the Boone Circuit Court’s
restraining order. The Governor argued that Judge Acree erred in concluding
that the Governor has an adequate remedy by appeal because a delayed
judicial holding vindicating the Governor’s actions offers no protection to the
Kentuckians who may become ill, spread the disease to others, or die due to
COVID-19 in the interim. The petition also criticized the failure of both lower
courts to consider the presumption of constitutionality of the orders since the
orders only implicate economic rights, not fundamental rights, requiring only a
rational basis review of these emergency measures.
Plaintiffs responded on July 16, 2020, arguing that a writ is not an
appropriate remedy because the parties were currently in the midst of an
evidentiary hearing on their requested injunctive relief in the Boone Circuit
Court, evidence which would be beneficial for this Court to review. They
argued the Governor had a remedy by appeal once the trial court issued a
23
ruling based on the hearing. Plaintiffs claimed that Supreme Court
intervention at that stage in the proceedings would result in businesses failing,
including Florence Speedway and childcare centers across the state.
Additionally, Plaintiffs reiterated their arguments regarding the
unconstitutionality and illegality of the various orders issued by the Governor
and the Cabinet. The Attorney General filed a similar response arguing that
the Governor did not satisfy the requirements for issuance of a writ.
The Boone Circuit Court conducted a twelve-and-one-half hour hearing
on July 16, 2020. The trial court heard testimony from Plaintiff Christine
Fairfield, owner of Little Links; Jennifer Washburn, childcare facility owner;
Bradley Stevenson, Executive Director of the Childcare Council of Kentucky, a
nonprofit agency located in Lexington, Kentucky, which provides support
services to childcare providers; Greg Lee, small business owner; Larry Roberts,
Kentucky Secretary of Labor; Josh King, promoter for Plaintiff Florence
Speedway; Richard Hayhoe, owner of Plaintiff Beans Cafe and Bakery; John
Ellison, general manager and part owner of the Hofbrauhaus, a brew pub, in
Newport, Kentucky, as well as board member and past chair of the Kentucky
Restaurant Association; Dr. John Garren, University of Kentucky economics
professor; Dr. Sarah Vanover, Director of Kentucky’s Division of Childcare; and
Dr. Steven Stack, Commissioner of the Kentucky Department for Public Health.
Following the close of evidence, Plaintiffs sought a temporary injunction
to require the Governor to increase the group sizes in childcare programs to
fifteen children, to allow the combination of groups and to allow tours after
24
hours. They also sought to allow customers at restaurants to sit back-to-back
with three and one-half feet of spacing and to remove the “shut down” penalty
for a business’s continuing violation of the mask mandate.
On July 17, 2020 and pursuant to Section 110 of the Kentucky
Constitution, this Court entered an order staying all orders of injunctive relief
issued by lower courts of the Commonwealth in COVID-19 litigation pending
further action of the Court. Noting the need for a clear and consistent
statewide public health policy, the Court recognized that the Kentucky
legislature has expressly given the Governor broad executive powers in a public
health emergency. The stay continues in effect until the full record of
proceedings below, including any evidence and pleadings considered by the
lower courts, is reviewed by this Court and a final order is issued. The order
expressly authorized the Scott and Boone Circuit Courts to proceed with
matters pending before them and issue all findings of fact and conclusions of
law they deem appropriate, but no order, however characterized, would be
effective.
On July 20, 2020, the Boone Circuit Court issued an order that would
have granted the temporary injunction against enforcement of the Governor’s
orders but for this Court’s July 17 stay order. The trial court determined that
Florence Speedway and Little Links will suffer irreparable harm in the form of
permanent closure or loss of goodwill under the challenged orders and believed
the cafe’s claim depends on whether “the executive” has authority to impose
25
the orders.19 However, the trial court concluded that the Attorney General’s
claim of injury depended on whether “the people’s” rights are being violated
and concluded that they were. According to the Boone Circuit Court, because
the government cannot take inalienable rights, such as the right to acquire and
protect property and assemble, and certainly cannot punish a person for
exercising a protected constitutional right, the Attorney General established
irreparable harm.
In balancing the equities, the trial court noted that the Constitution and
Bill of Rights are pitted against “the projections of certain medical
professionals” which are “still developing and not all in agreement,” citing
several studies introduced by Plaintiffs that purportedly contradicted the
challenged orders. The court further noted the Attorney General’s argument
that the government can have no legitimate interest in violating the
constitutional rights of its citizens. The trial court observed “a decreasing
trend in deaths attributed to COVID-19 since mid-April 2020,” and that in the
period of weeks ending on January 4 and June 27, 2020, 508 persons in
Kentucky died from COVID-19, making up only 0.011% of Kentucky’s deaths
from all causes during that time period.20 The trial court disagreed with the
19 The owner of Beans Cafe testified that although the amended orders allow
50% indoor dining capacity, the six-foot distancing requirement limits his available
seating to 30%. The orders limit his ability to function because Beans Cafe closes at
2:00 p.m. He suggested that if the distance requirement was reduced to three feet,
and capacity increased to two-thirds, he would at least be able to break even.
20 Slightly over four months later the death toll has more than tripled with the
total COVID-19 deaths in Kentucky standing at 1,534 on November 5, 2020. The non-
partisan Kaiser Family Foundation has concluded that through October 15, 2020,
COVID-19 now ranks third in the leading causes of death in the United States, behind
26
Governor’s insistence that equity supports the challenged executive orders,
finding that the orders were neither constitutionally enacted nor narrowly
tailored. Therefore, in the Boone Circuit Court’s view, “the scale of equity tips
decidedly to the Constitution and the Bill of Rights.”
As to the third requirement that Plaintiffs present a substantial question
on the merits, the trial court found no evidence that any local emergency
response agency determined that the pandemic emergency was beyond its
capabilities pursuant to KRS 39A.020(12). In questioning the scope of the
Governor’s authority in emergency situations, the trial court concluded that
the power is not broad enough “to extinguish the separation of powers, and the
inherent rights of Kentuckians, including the right to attend church, to pursue
a livelihood, to peaceably assemble, and to seek the health care that they may
deem to be essential.” Ultimately, the trial court held that the Governor’s
reliance on KRS Chapter 39A is ineffectual because the Plaintiffs are likely to
succeed on the merits of their claims that the emergency powers granted by
that chapter violate Sections 1, 2, 15, 27, 28 and 29 of the Kentucky
Constitution.
Shortly after the trial court’s ruling, on July 22, 2020, the requirements
for venues and event spaces, including Florence Speedway, were again revised
only heart disease and cancer. Analysis: COVID-19 Ranks as a Top 3 Leading Cause of
Death in the U.S., Higher than in Almost All Other Peer Countries (Oct. 22, 2020),
https://kff.org/coronoavirus-covid-19/press-release/analysis-covid-19-ranks-as-a-
top-3-leading-cause-of-death-in-the-u-s-higher-than-in-almost-all-other-peer-
countries.
27
and now state that “[a]ll individuals in the venue or event space must be able
to maintain six (6) feet of space from everyone who is not a member of their
household.” This amendment alleviated one of Florence Speedway’s primary
issues with the challenged orders.
On August 7, 2020, this Court determined that, with entry of the trial
court’s July 20 order, the claims in the Boone Circuit Court case were ripe for
review. The order also noted that no further action had occurred in the Scott
Circuit Court case since it entered the restraining order on July 9, 2020.
Although the Court of Appeals consolidated the Boone and Scott Circuit Court
cases for purposes of judicial economy, this Court found that the cases are no
longer similarly situated since only the Boone Circuit Court matter proceeded
to an injunction hearing. Accordingly, the Court deconsolidated the two
actions.21 Oral argument on September 17, 2020, focused on the legal issues
Plaintiffs and the Attorney General raised in the Boone Circuit Court
challenging the Governor’s COVID-19 executive orders and regulations.
ANALYSIS
Before turning to the specific issues presented, we briefly address the
history of emergency powers legislation, which has existed in Kentucky since
1952.22 On March 5, 1952, the General Assembly enacted Chapter 39 of the
21 The order states that the Scott Circuit Court may proceed with matters before
it and issue all findings of fact and conclusions of law it finds appropriate. The Court
stated that any orders issued in the case should, after entry, be immediately
transmitted to the Clerk of the Supreme Court.
In 1949, the Soviet Union successfully tested its first nuclear weapon. U.S.
22
Department of Homeland Security National Preparedness Task Force, Civil Defense
and Homeland Security: A Short History of National Preparedness Efforts (Sept. 2006),
28
Kentucky Revised Statutes, relating to civil defense. 1952 Ky. Acts ch. 58.
While the stated purpose of the Act included minimizing the destructiveness
caused by “fire, flood or other causes,” preparing the state for emergencies and
protecting the public, much of the Act specifically related to Kentucky’s defense
mechanisms for an enemy attack. Id. at § 1. The Act authorized the Governor
to make necessary orders and regulations to carry out the provisions of the Act
and to prepare a comprehensive plan for civil defense. Id. at § 9. In 1974, the
Act was amended to create a state agency, the Department of Disaster and
Emergency Services, in lieu of a state civil defense agency in order to focus on
emergency response generally rather than civil defense matters only. Legis.
Rec. Final Exec. Action - April 23, 1974, Reg. Sess. at 23 (Ky. 1974). In
addition, the amendment redefined and expanded the scope of emergencies
covered under the Chapter.23 1974 Ky. Acts ch. 114, § 1. Additionally, KRS
39.401, the definitions portion of the Chapter, added the definition of
https://training.fema.gov/hiedu/docs/dhs%20civil%20defense-hs%20-
%20short%20history.pdf. Fearing an imminent attack, local officials began
demanding that the federal government create a plan for handling crisis situations.
Id. While President Truman agreed that the United States should outline its civil
defense functions, he believed that civil defense responsibilities should fall primarily
on state and local governments. Id. On January 12, 1951, the Federal Civil Defense
Act of 1950 was signed into law, which was the first comprehensive legislation
pertaining to disaster relief. 64 Stat. 1245 (1951). The Act states: “It is further
declared to be the policy and intent of Congress that this responsibility for civil
defense shall be vested primarily in the several States and their political subdivisions.”
Id.
23 For example, instead of focusing on civil defense, the 1974 version of the
statute specifically added a definition for “disaster and emergency response,” which
includes “preparation for and the carrying out of all emergency functions, other than
functions for which military forces are primarily responsible.” The amendment also
included “natural or man caused disasters,” explosions, and transportation
emergencies, among others, in the list of disasters and emergencies.
29
“disaster,” which was defined as “any incident or situation declared as such by
executive order of the Governor pursuant to the provisions of this Act.” Id. at §
2.
Recognizing that the Commonwealth is always subject to both contained
and widespread threatening occurrences, in 1998 the General Assembly
replaced KRS Chapter 39 with KRS Chapter 39A, which establishes a statewide
comprehensive emergency management system.24 In enacting the Chapter, the
General Assembly expressly noted that “response to these occurrences is a
fundamental responsibility of elected government in the Commonwealth.” KRS
39A.010. KRS Chapter 39A further expanded the scope of disasters and
emergencies which necessitate the Governor’s response and, notably, added
biological and etiological hazards to the list of threats to public safety. The
General Assembly recognized that the purpose of Kentucky’s emergency
management response had evolved from responding only to security and
defense needs to responding to all types of natural and man-made hazards in
order to address the contemporary needs of Kentucky citizens. KRS 39A.030.
As reflected in Appendix A to this Opinion, KRS Chapter 39A powers have been
invoked by every Governor who has served since the law’s adoption in 1998.
The emergencies have ranged from widespread events such as destructive
storms to more localized concerns such as bridges and water supply. Since
24 Omnibus Revision of Disaster and Emergency Services Laws: Hearing on H.B.
453, H. State Gov’t Comm., 1998 Reg. Leg. Sess. 23 (Feb. 24, 1998) (statement of Rep.
Charles Geveden, Chairman).
30
1996, an emergency of some magnitude has been declared on approximately
115 occasions, leaving aside the accompanying orders in the face of those
occurrences which prohibit price gouging or allow pharmacists to address
prescription needs. As we address the issues in this case, we are cognizant of
the Commonwealth’s history and experience with emergency response.
I. The Governor Properly Invoked His Emergency Powers Pursuant to KRS
39A.100 by Declaring a State of Emergency Based on the “Occurrence”
of One of the “Situations or Events” Contemplated by KRS 39A.010.
KRS 39A.100(1) recognizes the Governor’s authority to declare a state of
emergency and exercise emergency powers. The first sentence states: “In the
event of the occurrence or threatened or impending occurrence of any of the
situations or events contemplated by KRS 39A.010, 39A.020 or 39A.030, the
Governor may declare, in writing, that a state of emergency exists.” KRS
39A.100(1). KRS 39A.010, relevant here, is a statement of “Legislative intent-
Necessity” and, although lengthy, justifies extensive quotation:
The General Assembly realizes the Commonwealth is subject at all
times to disaster or emergency occurrences which can range from
crises affecting limited areas to widespread catastrophic events,
and that response to these occurrences is a fundamental
responsibility of elected government in the Commonwealth. It is
the intent of the General Assembly to establish and to support a
statewide comprehensive emergency management program for the
Commonwealth, and through it an integrated emergency
management system, in order to provide for adequate assessment
and mitigation of, preparation for, response to, and recovery from,
the threats to public safety and the harmful effects or destruction
resulting from all major hazards, including but not limited to:
flood, flash flood, tornado, blizzard, ice storm, snow storm, wind
storm, hail storm, or other severe storms; drought, extremes of
temperature, earthquake, landslides, or other natural hazards; fire,
forest fire, or other conflagration; enemy attack, threats to public
safety and health involving nuclear, chemical, or biological agents
or weapons; sabotage, riot, civil disorder or acts of terrorism, and
31
other domestic or national security emergencies; explosion, power
failure or energy shortages, major utility system failure, dam
failure, building collapse, other infrastructure failures;
transportation-related emergencies on, over, or through the
highways, railways, air, land, and waters in the Commonwealth;
emergencies caused by spill or release of hazardous materials or
substances; mass-casualty or mass-fatality emergencies; other
technological, biological, etiological, radiological, environmental,
industrial, or agricultural hazards; or other disaster or emergency
occurrences; or catastrophe; or other causes; and the potential,
threatened, or impending occurrence of any of these events; and in
order to protect life and property of the people of the
Commonwealth, and to protect public peace, health, safety, and
welfare, and the environment; and in order to ensure the
continuity and effectiveness of government in time of emergency,
disaster, or catastrophe in the Commonwealth, . . . .
The statute continues by declaring the necessity for: (1) the creation of a state
agency, the Division of Emergency Management; (2) the conferring of
emergency powers upon the Governor and local officials; (3) mutual aid
agreements between local, state and federal governments; and (4) the
establishment of a “statewide comprehensive emergency management program
and integrated emergency management system.”
Preliminarily, we note the obvious, namely that our General Assembly
has identified dozens of potential disasters, catastrophes, hazards, threats and
emergencies which the Commonwealth may encounter–and in many instances
has encountered–and has wisely provided for the exercise of emergency powers
in those extraordinary circumstances. Our first responsibility is to determine
what the legislature intended by examining carefully the laws enacted. When
construing statutes we examine the language used to determine legislative
intent, Stephenson v. Woodward, 182 S.W.3d 162, 169-70 (Ky. 2005), and if
32
that language is clear and unambiguous, we look no further. Richardson v.
Louisville/Jefferson Cty. Metro Gov’t, 260 S.W.3d 777, 779 (Ky. 2008).
