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Franklin Circuit Court Judge Phillip Shepherd blocks bills limiting Beshear’s COVID-19 powers

By Tom Latek
Kentucky Today

Franklin Circuit Court Judge Phillip Shepherd issued a temporary injunction keeping three bills passed by the General Assembly that limited the governor’s power to deal with the COVID-19 pandemic from being implemented until the merits of the case are heard.

Franklin Circuit Court Judge Phillip Shepherd

House Bill 1 and Senate Bills 1 and 2 were approved by the Republican supermajority in both chambers during the first days of the 2021 session. After Democratic Gov. Andy Beshear vetoed the three measures, lawmakers overrode the vetoes, which made the legislation law.

The governor then filed suit at Franklin Circuit Court, seeking to keep the bills from taking effect.

HB 1 states in part that any business, for-profit or not-for-profit organization, local government, association, or any school or school district, public, private, or religiously affiliated, may remain open and fully operational for in-person services so long as it adopts an operating plan that either meets or exceeds guidance issued by the Centers for Disease Control and Prevention or by the executive branch, whichever is least restrictive.

SB 1 limits any emergency order or regulation to 30 days unless the General Assembly approves an extension. That means that if an order was issued when lawmakers were not in session, would have to be called to Frankfort for a special legislative session, which costs over $60,000 per day, and would likely have to last at least five days.

SB 2 Would limit emergency Administrative Regulations to 30-days, and documentation would have to be submitted to justify the regulation.

In his 23-page ruling, Shepherd said:

“In balancing the equities, the Court is mindful that the challenged legislation seeks to address a legitimate problem of effective legislative oversight of the Governor’s emergency powers in this extraordinary public health crisis.

Gov. Andy Beshear won a battle in court when Franklin Circuit Judge Phillip Shepherd issued a temporary injunction on three bills dealing with the governor’s power during a pandemic.

“The Court is also mindful that the Governor and the Secretary are faced with the enormous challenge of effectively responding to a worldwide pandemic that has resulted in the deaths of thousands of Kentuckians and over 500,000 people in the United States.

“The Court believes all parties are acting in good faith to address public policy challenges of the utmost importance. The Governor has made a strong case that the legislation, in its current form, is likely to undermine, or even cripple, the effectiveness of public health measures necessary to protect the lives and health of Kentuckians from the COVID-19 pandemic.”

Shepherd issued a temporary injunction, which keeps provisions of the three bills from being implemented until arguments can be heard, and his final judgment issued.

Gov. Beshear issued a statement on the court action: “We appreciate the order. The ability to act and react quickly is necessary in our war against this ever-changing and mutating virus. Recently, we have been having productive conversations on a wide range of topics with legislative leaders. We will attempt to work with them on this and other topics now and in the future.”

There has been no response to a request for comment from legislative leaders.

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