Daniel J. Cameron, in His Official Capacity as Attorney General of the Commonwealth of Kentucky v. Andy Beshear, in His Official Capacity as Governor of the Commonwealth of Kentucky

RENDERED: AUGUST 21, 2021
TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0107-I
DANIEL J. CAMERON, IN HIS OFFICIAL MOVANT
CAPACITY AS ATTORNEY GENERAL OF
THE COMMONWEALTH OF KENTUCKY
ON TRANSFER FROM COURT OF APPEALS
V. NO. 2021-CA-0328
FRANKLIN CIRCUIT COURT NO. 2021-CI-00089
ANDY BESHEAR, IN HIS OFFICIAL RESPONDENTS
CAPACITY AS GOVERNOR OF THE
COMMONWEALTH OF KENTUCKY; AND
ERIC FRIEDLANDER, IN HIS CAPACITY AS
SECRETARY OF THE CABINET FOR
HEALTH AND FAMILY SERVICES
OPINION OF THE COURT BY JUSTICE VANMETER
AFFIRMING IN PART, REVERSING IN PART AND REMANDING
On transfer from the Court of Appeals, we are presented with Movant
Attorney General Daniel Cameron’s request for relief from a temporary
injunction issued by the Franklin Circuit Court against implementation of
House Bill (H.B.) 1,1 Senate Bill (S.B.) 1,2 S.B. 2,3 and House Joint Resolution
(H.J.R.) 774 which the General Assembly enacted during the 2021 regular
session5 and which amend the Governor’s power to respond to emergencies as
1 Act of Feb. 2, 2021, ch. 3, 2021 Ky. Acts 14.
2 Act of Feb. 2, 2021, ch. 6, 2021 Ky. Acts 17.
3 Act of Feb. 2, 2021, ch. 7, 2021 Ky. Acts 26.
4 Res. of Mar. 30, 2021, ch. 168, 2021 Ky. Acts 1059.
5 We refer to these four pieces of legislation collectively as “2021 legislation.”
granted in KRS6 Chapter 39A. We find that this matter presents a justiciable
case or controversy but that the Franklin Circuit Court abused its discretion in
issuing the temporary injunction. Accordingly, we remand this case to the trial
court with instructions to dissolve the injunction.
I. Facts and Procedural Background
On March 6, 2020, in response to the COVID-19 pandemic, Respondent
Governor Andy Beshear declared a state of emergency “by virtue of the
authority vested in [him] by [KRS] Chapter 39A,” i.e., the “Statewide Emergency
Management Programs” (KRS §§ 39A.010-990).7 Business owners
subsequently challenged the Governor’s authority to issue executive orders and
emergency regulations in response to the COVID-19 pandemic, and in
November 2020, this Court held that the executive orders were valid since the
legislature had given the Governor the power to issue them under the
Statewide Emergency Management Programs regime in KRS Chapter 39A.
Beshear v. Acree, 615 S.W.3d 780, 802 (Ky. 2020). Further, at the onset of the
pandemic, the legislature had approved the Governor’s emergency declaration.
Act of Mar. 30, 2020, ch. 73, 2020 Ky. Acts 310 (2020 S.B. 150). However, in
Acree, we clarified that going forward, the General Assembly could limit the
Governor’s statutorily-derived emergency powers should it wish to. Id. at 812–
13 (noting that “[w]hile the authority exercised by the Governor in accordance
with KRS Chapter 39A is necessarily broad,” many “checks [exist] on that
6 Kentucky Revised Statutes.
7 See Exec. Order 2020-215 (Ky. Mar. 6, 2020).
2
authority,” including “legislative amendment or revocation of the emergency
powers granted the Governor[]”).
During the 2021 regular session, the General Assembly responded to
Acree by passing H.B. 1, S.B. 1, and S.B. 2 which restrict the Governor’s ability
to take unilateral action during declared emergencies. The Governor vetoed
those bills and the General Assembly overrode his vetoes. The bills became
effective on February 2, 2021.
Thereafter, the Governor and Eric Friedlander, in his official capacity as
Secretary of the Cabinet for Health and Family Services (“CHFS”),8 filed this
declaratory action in Franklin Circuit Court seeking a declaration that the
recently-passed legislation unconstitutionally infringes upon his executive
powers under Sections 2, 27, 28, 36, 42, 55, 59, 60, 69, 75, 80 and 81 of the
Kentucky Constitution. The Governor sought injunctive relief preventing
enforcement of the legislation pending adjudication of its constitutionality,
arguing that the legislation undermines state government’s ability to respond
to the ongoing COVID-19 pandemic and creates a public health crisis that will
result in increased disease and death. The Governor sued Speaker of the
House David Osborne, Senate President Robert Stivers, the Legislative
Research Commission (“LRC”), and Attorney General Daniel Cameron. The
8 Respondents-Plaintiffs are collectively referred to as “the Governor” herein for
ease of reference.
3
legislative defendants (Osborne, Stivers, and LRC) filed motions to dismiss
based on legislative immunity, which the Franklin Circuit Court denied.9
Following an evidentiary hearing, the Franklin Circuit Court temporarily
enjoined implementation of the challenged legislation, finding that the
Governor had presented substantial legal questions concerning the validity of
the legislation, the Governor and the public would suffer immediate and
irreparable harm in the absence of injunctive relief, and the public interest and
the balance of the equities required the granting of injunctive relief. The
Attorney General filed for CR10 65.0711 relief with the Court of Appeals to
vacate the temporary injunction, arguing that the Franklin Circuit Court
lacked jurisdiction to issue the temporary injunction since the Complaint does
not present a justiciable issue and the Governor lacks standing.
Not long after the trial court granted injunctive relief, the General
Assembly passed H.J.R. 77 ratifying and extending many of the Governor’s
executive orders and regulations for periods of time ranging from 30 to 90
days, but terminating all other COVID-related orders and regulations. The
Governor vetoed that resolution, and the General Assembly overrode his veto.
Most significantly, the General Assembly explicitly included Executive Order
9The trial court’s denial of the legislative defendants’ motion to dismiss is not at
issue in this appeal.