Here KRS 39A.100, in clear and unambiguous language, authorizes the
Governor to declare a state of emergency “in the event of the occurrence or
threatened or impending occurrence” of any of the events or situations listed in
KRS 39A.010, which expressly include “biological . . . or etiological . . .
hazards.”25 In short, the COVID-19 pandemic is the occurrence of both a
biological hazard, generally, and an etiological hazard, more specifically,
justifying the Governor’s March 6, 2020 declaration of emergency. Our
statutory analysis in this case is essentially a straight line from the first
sentence of KRS 39A.100 to the contents of KRS 39A.010. With the “plain
language” of these controlling statutes clear, “our inquiry ends.” Univ. of
Louisville v. Rothstein, 532 S.W.3d 644, 648 (Ky. 2017).
Confronted with this straightforward statutory construction route,
Plaintiffs and the Attorney General argue for a detour to the “Definitions for
KRS Chapters 39A to 39F” set forth in KRS 39A.020, in particular the
definition of “emergency.” KRS 39A.020(12) states:
“Emergency” means 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
25 “Etiological” is defined as “causing or contributing to the development of a
disease or condition.” Oxford English Dictionary Online, Etiological,
www.oed.com/view/Entry/3265 (accessed Oct. 28, 2020). The COVID-19 pandemic is
properly deemed both an etiological hazard as well as a biological hazard, the genesis
of the pandemic being a novel coronavirus.
33
and which a local emergency response agency determines
is beyond its capabilities.
(Emphasis added.)
Focusing on the closing phrase, Plaintiffs and the Attorney General argue
that the Governor was required to seek authority from local agencies in all 120
counties before declaring a state of emergency throughout the Commonwealth.
The Boone Circuit Court agreed with this argument and concluded that “a
certification by the local government that the matter is beyond its capabilities”
was required “before [an] emergency is declared.” While we do not find this
statutory detour appropriate under controlling principles of statutory
construction, following this route leads to the same result, namely express
statutory authority for the Governor to act as he did in declaring a state of
emergency.
First, we note that the grant of authority to the Governor in KRS 39A.100
does not reference the definition of “emergency” or in any way signal that in
declaring a state of emergency the Governor is limited by that definition. If the
General Assembly intended that important limitation on the Governor’s
authority it would have said so explicitly. Confronting a similar statutory
construction argument in Whitman v. American Trucking Associations, Inc., 531
U.S. 457 (2001), the United States Supreme Court, through Justice Scalia,
wrote “that textual commitment must be a clear one. Congress . . . does not
alter the fundamental details of a regulatory scheme in vague terms or
ancillary provisions–it does not, one might say, hide elephants in mouseholes.”
Requiring the Governor to consult with local emergency agencies in 120
34
counties would certainly “alter the fundamental details,” id., of the
straightforward emergency declaration authority in KRS 39A.100. Our General
Assembly did not direct the Governor (or any reader of the statute for that
matter) to the definition of “emergency” as a limitation on gubernatorial
authority, and we are not at liberty to add that language to the statute.
Stephenson, 182 S.W.3d at 171 (citing Commonwealth v. Harrelson, 14 S.W.3d
541, 546 (Ky. 2000)). Further, as the Governor notes, the term “declared
emergency,” is defined in relevant part as “any incident or situation declared to
be an emergency by executive order of the Governor.” KRS 39A.020(7).
Ultimately, the Governor’s power to declare a state of emergency is controlled
by KRS 39A.100 and, in this case, KRS 39A.010; these KRS 39A.020
definitions are not limitations on his authority.
Second, the term “local emergency response agency,” as used in the
aforementioned “emergency” definition is never defined in KRS Chapter 39A.
KRS 39A.020(15) has a definition for “local emergency management agency,”
KRS 39A.020(10) for “disaster and emergency response,” and KRS 39A.020(14)
for “local disaster and emergency services organization,” but “local emergency
response agency” appears nowhere in KRS Chapter 39A except that one
reference in the KRS 39A.020(12) definition of “emergency.”26 Assuming it is a
26 Indeed, the only other use of the term “local emergency response
agency/agencies” in the entire Kentucky Revised Statutes is in KRS 352.640, a statute
in the Mining Regulations chapter of Section XXVIII pertaining to Mines and Minerals.
This particular statute requires the development of an emergency action plan to be
used in the event of a mine emergency and requires the plan to include phone
numbers for various officials and agencies including “state, federal, and local
emergency response agencies.”
35
drafting error and the intended reference is to “local emergency management
agency,” the closest terminology discoverable, then KRS Chapter 39B, “Local
Emergency Management Programs” becomes relevant. This chapter deals with
the creation and operation of local emergency management agencies and
outlines their powers, authority and duties. Significantly, KRS 39B.010(5)
states:
All local emergency management agencies or local disaster and
emergency services organizations in the Commonwealth, and
the local directors, and members of each, shall, for all
purposes, be under the direction of the director of the
[D]ivision [of Emergency Management], and of the Governor
when the latter deems that action necessary.
(Emphasis added.)
Given that the Governor has ultimate authority “for all purposes,” id.,
over all local emergency management agencies, even if the detour to the
“emergency” definition in KRS Chapter 39A were justified, we would be
compelled to conclude the Governor had the authority to act without regard to
the determination of any local agency regarding whether the COVID-19
pandemic at hand was beyond its capabilities. The Governor is authorized to
assume the “direction” of those agencies and could simply deem it “necessary”
that they acknowledge that a pandemic is beyond their capabilities. KRS
While “local emergency response agency” is not defined and that whole term is
referenced only once in KRS 39A.020(12), a review of Chapters 39A and 39B provides
an idea of the various entities involved in emergency response. See KRS 39A.020(10),
KRS 39B.050(1)(f), KRS 39B.070(3). However, no indication exists that any of these
entities would assume a role larger than the emergency management director, see KRS
39B.020(3)(d), KRS 39B.030, 39B.030(7)(a), whose role in conjunction with elected
officials is further discussed below.
36
39B.010(5). This conclusion is further reinforced by KRS 39A.100(1)(a) which
empowers the Governor “to assume direct operational control of all disaster
and emergency response forces and activities in the Commonwealth.”27
Moreover, even if the focus on the statutory definition of “emergency”
urged by the Plaintiffs and the Attorney General led to the result they seek–a
limitation on the Governor’s emergency powers until he has consulted with
agencies in all 120 counties–we would be compelled to consider another
guiding principle of statutory construction. Courts must always presume that
the legislature did not intend for a statute to produce an absurd result. Layne
v. Newberg, 841 S.W.2d 181, 183 (Ky. 1992) (particular construction of statute
rejected because it “flies in the face of the stated purpose of the [Workers’
Compensation] Act”). As the extensive list in KRS 39A.010 reflects, numerous
natural and man-made events and occurrences can pose serious and
immediate danger to the Commonwealth and thus require a prompt and
effective response. The prospect that a Governor would need to consult with
and defer to 120 different local agencies before he or she could declare a
statewide emergency in the face of an immediate and fast-moving threat to the
entire Commonwealth strains rational understanding.
27 Also, factually significant for present purposes, as discussed below, the
General Assembly itself in 2020 Senate Bill 150 explicitly recognized the Governor’s
emergency declaration and provided that the Governor “shall declare” when the state
of emergency ceases, and if the declared emergency had not ceased “on or before the
first day of the next regular session of the General Assembly, the General Assembly
may make the determination.”
37
The amicus curiae emphasize that the Governor’s COVID-19 website
reflects that on March 9, 2020, three days after his declaration, Governor
Beshear called all 120 county-judge executives to update them and discuss
emergency management.28 Updating local officials is obviously different from
seeking 120 county-specific determinations of capability to cope with a
particular occurrence or event. And two questions arise. First, from whom
would the Governor seek that determination? The “emergency” definition does
not reference a local official, such as the county-judge executive or mayor, but
refers explicitly to a situation “which a local emergency response agency
determines is beyond its capabilities.” KRS 39A.020(12). Literally and again
assuming the drafting error discussed above, it would appear the
determination regarding local capabilities lies, at least in the first instance,
with the director of the local emergency management agency, see KRS
39B.030, not elected local officials.29 Second, is it logical that the General
Assembly would intend a patchwork approach to a statewide emergency? KRS
39A.020(12) seems to require individualized, local determinations so the
outcome of the Governor’s outreach under the Plaintiffs’ and Attorney General’s
28 See Kentucky’s Response to COVID-19, Kentucky Governor Andy Beshear,
https://governor.ky.gov/covid-19 (last updated Oct. 1, 2020).
29 Further complicating the matter is the fact that KRS 39A.100(2) gives
authority to declare a local emergency to the local executive officers, such as county
judge-executives, mayor of a city or urban-county government, or other local chief
executives as provided by ordinance. Also, KRS 39B.020 provides that the local
executive officer, e.g., county judge-executive, “shall appoint” the director of the local
emergency management agency and that director shall serve “at the pleasure of the
appointing authority.” So even if KRS 39A.020(12) requires a determination by the
emergency agency, arguably the local executive officer ultimately controls the decision.
38
theory would not be a simple “majority rules” approach but rather a county-by-
county approach, potentially leaving pockets of the Commonwealth under a
state of emergency while others are not. The confusion and inconsistency
brought about by this approach in the face of a threat to the entire state is
obvious.
That is not to say that the need for consultation with and deference to
local authorities is never appropriate. KRS 39A.010 refers to the legislative
intent to address “disasters or emergency occurrences which can range from
crises affecting limited areas to widespread catastrophic events.” Thus, for
“crises affecting limited areas” consultation with a “local emergency
management agency” would be entirely appropriate and necessary but for those
events or occurrences, such as a pandemic, which affect the whole of the
Commonwealth (indeed the nation and the globe) and require a prompt
response the necessity for consulting 120 county-level authorities is
problematic at best.
In sum, the Governor properly declared a state of emergency pursuant to
KRS 39A.100 because the COVID-19 pandemic constitutes the “occurrence” of
a biological and etiological hazard as delineated in KRS 39A.010. Any focus on
the specific definition of “emergency” in KRS 39A.020(12) is not appropriate
under principles of plain language construction, but if it were, it appears the
referenced “local emergency response agenc[ies]” are actually the local
emergency management agencies. Those agencies are “under the direction of
the [D]irector of the [D]ivision [of Emergency Management]” and, ultimately,
39
“the Governor when the latter deems that action necessary.” KRS 39B.010(5).
So even if the definition of “emergency” in some way altered or affected the first
sentence of KRS 39A.100, the result is the same. The Governor was not
required to consult with any local government, official, or agency in
determining that COVID-19 was a hazard justifying declaration of a state of
emergency for the entire Commonwealth.
II. During the Emergency, the Governor Has Exercised Executive Powers
But to the Extent, If Any, KRS Chapter 39A Grants Him Legislative
Authority, No Violation of the Separation of Powers Provisions of the
Kentucky Constitution Has Occurred, the General Assembly Having
Properly Delegated that Authority.
The Kentucky Constitution directs the separation of powers among the
legislative, executive and judicial branches, § 27, and prohibits any one branch
from exercising “any power properly belonging to either of the others, except in
the instances hereinafter expressly directed or permitted,” § 28. The Governor
maintains that in responding to the COVID-19 pandemic he has exercised
executive powers derived from the Kentucky Constitution and that KRS
Chapter 39A simply “recognizes, defines, and constrains” executive authority to
direct an emergency response. To the extent any of his actions could be
characterized as legislative, he notes that he is exercising authority lawfully
delegated to him by the General Assembly in KRS Chapter 39A.
The Attorney General seemingly acknowledges some role for the Governor
in the event of an emergency such as COVID-19 but generally insists that the
Governor’s response these last months via executive orders and emergency
regulations is an unconstitutional encroachment on legislative authority. In
40
advocating the striking of those portions of KRS Chapter 39A that permit the
Governor to exercise legislative authority, particularly KRS 39A.100(1)(j) and
KRS 39A.180(2), the Attorney General asks us to “use this case to restore the
original meaning of the Constitution’s separation of powers.”30 To the extent
we decline that invitation, he argues that the legislative authority in KRS
Chapter 39A has been improperly delegated to the Governor. As we consider
this argument, we do so guided by the presumption that the challenged
statutes were enacted by the legislature in accordance with constitutional
requirements. 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) (citing
Kentucky Indus. Util. Customers, Inc. v. Kentucky Utils. Co., 983 S.W.2d 493,
499 (Ky. 1998)). Ultimately, we conclude that the Governor is largely exercising
emergency executive power but to the extent legislative authority is involved it
has been validly delegated by the General Assembly consistent with decades of
Kentucky precedent, which we will not overturn.
30Citing, inter alia, Blackstone’s Commentaries on the Laws of England, John
Locke, and The Federalist Papers, the Attorney General emphasizes the historical and
philosophical underpinnings of the separation of powers principle. While these
sources provide context, this Court’s North Star is our own Kentucky Constitution, the
language used and the tripod structure erected for Kentucky government.
41
The current Kentucky Constitution, emanating primarily from the 1890
Constitutional Convention,31 does not address emergency occurrences or
events32 directly except as to military matters which are firmly assigned to the
Governor as the “commander-in-chief” of military affairs. § 75. Generally,
Section 69 vests the Governor with the “supreme executive power of the
Commonwealth” and Section 81 mandates the Governor “take care that the
laws be faithfully executed.” Also instructive for the present case, Section 80
provides that the Governor “may, on extraordinary occasions, convene the
General Assembly at the seat of government, or at a different place, if that
should have become dangerous from an enemy or from contagious
diseases . . . . When he shall convene the General Assembly it shall be by
proclamation, stating the subjects to be considered, and no other shall be
considered.”33
Although “extraordinary occasions” has been construed customarily to
allow special legislative sessions for reasons of immediate import relating to
31See generally Official Report of the Proceedings and Debates in the Convention
Assembled at Frankfort, on the Eighth Day of September 1890, to Adopt, Amend or
Change the Constitution of the State of Kentucky (1890).
32 “Emergency” only appears twice in the Kentucky Constitution. Section 55
provides that an act containing an emergency clause becomes effective upon the
Governor’s approval, rather than ninety days after adjournment of the session in
which passed. Section 158 allows cities, counties and taxing districts to exceed their
debt limit to cope with emergencies. “Extraordinary occasion” appears in the
Constitution only in Section 80, which provides the Governor “may, on extraordinary
occasions, convene the General Assembly.”
33 A similar provision has appeared in all four Kentucky Constitutions. See Ky.
Const. of 1891, § 83; Ky. Const. of 1850, art. 3, § 13; Ky. Const. of 1799, art. 3, § 14;
Ky. Const. of 1792, art. 2, § 3.
42
funding and other matters,34 it plainly extends to those events or occurrences
that qualify as a natural or man-made emergency, underscored by the “clue”
regarding the convening of the legislature somewhere other than Frankfort in
the event of an enemy or contagious diseases. Notably, Section 80 contains the
permissive “may . . . convene” as opposed to the mandatory “shall . . .
convene.” Even in times when the Commonwealth is confronted with
something extraordinary, to include enemies and contagious diseases, the
decision to convene the General Assembly in a special session is solely the
Governor’s.
