The first week and a half of the Session has come to a close as they were in session from January 5th though January 13th. So, now it’s time to take a look at what they have passed. First up is our laymen’s breakdown of Senate Bill 1, the Senate’s version of Emergency Powers Reform. We are not going to hit every single piece of this legislation just the highlights. We agree that most of the bill is good, are there parts we would like to have improved, but this is a start. However, as you will see we think parts of the bill conflict, and may be up to the courts to determine the General Assembly’s intent. The Governor will likely veto SB 1; however, it is very likely the General Assembly will overturn that veto.
Senate Bill 1 - Emergency Powers KRS 39A-F
Section 2- Subsections 1-5
The Governor can only declare and emergency for 30 Days and during those 30 Days, however, during those 30 days he can still shutdown business, schools, religious, political and social gatherings, local governments, and impose mandatory isolation and quarantine.
The Governor cannot extend any emergency powers executive order or directive that would restrict the items above without permission from the General Assembly, which means the Governor has to call the General Assembly into session to continue restrictions on those activities. Otherwise, the emergency powers executive orders end.
Any other executive order that does not deal with the above issues may exceed 30 Days as well if requested by the local governing body of an area.
The Governor also cannot declare a new set of emergency powers executive orders based on the same or substantially similar facts and circumstances as the original declaration without prior approval from the General Assembly.
Upon the enactment of an emergency powers executive orders that may violate Constitutional Rights, the state waives its 11th Amendment (US Constitution) right to immunity and can be sued by a citizen in Federal Court for only injunctive and declaratory relief, not for punitive damages, meaning you can only overturn the order but received compensation for damages.
Section 3 – Subsection 1
Condemnation of property by the governor must follow state Eminent Domain laws. Before SB 1 the Governor had the authority under KRS 39A-F to take property and compensate the owner for whatever the Governor valued the property.
Allows the Governor to limit the sell of goods in the event of a shortage, prior to SB1 the Governor could limit the sell of any good, it was not based on available supply.
This was the kitchen sink clause that pretty much allowed the Governor to do whatever was needed to secure the protection and safety of the civilian population, it has been removed. However, it does allow for the Governor to do what is necessary to enforce subsections (a)-(k) of Subsection 1 of Section 3.
Interesting to not the Governor can still institute curfews per this section.
Last session the General Assembly gave the Governor and SOS the ability to change the manner of elections, meaning we had increased mail-in voting. The manner has been removed and reverted back to the way the law was before where only the time and place of a state election can be held, based upon the recommendation of the SOS, and the delayed election cannot be over 35 days. In short, no more mail-in voting!
Section 3 – Subsection 2
The Governor must report expenditures related to any contract issued during the Emergency, and any federal funds received and the expenditure thereof.
Section 3 – Subsection 4
This is where it gets confusing when comparing it to Section 2 which allows the Governor the ability to violate rights for at least 30 Days unless the Governor is allowed to continue doing so per the General Assembly. This section; however, makes clear the Governor cannot violate freedom of speech, peaceful assembly, or the right to worship. The right to bear arms was already protected by its reiteration in KRS 39A-F prior to SB1. It does not protect your right to freely engage in commerce. Another item this legislation does not address is making clear the Governor does not have prevue over private schools or homeschools. So, the question is which takes precedence Section 3 or Section 2, do you or do you not have your constitutional rights in an emergency?
Section 4 – Subsection 2
The nuts and bolts of this section is it reforms the Governor’s ability to suspend statutes, which he currently has when emergency powers are enacted. He cannot suspend a statute without state specifically in his orders what statute he is suspending, and having the Attorney General sign off on it. Any administrative regulations he makes are void after the emergency has passed, and he cannot suspend any portion of KRS 39A-F.