10 Kentucky Rules of Civil Procedure.
11A party may move for interlocutory relief pursuant to CR 65.07 when a circuit
court “by interlocutory order has granted, denied, modified, or dissolved a temporary
injunction[.]” CR 65.07(1). An appellate court may grant emergency relief if the
movant demonstrates that the irreparable injury will occur before the motion for
interlocutory relief may be considered by a three-judge panel. CR 65.07(6).
4
2020-215, the Governor’s original emergency declaration, as one of the
executive actions which would expire in ninety days, or by June 28, 2021. The
Governor then sought modification of the temporary injunction to cover HJR
77, to which the Attorney General objected. The Franklin Circuit Court
granted the Governor’s request and put a hold on the implementation of HJR
77 as well. The Attorney General immediately filed for CR 65.07 relief with the
Court of Appeals to vacate the modified injunction. The Court of Appeals
recommended transfer of the case to this Court, which we accepted on an
expedited basis due to these issues being of great and immediate statewide
importance.
II. Analysis
Two questions are presented for our review: (1) whether this lawsuit
presents a justiciable case or controversy and (2) if justiciable, whether a
temporary injunction was warranted.
A. Justiciability
The Declaratory Judgment Act allows a plaintiff to seek, and Kentucky
courts to issue, a declaration of rights when an “actual controversy” exists.
KRS 418.040. Specifically, that Act states:
In any action in a court of record of this Commonwealth having
general jurisdiction wherein it is made to appear that an actual
controversy exists, the plaintiff may ask for a declaration of rights,
either alone or with other relief; and the court may make a binding
declaration of rights, whether or not consequential relief is or could
be asked.
An actual, justiciable controversy is “a condition precedent to an action
under our Declaratory Judgment Act.” Freeman v. Danville Tobacco Bd. of
5
Trade, Inc., 380 S.W.2d 215, 216 (Ky. 1964). See also Ky. Const. § 112(5)
(limiting circuit court jurisdiction to “justiciable causes”). Plaintiffs who have
standing to seek a declaration of rights include “[a]ny person . . . whose rights
are affected by statute[.]” KRS 418.045.
Constitutional standing is an essential element of a justiciable case or
controversy. Commonwealth Cabinet for Health & Fam. Servs., Dep’t for
Medicaid Servs. v. Sexton ex rel. Appalachian Reg’l Healthcare, Inc., 566 S.W.3d
185, 196 (Ky. 2018). Indeed, “all Kentucky courts have the constitutional duty
to ascertain the issue of constitutional standing, acting on their own motion, to
ensure that only justiciable causes proceed in court[.]” Id. at 192.
Constitutional standing is “defined by three requirements: (1) injury, (2)
causation, and (3) redressability.” Id. at 196. Specifically,
A plaintiff must allege personal injury fairly traceable to the
defendant’s allegedly unlawful conduct and likely to be redressed
by the requested relief. [A] litigant must demonstrate that it has
suffered a concrete and particularized injury that is either actual
or imminent. . . . The injury must be . . . distinct and palpable,
and not abstract or conjectural or hypothetical. The injury must
be fairly traceable to the challenged action, and relief from the
injury must be likely to follow from a favorable decision.
Id. (internal quotations and footnotes omitted). “If a case is not justiciable,
specifically because the plaintiff does not have the requisite standing to sue,
then the circuit court cannot hear the case.” Id.The Attorney General maintains that the Governor lacked standing to
bring this lawsuit as he requests a non-justiciable advisory opinion and
improperly seeks relief against legislative acts of the General Assembly, which
6
the Attorney General asserts are not appropriate subjects of injunctive relief.
CR 65.01; CR 65.04. The Attorney General argues that the only provision of
the challenged legislation applicable to him, the suspension power of S.B. 1
(which gives the Attorney General authority to approve, or disapprove, any
suspension of statute deemed necessary by the Governor to respond to an
emergency) is a legislative function that per Section 15 of the Kentucky
Constitution12 can be delegated by the legislature to other parts of government
to exercise that power. The Attorney General points to this Court’s repeated
recognition that “when the General Assembly expressly grants to another
branch the power to suspend a law, that branch constitutes the General
Assembly’s authority for purposes of Section 15 and that branch’s execution of
a suspension of the laws does not violate Section 15.” Commonwealth ex rel.
Beshear v. Bevin, 575 S.W.3d 673, 679 (Ky. 2019) (citing Lovelace v.
Commonwealth, 285 Ky. 326, 336, 147 S.W.2d 1029, 1034–35 (1941)).
Accordingly, the Attorney General maintains that the legislature’s duly-enacted
constraint on the Governor’s ability to suspend statutes does not constitute an
invasion of a constitutional right so as to confer standing since if that were the
case, the Governor would have standing to sue to prevent the General
Assembly from repealing or amending laws that he likes, or sue to make it pass
bills he wants.
12 Section 15 of the Kentucky Constitution states, “No power to suspend laws
shall be exercised unless by the General Assembly or its authority.”
7
The Attorney General further asserts that no injury has occurred,
pointing out that the challenged legislation does not prevent the Governor from
responding to emergencies; it simply requires him to work collaboratively with
other officials—including the legislature—in situations involving long-term
emergencies. Not only is there no injury, the Attorney General argues that he
certainly did not cause any injury to the Governor since the complained-of
legislation was not enacted by him. See Sexton, 566 S.W.3d at 196 (holding
that an injury must be “fairly traceable to the defendant’s allegedly unlawful
conduct” to create standing).
With regards to redressability, the Attorney General contends that the
injunction issued by the trial court did not redress anything, as it did not
restrain him or mandatorily direct him to do anything, as is required by a
proper injunction. See, e.g., Commonwealth v. Mountain Truckers Ass’n, Inc.,
683 S.W.2d 260, 263 (Ky. App. 1984) (requiring that injunctions “describe in
reasonable detail the act to be restrained[]”); see also CR 65.01 (injunctive relief
can only “restrict or mandatorily direct the doing of an act[]”). Therefore, the
Attorney General argues that the Governor’s alleged injury clearly cannot be
redressed by any relief ordered against the Attorney General.