The implied tilt of the Kentucky Constitution toward executive powers in
times of emergency is not surprising, given our government’s tripartite
structure with a legislature that is not in continuous session. At least two
commentators have opined that “[t]he sixty-day limit on biennial sessions was
the most significant restriction placed on the General Assembly by the [1890]
Constitutional Convention.” Sheryl G. Snyder & Robert M. Ireland, The
Separation of Governmental Powers under the Kentucky Constitution: A Legal
and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165, 181 (1984). Under
the 1792 and 1799 Kentucky Constitutions the General Assembly met
34 See, e.g., 2007 First Extraordinary Session (alternative energy policies,
appropriation of funds for capital projects and road construction, taxation of military
pay, pretrial diversion for substance abusers, and public employee insurance plans);
1997 First Extraordinary Session (postsecondary education and budget modifications);
1983 Extraordinary Session (flat rate tax on individual income, standard deduction
increase on personal income, and state-federal tax uniformity). Legislative Research
Commission, Extraordinary Session since 1940, https://legislature.ky.gov/Law/
Statutes/ Pages/KrsExtraOrdList.aspx (last visited Oct. 28, 2020).
43
annually with no restrictions on length of session, but under the 1850
Constitution that changed to biannual sixty-day sessions with power in the
body to extend the session on a two-thirds vote in each house, which they often
did. Id. So, before the 1890 Convention “the legislature had the power to hold
continuous sessions,” but “the framers of the present Constitution took that
power away . . . and, for the first time in the history of Kentucky, put an
absolute limit on the number of days the legislature could sit.” Id.
When the present Constitution was adopted in 1891, the Kentucky
General Assembly could only meet for sixty days every other year, Ky. Const. §
42, and the only power to call the legislature into an extraordinary session
resided in the Governor, Ky. Const. § 80. Even now after the 2000
constitutional amendments with the legislature convening annually, sessions
are limited to thirty legislative days in odd-numbered years, Ky. Const. § 36,
and sixty legislative days in even-numbered years, Ky. Const. § 42.35 2000 Ky.
Acts ch. 407, § 1, ratified November 2000. Moreover, the odd-numbered year
sessions cannot extend beyond March 30 and the even-numbered year
sessions cannot extend beyond April 15. Ky. Const. § 42. And the power to
convene in extraordinary session remains solely with the Governor. Ky. Const.
§ 80.
In 1966, 1969 and 1972 constitutional amendments were proposed that
35
would have amended the Constitution “to enable [the General Assembly] once again to
become ‘a continuous body,’ but each proposed amendment was defeated by the
people.” Snyder & Ireland, 73 Ky. L.J. at 182.
44
Having a citizen legislature that meets part-time as opposed to a full-time
legislative body that meets year-round, as some states have,36 generally leaves
our General Assembly without the ability to legislate quickly in the event of
emergency unless the emergency arises during a regular legislative session.
The COVID-19 pandemic arose during the latter part of the 2020 legislative
session, after the deadline for introducing a new bill, resulting in fourteen
proposed COVID-19 related amendments to existing bills, five of which
eventually passed.37 Most notably, Senate Bill 150, “AN ACT relating to the
36 Two states that have recently dealt with challenges to the authority of their
Governor/executive branch officials during the COVID-19 pandemic, Michigan and
Wisconsin, are examples. Pursuant to Michigan Constitution Article IV, Section 13,
the Michigan legislature begins its session in January each year and remains in
session year-round, with both the House and the Senate meeting an average of eight
days per month in 2020. The Michigan legislature was thus readily available to
address concerns presented by the pandemic. 2020 Session Schedule, Michigan
House of Representatives, https://www.house.mi.gov/PDFs/Current_Session_
Schedule.pdf (last visited Oct. 8, 2020); Session Schedule 2020, Michigan State
Senate, https://senate.michigan.gov/maincalendar.html (last visited Oct. 8, 2020).
The Wisconsin legislature meets annually, Wis. Stat. Ann. § 13.02, and was in session
this year from January 14, 2020 until May 13, 2020. Article V, Section 4 of the
Wisconsin Constitution authorizes the governor “to convene the legislature on
extraordinary occasions.” Additionally, Article IV, Section 11 provides that “[t]he
legislature shall meet at the seat of government at such time as shall be provided by
law,” a provision which has been construed to allow the legislature to convene itself in
an extraordinary session. League of Women Votes of Wisconsin v. Evers, 929 N.W.2d
209, 216 (Wis. 2019). Thus, the Wisconsin legislature also had the means to address
immediately any needed COVID-19 response.
37 Appendix B lists all COVID-19 related legislation introduced in the 2020
Session. Of the fourteen COVID-19-related amendments, five passed, the most
expansive of which was Senate Bill 150. This bill addresses COVID-19’s effects on the
Commonwealth by expanding unemployment benefits, facilitating and providing
protection for expanded healthcare efforts, and allowing the Governor or applicable
administrative bodies to suspend or waive business licensing, renewal, and application
fees during the state of emergency. In addition, it (1) pertains to state requirements
for tax filing and payment; (2) allows court-ordered counseling or education to be
conducted by video or telephone conferencing; (3) allows agricultural industry
employees to operate vehicles that would normally require a special operator’s license;
(4) permits food service establishments to sell food items like bread and milk and other
staple items to any customer; (5) suspends and tolls deadlines relating to hearings and
45
state of emergency in response to COVID-19 and declaring an emergency,”
acknowledged the Governor’s declared emergency and provided:
Notwithstanding any state law to the contrary, the Governor
shall declare, in writing, the date upon which the state of
emergency in response to COVID-19, declared on March 6,
2020, by Executive Order 2020-215, has ceased. In the event
no such declaration is made by the Governor on or before the
first day of the next regular session of the General Assembly,
the General Assembly may make the determination.
2020 S.B. 150, § 3. The legislature thereby signaled its awareness of the
emergency and that the Governor was undertaking to exercise the emergency
powers under KRS Chapter 39A. Thus, even within the confines of limited
legislative sessions, the timing of this particular emergency was such that the
legislature had a few weeks to pass bills related to the COVID-19 pandemic and
did so.
The Attorney General invites the Court to adopt a strict separation of
powers stance by identifying the Governor’s issuance of any rules, regulations
or orders in an emergency as exercises of non-delegable legislative power
(excepting only the Governor’s initial declaration of an emergency perhaps) and
then holding those emergency responses constitutionally invalid under
decisions in local legislative bodies, boards and commissions; (6) allows public
agencies ten days to respond to an open records request; (7) allows restaurants to sell
alcohol for carryout and delivery; (8) provides that businesses that manufacture or
provide personal protective equipment or personal hygiene supplies that do not do so
during their regular course of business shall have a defense to ordinary negligence
and product liability, so long as they act reasonably and in good faith; (9) allows the
State Board of Medical Licensure, Board of Emergency Medical Services, and Board of
Nursing to waive or modify licensure and scope of practice requirements and expand
medical students’ authority; and (10) allows individuals to be deemed in the presence
of one another for signatures, testimony, or notarization if they are communicating via
real time video conference.
46
Sections 27 and 28. We decline. First, our reading of the Kentucky
Constitution leaves us with no evidence that the powers at issue must be
deemed legislative. The “extraordinary occasion,” § 80, of a global pandemic
gives rise to an obvious emergency and, as noted, the Constitution impliedly
tilts to authority in the full-time executive branch to act in such
circumstances. Indeed, the Governor’s “commander-in-chief” status under
Section 75 reinforces the concept. Second, the structure of Kentucky
government as discussed renders it impractical, if not impossible, for the
legislature, in session for only a limited period each year, to have the primary
role in steering the Commonwealth through an emergency.
On this latter point, the Attorney General argues that Section 80 allows
the Governor to call an extraordinary session and thus “envisions that the
Governor will not go it alone during a crisis, but instead will work hand in
hand with the People’s representatives.” Again, the language of the section is
permissive not mandatory, leaving it to the Governor–also duly elected by the
People–whether the General Assembly should be convened. Moreover, the view
advocated by the Attorney General creates an obvious dilemma: if the Governor
is not empowered to adopt emergency measures because that constitutes
“legislation,” the Commonwealth is left with no means for an immediate,
comprehensive response because either the General Assembly is not in session
and cannot convene itself or even if in session it will have limited time to deal
with the matter under constitutionally mandated constraints on the length of
47
the session.38 So, our examination of the Kentucky Constitution causes us to
conclude the emergency powers the Governor has exercised are executive in
nature, never raising a separation of powers issue in the first instance.
Fortunately, the need to definitively label the powers necessary to steer
the Commonwealth through an emergency as either solely executive or solely
legislative is largely obviated by KRS Chapter 39A, “Statewide Emergency
Management Programs,” which reflects a cooperative approach between the two
branches. Plaintiffs and the Attorney General insist that the statute is in large
part unconstitutional, however, because it grants the Governor legislative
authority in violation of the nondelegation doctrine. We disagree.
We acknowledge, of course, that making laws for the Commonwealth is
the prerogative of the legislature. Addressing a statute that authorizes the
Governor to reorganize governmental bodies during the period between annual
legislative sessions, we recently observed, “[t]he legislative power we
understand to be the authority under the constitution to make the laws, and to
alter and repeal them.” Beshear v. Bevin, 575 S.W.3d 673, 682 (Ky. 2019)
(quoting Purnell v. Mann, 50 S.W. 264, 266 (Ky. 1899)). “The nondelegation
doctrine recognizes that the Constitution vests the powers of government in
three separate branches and, under the doctrine of separation of powers, each
38 This is particularly true in the case of an emergency that goes from an acute
stage to chronic, as is the case with a pandemic. Unlike an ice storm, wildfires or
other natural events which sweep across all or part of the state, leaving destruction,
but ending in a relatively short time, a biological/etiological hazard can hover for
weeks and even months.
48
branch must exercise its own power rather than delegating it to another
branch.” Id. at 681 (citing TECO Mech. Contractor, Inc. v. Commonwealth, 366
S.W.3d 386, 397 (Ky. 2012)). Nevertheless, we found KRS 12.028, at issue in
that case, to be a valid delegation of legislative power, recognizing that
legislative power can be delegated “if the law delegating that authority provides
‘safeguards, procedural and otherwise, which prevent an abuse of discretion’”
thereby “‘protecting against unnecessary and uncontrolled discretionary
power.’” Id. at 683 (citations omitted). Our holding was but one in a series of
Kentucky cases over several decades addressing the proper delegation of
legislative power.39
The United States Supreme Court in J.W. Hampton, Jr., & Co. v. United
States, 276 U.S. 394, 409 (1928) held that “[i]f Congress shall lay down by
legislative act an intelligible principle to which the person or body authorized to
[act] . . . is directed to conform, such legislative action is not a forbidden
delegation of legislative power.” (Emphasis added.) Recognition of the
delegation of legislative powers in Kentucky largely began with Commonwealth
v. Associated Industries of Kentucky, 370 S.W.2d 584, 586 (Ky. 1963): “We find
39 In the seminal case, Legislative Research Commission v. Brown, 664 S.W.2d
907, 930 (Ky. 1984), this Court addressed the Governor’s statutorily granted power to
reorganize state government between legislative sessions and concluded once the
General Assembly “determines that that power is in the hands of the Governor, such
interim action is purely an executive function.” However, in Beshear v.Bevin, 575
S.W.3d at 681-83, addressing the same statute but perceiving a factual distinction, a
majority of this Court concluded that the statute was a “grant of legislative authority
to the executive” and that the Governor was exercising legislative power. But see id. at
685 (VanMeter, J., concurring in result only) (“In my view, [the Governor] is exercising
his ‘executive power’ as authorized by the legislature and the Kentucky Constitution.”).
49
nothing in our State Constitution that declares explicitly: ‘Legislative power
may not be delegated.’” Noting the seminal role of John Locke in the
articulation of democratic principles and his insistence that the power to make
laws remain always in the hands of the legislature, the Court continued:
Locke believed that all human ideas, even the most complex
and abstract, ultimately depended upon ‘experience’ to
dedicate their truth . . . . So, if Locke was the fountainhead of
the thesis that power could not be delegated, we feel sure that
the experience of the last several centuries would have caused
him to repudiate this idea. Experience has demonstrated some
of the power must be invested in other bodies so that the
government may function in a world that progressively is
becoming more complex. There is nothing wrong with this so
long as the delegating authority retains the right to revoke the
power.
Id. at 588.40 More recently, in Board of Trustees of Judicial Form Retirement
System v. Attorney General, 132 S.W.3d 770, 781 (Ky. 2003), we recognized
“given the realities of modern rule-making” a legislative body “has neither the
time nor the expertise to do it all; it must have help.” (Citing Mistretta v. United
States, 488 U.S. 361, 372 (1989)). Examining the nondelegation doctrine
generally and finding the “intelligible-principle rule” instructive if somewhat
“toothless” in application by the federal courts, id. at 782-83, the Court
40 Even before Associated Industries of Kentucky, Kentucky courts recognized
the right of the legislature “to delegate to executive officers the power to determine
some fact upon which the act of the Legislature made or intended to make its own
action to depend.” Comm. ex rel Meredith v. Johnson, 166 S.W.2d 409, 415 (Ky. 1942)
(upholding statute that conferred upon the Governor the power to determine whether
an emergency exists and then upon such determination make expenditures from a
fund appropriated for that purpose). See also Ashland Transfer Co. v. State Tax
Comm., 56 S.W.2d 691, 697 (Ky. 1932) (upholding statute allowing highway
commission and county judges to reduce load and speed limits for trucks or prohibit
them altogether when necessary to prevent damage to roads “in order to protect the
public safety and convenience”).
50
reviewed several Kentucky cases wherein a delegation of legislative authority
was deemed unlawful because the “powers were granted without ‘legislative
criteria,’” Miller v. Covington Dev. Auth., 539 S.W.2d 1, 4-5 (Ky. 1976), or the
delegation lacked “standards controlling the exercise of administrative
discretion,” Legislative Research Comm’n v. Brown, 664 S.W.2d 907, 915 (Ky.
1984). The “unintelligible” legislative pension statute at issue in Judicial Form
Retirement failed for those reasons–lack of “an intelligible principle” and the
absence of any “standards controlling the exercise of administrative discretion.”
132 S.W.3d at 785.
In the case before us, the intelligible principle enunciated by the General
Assembly and the legislative criteria pertinent to the use of emergency powers
are set forth in KRS 39A.010 quoted above. In the event of any of those
multitude of threats, the Governor (and the Division of Emergency Management
and local emergency agencies) are authorized to take action “to protect life and
property of the people of the Commonwealth, and to protect public peace,
health, safety and welfare . . . and in order to ensure the continuity and
effectiveness of government in time of emergency, disaster or catastrophe . . . .”
In KRS 39A.100(1), the Governor is granted twelve enumerated “emergency
powers” including in subsection (j) the following: “Except as prohibited by this
section or other law, to perform and exercise other functions, powers, and
duties deemed necessary to promote and secure the safety and protection of
the civilian population.” Given the wide variance of occurrences that can
51
constitute an emergency, disaster or catastrophe, the criteria are necessarily
broad and result-oriented, “protect life and property . . . and . . . public
. . . health,” KRS 39A.010, allowing the Governor working with the executive
branch and emergency management agencies to determine what is necessary
for the specific crisis at hand. Floods, tornadoes and ice storms require
different responses than threats from nuclear, chemical or biological agents or
biological, etiological, or radiological hazards but the emergency powers are
always limited by the legislative criteria, i.e., they must be exercised in the
context of a declared state of emergency, KRS 39A.100(1); designed to protect
life, property, health and safety and to secure the continuity and effectiveness
of government, KRS 39A.010; and exercised “to promote and secure the safety
and protection of the civilian population.” KRS 39A.100(1)(j).
