Brewpubs and Restaurants Sue Kentucky Governor Over COVID-19 Restrictions

Kentucky Gov. Andy Beshear walks to the podium during a media conference at the state’s Emergency Operations Center at the Boone National Guard Center in Frankfort, Ky., to provide an update on the novel coronavirus on May 3, 2020. Ryan C. Hermens/Lexington Herald-Leader via AP

A group of brewpubs and restaurants in Kentucky sued Gov. Andy Beshear on Monday, seeking to nullify Beshear’s COVID-19 executive orders, which “severely harmed plaintiffs’ businesses.”

The lawsuit also called for limiting the governor’s power to issue indefinite emergency declarations and executive orders—“defendants should be temporarily and permanently enjoined from issuing and enforcing new orders related to the COVID-19 pandemic,” the complaint (pdf) said.

“While the governor does have the authority to respond to emergencies, that power isn’t unlimited and can’t be used forever,” said Oliver Dunford, an attorney at Pacific Legal Foundation.

Pacific Legal Foundation is representing the plaintiffs free of charge. The Foundation called itself “a national nonprofit legal organization that defends Americans threatened by government overreach and abuse.”

“The legislature has the constitutional obligation to weigh in on the Commonwealth’s emergency powers and ensure they are not used to arbitrarily restrict individuals and businesses. Even during times of crisis, the government must adhere to the separation of powers to protect people’s individual liberty and freedom,” continued Dunford in a statement.

Dunford claimed in the complaint that after the state legislature overrode the governor’s vetos of House Bill 1 (HB 1), Senate Bill 1 (SB 1), and Senate Bill 2 (SB 2), the Governor’s orders of COVID-19 restrictions expired on Mar. 5 and is no longer binding.

The governor and the legislature are fighting in court over the legislation’s validity.

HB1 states that any business “may remain open and fully operational for in-person services so long as” it meets guidance from the Centers for Disease Control and Prevention (CDC) or from the executive branch, “whichever is least restrictive.”

SB 1 states that the Governor’s executive orders “shall be in effect no longer than thirty days” unless the state legislature approves an extension.

SB 2 requires the government to meet higher burdens before adopting “emergency” regulations.

All three bills were passed in both chambers of the state legislature in early January. However, Beshear vetoed all three bills on Jan. 19, saying (pdf) the bills “unconstitutionally interferes with the Governor’s power and responsibility to confront emergencies.”

The Republican-controlled state legislature voted overwhelmingly to override the governor’s vetoes on Feb. 2, and the three bills became law.

The Kentucky State Capitol on Jan. 9, 2014. Kittugwiki/CC BY-SA 3.0

Beshear brought a lawsuit afterward to challenge the validity of the three laws. On March 3, Franklin County Circuit Judge Phillip Shepherd issued an order temporarily blocking the implementation of the three laws.

“Respectfully, Judge Shepherd’s order is in error and does not bind the Plaintiffs here,” Dunford said in the complaint.

Dunford pointed out in the complaint that as the Kentucky Supreme Court recognizes, the General Assembly—the state legislature of the Commonwealth state—has the power to limit the duration of the Governor’s emergency powers.

Beshear’s office didn’t respond to a request for comment.