In response, the Governor maintains that he has constitutional standing
to bring this suit because the General Assembly violated Section 69 of the
8
Kentucky Constitution13 by delegating veto control to the Attorney General over
the exercise of constitutionally-protected emergency powers that reside and
remain with the Governor. Because S.B. 1 gives the Governor authority to
suspend statutes but makes it contingent upon the Attorney General’s
approval, the Governor asserts he has standing to seek a temporary injunction
enjoining the Attorney General from possessing or exercising this veto power
over his exercise of emergency authority. The Governor further argues that
this right is present: under S.B. 1, the Attorney General can exercise his veto
right during an emergency and the Commonwealth was and is currently under
a declared state of emergency. The Governor maintains that he need not wait
until the Attorney General exercises his veto power since whether the Attorney
General’s approval can be required at all is the justiciable controversy,
regardless of whether the Attorney General has yet to exercise veto authority.
As to causation, the Governor contends the Attorney General caused him
injury when he assumed authority to veto the Governor’s exercise of emergency
authority. On redressability, the Governor contends that the trial court
resolved this matter by staying implementation of the challenged legislation
pending an adjudication on its constitutionality and enjoining the Attorney
General from implementing or enforcing the suspension provision of S.B. 1.
13Section 69 of the Kentucky Constitution states that “[t]he supreme executive
power of the Commonwealth shall be vested in a Chief Magistrate, who shall be styled
the ‘Governor of the Commonwealth of Kentucky.’”
9
In support, the Governor directs us to Board of Education v. Bushee, 889
S.W.2d 809 (Ky. 1994), a declaratory judgment action involving a clash
between the legislature’s delegation of authority to local school councils to “set
school policy consistent with district board policy” and a Boone County Board
of Education policy that required school councils to submit “for Board review
and approval” a plan containing measurable goals and objectives for the
upcoming school year. Id. at 810. Thus, the clash in Bushee involved the
statutory delegation of certain authority to school councils and the Board of
Education’s policy that would have removed that authority. This Court held
that the Boone County Board of Education’s new policy of requiring its
approval of certain plans submitted by local school councils presented a
justiciable controversy, even though no such plan had yet been submitted for
approval, since the Board’s decision to approve or disapprove a particular
policy or request had no impact on question of whether Board approval could
be required at all. Id. at 811. The Bushee court noted that in a declaratory
judgment action, this Court has long recognized that “the question is not one of
a present controversy as contended by the Board, but rather whether there is a
‘justiciable controversy over present rights, duties or liabilities.’” Id. (quoting
Dravo v. Liberty Nat. Bank & Trust Co., 267 S.W.2d 95, 97 (Ky. 1954) (emphasis
added)). “This is so although the effect of the judgment is prospective.” Id.(quoting Dravo, 267 S.W.2d at 97).
The Attorney General distinguishes Bushee on grounds that the case at
bar deals with a grant of authority from the General Assembly and a
10
subsequent alteration of that grant of authority by the General Assembly,
rather than conflicting applicable rules or a conflict between governmental
bodies. In other words, this case involves a statutory amendment by the one
body authorized to amend the statute. But really, the conflict here is between
the Governor’s claimed executive authority under Section 69 and the
legislature’s authority per Section 15 to suspend statutes and delegate that
suspension power to an agent such as the Attorney General.
The Attorney General further distinguishes Bushee on the basis that the
parties in that case were on a collision course involving a concrete dispute with
an impending deadline that could not be avoided. Here, the Attorney General
argues that whether there will ever be a conflict is purely speculative and
abstract. While a plaintiff might not have to incur harm before seeking a
declaratory judgment, the Attorney General emphasizes that “[a] threatened
injury must be ‘certainly impending.’” Commonwealth v. Bredhold, 599 S.W.3d
409, 417 (Ky. 2020) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)).
However, the act of the Attorney General approving or disapproving the
Governor’s suspension of a statute has no effect on whether the General
Assembly could lawfully require the Attorney General’s approval in the first
place. Thus, the Governor was not required to wait to file suit until the
Attorney General invoked his veto power. See Commonwealth v. Ky. Ret. Sys.,
396 S.W.3d 833, 839 (Ky. 2013) (holding that “[t]he [Declaratory Judgment] Act
allows courts to determine a litigant’s rights before harm occurs, and requires
the existence of an actual controversy. Such a controversy occurs when a
11
defendant’s position would ‘impair, thwart, obstruct or defeat plaintiff in his
rights[]’”) (quoting Revis v. Daugherty, 215 Ky. 823, 287 S.W. 28, 29 (1926)).
See also Jamgotchian v. Ky. Horse Racing Comm’n, 488 S.W.3d 594, 600 (Ky.
2016) (holding that the plaintiff, a licensed owner in good standing to claim
horses, was not required to wait until being sanctioned by the Commission
before seeking a declaration as to the constitutionality of Kentucky’s claiming
regulations); Jarvis v. Nat’l City, 410 S.W.3d 148, 153 (Ky. 2013) (explaining
that a declaratory judgment action allows persons within, or arguably within,
the scope of a statute “to have their rights and obligations [under the statute]
declared without being forced to act improperly and initiate litigation after an
injury has occurred[]”); cf. Foley v. Commonwealth, 306 S.W.3d 28 (Ky. 2010)
(upholding denial of movant’s declaration that Kentucky's self-defense statutes
were unconstitutional, finding no justiciable case or controversy since the
challenged self-defense statutes had no foreseeable application to the movant).
We find the present case more analogous to Jamgotchian and Jarvis than
Foley. Whether the Governor’s emergency power in this situation is statutorily
or constitutionally derived is at the heart of the Governor’s Complaint and thus
presents a justiciable case or controversy.14
14 As an aside, and while this analysis has focused on S.B. 1, the trial court
enjoined enforcement of three other pieces of the 2021 legislation, H.B. 1, S.B. 2. and
H.J.R. 77. Currently before this Court are two other cases, Beshear v. Goodwood
Brewing Co., 2021-SC-0126-I (Scott Circ. Ct., No. 21-CI-000128), and Beshear v.
Ridgeway Props., LLC, 2021-SC-0228 (Boone Circ. Ct., No. 20-CI-00678). In each of
these cases, the Attorney General, either as a party or amicus curiae, is arguing in
support of the constitutionality of the 2021 legislation and against the Governor.