In addition, KRS Chapter 39A contains procedural safeguards to prevent
abuses. All written orders and administrative regulations promulgated by the
Governor “shall have the full force of law” upon the filing of a copy with the
Legislative Research Commission. KRS 39A.180(2).41 This provides the
41 Plaintiffs and the Attorney General object that the Governor has suspended
laws in violation of Section 15 of the Kentucky Constitution: “No power to suspend
laws shall be exercised unless by the General Assembly or its authority.” They insist
that suspensions are by their nature temporary and if an emergency continues at
length, as in the present COVID-19 pandemic, the prolonged suspension of laws is
invalid. However, the Governor is not suspending laws. His declaration of a state of
emergency triggers his authority under KRS 39A.090 to “make, amend, and rescind
any executive orders as deemed necessary” to carry out his responsibilities. The
legislature has in KRS 39A.180(2) provided that all “existing laws, ordinances, and
administrative regulations” that are inconsistent with KRS Chapters 39A to 39F or
with the orders or administrative regulations issued under the authority of those KRS
chapters “shall be suspended during the period of time and to the extent that the
conflict exists.” Thus, the General Assembly, not the Governor, has suspended the
52
requisite public notice. The duration of the state of emergency, at least the one
at issue in this case, is also limited by the aforementioned 2020 Senate Bill
150, Section 3, which requires the Governor to state when the emergency has
ceased but, in any event, allows the General Assembly to make the
determination itself if the Governor has not declared an end to the emergency
“before the first day of the next regular session of the General Assembly.” The
enunciation of criteria for use of the emergency powers, the timely, public
notice provided for all orders and regulations promulgated by the Governor and
the time limit on the duration of the emergency and accompanying powers all
combine to render KRS Chapter 39A constitutional to the extent legislative
powers are delegated.
Recently the Michigan Supreme Court, in a sharply divided opinion,
addressed two certified questions posed by the federal district court regarding
the Michigan Governor’s exercise of emergency powers under that state’s
Emergency Management Act of 1976 (EMA) and Emergency Powers of the
Governor Act of 1945 (EPGA). In re Certified Questions From United States Dist.
Court, W. Dist. of Michigan, S. Div., ___ N.W.2d ___, No. 161492, 2020 WL
5877599 (Mich. Oct. 2, 2020). The EPGA gave the Governor power, indefinite
in duration, to declare an emergency and issue “reasonable orders, rules, and
regulations as he or she considers necessary to protect life and property or to
laws. The statute has no time limitations on the length of the suspension and we will
not read in one that prohibits “prolonged” emergencies.
53
bring the emergency situation within the affected area under control.” MCL42
10.31(1). The majority concluded the “reasonable” and “necessary” standard
failed to provide sufficient guidance to the Governor regarding the exercise of
her powers and failed to constrain her actions “in any meaningful manner.”
Certified Questions, 2020 WL 5877599, at *17.
Finding the power delegated to be “of immense breadth and . . . devoid of
all temporal limitations,” id. at *18, the majority struck the statute as an
unlawful delegation of legislative power to the executive branch violative of the
Michigan Constitution’s separation of powers provision. Chief Justice
McCormack, writing for the three-justice minority, observed that the majority
departed from one part of their longstanding test for delegation of legislative
power, namely that “the standard must be as reasonably precise as the subject
matter requires or permits.” Id. at *41. Citing Gundy v. United States, ___ U.S.
___, 139 S. Ct. 2116, 2130 (2019), for the proposition that delegations of such
authority must give the delegee “the flexibility to deal with real-world
constraints,” she noted that “given the unpredictability and range of
emergencies the Legislature identified in the statute, it is difficult to see how it
could have been more specific.” Id. at *42.
Our case differs from the Michigan case in several important ways but
most notably our Governor does not have emergency powers of indefinite
duration, 2020 S.B. 150, § 3, and our legislature is not continuously in
42 Michigan Compiled Laws.
54
session, ready to accept the handoff of responsibility for providing the
government’s response to an emergency such as the current global pandemic.43
Moreover, with the breadth of potential emergencies identified in KRS 39A.010,
the standards of protection of life, property, peace, health, safety and welfare
(along with the “necessary” qualifier in KRS 39A.100(j)) are sufficiently specific
to guide discretion while appropriately flexible to address a myriad of real-
world events. While the authority exercised by the Governor in accordance
with KRS Chapter 39A is necessarily broad, the checks on that authority are
the same as those identified in Chief Justice McCormack’s dissenting opinion:
judicial challenges to the existence of an emergency or to the content of a
particular order or regulation; legislative amendment or revocation of the
emergency powers granted the Governor; and finally the “ultimate check” of
citizens holding the Governor accountable at the ballot box. Id. at *40.
Whatever import the principle of properly delegated legislative authority
has in the ordinary workings of government, its import increases dramatically
in the event of a statewide emergency in our Commonwealth. A legislature that
is not in continuous session and without constitutional authority to convene
itself cannot realistically manage a crisis on a day-to-day basis by the adoption
and amendment of laws.44 In any event, we decline to abandon approximately
43See n.36. Also, our Constitution does not allow the General Assembly to
convene itself in extraordinary session, that power resting solely in the Governor
pursuant to Section 80.
44 The amicus curiae President of the Senate appears not to have advocated the
same strict separation of powers, nondelegation position that the Attorney General
advances. The amicus curiae brief defines the sole issue presented by this case as:
“Did the Governor exceed the scope of the authority that the General Assembly
55
sixty years of precedent that appropriately channels and limits the delegation
of legislative power in Kentucky. Applying that delegation precedent, KRS
Chapter 39A passes muster as a constitutional delegation of power to the
extent any of the powers accorded to and exercised by the Governor are in fact
legislative.
In sum, the powers exercised by a Kentucky Governor in an emergency
are likely executive powers in the first instance given provisions of our
Kentucky Constitution, but to the extent those powers are seen as impinging
on the legislative domain, our General Assembly has wisely addressed the
situation in KRS Chapter 39A. That vital and often-used statutory scheme
validly delegates any legislative authority at issue to the Governor with
safeguards and criteria sufficient to pass constitutional muster.
III. KRS Chapter 13A Does Not Limit the Governor’s Authority to Act
Under the Constitution and KRS Chapter 39A in the Event of an
Emergency.
KRS Chapter 13A, “Administrative Regulations,” provides for the
promulgation of administrative regulations–defined in relevant part as a
“statement of general applicability . . . that implements, interprets, or
prescribes law or policy,” KRS 13A.010(2)–both in the ordinary course of state
government, KRS 13A.120, and in the event of an emergency, KRS 13A.190.
provided to him in KRS Chapter 39A by issuing his executive orders declaring an
emergency as a result of the novel coronavirus pandemic (COVID-19)?” The brief
focuses on the definition of “emergency” and need to consult local authorities. The
amicus also notes the legislature’s readiness to act if called into extraordinary session
pursuant to Section 80 “[i]f the Governor feels that existing laws do not provide him
with the tools needed to address COVID-19.”
56
Plaintiffs and the Attorney General challenge the executive orders and
regulations issued by the Governor as violative of KRS Chapter 13A. The
Governor maintains that KRS Chapter 39A by its plain terms controls in a
declared emergency, granting him the authority he has exercised but that if
any conflict is perceived then the more specific statutory enactment pertaining
to emergencies prevails. The plain language of the statutes supports the
Governor’s position. Rothstein, 532 S.W.3d at 648.
KRS 39A.100 recognizes the authority of the Governor to declare an
emergency and exercise the enumerated emergency powers. In furtherance of
that authority, KRS 39A.090 provides that “[t]he Governor may make, amend,
and rescind any executive orders as deemed necessary to carry out the
provisions of KRS Chapters 39A to 39F.” Nothing in the plain words used
requires consideration of KRS Chapter 13A or even requires promulgation of
regulations; the Governor can choose to act solely through executive orders.
The Governor may also promulgate regulations, however, as authorized by KRS
39A.180:
(2) All written orders and administrative regulations
promulgated by the Governor, the director, or by any political
subdivision or other agency authorized by KRS Chapters 39A
to 39F to make orders and promulgate administrative
regulations, shall have the full force of law, when, if issued by
the Governor, the director, or any state agency, a copy is filed
with the Legislative Research Commission, or, if promulgated
by an agency or political subdivision of the state, when filed in
the office of the clerk of that political subdivision or agency.
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
57
to 39F, shall be suspended during the period of time and to
the extent that the conflict exists.
(Emphasis added.) This statute plainly provides that the orders and
regulations issued pursuant to the emergency authority granted the Governor
in KRS Chapter 39A “shall have full force of law” upon filing with the
Legislative Research Commission (LRC), the same entity that compiles,
publishes and distributes administrative regulations generally. KRS 13A.050.
To the extent KRS Chapter 13A contains anything “inconsistent” with either
Chapter 39A or an order or regulation issued under the authority of that
chapter then the General Assembly has expressly directed that it “shall be
suspended during the period of time and to the extent that the conflict exists.”
KRS 39A.180(2). In short, while a state of emergency prevails the Governor can
issue executive orders he or she “deem[s] necessary,” KRS 39A.090, and can
also choose to promulgate regulations, all of which become effective upon filing
with the LRC.45
Simply put, the issue of reconciling KRS Chapter 39A with Chapter 13A
to the extent they are inconsistent never arises because the General Assembly
has given clear, unambiguous direction: KRS Chapter 39A controls over all
laws to the contrary. To the extent the Plaintiffs and the Attorney General raise
45 KRS Chapter 13A allows for the promulgation of “emergency administrative
regulations,” when necessary to “meet an imminent threat to public health, safety, or
welfare” or “protect human health and the environment.” KRS 13A.190(1). Those
emergency regulations “shall become effective and shall be considered adopted” upon
filing with the LRC. KRS 13A.190(2). Thus, KRS 39A.180(2) is consistent with the
emergency administrative regulations provision in KRS Chapter 13A.
58
procedural due process concerns of public notice and public comment46 with
respect to the issuance of executive orders and promulgation of regulations
pursuant to KRS Chapter 39A, those concerns have been adequately
addressed. Public notice of all orders and regulations has been provided
through the Governor’s websites, https://govstatus.egov.com/ky-healthy-at-
work and https://govstatus.egov.com/kycovid19. Public notice of the
executive orders is also given in the Executive Journal available online through
the Secretary of State, https://www.sos.ky.gov/admin/Executive/
ExecJournal/Pages. Additionally, the emergency regulations are available on
the legislature’s website, https://legislature.ky.gov/Law/kar/Pages/
EmergencyRegs.aspx. As for public input, the Healthy at Work website has a
portal that allows industry groups, trade associations and individual
businesses “to submit reopening proposals” and to discuss “strategies and
challenges they face in safely reopening.” Thus, opportunity for public
comment exists and public notice is virtually instantaneous, with all orders
and regulations easily accessible online.
In insisting that the Governor must use the regulatory process to affect
private rights, the Attorney General emphasizes our statement in Bowling v.
Department of Corrections, 301 S.W.3d 478, 491-92 (Ky. 2009): “Regulation is
KRS 13A.190 does not provide an opportunity for public comment on
46
emergency regulations, which are temporary in nature, just as the Governor’s
emergency orders and regulations are temporary.
59
. . . mandated by KRS 13A.100, which requires regulation if, as here, the
regulation will prescribe statements of general applicability which implement
laws . . . or affect private rights.” Missing from this argument is any
recognition that no state of emergency existed in Bowling, but, more
importantly, any acknowledgement of the General Assembly’s specific directive
in KRS 39A.180(2) that inconsistent laws, ordinances and regulations are
suspended by KRS Chapter 39A and the executive orders and regulations
issued pursuant thereto. We find nothing strange about the legislature giving
the Governor flexibility in the event of an emergency to act through either
executive orders or regulations, the former being more suited to immediate
response in the acute state of an emergency. In any event, both the childcare
COVID-19 restrictions and the face mask requirement have been promulgated
as emergency regulations.
In short, the General Assembly has answered this argument for us. KRS
39A.180(2) suspends any inconsistent laws. To the extent KRS Chapter 13A
requires more than KRS Chapter 39A, the regular process applicable to
administrative regulations has been displaced.
IV. The Specifically Challenged Orders and Regulations Are Not
Arbitrary Under Sections 1 and 2 of the Kentucky Constitution with
One Limited Exception No Longer Applicable.
Plaintiffs and the Attorney General both contend that the Governor’s
challenged orders and two emergency regulations violate Sections 1 and 2 of
the Kentucky Constitution. Section 1 provides that “[a]ll men are, by nature,
free and equal, and have certain inherent and inalienable rights” including
60
“[t]he right of acquiring and protecting property.” Section 2 states: “Absolute
and arbitrary power over the lives, liberty and property of freemen exists
nowhere in a republic, not even in the largest majority.” “Section 2 is broad
enough to embrace the traditional concepts of both due process of law and
equal protection of the law.” Kentucky Milk Mktg. & Antimonopoly Comm’n v.
Kroger Co., 691 S.W.2d 893, 899 (Ky. 1985) (citing Pritchett v. Marshall, 375
S.W.2d 253, 258 (Ky. 1963)). Unlike the previously discussed legal arguments
which are comprehensive attacks on all of the executive orders and regulations,
this constitutional argument requires consideration of each order or regulation
on an individual basis. The first consideration is the appropriate standard of
review.
Strict scrutiny applies to a statute challenged on equal protection
grounds if the classification used adversely impacts a fundamental right or
liberty explicitly or implicitly protected by the Constitution or discriminates
based upon a suspect class such as race, national origin, or alienage. Steven
Lee Enters. v. Varney, 36 S.W.3d 391, 394 (Ky. 2000); Clark v. Jeter, 486 U.S.
456, 461 (1988); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17
(1973). To survive strict scrutiny, the government must prove that the
challenged action furthers a compelling governmental interest and is narrowly
tailored to that interest. D.F. v. Codell, 127 S.W.3d 571, 575 (Ky. 2003) (citing
Varney, 36 S.W.3d at 394); Adarand Constructors, Inc. v. Pena, 515 U.S. 200,
227 (1995). Intermediate scrutiny, seldomly used, is generally used for
discrimination based on gender or illegitimacy. Codell, 127 S.W.3d at 575–76;
61
Varney, 36 S.W.3d at 394. Under this standard, the government must prove
its action is substantially related to a legitimate state interest. Id. (citing City of
Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 441 (1985)). Rational
basis scrutiny is used for laws not subject to strict or intermediate scrutiny.
Under this deferential standard, the challenger has the burden of proving that
the law is not rationally related to a legitimate government purpose. Hunter v.
Commonwealth, 587 S.W.3d 298, 304 (Ky. 2019). Pertinent to this case,
“[w]hen economic and business rights are involved, rather than fundamental
rights, substantive due process requires that a statute be rationally related to a
legitimate state objective.” Stephens v. State Farm Mut. Auto. Ins. Co., 894
S.W.2d 624, 627 (Ky. 1995).
Plaintiffs and the Attorney General both assert that the Governor’s orders
have arbitrarily invaded the fundamental right of acquiring and protecting
property guaranteed under Section 1 of the Kentucky Constitution. Although
they advance a “fundamental right” argument that would dictate strict scrutiny
analysis, they offer no precedent. Indeed, property rights, while enumerated in
the Kentucky Constitution, have never been regarded as fundamental rights
impervious to any impingement by the state except for restrictions that can
pass strict scrutiny. As the United States Supreme Court stated in Nebbia v.
New York, 291 U.S. 502, 524, 527-28 (1934):
These correlative rights, that of the citizen to exercise exclusive
dominion over property and freely to contract about his affairs, and
that of the state to regulate the use of property and the conduct of
business, are always in collision.
