Kentucky restaurants challenging Governor Beshear’s never-ending emergency powers

Trindy’s, a restaurant and bar in Georgetown, Kentucky, had the capacity to seat 60 guests, 11 of those seats being at the bar. At one point during the COVID-19 pandemic, Governor Andy Beshear’s order forbade customers from sitting at the bar and limited restaurant capacity to 60%, and Mindy Tindle, the owner, worried about the future of her business.

Mindy was just one of several local business owners who feared for the fate of their companies. Ted Mitzlaff, who runs Goodwood Brewing Company, which has three locations across the state, found himself in a similar situation.

The governor’s emergency orders constantly changed, and many small businesses were never entirely sure if they were in full compliance with the law. Arbitrary enforcement of these regulations became a problem, creating a looming threat of complete shutdown if a business was caught violating orders, regulations, mandates, and directives they didn’t even know existed.

During times of economic uncertainty, local restaurants should not have been forced to operate in a constant state of panic, worried that they could be fined or shut down at a moment’s notice.

Nearly a year into the pandemic, the Kentucky General Assembly became fed up with Governor Andy Beshear’s unending, often arbitrary, use of emergency powers to combat COVID. Governors have a legitimate role to address emergencies when quick action is needed, but their authority to create rules cannot be indefinite.

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At some point, legislators, as representatives of the people, must exercise their constitutional role as the policy-making branch of government to consider and, when necessary, amend the government’s emergency powers policies—particularly when one branch of government claims virtually unreviewable and unending authority over people’s livelihoods.

That’s exactly what the Kentucky General Assembly did when it placed limits on the governor’s emergency powers, in line with PLF’s principles for emergency powers reform. Under the new law, emergency orders were limited to 30 days, after which the legislature must be consulted. The law also prevented the governor from issuing substantially similar orders (without the legislature).

Chafing against the legislature’s restriction of his power, the governor’s office sued the legislature and the attorney general to prevent the law from being carried out. While the governor and attorney general sparred in court, local restaurants continued to suffer under the governor’s ever-changing and uncertain rules.

Trindy’s, Goodwood Brewing Company, and Dundee Tavern, owned by Alan Hincks, challenged the governor’s use of emergency orders—which had expired under the terms of the new emergency-powers laws passed by Kentucky’s General Assembly—in their own lawsuit. All three businesses were represented by Pacific Legal Foundation free of charge.

In the concurrent lawsuit between the Kentucky attorney general and the governor, the Kentucky Supreme Court ultimately concluded that the governor had overreached and did not have the authority to govern by emergency decree essentially unchecked. This upheld the General Assembly’s reforms to emergency powers and ensures that governors will not be able to wield unchecked power in future emergencies.