12
B. Temporary Injunction Not Warranted
To justify the grant of a temporary injunction, a plaintiff must satisfy the
following, well-recognized requirements:
First, the trial court should determine whether plaintiff has
complied with CR 65.04 by showing irreparable injury. This is a
mandatory prerequisite to the issuance of any injunction.
Secondly, the trial court should weigh the various equities
involved. Although not an exclusive list, the court should consider
such things as possible detriment to the public interest, harm to
the defendant, and whether the injunction will merely preserve the
status quo. Finally, the complaint should be evaluated to see
whether a substantial question has been presented. If the party
requesting relief has shown a probability of irreparable injury,
presented a substantial question as to the merits, and the equities
are in favor of issuance, the temporary injunction should be
awarded. However, the actual overall merits of the case are not to
be addressed in CR 65.04 motions.
Maupin v. Stansbury, 575 S.W.2d 695, 699 (Ky. App. 1978).
With respect to our review of the trial court’s analysis under Maupin,
generally, “a party seeking interlocutory relief from a trial court’s decision to
grant or deny a temporary injunction bears an enormous burden. And an
appellate court may not disturb a trial court’s decision on a temporary
injunction unless the trial court's decision is a clear abuse of
discretion.” Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152, 162
(Ky. 2009) (internal quotations and footnotes omitted). “The test for abuse of
discretion is whether the trial judge’s decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.” Id. (quoting Commonwealth
v. English, 993 S.W.2d 942, 945 (Ky. 1999)). Notably, “[a] motion for a
13
temporary injunction does not call for, or justify, an adjudication of the
ultimate rights of the parties. . . . [and] should issue only where it is clearly
shown that one’s rights will suffer immediate and irreparable injury pending
trial.” Id. at 161 (internal quotations and citations omitted). On appellate
review, however, the appellate court may properly determine that findings are
clearly erroneous if they are . . . occasioned by an erroneous application of the
law. Rogers v. Lexington-Fayette Urb. Cnty. Gov't, 175 S.W.3d 569, 571 (Ky.
2005). In this instance, we find that the trial court’s issuance of injunctive
relief was unsupported by sound legal principles occasioned by an erroneous
application of the law.
To obtain an injunction, the Governor was required to show a probability
of irreparable injury, present a substantial question as to the merits of his
Complaint, and persuade the court that the equities balanced in favor of
issuance.
1. Irreparable Injury.
Regarding irreparable injury, the Governor’s argument essentially centers
on the harm to his ability to protect the public during a global pandemic, and
the claimed harm to the constitutional power and authority of his office. We
emphasize that in our following discussion and analysis we do not question the
Governor’s good faith in taking steps he believes are necessary in dealing with
the pandemic.15 That noted, underlying consideration of all our COVID
15 We similarly do not question the good faith of the General Assembly in
enacting the 2021 legislation.
14
decisions, as aptly stated by Justice William O. Douglas, “no doubt that the
emergency which caused the [executive to take action] was one that bore
heavily on the country. But the emergency did not create power; it merely
marked an occasion when power should be exercised.” Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 629 (1952) (Douglas, J., concurring). Over
the last forty years, this Court has been explicit that the Governor’s powers,
except in a limited number of instances expressly set forth in the Constitution,
derive from statutes passed by the General Assembly. See, e.g., Commonwealth
ex rel. Beshear v. Commonwealth ex. rel. Bevin, 498 S.W.3d 355, 369 (Ky. 2016)
(stating “the Governor . . . is bound by the law[]”); Fletcher v. Commonwealth ex
rel. Stumbo, 163 S.W.3d 852, (Ky. 2005) (rejecting Governor’s claim of implied
authority to expend unappropriated funds to provide essential services in an
emergency); Brown v. Barkley, 628 S.W.2d 616, 621 (Ky. 1982) (detailing the
seven sections of our Commonwealth’s constitution expressly conferring
powers and duties on the Governor).16 In fact, in Brown, we held that “to the
extent that the Governor has any implied or inherent powers in addition to
those the Constitution expressly gives him, it seems clear that such
unexpressed executive power is subservient to the overriding authority of the
legislature[.]” 628 S.W.2d at 621.
16 In brief, these powers and duties are to serve as commander-in-chief of
military forces and affairs of the state, Ky. Const. § 75; fill vacancies in office, except
as otherwise provided by the Constitution, Ky. Const. § 76; exercise pardon power, Ky.
Const. § 77; require written information from Executive branch officers, Ky. Const. §
78; report on the state of the Commonwealth and recommend measures to the General
Assembly, Ky. Const. § 79; call the General Assembly into special session, Ky. Const. §
80; and “take care that the laws be faithfully executed[.]” Ky. Const. § 81.
15
In Fletcher, we approvingly quoted the following,
The appeal, however, that we declare the existence of inherent
powers ex necessitate to meet an emergency asks us to do what
many think would be wise, although it is something the forefathers
omitted. They knew what emergencies were, knew the pressures
they engender for authoritative action, knew, too, how they afford a
ready pretext for usurpation. We may also suspect that they
suspected that emergency powers would tend to kindle
emergencies.
...
[E]mergency powers are consistent with free government only when
their control is lodged elsewhere than in the Executive who
exercises them.
...
With all its defects, delays and inconveniences, men have
discovered no technique for long preserving free government except
that the Executive be under the law, and that the law be made by
parliamentary deliberations.
Fletcher, 163 S.W.3d at 871 (quoting Youngstown, 343 U.S. at 646, 649–50,
652, 655 (Jackson, J., concurring)).
Another rule of interpretation is that we “‘presum[e] that the challenged
statutes were enacted by the legislature in accordance with constitutional
requirements.’” Acree, 615 S.W.3d at 805 (quoting Cornelison v.
Commonwealth, 52 S.W.3d 570, 572 (Ky. 2001)). “A constitutional
infringement must be ‘clear, complete and unmistakable’ in order to render the
statute unconstitutional.” Caneyville Volunteer Fire Dep't v. Green's Motorcycle
Salvage, Inc., 286 S.W.3d 790, 806 (Ky. 2009) (quoting Ky. Indus. Util.
