A Scott County Circuit Court judge temporarily blocked some of Democratic Gov. Andy Beshear’s COVID-19 restrictions for several restaurants and breweries that sued the governor last month over those restrictions. Scott Circuit Court Judge Brian Privett in his order Friday said the governor’s emergency powers aren’t “inherent.” He noted the GOP-controlled legislature voted this year to scale back those powers.
“This action, at its most basic level, is simple. The Governor has two kinds of power: those given to him in the Constitution, and those given to him by the Legislature under statute. The emergency powers of the Governor at issue in this case are not inherent,” Privett said.
“They are not listed in the powers given to the Governor in the Constitution but were given to the Governor when the General Assembly created and passed KRS Chapter 39A. Any power the General Assembly gives to the other branches of government, it can freely rescind, modify, or limit.”
This temporary injunction would only affect select restaurants, breweries, and bars in Jefferson, Fayette, Scott, and Franklin counties that brought the lawsuit: the Goodwood Brewing Company, doing business as the Lexington Brewpub, Louisville Taproom, and Frankfort Brewpub; and Trindy’s and Kelmarjo, doing business as The Dundee Tavern.
Privett said his order minimizes public health risk and the risk for confusion due to the limited scope of the ruling. He added the order would most likely be quickly stayed and reviewed by the state Court of Appeals.
This order is a contrast to a Franklin County Circuit Court ruling earlier this week that granted a temporary injunction against another legislative measure, House Joint Resolution 77, which would have limited Beshear’s COVID-19 orders.
“These are great, fundamental issues of law and rights and fairness. The Franklin Circuit Case involves only the Governor and the General Assembly. By issuing this temporary injunction, the Court gives these Plaintiff businesses, the business community, and general citizenry of the Commonwealth a real say in the matters,” Privett said.
The Pacific Legal Foundation, a nonprofit national legal organization representing the restaurants, in a statement cheered the ruling.
“The order recognizes that the governor is obligated to follow the laws, just like everyone else,” said Oliver Dunford, an attorney with the nonprofit. “As Judge Privett wrote, Kentucky’s emergency laws prevent temporary orders from becoming de facto legislation. This order is a victory for the rule of law and Kentucky’s separation of powers.”
Kentucky Commissioner of Agriculture Republican Ryan Quarles also cheered the ruling in a series of tweets, saying “[i]t’s time to open up Kentucky!” Quarles is holding a series of roundtable discussions across the state to hear about the challenges restaurants have faced amid the pandemic.
Restaurant capacity in Kentucky is currently limited to 60% capacity with social distancing. The Kentucky Supreme Court last year upheld Beshear’s COVID-19 emergency orders, yet that was before the legislature passed measures this year aiming to limit the governor’s emergency powers.
A spokesperson for Beshear did not immediately respond to a request for comment.