Active: Litigation is ongoing.

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-19. Governors have a legitimate role to address emergencies when quick action is needed, but their authority to create rules cannot be indefinite. 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. Under the new legislation, emergency orders can last only 30 days, after which the legislature must be consulted. And substantially similar orders cannot be imposed again.

While the governor and legislature litigate this in court, local restaurants continue to suffer under continually changing and uncertain rules.

Trindy’s, a restaurant and bar in Georgetown, Kentucky, has the capacity to seat 60 guests, 11 of those seats being at the bar. When the lawsuit was filed, the governor’s order forbade customers from sitting at the bar and limited restaurant capacity to 60 percent, and Mindy Tindle, the owner, worried about the future of her business.

Mindy was just one of several local businessowners 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. And 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.

Trindy’s, Goodwood Brewing Company, and Dundee Tavern, owned by Alan Hincks, challenged the governor’s application of emergency orders, which expired under the terms of the laws passed by Kentucky’s General Assembly. All three businesses are represented by Pacific Legal Foundation free of charge.

What’s At Stake?

  • The Kentucky Constitution does not grant the governor limitless power to declare emergencies and to issue and enforce binding executive orders which are inconsistent with duly enacted laws.
  • Even during a pandemic, each branch of government must adhere to the constitutional provision of separation of powers, which are the main protection of individual liberty.

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