Customers, Inc. v. Ky. Utils. Co., 983 S.W.2d 493, 499 (Ky. 1998)). Considering
that the General Assembly is the policy-making body for the Commonwealth,
not the Governor or the courts, equitable considerations support enforcing a
16
legislative body’s policy choices. In fact, non-enforcement of a duly-enacted
statute constitutes irreparable harm to the public and the government. See
Boone Creek Props., LLC v. Lexington-Fayette Urb. Cnty. Bd. of Adjustment, 442
S.W.3d 36, 40 (Ky. 2014) (holding that the statute’s enactment constitutes an
implied finding by the legislature that the public interest required it). Whether
the Governor has shown an irreparable injury is tied to his constitutional
claims and the likelihood of success.
2. Substantial Questions on the Merits.
As to the potential for success on the merits of the Governor’s Complaint,
the extent of the Governor’s exercise of emergency authority during the COVID-
19 pandemic is confined to the statutory authority given to him by the
legislature under KRS Chapter 39A. Acree, 615 S.W.3d at 812–13. Indeed, in
Brown v. Barkley, this Court clarified:
[T]o the extent that the Governor has any implied or inherent
powers in addition to those the Constitution expressly gives him, it
seems clear that such unexpressed executive power is subservient
to the overriding authority of the legislature, and . . . the officers
named in Const. Sec. 91 have only such powers and duties as are
assigned to them by legislative enactment or by executive order
expressly authorized by statute.
628 S.W.2d at 621 (holding that the Governor did not have constitutional
power to issue an executive order to reorganize agencies when not authorized
by the enabling statute and a related statute pursuant to which the order was
issued). Further,
Whereas the judicial branch must be and is largely independent of
intrusion by the legislative branch, the executive branch exists
principally to do its bidding. The real power of the executive
branch springs directly from the long periods between legislative
17
sessions, during which interims the legislature customarily has left
broad discretionary power to the chief executive.
Id. at 623.
“Practically speaking, except for those conferred upon him specifically by
the Constitution, [the Governor’s] powers, like those of the executive officers
created by Const. Sec. 91, are only what the General Assembly chooses to give
him.” Id. Thus, the Governor has no implied or inherent emergency powers
beyond that given him by the legislature, who, as elected officials, serve at the
behest of the Commonwealth.17
a. Separation of Powers.
The trial court found serious separation of powers issues under Sections
27 and 28, the constitutional provisions that mandate that strict separation of
powers under our tripartite government, citing Legislative Research
Commission ex rel. Prather v. Brown, 664 S.W.2d 907 (Ky. 1984). The trial
court stated,
The legislature has every right, and even the duty, to adopt
standards and rules to govern the Governor’s exercise of
emergency executive authority. But when the legislative role shifts
from oversight and policymaking to micromanagement of
administrative rules and orders there is a clash that implicates the
separation of powers provisions of sections 27 and 28 of the
Kentucky Constitution. See Legislative Research Commission v.
Brown, 664 S.W.2d 907 (Ky. 1984). The challenged legislation
here—HB1, SB 1 and SB 2—all raise serious separation of powers
issues.
17 Any claim of the Governor regarding his authority as commander-in-chief,
under Section 75, is similarly unavailing. “That military powers of the Commander-in-
Chief were not to supersede representative government of internal affairs seems
obvious from the Constitution and from elementary American history.” Youngstown,
343 U.S. at 644 (Jackson, J., concurring).
18
Order Granting Temporary Injunction Under CR 65.04, No, 21-CI-00089
(Franklin Circ. Ct. Mar. 3, 2021). This reliance on L.R.C. v. Brown is
misplaced.
The precise issue in Brown was occasioned by the then statutory
provisions that purported to give the General Assembly authority, through the
L.R.C., to review and void executive branch administrative regulations. We
held this review process was unconstitutional either as a legislative veto or as
an impermissible extension of the legislative session.
By contrast, the current legislative review of administrative regulations is
set forth in KRS Chapter 13A. Specifically, legislative committees may review
new, emergency or existing regulations and, among other decisions, make
determinations that the regulations are deficient. KRS 13A.030. Prior to S.B.
2, the statute referred to “nonbinding determinations.” The trial court
commented on the change to the statutory language in S.B. 2 that deleted the
word “nonbinding” from the statute. S.B. 2 § 2(2). As a rule of construction,
courts generally presume that statutory amendment is made with a view to
change the law. Jefferson Cnty. Bd. of Educ. v. Fell, 391 S.W.3d 713, 724 (Ky.
2012). In Fell, however, we also noted the overarching consideration is to
discern legislative intent:
As important as it is for a court to scrutinize the particular
statute in toto, our statutory construction principles also mandate
considering the statute in context with other statutes surrounding
it. Petitioner F., 306 S.W.3d at 85–86 (statutory enactment to be
read as a whole and also in context with other parts of statute).
This comes as no surprise because given that the cardinal rule of
19
statutory construction is discerning legislative intent, it is entirely
logical for the judiciary to see what else our General Assembly has
said on the particular topic underlying the controversy.
Id. at 721-22. Notwithstanding the deletion of the word “nonbinding,” our
review of KRS Chapter 13A reveals that even though a legislative committee
may find that a regulation is “deficient,” the regulation at issue remains in the
purview of the executive branch as to what is to become of the “deficient”
regulation. See KRS 13A.330 (vesting Governor with final authority as to
whether a “deficient” administrative regulation shall be withdrawn, amended,
or become effective notwithstanding deficiency). Section 17 of S.B. 2 amends
KRS 13A.330 principally to include reference to emergency administrative
regulations. The Governor’s final say over the disposition of any “deficient”
emergency regulations remains intact.
Because the executive branch retains final say as to administrative
regulations, the 2021 legislation does not violate Sections 27 and 28, or this
court’s holding in L.R.C. v. Brown. If the trial court’s conclusion was based on
what it termed the General Assembly’s “micromanagement” of state
government, the simple answer, of course, is that it did so during its
constitutionally authorized annual session, and not during an out-of-session
committee hearing. As we have noted time and again, so many times that we
need not provide citation, the General Assembly establishes the public policy of
the Commonwealth.
