AG Cameron Asks Court To Nullify Kentucky Coronavirus Restrictions

Kentucky Attorney General Daniel Cameron has filed a motion to suspend executive orders designed to protect the public from the global pandemic ravaging the country, and on the rise in the Commonwealth.

Cameron asked the Boone County Circuit Court to issue a temporary injunction nullifying the governor’s orders in Wednesday's motion. Cameron claims Gov. Andy Beshear’s orders exceed his authority as governor, violate the state Constitution and are unequally applied among Kentucky residents.

He also said Beshear and his cabinet members engaged in “ad-hoc rationalization” and value-based judgments without public comment, based on an interview with Kentucky Public Health Commissioner Dr. Steven Stack.

Beshear responded in a tweet, saying: “With no rules, there is no chance of getting kids back to school, we will lose over $10 billion in our economy and many Kentuckians will die. I hope everyone understands how scary and reckless this is.”

Despite scientific evidence showing a decrease in cases following the governor’s orders, Cameron also claims that removing the orders would not harm defendants in the case — or by extension, Kentucky residents.

“In each of these ways, this unchecked, totalitarian use of emergency authority violates the ‘inherent and inalienable rights’ of the people,” the motion states. “Its very nature, antithetical to democratic ideals, and is contrary to the customs and maxims of a free people.”

In turn, the governor’s counsel asked the court to dismiss the attorney general’s motion Thursday morning arguing the governor has the constitutional authority to protect the health and safety of Kentuckians using scientifically-derived measures.

Kentucky experienced a nearly 50% percent increase in positive cases of COVID-19 between July 6 and July 12, when compared to the previous week. More than 20,000 Kentuckians have contracted the virus and 645 have died as a result.

Beshear’s March 6 executive order declaring a state of emergency was one of 48 that have been announced across the country, according to the motion. Since then, the governor’s counsel argues Beshear and the health cabinet have taken a scientific approach to prohibiting high-risk activities to decrease the public’s chance of exposure to COVID-19.

“Their claims – if successful – would leave the Governor with no ability to enact public health measures to slow the escalation of cases. Put simply, their claims are dangerous,” wrote Beshear’s counsel.

The latest court filings come in the wake of Appeals Court Judge Glenn Acree striking down Beshear’s coronavirus-related restrictions for Florence Speedway, child care centers and more than 500 businesses in the agritourism industry.

Cameron’s 31-page motion builds on the July 2 ruling for a temporary restraining order, to expand the argument to include all of Beshear’s executive orders related to the coronavirus.

Based on a deposition with Dr. Stack, Cameron wrote the state’s chief public health official doesn’t have a background in epidemiology or virology, nor has he conducted any of his own studies.

Dr. Stack, who has previously worked as an emergency medicine physician, testified “Ideally from a public health standpoint, [the Defendants] would like to keep people away from each other so that they don’t spread infection, but there are counterbalancing considerations in society.”

Based on the interview, Cameron called Stack’s and other cabinet members’ decisions to protect the health and safety of residents an “ad-hoc rationalization” that fails to include the constitutional considerations of Kentucky residents.

The motion’s main arguments are:

• The orders are a patchwork “designed to control nearly every aspect of daily life” and are therefore an arbitrary and unreasonable burden on Kentuckians.
• The orders violate the Kentucky Constitution, exceeds Beshear’s  authority as governor and violates the separation of powers between branches of government.
• The governor has not demonstrated that he has met the requirements to invoke his emergency authority.

As a result, Cameron argues that Kentuckians will suffer “irreparable injury” if the orders are allowed to stand. Cameron notes that it’s likely Beshear will also claim that Kentuckians will suffer if the coronavirus-related restrictions are lifted.

“Surely, the Governor will claim that he must have the authority to enforce his orders or that the public health might suffer,” Cameron wrote.

“But when challenged in court, the Governor has consistently told multiple courts that he has no intention of enforcing his orders against the plaintiffs in those actions. And the Kentucky Court of Appeals has recently denied the Governor’s motion for intermediate relief in this case despite such claims, noting that ‘Kentuckians remain capable of doing the wise and common-sense things necessary to keep each other safe in the coming days, just as they have until now.’”

In response, Beshear’s counsel argues in a 21-page motion to dismiss the state’s Constitution does grant the governor the powers necessary to issue coronavirus-related restrictions under Kentucky’s state of emergency laws. Their motion to dismiss also argues:

• The original claims are now moot because a judge has already ruled the coronavirus restrictions no longer apply to the defendants, which include Florence Speedway and Bean’s Cafe.
• The Franklin Circuit Court is the proper venue for litigation because that’s where Beshear signed the executive orders

In terms of the health and safety of Kentuckians, Beshear’s counsel wrote the restrictions the governor put in place effectively flattened the curve of increasing transmissions.

“The emergency measures taken by the Governor and state public health officials – and the sacrifices made by the people of Kentucky – worked. Kentucky reduced the spread of COVID-19 and “flattened the curve” of infection. For example, on April 26, 2020, it appeared cases had plateaued, as the Commonwealth reported only 202 new cases of COVID-19.8 As a result of this success, the Commonwealth began a phased reopening of the economy in May.”

Of course, cases have since begun to increase both in Kentucky and around the country.

Were a judge to rescind restrictions in place to prevent the spread of the virus, the governor would be left with no ability to enact public health measures to slow the spread of the virus, according to the motion.

“Put simply, their claims are dangerous,” counsel wrote.

This story has been updated.