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Judge grants Beshear partial restraining order in lawsuit over measures limiting governor’s powers

Published: Feb. 3, 2021 at 10:48 AM EST
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FRANKFORT, Ky. (WKYT) - UPDATE: A Franklin County judge says House Bill 1, which allows schools and businesses to stay open as long as some sort of health guidelines are followed, would create chaos.

That’s why he has issued a restraining order on the legislation.

(Read the original story below)

This restraining order is only for parts of House Bill 1, specifically the part of schools and businesses staying open.

In his ruling, Judge Phillip Shephard talks about the difficult issue of having schools and businesses make their own plan based on the least restrictive guidelines. He also mentions a letter given from the governor that was written by the CDC that says their guidance is not meant to be interpreted as standards that can be regulated.

He says the court is concerned that that portion of HB1 could create chaos and undermine any effective enforcement of public health standards to prevent the spread of the virus, adding hundreds or thousands of individual operating plans could be adopted and have little review or oversight.

This is why he says he has issued a restraining order for 30 days or until he issues a ruling on the temporary injunction.

“There are 174 CDC guidance documents. Now, I guess every business would have to look through all 174 of these, which multiple ones would apply to them, and try to figure out what they do or do not have to do,” Gov. Andy Beshear said.

In a statement, the governor says he doesn’t use emergency powers because he wants to, but because it is his duty to preserve the lives of Kentuckians.

Senate President Robert Stivers says the General Assembly wants to look further into the order to better understand the ruling. But, he says it is clear the majority of the actions taken by the General Assembly were within the law.

The judge will make a final ruling after a hearing, which has been set for 9 a.m. on Feb. 18.

ORIGINAL: A circuit court judge is being asked to consider the legality of legislation to limit the governor’s powers.

This comes after the legislature voted to override Governor Beshear’s vetoes of several bills.

Just as the General Assembly voted to override all of the bills the governor vetoed, many of them dealing with his emergency powers and executive orders focused on businesses and schools, the governor filed a lawsuit against the House and Senate leadership, as well as Attorney General Daniel Cameron.

Now, Judge Phillip Shephard is being asked to issue a temporary injunction or restraining order against House Bill 1 and Senate Bill 1. Beshear wants to block the bills, although both had emergency orders when they were made law after the gubernatorial vetoes were overridden.

Senate Bill 1 imposes limits on executive orders to 30 days unless the General Assembly approves. House Bill 1 allows schools and businesses to remain open or have in-person instruction as long as CDC guidelines, or the governor’s rules were followed, whichever is less severe.

“This can be interpreted to completely undo the mask regulation and any capacity limits,” said Beshear’s attorney, Amy Cubbage. “We could have large scale events tomorrow.”

Wednesday morning, during a Zoom court hearing, lawyers for Gov. Beshear stated there’s confusion as far as what businesses or schools can or cannot do and they want the injunction until the courts can iron everything out.

House Bill 1 says if businesses are not able to operate, this law would impact them.

“If they are prohibited from operating, in a level that other guidelines that suggest they can operate safely, then yes it would,” said Rep. David Osbourne, R-Ky. House Speaker. “As far as, do they have to start following some new protocol, no they don’t.”

Speaker Osborne also said that, even though House Bill 1 is now law, they can always go back and amend it.

“Yes, we can amend anything up until March 30,” Osborne said. “Whatever version passes last, will be what is the prevailing law.”

Governor Beshear says it would be very complicated for businesses to follow CDC guidelines on their own.

“There are 174 CDC guideline documents,” Beshear said. “I guess every business would have to look through all 174 of these, which multiple ones would apply to them, and try to figure out what they would or would not have to do.”

Judge Shephard said he would issue an order promptly given the public health situation. However, he said he would not issue an order until attorneys representing all the defendants issued a written response.

Judge Shephard also asked the governor, and House and Senate leadership to work together given the seriousness of the COVID-19 pandemic.

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