20
b. Power to Call Special Sessions.
The Governor argues that the legislation at issue requires him to call the
legislature into session every thirty days in order for him to continue to
exercise his emergency powers. S.B. 1 §2(2)(a). In other words, the Governor
claims the General Assembly infringes on his exclusive authority to call it into
special session. Ky. Const. § 80.
Since 1942, special sessions have been called 52 times.18 No doubt each
involved some matter that the then-Governor believed could not wait for the
regular session of the General Assembly. In a word, an emergency not
theretofore addressed by the statutes. Typically, the remedy, as for all
governors over the past 130 years of the 1891 Constitution, is to do the hard
work of consulting with the General Assembly and agreeing on statutory
amendment in advance of a special call. The General Assembly, as well as the
Governor, are trustees of the Commonwealth’s welfare. See Youngstown, 343
U.S. at 629 (Douglas, J., concurring) (stating “[t]he Congress, as well as the
President, is trustee of the national welfare[]”). Recent experience
demonstrates the futility of calling a special session without that advance
work.19 Furthermore, the assertion that the Governor would be forced to call a
special session every 30 days is not credible. H.J.R. 77 extended emergency
measures anywhere from 30 to 90 days. In the future, depending on the
18 https://legislature.ky.gov/Law/Statutes/Pages/KrsExtraOrdList.aspx (last
accessed Aug. 16, 2021).
19 In 2018, Governor Bevin called a special session to address the pension crisis
that lasted two days and without any legislation passed.
21
circumstances, nothing prohibits the Governor and General Assembly from
agreeing on emergency powers in excess of 30 days.
These items noted, we do not believe this issue has been adequately
addressed by the parties and therefore make no definitive pronouncement
concerning the constitutionality of thirty-day limitation contained within the
2021 legislation.
c. Power to Suspend Statutes
The Governor argues that S.B. 1 § 4 infringes on his supreme executive
authority by placing his authority to suspend statutes under the veto power of
the Attorney General. Ky. Const. § 69; Barkley, 628 S.W.2d at 624. Again, we
disagree.
The power to suspend statutes does not belong to the Governor. It
belongs to the General Assembly. Ky. Const. § 15. This section is especially
succinct and clear: “[n]o power to suspend laws shall be exercised unless by
the General Assembly or its authority.” In fact, the drafters of our Constitution
deemed this provision so important, they placed it in the Bill of Rights:
Since this provision is a part of the Bill of Rights, the Governor
could not suspend statutes even if he possessed “emergency” or
“inherent” powers under Sections 69 and 81. Ky. Const. § 26 (“To
guard against transgression of the high powers which we have
delegated, We Declare that everything in this Bill of Rights is
excepted out of the general powers of government ....”). The
suspension of statutes by a Governor is also antithetical to the
constitutional duty to “take care that the laws be faithfully
executed.” Ky. Const. § 81.
22
Fletcher, 163 S.W.3d at 872. From this, we conclude that the power to
suspend statutes ought to be exercised judiciously, soberly and upon due
consideration.
Barkley is instructive in this regard, but not as the Governor argues.
Under Section 15, the General Assembly might grant the Governor the power to
suspend statutes. Or, it properly might grant that power to the Attorney
General. See Barkley, 628 S.W.2d at 621 (stating “the officers named in
[Section] 91 have only such powers and duties as are assigned to them by
legislative enactment or by executive order expressly authorized by statute[]”).
In Barkley, we recognized the Constitution framers created these independent,
statewide-elected officers to “provide convenient receptacles for the diffusion of
executive power.” Id. at 622. Given the importance of the power to suspend
laws, we see no valid reason why the General Assembly might not properly
grant the power to two independently-elected constitutional officers.
The Governor argues that the immediately following sentence in Barkley
supports his argument that by doing so, the General Assembly has
impermissibly “create[d] another executive officer or officers who will not be
subject to [the Governor’s] supremacy[.]” Id. The complete quotation is
As the Governor is the “supreme executive power,” it is not
possible for the General Assembly to create another executive
officer or officers who will not be subject to that supremacy, but it
definitely has the prerogative of withholding executive powers
from him by assigning them to these constitutional officers
who are not amenable to his supervision and control.
23
Id. (emphasis added).20 S.B. 1 § 4 constitutes a valid exercise of the General
Assembly’s authority to suspend statutes.
d. Arbitrary Legislation
The trial court expressed that the 2021 legislation “presents questions as
to whether the thirty-day limitation period for Executive Orders and [emergency
regulations] are arbitrary under Section 2.” The Governor expands this
concept by arguing the bills are arbitrary, vague and unenforceable, asserting
the public’s due process rights. In our view, the Governor has no standing to
assert the public’s due process rights. See Worldwide Equip., Inc. v. Mullins, 11
S.W.3d 50, 60-61 (Ky. App. 1999) (holding that motor vehicle seller had no
standing to claim certain regulations and statutes were arbitrary, void as
vague, and violative of due process since it was not charged with violation of
that regulation/statute, and no party then in the action had been so
charged).21
20 The Governor also cites L.R.C. v Brown in support of this argument. This
case did not address suspension of statutes, but the authority of the General
Assembly, through the L.R.C., to disapprove administrative regulations while it, the
General Assembly, was not in session. We therefore fail to perceive the applicability of
this case, unless it is for the proposition as to the executive powers and
responsibilities lying within the province of the Governor. 664 S.W.2d at 919. We
hold that Fletcher and our analysis of Sections 15 and 91 are more directly on point.
21 In Commonwealth ex rel. Beshear v. Commonwealth ex. rel. Bevin, 498 S.W.3d
355, 360-66 (Ky. 2016), we recognized that the Attorney General has standing as the
chief legal officer of the state to vindicate public rights. In the same case, we held that
three individual legislators did not have that same standing because they were not the
chief legal officer(s) for the public. Id. at 367. We similarly conclude as to the
Governor’s lack of standing in this case as to these claims.
24
e. Special Legislation
The Governor argues that the 2021 legislation is special legislation in
violation of Sections 59 and 60. His argument is that these bills grant
businesses, schools, local governments and others the authority or power to
exercise discretion as to what health care guidance to follow, citing Young v.
