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

• Court: Kentucky Supreme Court
• Decided: August 21, 2021
• Docket: 2021 SC 0107
• Status: Unknown

Opinion

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