62
....
The Constitution does not guarantee the unrestricted
privilege to engage in a business or to conduct it as one pleases.
Certain kinds of business may be prohibited and the right to
conduct a business, or to pursue a calling, may be conditioned.
In Nourse v. City of Russellville, 78 S.W.2d 761, 764 (Ky. 1935), this Court
echoed that concept:
The right of property is a legal right and not a natural right, and it
must be measured by reference to the rights of others and of the
public. In Mansbach Scrap Iron Co. v. City of Ashland, 235 S.W.2d
968, 969 (Ky. 1930), we wrote: “The Bill of Rights grants no
privileges. It conserves them subject, however, to the dominant
rights of the people as a whole.”
(Internal citation omitted.) Significantly, “[t]he conservation of public health
should be of as much solicitude as the security of life. It is an imperative
obligation of the state, and its fulfillment is through inherent powers.” Id.
Accordingly, as discussed below, Kentucky courts have always upheld
restrictions on property rights that are reasonable, particularly in the all-
important area of public health.
With no precedent for applying strict scrutiny, Plaintiffs and the Attorney
General advocate intermediate scrutiny, but again Kentucky law does not
support that heightened level of constitutional review. Addressing the case law
they believe supportive of their position, we begin with City of Louisville v.
Kuhn, 145 S.W.2d 851 (Ky. 1940), a case examining an ordinance that dictated
the hours barbershops could be open for business. The Court began by noting
the breadth of the police power exercised for the “public weal and for its
betterment,” which “if conditions demand it, would approve complete
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prohibitive legislation of some activities, or in certain areas if based upon
sufficient reasons.” Id. at 853. Further, “whatever direction or phase that the
legislation may take–whether of a prohibitory or regulatory character–it must
not exceed or go beyond the limits of reasonability, or be rested upon assumed
grounds for which there is no foundation in fact, nor may the legislation as
enacted be more destructive of the interest of the public at large than
beneficial.” Id. In striking the barbershop ordinance, the Court concluded the
restrictions were “unreasonable.” Id. at 856. In short, while health reasons
justified licensing barbers and certain restrictions, the hours of operation were
not reasonably related to any legitimate governmental purpose.
Similarly, in Adams, Inc. v. Louisville & Jefferson County Board of Health,
439 S.W.2d 586 (Ky. 1969), apartment complex owners challenged an
ordinance applicable to their private swimming pools. The Court succinctly
observed: “There is perhaps no broader field of police power than that of public
health. The fact that its exercise impinges upon private interests does not
restrict reasonable regulation.” Id. at 589-90.
Under these conceptions of general subordination of private
rights to public rights, we have no doubt that the city may
enact laws to preserve and promote the health, morals,
security, and general welfare of the citizens as a unit, and has
a broad discretion in determining for itself what is harmful and
inimical. It is sufficient if the municipal legislation has a real,
substantial relation to the object to be accomplished, and its
operation tends in some degree to prevent or suppress an
offense, condition, or evil detrimental to a public good or
reasonably necessary to secure public safety and welfare.
The community is to be considered as a whole in the matter of
preservation of the health of all inhabitants, for a failure by a
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few to conform to sanitary measures may inflict ill health and
death upon many.
Id. at 590 (quoting Nourse, 78 S.W.2d at 765).
The Court observed “while all swimming pools may present some
common health hazards which would reasonably require the same regulatory
safeguards, in certain areas the dissimilarity in prevailing conditions would
make the application of a single standard inappropriate, unrealistic and
unreasonable.” Id. at 592. Given the nature of apartment complex swimming
pools, the Court found the requirement of a lifeguard and pool attendant at all
times, as well as shower facilities and separate gender-based entrances to be
unreasonable. The Court struck part of the regulation but importantly for our
purposes it stated, “insofar as public health is concerned, private property may
become of public interest and the constitutional limitations upon the exercise
of the power of regulation come down to a question of ‘reasonability.’” Id. at
590 (citing Kuhn, 45 S.W.2d 851).
The other cases relied on by Plaintiffs and the Attorney General to insist
intermediate scrutiny applies are similarly unavailing. In Kentucky Milk
Marketing, 691 S.W.2d at 893, the Court found that the challenged statute was
a minimum retail mark-up law applicable to milk and milk products, rather
than an anti-monopoly law, and struck it as “inimical to the public interest . . .
an invasion of the right of merchants to sell competitively, and of the public to
buy competitively in the open market.” Id. at 900. The Court began its Section
2 discussion by noting in part, “[t]he question of reasonableness is one of
65
degree and must be based on the facts of a particular case.” Id. at 899.
Kentucky Milk Marketing involved no health and safety regulations, nor did it
employ intermediate scrutiny.
In Ware v. Ammon, 278 S.W. 593 (Ky. 1925), a statute that prohibited
any business from advertising as a dry-cleaning business without first
obtaining a license from the state fire marshal was held unconstitutional as to
a particular proprietor who offered pressing and repairs onsite but did not
perform the actual dry cleaning on his business premises. The ordinance was
premised on the health and safety issues posed by the presence of flammable,
volatile substances used in dry cleaning and there being none on Mr.
Ammons’s premises the statute was “unreasonable and void” as to him and
others similarly situated. Id. at 595. He could advertise as a dry cleaner.
Again, the Court focused on whether the means adopted were “reasonably
necessary to accomplish” the government’s purpose and whether the law
“impos[ed] unreasonable restrictions on a lawful occupation.” Id.
A comprehensive review of Kentucky case law leaves no doubt that under
Section 2 of our Constitution, laws and regulations directed to public health
and safety are judged by their reasonableness. In Graybeal v. McNevin, 439
S.W.2d 323, 325-26 (Ky. 1969), a case involving fluoridation of a city’s water
supply, this Court stated:
Among the police powers of government, the power to promote
and safeguard the public health ranks at the top. If the right of
an individual runs afoul of the exercise of this power, the right
of the individual must yield.
66
On the issue of arbitrariness, the burden was on the plaintiff to
show that the regulation had no reasonable basis in fact or
had no reasonable relation to the protection of the public
health.
(Emphasis added.) In upholding the city’s resolution to fluoridate its water
pursuant to a state regulation, the Graybeal Court examined the credentials
and testimony of both sides’ witnesses at the bench trial and “the studies,
tests, experiences, and recommendations of practically all the people and
organizations into whose care the health of this nation has been entrusted”
before concluding the plaintiff had “failed in his burden to prove the resolution
was arbitrary.” Id. at 331. The Court prefaced its holding that arbitrary
exercises of public health powers are subject to judicial restraint but they
“would have to be palpably so to justify a court in interfering with so salutary a
power and one so necessary to the public health.” Id. at 326. That principle
has been reflected in our Kentucky case law for decades. See, e.g., Lexington-
Fayette Cty. Food & Bev. Ass’n v. Lexington-Fayette Urban Cty. Gov’t, 131
S.W.3d 745 (Ky. 2004) (upholding smoking ban as reasonable health regulation
and noting public health interest is preferred over property interests).
Particularly apropos to the matter before us is the United States
Supreme Court’s decision in Jacobson v. Massachusetts, 197 U.S. 11, 27
(1905), the case in which Massachusetts’ mandatory vaccination law, enacted
in the face of a growing smallpox epidemic, was challenged. Noting that “of
paramount necessity, a community has the right to protect itself against an
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epidemic of disease which threatens the safety of its members,” the Supreme
Court held:
[I]n every well-ordered society charged with the duty of
conserving the safety of its members the rights of the individual
in respect of his liberty may at times, under the pressure of
great dangers, be subjected to such restraint, to be enforced by
reasonable regulations, as the safety of the general public may
demand.
Id. at 29 (emphasis added). Just recently in the midst of the global COVID-19
pandemic, in South Bay United Pentecostal Church v. Newsom, __U.S.__, 140 S.
Ct. 1613, 1613-14 (Mem. 2020), Chief Justice John Roberts acknowledged the
broad latitude accorded executive action in times such as these:
The precise question of when restrictions on particular social
activities should be lifted during the pandemic is a dynamic
and fact-intensive matter subject to reasonable disagreement.
Our Constitution principally entrusts “[t]he safety and the
health of the people” to the politically accountable officials of
the States “to guard and protect.” Jacobson v. Massachusetts,
197 U.S. 11, 38, 25 S. Ct. 358, 49 L. Ed. 643 (1905). When
those officials “undertake[ ] to act in areas fraught with medical
and scientific uncertainties,” their latitude “must be especially
broad.” Marshall v. United States, 414 U.S. 417, 427, 94 S. Ct.
700, 38 L. Ed. 2d 618 (1974). Where those broad limits are not
exceeded, they should not be subject to second-guessing by an
“unelected federal judiciary,” which lacks the background,
competence, and expertise to assess public health and is not
accountable to the people. See Garcia v. San Antonio
Metropolitan Transit Authority, 469 U.S. 528, 545, 105 S. Ct.
1005, 83 L. Ed. 2d 1016 (1985).
That is especially true where, as here, a party seeks emergency
relief in an interlocutory posture, while local officials are
actively shaping their response to changing facts on the
ground.
Fully satisfied that the individual orders and regulations at issue in this
case are only deficient under Sections 1 and 2 of the Kentucky Constitution if
68
they are unreasonable–that is lack a rational basis47–we address only those
individual orders and regulations that have been specifically challenged.
Preliminarily, we note that by the time the Boone Circuit Court conducted an
evidentiary hearing, some of the challenged restrictions had changed. Also, the
trial court did not address the specific allegations of arbitrariness individually,
but dealt with the claims as a whole stating, “[B]ased upon the
disproportionate treatment meted out to different businesses versus that
allowed for substantially similar activities,[48] the Court also finds Plaintiffs and
Intervening Plaintiffs have made sufficient showing that the challenged orders
violate Section 2 of the Kentucky Constitution as an attempt to exert ‘[a]bsolute
and arbitrary power over the lives, liberty and property’ of Kentucky citizens.”
Our analysis is focused, as it must be, on individual orders and regulations.
And, we examine the record to determine whether Plaintiffs and the Attorney
General have met their burden of showing the challenged orders and
regulations lack a rational basis and thus are unconstitutional. Johnson v.
Comm. ex rel Meredith, 165 S.W.2d 820, 823 (Ky. 1942) (“So, always the burden
47 The Attorney General argues intermediate or heightened scrutiny is
particularly appropriate here because the orders are the result of the Governor’s
judgment alone, rather than the legislature’s after a bicameral process. He points to
no authority for this proposition and we find none that dictates a more stringent
standard than reasonableness/rational basis in these circumstances.
48 The trial court Order states: “Plaintiffs insist that Defendants have presented
no rational basis for the harshly disproportionate restrictions placed upon racetracks,
daycares and cafes as compared to similarly situated activities such as baseball,
auctions, and LDC’s.” It is not clear which standard of scrutiny the trial court used;
the trial court also stated that “[I]t appears at this stage of the proceedings, that the
challenged orders were neither constitutionally enacted nor narrowly tailored.”
69
is upon one who questions the validity of an Act to sustain his contentions.”);
Hunter, 587 S.W.3d at 304.
A. Little Links’s Allegations
Little Links’s declaratory and injunctive action stems from the June 15,
2020 Healthy at Work: Requirements for Childcare.49 Center-based childcare
programs, like Little Links, were closed on March 20, 2020. To fill the
childcare void for health care workers and first responders LDCs were
permitted to open. When center-based childcare programs were permitted to
reopen on June 15, 2020, some regulations differed from the LDCs which were
continuing to operate but were scheduled to be phased out by the end of
August. Thus, the center-based childcare programs and the LDCs’ remaining
operation period overlapped for about two and one-half months.
Little Links alleges three particular rules arbitrarily impose demands that
are detrimental to survival of its business. Little Links complains that in
contrast to LDCs, all other childcare programs must utilize a maximum group
size of ten children per group, a significant limitation on the business’s ability
to be profitable. Rather than being limited to a specific maximum group size,
the LDCs have capacity limitation of one child per thirty square feet.50 Second,
49 The Governor’s June 15, 2020 order incorporated the Healthy at Work
requirements. The Healthy at Work: Requirements for Childcare Programs addressed
the requirements for in-home childcare programs, which opened June 8, and center-
based childcare programs, which opened June 15.
50 Pursuant to 922 KAR 2:120, for Kentucky childcare center premises typically,
“[e]xclusive of the kitchen, bathroom, hallway, and storage area, there shall be a
minimum of thirty-five (35) square feet of space per child.” When emphasizing the
difference in the capacity limits for LDCs vis-a-vis regular childcare programs, the
Attorney General misapplies the building restriction, noting one witness had a 43,500
70
LDCs do not have the restriction that children must remain in the same group
of ten children all day without being combined with another classroom. Little
Links views this rule as arbitrary, interpreting it to not allow children of the
same household to be grouped in the evening despite the children leaving the
center in the same vehicle. Lastly, because programs may not provide access
to visitors after hours Little Links cannot conduct tours for prospective clients.
Plaintiffs’ witnesses testified about these disparities and the negative impact on
a childcare facility’s business viability.
Dr. Sarah Vanover, Director of Kentucky’s Division of Childcare, testified
about the rule creation for the LDCs and the June 15 reopening of the center-
based childcare programs. As to the LDCs, when it became obvious that
childcare centers were going to be closed, her office began the background
research to put emergency licensure in place, contacting several coastal
“hurricane” states to obtain copies of their emergency licenses and
applications. At that time, many hospitals were looking at creating pop-up
centers on site to make sure their employees had the childcare coverage that
they needed, given many childcare options were no longer available. LDCs
were created specifically to serve the needs of hospital staff and first
responders. Given the understanding of the pandemic at the time childcare
facilities closed, and the critical need to keep childcare available to essential
square foot playground, allowing 4,000 square feet per child “a limit untethered to
science or reality” and hypothesizing that if it were an LDC it could serve well over
1,000 children. The childcare square footage limitation applies to buildings, not
playgrounds.
71
employees, the LDCs were implemented using other states’ emergency
regulations as a guide. All centers which became LDCs were already a licensed
type 1 center or certified program, meaning they already knew how childcare in
Kentucky worked.
LDCs had fewer restrictions in order to open. Unlike the typical
childcare regulations,51 but like other states’ emergency regulations, a specific
maximum group size was not listed.52 LDCs were required to have two adults
present in each classroom and to divide children by age groups. Dr. Vanover
testified that the many business closures at the time played a role in the adult
to child ratio limitation. At the point LDCs opened, most businesses in the
community were not open. Families using LDCs were leaving home, dropping a
child off at childcare, going to work (as health care workers or first responders),
and after work, picking up the child and going home. Consequently, the
opportunity to contract the virus in different locations was very limited. Plus,
many hospitals added their own restrictions, such as having their staff change
out of their scrubs and into different clothes before picking their child up and
entering the LDC to make sure that they were not spreading germs from the
high-risk environment that they had been in. Dr. Vanover testified many LDCs
51 Dr. Vanover explained ordinarily the maximum group size for preschool
children is 28, with an adult to child ratio of 1 to 14.
52 A memorandum from the Cabinet, Office of Inspector General, entered into
evidence during Christine Fairfield’s July 16, 2020 testimony stated that each LDC
location should have 30 square feet per child.
72
added other restrictions to make sure that the children were staying healthy
and safe.
Dr. Vanover explained that some LDCs were allowed to stay open past
June 15 because the state was having difficulty making sure there would be
enough care for all of the hospital staff’s children when childcare centers
reopened. No effort was made to revise the LDC requirements as the economy
began to reopen because LDCs were phasing out at that point, with a planned
expiration at the end of August.