Willis, 305 Ky. 201, 204-05, 203 S.W. 2d 5, 7 (1947). Any argument that the
2021 legislation constitutes special legislation in violation of Kentucky
Constitution § 59 is easily disposed of by our decision in Calloway County
Sheriff’s Department v. Woodall, 607 S.W.3d 557 (Ky. 2020). The legislature
did not identify or single out any particular person, business, school, locality or
entity to which the 2021 legislation would apply. Id. at 573. Instead, the
legislation applies statewide.
We similarly reject the Governor’s argument that Section 60,22 and our
predecessor court’s decision in Young, compels a finding of unconstitutionality.
The claim is that the 2021 legislation permits localities or any number of other
entities to establish their own pandemic guidance. We again disagree. Our
statutes are replete with many instances of localities, schools, businesses being
22 In pertinent part, Section 60 provides,
No law, except such as relates to . . . public buildings or improvements, .
. . matters pertaining to common schools, . . . and the regulation by
counties, cities, towns or other municipalities of their local affairs, shall
be enacted to take effect upon the approval of any other authority than
the General Assembly, unless otherwise expressly provided in this
Constitution.
25
permitted to make choices that conform to local conditions or individual choice.
We see this legislation as no different.
3. Balancing Equities
The trial court made extensive findings concerning the COVID-19
pandemic, its ongoing nature, and the good occasioned by the Governor’s
emergency measures.23 In balancing the equities, the trial court considered
these facts, as well as its interpretation of the injury to the Governor’s
constitutional powers, juxtaposed with the 2021 legislation and the more
localized approach to the pandemic that implementation of that legislation
would entail. Our expression, however, in Acree that a global pandemic
justified a statewide response, 615 S.W.3d at 808, in no way expressed or
implied it was the sole method in dealing with the pandemic. In fact, we
expressly held that the General Assembly could limit the Governor’s
statutorily-derived emergency powers should it wish to. Id. at 812–13. That
noted, as we have discussed, the Governor’s emergency powers derive from the
statutes enacted by the General Assembly, not from our Constitution and not
from his “inherent” powers. The trial court’s findings substituted its view of the
public interest for that expressed by the General Assembly. The fact that a
statute is enacted “constitutes [the legislature’s] implied finding” that the
public will be harmed if the statute is not enforced. Boone Creek Props., 442
23 Additionally, we can take judicial notice that the Delta variant, and perhaps
others, are raising positivity rates throughout the nation and Kentucky.
26
S.W.3d at 40. Thus, the public interest strongly favors adherence to the 2021
legislation.
III. Conclusion
The trial court emphasized that “[t]he Governor has alleged irreparable
injury to his constitutional powers and made preliminary showing that the bills
impair the exercise of his constitutional duty.” As discussed, these findings are
largely unsupported by sound legal principles because they are occasioned by
erroneous interpretations of the constitutional authority of the Governor and
law. As a result, we find that the trial court’s issuance of injunctive relief was
improper.
In sum, considering that the challenged legislation was lawfully passed,
the Governor’s Complaint does not present a substantial legal question that
would necessitate staying the effectiveness of the legislation. And as the
equities clearly favor implementation of the legislation pending an adjudication
of its constitutionality, we conclude that the Franklin Circuit Court abused its
discretion in finding otherwise. Thus, we remand this case to the Franklin
Circuit Court with instructions to dissolve the injunction. This case is reversed
and remanded to the Franklin Circuit Court for further proceedings consistent
with this Opinion. In the event certain sections of the 2021 legislation may be
ultimately found invalid, the likely remedy may be severability. KRS 446.090.
All sitting. All concur.
HUGHES, J., CONCURS BY SEPARATE OPINION IN WHICH MINTON,
C.J., JOINS: I concur with the lead opinion’s conclusion that a blanket
27
injunction essentially precluding enforcement of any of the 2021 legislation
should not have issued in this matter. The Attorney General insists this case
presents no justiciable controversy and, in my view, his point has legal merit
despite the obvious serious disagreements among the parties regarding
emergency powers. Moreover, with the passage of time, the expiration of
executive orders and the absence of any enforcement measures that collide
with the limitations in the 2021 legislation, we have (at least on the record
before us) currently no specific real-world dispute about the application of any
portion of H.B. 1, S.B. 1, S.B. 2 or H.J.R. 77. That said, the Governor has
alleged unconstitutional encroachment on his emergency powers, and the
seemingly relentless nature of the COVID-19 pandemic ensures that the issues
he raises will continually resurface, leading to constant litigation and
conflicting results from circuit courts across the Commonwealth. Last summer
prior to Beshear v. Acree, 615 S.W.3d 780 (Ky. 2020), we invoked Kentucky
Constitution Section 110 and took unprecedented action to combine and
expedite cases so we could address the multiple challenges to the Governor’s
COVID-19 response. Recognizing all that has transpired, I am persuaded that
in these unusual circumstances the lead opinion properly proceeds to the
merits of the trial court’s injunction. Simply put, the maelstrom will continue
absent some direction from this Court. As I read the lead opinion, we address
the Governor’s substantive constitutional challenges in the context of this
appeal of a temporary injunction to determine whether substantial questions
on the merits have been raised, not to rule definitively on all issues presented.
28
This point bears emphasis because the Attorney General has not briefed in this
Court, or in the trial court for that matter, the merits of the various
constitutional challenges but has stood on his position that the case presents
no justiciable controversy.
As we recognized in Acree, the Kentucky General Assembly granted
specific emergency powers and authority to the Governor in KRS Chapter 39A
and the legislature has the authority to restrict and expand those statutory
powers. Id. Many of the challenged provisions of the 2021 legislation are
within the legislature’s domain, are entitled to the presumption of
constitutionality, and should not be enjoined wholesale. For example, as the
lead opinion aptly notes Section 15 of the Kentucky Constitution allows for the
suspension of statutes “by the General Assembly or its authority.”
