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Will Kentucky mask skirmish have lasting impact on courts?

Judges 'run for re-election' too"
Andy Beshear, Daniel Cameron
Posted at 6:22 PM, Aug 11, 2021
and last updated 2021-08-11 20:05:07-04

COVINGTON, Ky. — The latest skirmish over a governor’s authority to impose emergency pandemic restrictions might take only a few weeks to resolve in Kentucky, where Attorney General Daniel Cameron is asking the Kentucky Supreme Court to enforce a Boone County injunction against such restrictions.

But even after the legal matters are resolved, experts say the political ramifications of this week’s controversy could have a long-term impact on Kentucky’s court system.

“They run for re-election too,” said Trey Grayson, a Frost Brown Todd attorney and former Kentucky Secretary of State. “In a state that’s moving right, a court ruling for the Democratic governor on ideological grounds might provide fodder for opponents to run” against four Kentucky Supreme Court justices who are up for re-election in 2022.

The legal dispute gained new urgency this week when Gov. Andy Beshear announced a new executive order requiring anyone above the age of 2 to wear a mask inside schools or child-care facilities. In a press release and court filings, Cameron argued the order is an “unlawful exercise of power” that violates a Boone Circuit Court injunction and disregards legislation approved by Kentucky’s General Assembly in February.

“If he believes that the science requires a statewide mask mandate for schools and childcare centers, then he needs to do what the law requires and work with the General Assembly to put the necessary health precautions in place,” Cameron said in a press release. “The matter remains before the Supreme Court, and the court will now review our arguments and determine what process the Governor must follow.”

Attorney Brandon Voelker has been following the controversy for local government clients at Covington-based Gatlin Voelker PLLC. He said the case boils down to “how you interpret Section 3 of KRS 39A.090.” That’s the Kentucky statute that spells out a governor’s authority to impose emergency orders.

Kentucky’s Supreme Court ruled unanimously in November that the statute gave Beshear the power to impose the first round of pandemic restrictions in 2020. But the Kentucky General Assembly amended the statute in February to place a 30-day restriction on new pandemic orders.

“Those that say he doesn’t have the authority will argue that (the new mask mandate) is just a re-hashing of the prior mask mandate that he lacks the authority to do,” Voelker said. “The governor’s position is that he’s got certain rights vested under the constitution as the commander in chief, the head of state.”

Grayson said the Supreme Court’s prior handling of the issue could be a sign for how it will rule this time.

“The justices I think gave a lot of deference to the fact that we’re in the middle of a pandemic and the governor needs to have deference on these issues to protect the public health,” Grayson said. “These are important principals. What is the role of an executive? We have a part-time legislature, which is different than Ohio. So, our governor probably does need to have some greater flexibility when they’re not in session. Where does that line get drawn? Who draws that line? It’s good to get these things settled so we have some guidance going forward. It’s unfortunate that it’s divisive and wrapped in partisanship and ideology.”

Grayson said Beshear helped to create that environment in Frankfort by challenging executive orders by former Kentucky Gov. Matt Bevin.

“General Beshear challenged Gov. Bevin on a number of issues,” Grayson said. “He generally won those. What was interesting about several of those challenges, which involved things like reorganizing through an executive order, boards and commissions, they were things that had been done by prior governors, including Gov. Beshear’s father when he was governor, but they had never been challenged.”

Voelker said the controversy is partly due to Kentucky’s government structure.

“It’s a strange system we have in Kentucky where you have a separately elected attorney general and governor,” he said. “In the federal system, the attorney general is appointed by the President, serves for the President. So, you don’t really get this kind of fighting.”

Voelker and Grayson agree on one point: The controversy will impact the four Kentucky Supreme Court Justices who are up for re-election in 2020. They are Lisabeth Tabor Hughes, Michelle Keller, John D. Minton Jr. and Christopher Nickell.

“In Northern Kentucky, I’ve heard grumbling about incumbent Justice Michelle Keller, ‘We’ve got to get somebody to run against her.’ If there’s another ruling, given the divide on this issue and the heated emotions and some of the things that I saw from Republican legislators on the issue, maybe that causes somebody to run and that person to get more help and support against her and also the other judges,” Grayson said.

“It’ll be interesting to see how this impacts the courts,” said Voelker “I’ve never really seen that, and I’ve been practicing law for 20 years, to where there’s a concentrated effort to recruit judges.”