Dr. Vanover testified that she helped to create the childcare reopening
plan, performing background work in April and May. She and other state
personnel participated in the Childcare Council of Kentucky’s virtual meetings
for childcare providers and advocates and heard questions and concerns of
childcare center directors throughout the state; she visited LDCs to see
procedures employed beyond those prescribed by the state; she contacted other
states that had already opened or that never closed childcare, collecting
information on what group sizes they used, what things had and had not been
successful, and the relative spread of illness; and the Division of Childcare
extensively reviewed CDC guidelines for childcare centers open during the
pandemic to make sure that Kentucky followed the best health practices.
Dr. Vanover agreed that a CDC online document providing guidance for
childcare programs that remain open did not expressly state that children
73
should be in small groups.53 She explained, however, that in multiple CDC
phone calls for state administrators the CDC emphasized that having a smaller
group size as well as having the children stay in those small groups was
beneficial to the children. Many states chose a group size of ten to see if it
would be a small enough number to stop the virus spread, with the intent later
to enlarge the number. Kentucky followed that example in its reopening plan,
and in an emergency regulation effective September 1, 2020 increased the child
care group size to fifteen. 922 KAR 2:405E.
As to the requirement that children in different groups should not be
combined, Dr. Vanover stated she knows of no public health reason that
siblings should not be combined within the center at the end of the day.54 Dr.
Stack testified similarly. Dr. Vanover noted that the regulation applies to
combining groups, it does not specifically address siblings. Thus, this issue
appears to be a misunderstanding of the regulation because it does not
prohibit grouping siblings at the end of the day.55
53 The CDC guidance was entered as an exhibit during the July 16, 2020
evidentiary hearing. According to the supplemental guidance, it was updated April 21,
2020.
54 Under normal regulations, age group combinations are restricted in that
children under the age of two and above the age of two may be combined for a
maximum of one hour per day, which is typically the first half hour of the day and the
last half hour of the day based on the number of children left in the building.
55 Witness Jennifer Washburn also described as problematic not being able to
combine at the end of the day siblings who are in separate classes. Neither Fairfield
nor Washburn testified that a state official advised them they could not combine
siblings at the end of the day. Witness Bradley Stevenson testified that the primary
concerns in the childcare industry at that point were the group size restriction of ten
and being able to combine children before and after school.
74
Dr. Vanover also explained that in regard to the restriction on tours, with
contact tracing in mind, the general idea was to restrict visitors to make sure
that children and staff in the center had the minimal exposure possible to
others who may have been exposed to the virus. Access was restricted to staff;
children currently enrolled; those who would need legal access to the building,
such as first responders; those needed for necessary repairs in the building;
and therapeutic professionals. The plan was always to adjust going forward
based upon the containment or spread of the virus. We note that effective
September 1, 2020 childcare facilities were allowed to resume tours for
prospective clients. 922 KAR 2:405E.
Dr. Stack also testified that because children are not always compliant,
other interventions are necessary which reduce density, increase hygiene, and
if disease were to spread, enable other methodologies to contain it quickly,
such as cohorting and keeping smaller groups. Consequently, if one cohort of
a group of ten has a problem, that does not necessitate shutting down the
whole facility. As to not allowing siblings to be grouped at the beginning and
end of the day, Dr. Stack stated that separating a family from itself is not one
of the vehicles the state is using to reduce virus risk. He acknowledged that
the LDC and childcare reopening group size rules were different because
knowledge about COVID-19 evolved and the state environment was a different
place in March when most people had to stay healthy at home as compared to
June as the broader community reopened.
75
Plaintiffs point to the differences between LDCs and the reopened
childcare program requirements, both of which are meant to keep children and
staff safe, and argue that if the lesser requirements serve that function, more
stringent requirements are arbitrary. However, the record reflects the two
programs were developed under different circumstances with different
foundations of evolving knowledge. The LDCs were literally emergency
childcare for healthcare workers and first responders in the very early days of
the pandemic with regulations based on successful emergency childcare
centers in other states. LDCs were limited to children of essential workers at a
time when society was generally closed down, continued providing care when it
was unclear that sufficient childcare would be available without them and now
have evolved to provide temporary emergency childcare for nontraditional
instuction during traditional school hours. When regular Kentucky childcare
facilities generally reopened in June 2020, the group sizes and the tour
restrictions for these centers were based on articulated public health reasons,
i.e., efforts to limit the spread of disease as society in general was reopening.
These facilities reopened serving the general population at a time when the
potential for disease spread had increased. Thus, Plaintiffs failed to meet their
burden of establishing that either of these challenged childcare restrictions
lack a reasonable basis, standing alone or in comparison with LDC regulations.
On the contrary, the record amply reflects a rational basis for both of them. As
for the grouping of siblings, as noted above, the regulation does not prevent
siblings being grouped together at the end of the day.
76
B. Florence Speedway’s Allegations
Next, Florence Speedway complains that the June 1, 2020 Healthy at
Work: Requirements for Automobile Racing Tracks56 contains arbitrary
provisions, those being: (1) only allowing authorized employees and essential
drivers and crews on the premises when indoor facilities like restaurants and
bowling alleys are allowed 33% capacity; (2) limiting its food service to “carry-
out only” when restaurants are permitted to operate at 33% capacity indoors;
and (3) requiring PPE with no exceptions, which prevents it from complying
with the Americans with Disabilities Act.57 Because this was at a time when it
was not permitted to have fans, Florence Speedway indicated that it was willing
to space spectators six feet from people of a different household. By the time
the Boone Circuit Court conducted an evidentiary hearing for the injunction
request and issued its order, however, the requirements directly challenged
had all changed. When Florence Speedway amended its motion for a
temporary injunction, it did not challenge the capacity requirement in effect
but, as a business reliant on family attendance, objected to the social
distancing requirement which did not allow household members to sit within
six feet of one another. Florence Speedway argued the six-foot social
56The Governor’s June 3, 2020 order, incorporating the Healthy at Work
requirements, made them effective June 1, 2020.
57 The order actually provided: “Racetracks should ensure employees and racing
crews wear appropriate face coverings at all times practicable . . . .” The requirements
state that for employees who are isolated with more than six feet of social distancing,
face coverings are not necessary at all times.
77
distancing requirement was arbitrary as household members maintain close
proximity to each other throughout everyday life.
As noted above, on June 22, 2020, the requirements for restaurants were
amended, allowing an increase from 33% to 50% indoor dining capacity. On
June 29, 2020, the public-facing businesses order was amended to allow
venues and event spaces, including Florence Speedway, to reopen to the
public.58 The amendment allows 50% of the maximum capacity permitted at a
venue, assuming all individuals can maintain six feet of space between them
with that level of occupancy. Additionally, if the venues operate any form of
dining service, those services must comply with the requirements for
restaurants and bars. On July 10, 2020, the emergency mask regulation
provided a number of exemptions for the wearing of face coverings, one
exemption being for “[a]ny person with disability, or a physical or mental
impairment, that prevents them from safely wearing a face covering.”
58 The Healthy at Work: Requirements for Venues and Event Spaces applied to,
among other businesses, “professional and amateur sporting/athletic stadiums and
arenas.”
During the July 1, 2020 hearing of Plaintiffs’ motion for a temporary restraining
order, Governor’s counsel explained that Florence Speedway’s capacity complaint was
moot because the June 29 Healthy at Work order allowed it to open at 50% capacity.
In response to Florence Speedway’s concern that a footnote in the order suggested
differently, Governor’s counsel clarified that Florence Speedway was able to open at
50% capacity and offered to amend the order to address Florence Speedway’s concern.
A revised order was issued, effective July 10, 2020. The July 10 order maintained the
six-foot social distancing requirement for individuals. Florence Speedway, its business
relying on family attendance, testified at the July 16 injunction hearing about the
negative business impact of not being allowed to have family members sit within six
feet of each other. Effective July 22, 2020, the social distancing requirement for
venues and event spaces was amended to “[a]ll individuals in the venue or event space
must be able to maintain six (6) feet of space from everyone who is not a member of
their household.”
78
Except for the claim related to the inability of household members to sit
within six feet of one another, which we discuss further below, the succeeding
orders made Florence Speedway’s initial claims of arbitrariness moot by the
time the trial court entered its July 20 order. Of course, one exception to the
mootness doctrine is the “capable of repetition, yet evading review” exception.
Philpot v. Patton, 837 S.W.2d 491, 493 (Ky. 1992). Under this exception,
Kentucky courts consider “whether (1) the ‘challenged action is too short in
duration to be fully litigated prior to its cessation or expiration and (2) there is
a reasonable expectation that the same complaining party would be subject to
the same action again.’” Id. (quoting In re Commerce Oil Co., 847 F.2d 291, 293
(6th Cir. 1988)). However, the Florence Speedway’s claims of arbitrariness as
to the June 1, 2020 Healthy at Work: Requirements for Automobile Racing
Tracks do not meet the criteria for the “capable of repetition, yet evading
review” exception. The nature of this case, a public health pandemic, is
extraordinary and evolving knowledge of the virus results in evolving
responses. Consequently, this is not the usual case of a challenged action
being too short in duration to be fully litigated prior to its cessation or
expiration. And given the advancement of knowledge of COVID-19 and the
ongoing attempts to balance that knowledge with keeping the economy open,
no reasonable expectation exists that Florence Speedway will again be subject
to the initially challenged business restrictions. In terms of Florence
Speedway’s challenge against the social distancing requirement which did not
79
allow family members to sit within six feet of one another, we conclude that
requirement was arbitrary.
During the July 16 hearing, Dr. Stack testified about the public health
concerns related to sporting events. He said sporting events are particularly
concerning because people are often shouting and cheering, which leads to an
increased spread of the respiratory droplets that transmit the virus. This
enhanced risk exists even outdoors due to the shouting and cheering. Also,
eating and drinking increase saliva and spread respiratory droplets and
consuming food and drink is not compatible with mask wearing. However, he
agreed no medical or public health reason would prohibit household members
sitting together at an event space and acknowledged that household seating
had been permitted in other activities. Effective July 22, 2020, the social
distancing requirement for venues and event spaces was amended to “[a]ll
individuals in the venue or event space must be able to maintain six (6) feet of
space from everyone who is not a member of their household.” Based on Dr.
Stack’s testimony, we must conclude that there was not a rational basis for the
social distancing requirement initially imposed on Florence Speedway. Given
that the social distancing requirement was amended six days after the
injunction hearing, Florence Speedway has now received the relief which it
sought.
80
C. Beans Cafe’s Allegations
Beans Cafe originally sought a declaration that certain provisions of the
May 22, 2020 Healthy at Work: Requirements for Restaurants59 are arbitrary.
It complained that the requirement that employees wear PPE whenever they are
near other employees or customers (so long as such use does not jeopardize the
employee’s health or safety) is not uniformly applied. Beans Cafe also alleged
little scientific basis exists for requiring cloth facemasks, rendering the
requirement arbitrary. The cafe challenged as arbitrary and capricious the
order limiting restaurants to 33% indoor capacity and requiring six feet of
distance between customers, noting these requirements make it difficult, if not
impossible, for restaurants to make a profit. Beans Cafe also contends that it
is arbitrary not to allow customers to sit back-to-back at tables with a three-
and-one-half foot distance between the customers.
As indicated above, effective June 29, 2020, in the Healthy at Work:
Requirements for Restaurants and Bars, the social distancing requirements for
restaurants changed to a 50% capacity limit or the greatest number that
permits individuals not from the same household to maintain six feet of space
between each other with that level of occupancy. The PPE mask provisions
stayed the same. However, the emergency mask regulation went into effect
July 10, 2020. Based on the changes in regulations, the only issues remaining
are whether a rational basis exists for requiring the six-foot social distancing
59 The Governor’s May 22, 2020 order incorporated the Healthy at Work
requirements.
81
and face coverings. Beans Cafe seeks an amendment in the six-foot social
distancing requirement because that requirement, despite being allowed 50%
capacity, reduces the business’s seating capacity to about 30%.
Although the July 10, 2020 emergency mask regulation is more detailed
than the May 22, 2020 face mask provision, the requirement that employees
must wear face masks when they are near other employees or customers (so
long as such use does not jeopardize the employee’s health or safety) is
reflected in 902 KAR 2:190E60 Section (2), subsections (2)(a) and (4)(b), which
requires any person in a restaurant (when not seated and consuming food or
beverage) to wear a face covering when within six feet of another, unless that
individual is of his household; the face covering provision does not apply when
a person has a disability that prevents them from safely wearing a face
covering. As identified in 902 KAR 2:190E, KRS 214.020, the Cabinet for
Health and Family Services’s broad police powers for dealing with contagious
60 902 KAR 2:210E replaced 902 KAR 2:190E effective August 7, 2020 at 5:00
p.m. Related to this case, 902 KAR 2:210E changed the non-compliance penalties.
The penalties are described below.
82
diseases,61 KRS 211.025,62 and KRS 211.180(1)63 provide a rational basis for
the face covering and the social distancing measure which Beans Cafe
challenges. In addition, Dr. Stack testified during the evidentiary hearing
regarding the scientific basis for the six-foot social distancing requirement and
wearing face coverings to prevent the spread of COVID-19, a highly contagious
respiratory disease. Beans Cafe’s citation to a study questioning the efficacy of
cloth masks does not in any way negate the established rational basis for these
public health measures.64
61 KRS 214.020 states:
When the Cabinet for Health and Family Services believes that
there is a probability that any infectious or contagious disease will invade
this state, it 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 or diseases within this state,
and to accomplish these objects shall establish and strictly maintain
quarantine and isolation at such places as it deems proper.
62 KRS 211.025 states:
Except as otherwise provided by law, the cabinet shall administer
all provisions of law relating to public health; shall enforce all public
health laws and all regulations of the secretary; shall supervise and
assist all local boards of health and departments; shall do all other
things reasonably necessary to protect and improve the health of the
people; and may cooperate with federal and other health agencies and
organizations in matters relating to public health.
63 KRS 211.180(1) states:
The cabinet shall enforce the administrative regulations
promulgated by the secretary of the Cabinet for Health and Family
Services for the regulation and control of the matters set out below . . .
including but not limited to the following matters: (a) Detection,
prevention, and control of communicable diseases, . . . .
64The Boone Circuit Court cited to the study but declined to rely on it as not
being subject to judicial notice. The title of the study indicates it compared cloth
masks to medical masks in healthcare workers.
83
In regard to Beans Cafe’s allegation that it was arbitrary not to allow
customers to sit back-to-back at tables with a three and one-half foot distance
between them, Dr. Stack testified to the reasoning behind measures used in
restaurants to mitigate spread of the virus. He first noted that eating and
drinking increases saliva and spreads respiratory droplets because people do
not wear masks while consuming food and drink. In terms of the six-foot
spacing requirement for restaurant and bars, there is an exception for booth
seating when there is a plexiglass barrier, as long as the barrier effectively
separates the opposite side. The physical barrier is of added value and in
theory prevents virus spreading easily back and forth. Dr. Stack contrasted
that to the very different situation when people are sitting back-to-back with
three-foot distance between them in the middle of an open restaurant, when
people generally turn and move around, an environment where the virus can
easily spread. On this restriction, Beans Cafe essentially had nothing more
than an allegation of arbitrariness while Dr. Stack’s testimony establishes a
rational basis for this public health measure.
Finally, face masks. As this case progressed to the injunction hearing,
Plaintiffs expressed that they were willing to require their employees and
customers to wear masks, a fact noted by the Boone Circuit Court in its Order.