Consequently, the legislature can amend KRS 39A.180 to alter the manner in
which statutes are suspended in an emergency. Similarly, the legislature may,
as it did in H.B. 1, provide that businesses can operate in any emergency
pertaining to a “virus or disease” under plans consistent with either the
directives of the executive branch or applicable guidance from the Center for
Disease Control. The Governor—and others for that matter—may question the
efficacy and wisdom of that patchwork approach but that is a policy decision
that our legislature can make by duly-passed statute and neither the executive
nor the judiciary can reject it outright on “best practices” grounds. In sum,
passing generally applicable laws that provide the framework for governmental
action in the Commonwealth is the legislature’s prerogative. Thus, I do not
29
believe a substantial question on the merits was presented as to those parts of
the 2021 legislation that were within the legislature’s law-making authority.
That said, in Acree this Court did not conclude that all emergency
powers are lodged solely in the legislature. Emergency powers are not
expressly mentioned in our state Constitution but we discerned “[t]he implied
tilt of the Kentucky Constitution toward executive powers in time of emergency
. . . given our government’s tripartite structure with a legislature that is not in
continuous session.” Id. at 806. We noted that the Kentucky Constitution
provides the framework for the three branches and the exercise and separation
of their respective powers. Id. at 805. The executive branch is charged with
the “supreme executive power of the Commonwealth,” Kentucky Constitution
Section 69, and authorized to administer state government year-round, just as
the judicial branch is in session year-round to perform the judicial function of
interpreting and applying the law. The legislature is not in year-round session
but, to the contrary, has carefully circumscribed legislative sessions. Kentucky
Constitution Sections 36 and 42 limit the legislature to sixty-day sessions
ending no later than April 15 in even numbered years and to thirty-day
sessions ending no later than March 30 in odd-numbered years. The
legislature has no power to call itself into session at any other time but the
Governor may exercise his discretion to do so under Section 80 on
“extraordinary occasions.” This constitutional structure led to our
observations and conclusion about the power and necessity of the executive
branch to act in managing an emergency. We concluded that “[f]ortunately, the
30
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 . . . which reflects a cooperative approach
between the two branches.” Id. at 809. Regrettably, recent events have
strained that cooperative approach.
Historically, the Governor and various agencies of the executive branch
including the Cabinet for Health and Family Services and the Division of
Emergency Management have managed emergencies on a day-to-day, evolving
basis, relying on the statutory guidelines provided by the legislature and
executive branch administrative expertise. The executive branch has acted
through the Governor’s issuance of executive orders and various emergency
administrative regulations. The legislature’s emergency management
involvement has been confined to the exercise of its traditional law-making
function. Thus, during the 2020 and 2021 legislative sessions the General
Assembly passed laws addressing various COVID19 emergency issues,
approving and supplementing some of the Governor’s directives while limiting
and discontinuing others. The 2021 legislation extends the legislature’s reach
and control beyond the laws passed in the constitutionally-mandated sessions,
curtailing the Governor’s powers through a thirty-day limit on the exercise of
his emergency authority. The thirty-day limit operates as a “kill switch” that
essentially transfers the day-to-day management of emergencies to the
legislature by rendering the executive branch powerless to act after thirty days,
forcing the call of a special legislative session. This type of special legislative
31
session trigger has no antecedent in Kentucky law to my knowledge and
requires careful constitutional analysis. Is it consistent with our current
constitutional framework? Can the legislature pass a law that de facto nullifies
the Governor’s constitutionally-granted discretion regarding the calling and
content of special legislative sessions and forces their recall, perhaps
repeatedly as an emergency evolves over many months?24
This concept of time-limited executive emergency authority that relies on
the recall of the legislature into special session appears throughout the 2021
legislation, raising serious constitutional questions that require further focused
examination. The Attorney General, maintaining that no justiciable
controversy exists, has not engaged on this or any other merits issues; the trial
court needs the benefit of legal analysis from both sides. The lead opinion
wisely recognizes that on remand the circuit court should address this issue
and I wholeheartedly agree.
In closing, 7,477 Kentuckians have lost their lives to COVID-19 as of
August 19, 2021. That number is considerably higher than the entire
population of my Western Kentucky hometown and the cities where many
Kentuckians live and work. The death toll does not even account for the
24 The 2021 Session passed H.B. 4 which will place on the 2022 general election
ballot a proposed amendment to the Kentucky Constitution allowing the President of
the Senate and the Speaker of the House to convene the legislature by Joint
Proclamation “for no more than twelve legislative days annually.” If Kentucky voters
approve, this amendment would put the imprimatur of our Constitution on the
convening of the General Assembly beyond the current constitutionally-authorized
annual sessions and the “extraordinary circumstances” special sessions called at the
discretion of the Governor under Section 80.
32
hundreds of thousands of citizens whose lives have been irrevocably changed
by the impact of the disease on their own lives, their families and their
communities. And still the COVID-19 scourge continues with coronavirus
cases and hospitalizations increasing these past few weeks. Whatever
disagreements citizens may have about how best to address the seemingly
limitless thorny issues raised by the pandemic, they are undoubtedly united in
their desire to see our Commonwealth travel as safely and quickly as possible
to the other side, to find some semblance of normal again. As a Justice, and
more pertinently as a lifelong Kentuckian, I implore all parties to this matter to
lay down their swords and work together cooperatively to finish this immensely
important task for the benefit of the people they serve.
33
COUNSEL FOR MOVANT, ATTORNEY GENERAL:
S. Chad Meredith
Matthew F. Kuhn
Brett R. Nolan
Office of the Attorney General
COUNSEL FOR RESPONDENT, GOVERNOR:
Amy D. Cubbage
S. Travis Mayo
Taylor Payne
Marc Farris
Laura C. Tipton
Office of the Governor
COUNSEL FOR RESPONDENT, SECRETARY
FRIEDLANDER:
Wesley W. Duke
LeeAnne Applegate
Cabinet for Health and Family Services
COUNSEL FOR ROBERT STIVERS, AS PRESIDENT
OF THE KENTUCKY SENATE:
David E. Fleenor
COUNSEL FOR DAVID OSBORNE, AS SPEAKER
OF THE HOUSE OF REPRESENTATIVES:
David E. Lycan
COUNSEL FOR LEGISLATIVE RESEARCH COMMISSION:
Gregory A. Woosley
34