FRANKFORT, Ky. — Under Senate Bill 1, Gov. Andy Beshear’s COVID-19 orders would expire in early March, unless the legislature decides to extend them.
It’s one of three bills at the center of a legal challenge Beshear filed in Franklin Circuit Court. Judge Phillip Shepherd heard arguments over Zoom Thursday, promising to make a decision before the orders expire.
“The urgent need to have an effective response to a pandemic is an extremely important consideration for the court,” Shepherd said.
The three bills Gov. Beshear is challenging:
- Senate Bill 1: limits the governor’s emergency declarations to 30 days without an extension from lawmakers.
- Senate Bill 2: requires more legislative oversight on emergency orders.
- House Bill 1: allows businesses and schools to either follow CDC guidelines or the governor’s office, whichever is less restrictive.
Public Health Commissioner Dr. Steven Stack testified House Bill 1 would add more confusion to the pandemic.
“One of the frustrations along these 12 months has been when people have felt that they did not have sufficient precision and clarity in the guidance they were given so that they could know, with concrete simplicity, what they must or must not do. And so taking very diffuse guidance documents like the ones the CDC has clearly would not have worked.
And Stack says the two Senate bills would limit the state’s ability to enforce quarantine rules, a claim that drew scrutiny from attorney Victor Maddox with Attorney General Daniel Cameron’s office.
Maddox: “The Department of Public Health has ample authority under existing Kentucky statutory law — Chapter 214 in particular — to provide for the quarantine of people with infectious diseases.”
Stack: “Authority which is subverted by Senate Bill 1 and 2.”
Maddox: “Are you sure about that?”
Stack: “The plain language reading of it appears to be the case. I don’t offer an opinion on constitutionality, the court will determine those things and lawyers…”
Maddox: “OK.”
Stack: “But I will offer the opinion that the plain language reading of Senate Bill 1 and Senate Bill 2 specifically says that we may not impose isolation quarantine. In fact, it’s one of the shortest sentences in the entire bill.”
During Dr. Stack’s testimony, Maddox questioned whether the mask mandate worked because the average number of positive coronavirus tests rose by so much between July, when the mandate was imposed, and the latest spike this winter.
Maddox: “It’s not possible to look at that data and draw a conclusion that the trend supports the idea that the measures were effective, is it?”
Stack: “That is entirely incorrect.”
Maddox: “Well, if they were effective, you would expect the trend line going in the opposite direction for six months, wouldn’t you?”
Stack: “No.”
Stack said the mask mandate, coupled with other restrictions, helped slow down what could have been exponential growth of the virus.
Beshear addressed the testimony in response to a question from Spectrum News during his COVID-19 update Thursday.
“Just because numbers were going up and we put in a mask mandate doesn’t mean it didn’t work; it absolutely does (work),” Beshear said. “The fact we’ve got one of our constitutional offices still challenging the most basic science in fighting this pandemic is really concerning.”
The basis of Beshear’s legal challenge is that the new laws violate the separation of powers clause of the Kentucky Constitution.
Beshear expressed concern that every executive order he has issued to deal with the pandemic would expire in early March without legislative action.
“It is critical that we get a ruling before then, or the Senate and the House agree to continue what we have in place that has worked,” Beshear said.
Eric Lycan, an attorney for House Speaker David Osborne, said lawmakers are allowed to have more say when dealing emergencies, including the coronavirus.
“The General Assembly is not micro-managing decisions about COVID. This is, frankly, not about COVID,” Lycan said. “The General Assembly is asserting that the executive does not have unilateral, unlimited power to act in derogation of the Bill of Rights.”
Judge Shepherd asked both sides to communicate more to avoid more court fights.
“The result of this is not going to be good for the public unless all the parties who are involved in this litigation are able to try to find a third way to address these problems,” Shepherd said.
Judge Shepherd also asked both sides to come up with a list of every coronavirus order that would be affected by the new laws.
He also extended a temporary restraining order preventing House Bill 1 from taking effect until after he makes a decision on the overall case.