However, they objected to the business closure penalty that could result if they
did not enforce the mask requirement on their premises. Plaintiffs argue that
the July 10, 2020 statewide mask regulation, 902 KAR 2:190E, which they
84
describe as requiring businesses in violation of the regulation to be
immediately shut down, violates due process.
Pertinently, 902 KAR 2:190E Section 3, Non-Compliance, provides:
(2) Any person who violates this Regulation by failing to
wear a face covering while in a location listed in Section 2 and
not subject to any of the listed exemptions shall receive a
warning for the first offense, a fine of fifty dollars ($50) for the
second offense, seventy five dollars for the third offense, and
one hundred dollars for each subsequent offense.[65]
Additionally, if the person is violating this Regulation by
attempting to enter a public-facing entity or mode of
transportation listed in Section 2 while failing to wear a face
covering and not subject to any of the exemptions listed, they
shall be denied access to that public-facing entity or mode of
transportation. If a person is already on the premises and
violates this Regulation by removing a face covering, they shall
be denied services and asked to leave the premises, and may be
subject to other applicable civil and criminal penalties.
(3) Any owner, operator or employer of a business or
other public facing entity who violates this Regulation by
permitting individuals on the premises who are not wearing a
65 902 KAR 2:210E revised the penalty section to read:
A person who violates this administrative regulation by failing to wear a
face covering as required by Section 2(2) of this administrative regulation
and who is not exempt pursuant to Section 2(3) of this administrative
regulation shall be given a warning for the first offense and shall be
fined:
1. Twenty-five (25) dollars for the second offense;
2. Fifty (50) dollars for the third offense;
3. Seventy-five (75) dollars for the fourth offense; and
4. $100 for each subsequent offense.
At a September 8, 2020 meeting of the Administrative Regulation Review
Subcommittee, the face mask regulation, 902 KAR 2:210E, was the subject of
public comment by several witnesses. After the comments, a subcommittee
member made a motion to declare the emergency regulation deficient. A
deficiency motion is the vehicle the subcommittee uses to request that the
Governor withdraw an emergency regulation in accordance with KRS 13A.190.
The motion failed. 902 KAR 2:210E: Covering the Face in Response to Declared
National Or State Public Health Emergency – Committee Review of Effective
Regulations, Admin. R. Review Subcomm. (Sept. 8, 2020) (minutes available at
https://apps.legislature.ky.gov/minutes/adm_regs/200908OK.PDF).
85
face covering and are not subject to any exemption shall be
fined at the rates listed in section 3(2). The business may also
be subject to an order requiring immediate closure.
While the Plaintiffs argue that the closure penalty for non-compliance is
arbitrary due to lack of procedural due process, they do not identify any among
themselves who has been threatened with a fine, fined, threatened with
closure, or closed pursuant to 902 KAR 2:190E. As recently explained in
Commonwealth Cabinet for Health & Family Services, Department for Medicaid
Services v. Sexton by & through Appalachian Regional Healthcare, Inc., 566
S.W.3d 185, 195 (Ky. 2018), in order for Kentucky courts to have constitutional
jurisdiction to decide a claim, the litigant must have standing. Standing is
achieved when “[a] plaintiff . . . allege[s] a personal injury fairly traceable to the
defendant’s allegedly unlawful conduct and [which is] likely to be redressed by
the requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984), overruled on
other grounds by Lexmark Intern., Inc. v. Static Control Components, Inc., 572
U.S. 118 (2014). The injury must be a distinct and palpable injury that is
actual or imminent. Id. at 751; Massachusetts v. EPA, 549 U.S. 497, 517, 127
S. Ct. 1438, 1453 (2007) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,
578 (1992)). Here, because the Plaintiffs’ injury is only hypothetical, they have
failed to show the requisite injury for adjudication of their claim related to 902
KAR 2:190E’s business closure penalty. Additionally, because the Plaintiffs
have not raised a case or controversy, Commonwealth v. Bredhold, 599 S.W.3d
409, 417 (Ky. 2020), a declaration of rights is not available to the Plaintiffs
under 902 KAR 2:190E. See also KRS 418.040; Veith v. City of Louisville, 355
86
S.W.2d 295 (Ky. 1962). Finally, while it is clear that the Cabinet has broad
police powers to enforce its public health measures, Plaintiffs are not without
recourse if they were to become subject to a fine or business closure and chose
to challenge it. Just as in the present case, the courts are always open when
citizens believe the government has overstepped.
Although not a challenge to a specific individual order or regulation, the
Attorney General also has challenged the Governor’s orders as arbitrary
because they have not been geographically tailored on a county-by-county or
regional basis, but have employed a “one-size-fits-all-approach.” He notes, at
least early on, some areas of Kentucky had no reported COVID-19 cases.
However, given Dr. Stack’s testimony about COVID-19’s introduction and quick
spread to the United States and evolving knowledge of its method of
transmission, the Attorney General has failed to show how the Governor’s
orders dealing with a previously unknown viral pathogen were not rationally
related to mitigation of its spread. In fact, COVID-19 has now spread to all 120
Kentucky counties and all areas of the Commonwealth even with prompt and
proactive public health measures.66
In summary, KRS 214.020 reflects the Cabinet’s broad police powers
(and the Governor’s in conjunction with the Cabinet in the event of an
emergency) to adopt measures that will prevent the introduction and spread of
infectious diseases in this state. While a global pandemic is unprecedented for
66 See Kentucky Cabinet for Health and Family Services, COVID-19 Daily
Reports, https://chfs.ky.gov/Pages/cvdaily.aspx (last visited Nov. 1, 2020).
87
all but those who were alive during the 1918 influenza epidemic,67 the
measures employed to deal with the spread of COVID-19, including business
closure, are not unprecedented in our Commonwealth. See Allison v. Cash,
137 S.W. 245 (Ky. 1911) (smallpox epidemic in Lyon County grounds for
closing millinery shop). Courts have long recognized the broad health care
powers of the government will frequently affect and impinge on business and
individual interests. As the United States Supreme Court recognized in
Jacobson, 197 U.S. at 26,
But the liberty secured by the Constitution of the United States
to every person within its jurisdiction does not import an
absolute right in each person to be, at all times and in all
circumstances, wholly freed from restraint. There are manifold
restraints to which every person is necessarily subject for the
common good. On any other basis organized society could not
exist with safety to its members. Society based on the rule that
each one is a law unto himself would soon be confronted with
disorder and anarchy. Real liberty for all could not exist under
the operation of a principle which recognizes the right of each
individual person to use his own, whether in respect of his
person or his property, regardless of the injury that may be
done to others.
Here, except for the initial social distancing requirement at Florence
Speedway which violates Section 2, the challenged public health measures do
67 University of Michigan Center for the History of Medicine, American Influenza
Epidemic of 1918-1919: Louisville, Kentucky, https://www.influenzaarchive.org
/cities/city-louisville.html#. The influenza death toll in Kentucky during that
epidemic is estimated between 14,000-16,000. Worldwide it is estimated that at least
50 million died, with about 675,000 deaths occurring in the United States. Jack
Welch, The Mother of All Pandemics, Louisville Magazine (Aug. 16, 2020, 11:03 a.m.,
originally appeared in Oct. 2009 issue), https://www.louisville.com/content/mother-
all-pandemics; Centers for Disease Control and Prevention, 1918 Pandemic (H1N1
virus), https://www.cdc.gov/flu/pandemic-resources/1918-pandemic-h1n1.html.
(Sources last visited Nov. 1, 2020.)
88
not violate Sections 1 and 2 of the Kentucky Constitution. A rational basis
exists for the other orders and regulations, all of which are reasonably designed
to contain the spread of a highly contagious and potentially deadly disease. As
to Florence Speedway, its social distancing complaint regarding household
seating has been remedied with a subsequent executive order that became
effective six days after the July 16 injunction hearing.
V. The Writ Action is Moot and Plaintiffs Have Not Established that
They Are Entitled to the Requested Injunctive Relief.
This particular action, 2020-SC-0313, began as an original action
seeking a writ against the Court of Appeals’ judge who had denied writ relief
following the issuance of the Boone Circuit Court’s July 2, 2020 restraining
order. Typically a restraining order remains in place until and not after (a) the
time set for a hearing on a motion to dissolve the order, (b) entry of a temporary
injunction or (c) entry of final judgment. CR 65.03. A hearing was held on
Plaintiffs’ and the Attorney General’s request for a temporary injunction and
the Boone Circuit Court prepared a July 20, 2020 temporary injunction order,
granting the relief requested, but our July 17 stay order precluded entry of any
such order until this Court addressed the COVID-19 emergency issues raised
in that and other pending cases. With the presentation of a temporary
injunction ready for entry, the writ action as presented is now moot and by
virtue of this Court’s stay order this case has essentially evolved into an appeal
of the temporary injunction order.
A temporary injunction may be issued by the trial court when the
plaintiff has shown irreparable injury, that the various equities involved favor
89
issuance of the relief requested and that a substantial question exists on the
merits. Maupin v. Stansbury, 575 S.W.2d 695, 697 (Ky. App. 1978). “Although
not an exclusive list, [in balancing the equities] 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.” Id. To grant relief,
a trial court must conclude “that an injunction will not be inequitable, i.e., will
not unduly harm other parties or disserve the public.” Price v. Paintsville
Tourism Comm’n, 261 S.W.3d 482, 484 (Ky. 2008). To satisfy the “substantial
question” prong of the temporary injunction analysis, the trial court must
determine there is a “substantial possibility” that the plaintiff “will ultimately
prevail on the merits.” Norsworthy v. Kentucky Bd. of Medical Licensure, 330
S.W.3d 58, 63 (Ky. 2009) (emphasis added). A trial court’s order granting
injunctive relief is reviewed for abuse of discretion. Price, 261 S.W.3d at 484.
“The test for abuse of discretion is whether the trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Here, the trial court concluded that at least two of the Plaintiffs, Little
Links and Florence Speedway, had established irreparable injury to their
respective business interests. Even if we accept those findings for purposes of
review, injunctive relief is still not justified in this case. As our discussion of
the four legal challenges reflects, there is not a “substantial possibility” that
Plaintiffs and the Attorney General “will ultimately prevail on the merits.”
90
Norsworthy, 330 S.W.3d at 63. Additionally, the equities weigh against the
grant of a temporary injunction.
Plaintiffs and the Attorney General argue that the injunction serves the
public interest because the Governor’s orders have caused economic hardships
and burdened the constitutional rights of citizens. In their view, the injunction
will allow Kentuckians to reestablish control over critical aspects of their lives.
We conclude that the greater public interest lies instead with the public health
of the citizens of the Commonwealth as a whole. The global COVID-19
pandemic threatens not only the health and lives of Kentuckians but also their
own economic interests; the interests of the vast majority take precedence over
the individual business interests of any one person or entity. While we
recognize and appreciate that the Plaintiffs allege injuries to entire industries in
the state, such as the restaurant and childcare industries, the interests of
these industries simply cannot outweigh the public health interests of the state
as a whole.
The Governor’s orders were, and continue to be, necessary to slow the
spread of COVID-19 and protect the health and safety of all Kentucky citizens.
This type of highly contagious etiological hazard is precisely the type of
emergency that requires a statewide response and properly serves as a basis
for the Governor’s actions under KRS Chapter 39A. Because the law and
equities favor the Governor in this matter, it was an abuse of discretion for the
trial court to issue the temporary injunction.
91
CONCLUSION
Upon finality of this Opinion, the stay entered July 17, 2020 shall be
lifted as to any affected cases challenging the Governor’s COVID-19 response
and those cases may proceed consistent with this Opinion. As to the Boone
Circuit Court litigation, the July 20, 2020 Order that has been held in
abeyance is reversed and this matter is remanded to that Court for further
proceedings, if any, consistent with this Opinion.
All sitting. All concur.
92
COUNSEL FOR PETITIONER,
HONORABLE ANDREW BESHEAR,
IN HIS OFFICIAL CAPACITY AS
GOVERNOR:
Steven Travis Mayo
La Tasha Arnae Buckner
Samuel Robert Flynn
Joseph Anthony Newberg
Taylor Allen Payne
Laura Crittenden Tipton
Office of the Governor
COUNSEL FOR PETITIONERS,
ERIC FRIEDLANDER, IN HIS
OFFICIAL CAPACITY AS SECRETARY
OF THE KENTUCKY CABINET FOR
HEALTH AND FAMILY SERVICES; DR.
STEVEN STACK, IN HIS OFFICIAL
CAPACITY AS COMMISSIONER OF THE
KENTUCKY DEPARTMENT FOR PUBLIC
HEALTH; THE KENTUCKY CABINET FOR
HEALTH AND FAMILY SERVICES; AND
THE KENTUCKY DEPARTMENT FOR
PUBLIC HEALTH:
Wesley Warden Duke
David Thomas Lovely
Cabinet for Health and Family Services
Office of Legal Services
COUNSEL FOR REAL PARTIES
IN INTEREST, FLORENCE SPEEDWAY,
INC.; RIDGEWAY PROPERTIES, LLC,
D/B/A BEANS CAFE & BAKERY; AND
LITTLE LINKS LEARNING, LLC:
Christopher David Wiest
93
COUNSEL FOR REAL PARTY IN
INTEREST, HONORABLE DANIEL J.
