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Judge issues temporary injunction on House Bill 1, which would limit Gov. Beshear's COVID-19 powers

Posted at 6:12 PM, Feb 03, 2021
and last updated 2021-02-03 19:31:27-05

FRANKFORT, Ky. (LEX 18) — A Franklin Circuit Court judge has issued a temporary injunction on House Bill 1, which would allow businesses, schools, and churches to remain open during an emergency as long as they follow CDC or state guidelines.

The restraining order was issued by Franklin Circuit Judge Phillip Shepherd and will last for 30 days.

The restraining order comes just one day after Gov. Beshear filed a lawsuit against lawmakers regarding six bills, one of which was House Bill 1. That lawsuit was filed shortly after the Kentucky General Assembly voted overwhelmingly to override Gov. Beshear's vetoes of those six bills.

This all comes just hours after the case was heard in court Wednesday. In a hearing over Zoom, lawyers for the governor and the attorney general argued over the bills.

The governor's team asked the judge to issue an injunction on the bills, essentially blocking them until the case could be fully resolved in court, but the attorney general's team told the judge they didn't see a need for that.

"I have taken difficult but necessary steps to stop the spread of COVID and save lives in Kentucky," said Gov. Beshear in response to the judge's decision. "Today, the Franklin Circuit Court’s order stated that House Bill 1 would 'create chaos and undermine any effective enforcement of public health standards to prevent the spread of this deadly disease during this pandemic.' I don't use emergency powers because I want to. I use them because it is my duty to preserve the lives of Kentuckians."

"We'll see you in court."

On Monday, that was Governor Andy Beshear's message to lawmakers if they overrode his vetoes of bills that will impact Kentucky's COVID-19 protocols.

On Tuesday, lawmakers overrode the vetoes. Senate President Robert Stivers adjourned the Senate, saying, "see you in court."

The governor responded with a 236 pages-long lawsuit.

"The General Assembly attempted to surrender to COVID-19 and accept the casualties," said Beshear through a written statement. "As your Governor, I cannot let this happen. I have filed this action to continue to fight for the protection of all Kentuckians.”

On Wednesday morning, the case went before Franklin Circuit Court Judge Phillip Shepard. Amy Cubbage, the governor's general counsel, and Victor Maddox, who represented Attorney General Daniel Cameron, did most of the talking.
Cubbage argued the laws would create public confusion when it comes to COVID-19 protocols. She asked Shepard for an injunction to block the laws until the case was fully litigated.

"We need a clear and consistent statewide health policy," said Cubbage. "We are asking you to enter - whether you call it - a restraining order, a temporary injunction - entering some type of order today maintaining the status quo."
Maddox argued there's no need for the injunction because they believe no harm would be done by allowing the laws to stay in place.

"It's our position that there's no need for a temporary restraining order or injunctive relief of any kind," said Maddox.
Maddox argued that the consequences of Senate Bill 1 do not take effect for 30 days. The law limits the governor's emergency orders to a 30-day time limit unless the legislature extends them.

"The legislation did not upset anything Governor Beshear has done," argued Maddox. "In fact, the 30-day clock that the legislation creates is likely now running. So, there's 30 days - for instance - for Governor Beshear and the legislature to discuss the legislation, to negotiate. I think all of them have announced words or substance that they think that's an appropriate thing to do."

Cubbage, on the other hand, argued that Maddox was ignoring the consequences of House Bill 1. The law currently allows businesses and schools to open and stay open during the pandemic if they follow either the CDC or the state guidelines, whichever are the least restrictive.

"It has an immediate effect and does - in our view, the way it is written - undo many of the governor's COVID-related orders," said Cubbage. "It allows businesses to open and remain fully operational under CDC guidance, which can be read as fully advisory and nothing mandatory. So, this can be interpreted to completely undo the mask regulation and any capacity limits."

Governor Beshear has said these new laws will directly impact the rules that keep people safe during the pandemic.

"Folks, here's what's at stake - at least three of these bills would eliminate everyone, or the most important, of the rules and practices that keep us safe," said Beshear on Monday. "They would make masking voluntary."

"I cannot and will not let the health and the lives of the people of Kentucky be put in this danger when we are so close to getting out of this," said Beshear. "This would mean that Kentucky has the least ability out of any state in the United States to respond to this crisis and protect lives."

However, Stivers and other lawmakers believe the governor shouldn't be able to make all these decisions independently.

"He does not have the sole and exclusive, unfettered discretion unless given to him by statute," Stivers said on the Senate floor Tuesday. "I will sit here, and I will argue there's no such thing as implied powers in the constitution."

Attorney General Daniel Cameron also believes more people should have input in pandemic decisions.

"What the legislature has said with a lot of the bills it has passed is that they want a seat at the table," said Cameron during a visit to Marshall County on Wednesday. "As Attorney General, I've asked for a seat at the table in consulting with and having conversations with the governor. I understand his responsibility, and former President Trump's and now President Biden's responsibility to keep people safe in the midst of a pandemic. But we have an equally important responsibility to make sure we're respecting the constitutional rights of our citizens."

Judge Shepard said he would consider Beshear's request for an injunction to block the new laws that limit his emergency powers. Later in the day, he issued a 30-day restraining order for House Bill One.