CAMERON, IN HIS OFFICIAL CAPACITY
AS ATTORNEY GENERAL:
Heather Lynn Becker
Barry Lee Dunn
Marc Edwin Manley
Stephen Chad Meredith
Brett Robert Nolan
Aaron John Silletto
Office of the Attorney General
COUNSEL FOR AMICUS CURIAE,
ROBERT STIVERS, IN HIS OFFICIAL
CAPACITY AS PRESIDENT OF THE
KENTUCKY SENATE:
David Earl Fleenor
Office of the Senate President
94
APPENDIX A
Declarations of Emergency from 1996 to present
Date:* Order Related to:
Number:
1. 1/8/1996 1996-0037 Severe winter storms
2. 3/21/1996 1996-0359 Severe winter storms
3. 4/22/1996 1996-0501 Heavy rainfall and storms
4. 5/30/1996 1996-0689 Severe weather tornadoes
5. 7/23/1996 1996-0970 Active Duty Order – severe weather
6. 3/3/1997 1997-0267 Severe storms and record rainfall
7. 12/10/1997 1997-1610 Active Duty Order – severe winter storms
Monroe County
8. 2/10/1998 1998-0159 Winter storm
9. 2/18/1998 1998-0189 Winter storm
10. 7/30/1998 1998-1014 Threat to public health water
contamination in Auburn
11. 9/16/1998 1998-1252 Threat to public health water
contamination in Logan County
12. 9/16/1998 1998-1268 Sawdust fire
13. 9/17/1998 1998-1159 Critical need for hay due to drought
14. 8/20/1999 1999-1159 Severe drought and fire season
15. 10/11/1999 1999-1377 Failure of water treatment system
16. 11/18/1999 1999-1542 Contaminated water
17. 1/5/2000 1998-0012 Severe weather
18. 1/26/2000 2000-0019 Ohio County water tank failure
19. 2/21/2000 2000-0245 Severe thunderstorms
20. 5/11/2000 2000-0563 Menifee Co. & Frenchburg water loss from
storage tanks
21. 5/30/2000 2000-0620 Grayson County severe storms
22. 10/16/2000 2000-1347 Water contamination
23. 11/6/2000 2000-1427 Forest fires
24. 12/14/2000 2000-1582 Collapse of water tank in Pineville
25. 1/22/2000 2000-0085 Vicco water tank failure
26. 6/4/2001 2001-0683 Laurel County storm damage
27. 6/12/2001 2001-0718 Rockport water plant failure
28. 8/7/2001 2001-0996 Severe storms
29. 8/20/2001 2001-1059 Severe storms
30. 9/5/2001 2001-1137 Dixon water line leakage
31. 9/5/2001 2001-1138 Elkhorn flooding
32. 9/21/2001 2001-1139 Changing weight limits for trucks due to
petroleum shortage
33. 11/2/2001 2001-1361 Fire danger due to wind and drought
34. 2/1/2002 2002-0133 Severe storms and tornadoes+
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Date:* Order Related to:
Number:
35. 2/1/2002 2002-0134 Water supply shortages
36. 3/21/2002 2002-0326 Heavy rainfall, flooding, and power
outages
37. 4/29/2002 2002-0483 Severe storms and tornadoes
38. 6/18/2002 2002-0686 Authorizing combining the Natural
Resources and Environmental Protection
Cabinet and the Department of Military
Affairs during a state of emergency
39. 6/18/2002 2002-0687 Authorizing combining resources of the
Kentucky National Guard and other state
agencies during a state of emergency
40. 6/18/2002 2002-0688 Authorizing support of the Kentucky
National Guard
41. 6/18/2002 2002-0689 Authorizing combining the Kentucky
National Guard and other agencies in
preparation for a seismic disaster
42. 6/18/2002 2002-0690 Authorizing combining the Kentucky
National Guard and the Division of
Forestry in preparation for forest fires
43. 6/18/2002 2002-0691 Authorizing the Kentucky National Guard
to work on anti-drug operations
44. 12/6/2002 2002-1343 Dangerous levels of Manganese in the
Hawesville water supply
45. 2/16/2003 2003-0150 Winter storm
46. 3/25/2003 2003-0284 Flood damage in Murray
47. 5/13/2003 2003-0459 Severe storms
48. 6/19/2003 2003-0617 Severe storms
49. 8/26/2003 2003-0875 Severe storms
50. 5/28/2004 2004-0536 Strong spring storms in Central Kentucky
– tornadoes, flooding, heavy rainfall
51. 7/20/2004 2004-0780 Severe thunderstorms in Central
Kentucky
52. 9/16/2004 2004-1019 Remnants of Hurricane Ivan moving into
Kentucky
53. 12/23/2004 2004-1368 Winter storm; heavy snow and ice,
freezing rain
54. 12/29/2004 2004-1371 Winter storm
55. 8/30/2005 2005-0927 Remnants of Hurricane Katrina moving
across Kentucky
56. 11/7/2005 2005-1230 Extreme fall storms in Western Kentucky
57. 11/16/2005 2005-1255 Extreme fall storms in Western Kentucky
58. 12/21/2005 2005-1368 Winter storms across Kentucky
59. 1/4/2006 2006-0006 Severe storms across Kentucky
60. 4/3/2006 2006-0361 Severe weather; power outages across
Kentucky
61. 9/29/2006 2006-1250 Extreme fall storms across Kentucky
96
Date:* Order Related to:
Number:
62. 1/17/2007 2007-0063 Train derailment in Bullitt County; state
of emergency applies to entire
Commonwealth
63. 2/28/2007 2007-0179 Water emergency in Knott County and
City of Hindman
64. 4/9/2007 2007-0291 Additional funding required for Kentucky
State Police
65. 4/13/2007 2007-0298 Threat of failure of the Wolf Creek Dam
66. 4/25/2007 2007-0336 Severe weather in Eastern Kentucky; state
of emergency applies to entire
Commonwealth
67. 7/27/2007 2007-0610 Failure of the Wolf Creek Dam
68. 10/4/2007 2007-0819 Extreme drought conditions; also
prohibited open burning
69. 10/23/2007 2007-0868 Drought conditions in Kentucky
70. 2/6/2008 2008-0124 Intense thunderstorms and tornadoes
71. 4/16/2008 2008-0332 Strong thunderstorms across the
Commonwealth
72. 6/27/2008 2008-0597 Strong storms in Indiana; order to provide
assistance
73. 7/7/2008 2008-0678 Biohazard released in the federal prison in
McCreary County
74. 8/29/2008 2008-0923 To support Louisiana’s preparation efforts
for Hurricane Gustav
75. 9/10/2008 2008-0959 To support Texas’s preparation efforts for
Hurricane Gustav
76. 9/10/2008 2008-0960 To support Louisiana’s preparation efforts
for Hurricane Gustav
77. 9/15/2008 2008-0974 Conditions in the Commonwealth
resulting from Hurricane Ike
78. 10/10/2008 2008-1056 Water emergency in Magoffin County
79. 11/12/2008 2008-1182 Damage relief caused by drought
80. 1/27/2009 2009-0098 Snow and ice storm across Kentucky
81. 2/20/2009 2009-0158 State of emergency in Marshall County
related to young men on a capsized boat
that were not yet located
82. 5/11/2009 2009-0432 Strong storms in Central and Eastern
Kentucky
83. 8/11/2009 2009-0756 Strong storms in North Central and
Eastern parts of Kentucky
84. 12/21/2009 2009-1207 Strong winter storms in Central and
Eastern parts of Kentucky
85. 1/6/2010 2010-0026 Water shortage in Perry County due to
water line break
86. 5/3/2010 2010-0286 Strong storms in Central and Eastern
Kentucky
97
Date:* Order Related to:
Number:
87. 7/19/2010 2010-0621 Flash flood in Pike and Shelby Counties
88. 7/21/2010 2010-0633 Severe thunderstorms in Pike and Shelby
Counties
89. 7/21/2010 2010-0634 Severe thunderstorms in Carter, Fleming,
Lewis and Rowan Counties
90. 11/4/2010 2010-0909 Drought conditions
91. 4/25/2011 2011-0274 Strong spring storms across the
Commonwealth
92. 6/21/2011 2011-0474 Strong storms in eastern Kentucky
93. 9/9/2011 2011-0711 Drought; U.S. Sec. of Agriculture
designated several areas in southwestern
part of the U.S. as disaster areas
94. 2/6/2012 2012-0088 Water loss in Harlan County
95. 2/24/2012 2012-0139 Collapse of a ferry bridge in Trigg County
96. 3/3/2012 2012-0154 Severe weather across the Commonwealth
– tornadoes, hurricane force winds
97. 3/3/2012 2012-0156 Emergency authority for pharmacists in
certain counties (dispense 30-day
emergency supply of medication,
administer immunizations to children;
dispense drugs as needed to respond to
circumstances of emergency)
98. 3/5/2012 2012-0157 Amended emergency order pertaining to
severe weather
99. 3/5/2012 2012-0158 Severe weather across the Commonwealth
– commercial motor vehicles transporting
relief supplies exempt from fees for
overweight vehicles
100. 3/5/2012 2012-0159 Added additional counties to list of
emergency authority for pharmacists (see
2012-0156)
101. 3/6/2012 2012-0180 “ ”
102. 3/7/2012 2012-0186 “ ”
103. 3/8/2012 2012-0190 “ ”
104. 3/14/2012 2012-0196 Adjustment of insurance related rules and
regulations on a temporary and short-
term basis
105. 3/29/2012 2012-0234 Authority for pharmacists – No additional
counties have declared a state of
emergency
106. 6/27/2012 2012-0486 Drought conditions across the
Commonwealth
107. 10/29/2012 2012-0889 Hurricane Sandy; render mutual aid
108. 4/25/2013 2013-0264 Strong storms across the Commonwealth
109. 2/17/2015 2015-0118 Severe winter storm across the
Commonwealth
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Date:* Order Related to:
Number:
110. 2/17/2015 2015-0120 Emergency authority for pharmacists –
severe winter storm
111. 2/24/2015 2015-0134 Emergency authority for pharmacists –
severe winter storm
112. 3/6/2015 2015-0151 Severe winter storm across the
Commonwealth
113. 3/6/2015 2015-0152 Severe winter storm across the
Commonwealth – commercial motor
vehicles transporting relief supplies
exempt from fees for overweight vehicles
114. 4/6/2015 2015-0224 Severe storm fronts across the
Commonwealth
115. 7/14/2015 2015-0473 Severe storms across the Commonwealth
116. 7/14/2015 2015-0480 Amended order pertaining to severe
storms across the Commonwealth
117. 7/14/2015 2015-0481 Second amended order pertaining to
severe storms across the Commonwealth
118. 1/25/2016 2016-0034 Severe winter storms across the
Commonwealth
119. 7/8/2016 2016-0502 Severe storms across the Commonwealth
120. 11/3/2016 2016-0792 Drought conditions across the
Commonwealth
121. 12/22/2016 2016-0917 Montgomery County – extremely high
levels of arsenic
122. 3/6/2017 2017-0138 Severe storms across the Commonwealth
123. 2/26/2018 2018-0137 Severe storms across the Commonwealth
124. 2/25/2019 2019-0164 Severe storms across the Commonwealth
125. 3/4/2019 2019-0184 Severe storms across the Commonwealth
126. 2/7/2020 2020-0136 Heavy rain across the Commonwealth;
flooding and landslides
127. 3/6/2020 2020-0215 COVID-19
Price gouging:
Date:* Order Related to:
Number:
1. 8/31/2005 2005-0943 Prohibition against price gouging (related
to Hurricane Katrina)
2. 11/8/2005 2005-1235 Prohibition against price gouging (related
to extreme storms in Crittenden, Hart,
Henderson and Webster Counties – but
prohibition applies to entire state)
3. 9/12/2008 2008-0967 Prohibition against price gouging (related
to Hurricane Ike in Louisiana)
4. 1/28/2009 2009-0099 Prohibition against price gouging (related
to winter storms across the
Commonwealth)
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Date:* Order Related to:
Number:
5. 5/13/2009 2009-0446 Prohibition against price gouging (related
to severe storms in several counties)
6. 12/21/2009 2009-1212 Prohibition against price gouging (related
to winter storms in several counties in
Central and Eastern Kentucky)
7. 5/3/2010 2010-0287 Prohibition against price gouging (related
to severe storms across the
Commonwealth)
8. 7/21/2010 2010-0633 Prohibition against price gouging in Pike
and Shelby Counties (related to severe
storms)
9. 4/26/2011 2011-0279 Prohibition against price gouging (related
to severe storms across the
Commonwealth)
10. 3/3/2012 2012-0155 Prohibition against price gouging (related
to severe storms across the
Commonwealth)
11. 2/17/2015 2015-0119 Prohibition against price gouging (related
to severe storms across the
Commonwealth)
12. 7/14/2015 2015-0482 Prohibition against price gouging (related
to severe storms across the
Commonwealth)
13. 1/25/2016 2016-0035 Prohibition against price gouging (related
to severe winter storms across the
Commonwealth)
14. 7/8/2016 2016-0505 Prohibition against price gouging (related
to severe storms across the
Commonwealth)
15. 3/6/2017 2017-0139 Prohibition against price gouging (related
to severe storms across the
Commonwealth)
16. 2/26/2018 2018-0138 Prohibition against price gouging (related
to severe storms across the
Commonwealth)
17. 2/27/2019 2019-0166 Prohibition against price gouging (related
to severe storms across the
Commonwealth)
18. 3/4/2019 2019-0184 Prohibition against price gouging (related
to severe storms across the
Commonwealth)
* These are the dates the executive orders declaring a state of emergency were
filed in the Executive Journal. There can be variance between the date of entry
and the date of the declaration of emergency, but at most the date varies by a
few days.
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APPENDIX B
I. COVID-19 legislation introduced in the 2020 Legislative Session
Legislation passed and in effect:
Bill Description
1. Senate Bill 150 General COVID-19 relief bill. See footnote 15 and
accompanying text.
2. Senate Bill 177 Education bill that addresses issues facing school
districts in relation to COVID-19 and allows school
districts to use as many nontraditional instruction
days as deemed necessary to curb the spread of the
virus.
3. House Bill 352 Executive branch budget: references funding for the
Kentucky Poison Control Center and COVID-19
hotline; the impact of COVID-19 on the status of dual
credit scholarships; directs that no federal funds from
the CARES act shall be used to establish any new
programs unless those new programs can be fully
supported from existing appropriations.
4. House Bill 356 Judicial branch budget: makes appropriations for the
operations, maintenance and support of the Judicial
Branch and which authorized the Chief Justice to
declare a Judicial Emergency to protect the health and
safety of court employees, elected officials and the
general public during the COVID-19 emergency.
5. House Bill 387 Permits the Cabinet for Economic Development to
make loans to rural hospitals to assist in providing
health care services.
Legislation that did not pass:
Bill Description
6. Senate Bill 9 Would have allowed the Attorney General to seek
injunctive relief, as well as civil and criminal penalties,
for violations of KRS 216B regarding abortion facilities
and any orders issued under KRS Chapter 39A
relating to elective medical procedures, including
abortions.
7. Senate Bill 136 Would have allowed chiropractors and dentists to
continue providing care. It also would have allowed
entities like the Kentucky Restaurant Association and
the Kentucky Hospital Association, to issue guidance
on reopening businesses consistent with guidance on
avoiding the spread of COVID-19.
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Bill Description
8. House Bill 32 Contained an amendment to create a Kentucky Small
Business COVID-19 Task Force that would
recommend reopening strategies, evaluate forms of
assistance for small businesses, and develop
recommendations for the General Assembly to
consider related to small business assistance.
9. House Bill 322 Sought to create a new section of KRS Chapter 39A to
limit the scope of emergency orders issued by the
Governor and create a civil cause of action for persons
adversely affected by an emergency order. The
amendment would also make public officials who
violate the amendment guilty of a Class A
misdemeanor.
10. House Bill 351 Proposed an amendment to KRS 39A.100 to allow the
Governor, upon recommendation of the Secretary of
State, to declare by executive order a different time,
place or manner for holding elections in an election
area in which a state of emergency has been declared.
11. House Bill 424 Included an amendment that would provide that the
time requirement for any filing, notice, recording, or
other legal act with the County Clerk would be tolled
until thirty days after the declaration of emergency
ends.
12. House Bill 449 Included an amendment that would provide that the
time requirement for any filing, notice, recording, or
other legal act with the County Clerk would be tolled
until thirty days after the declaration of emergency
ends.
13. House Bill 451 Included an amendment to prohibit abortion facilities
or physicians from deeming an abortion to be an
emergent medical procedure.
14. House Bill 461 Contained amendments for educational relief, similar
to Senate Bill 177.
II. Resolutions introduced: All adopted but Senate Joint Resolution 246
Resolution Description
1. Senate Joint Introduced on 03/06/2020 “directing the Cabinet for
Resolution 246 Health and Family Services to assess Kentucky’s
preparedness to address the coronavirus and report to
the General Assembly.” It was assigned to the Senate
Health and Welfare Committee but received no
hearing.
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Resolution Description
2. Senate Honors teachers, bus drivers, janitorial staff of schools
Resolution 296 and other individuals delivering meals to Kentucky’s
students while schools are closed due to the
coronavirus pandemic.
3. Senate Honors Kentucky Mist Distillery for its help during the
Resolution 321 COVID-19 pandemic.
4. Senate Honors the Kentucky Beer Wholesalers Association for
Resolution 331 distributing hand sanitizer.
5. Senate Commends the Governor and others for their
Resolution 332 courageous service during the COVID-19 crisis.
6. House Encourages LRC to establish emergency preparedness
Resolution 135 task force.
7. House Honors the Beer Wholesalers.
Resolution 137
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