Attorneys weigh in on legality of Kentucky’s mask mandate

Attorneys weigh in on legality of Kentucky's mask mandate

LOUISVILLE, Ky. (WAVE) - Kentucky’s mask mandate went into effect Friday evening, but, several days later, some still question whether the order is legal.

WAVE 3 News spoke to two local attorneys who say it’s legal and constitutional.

Michael Abate, attorney and partner with Kaplan, Johnson, Abate and Bird, LLP, compared the mask mandate to a century-old Supreme Court ruling that declared requiring all adults to receive the small pox vaccine constitutional.

"I think if it's legal during a time when vaccines were much more dangerous than they are today, it's plainly constitutional to require everyone to wear masks when they enter places of public accommodation," Abate said.

However, some questions remain due to a temporary restraining order filed by a Scott County circuit court judge that blocked Gov. Andy Beshear from making future coronavirus-related restrictions. Mitchel Denham, local attorney and partner of DBL Law, said that restraining order only applies to executive orders. The governor’s mask mandate was an emergency regulation.

Then, Kentucky Attorney General Daniel Cameron asked a circuit court judge to issue a ruling on whether Beshear violated that restraining order. Abate questioned the legality of the original restraining order, and said it likely will be shot down.

“You generally can’t have an order that strikes something that hasn’t even yet been done,” Abate said.

Abate and Denham agree that people should assume the mask mandate is in effect and suggest wearing a mask in the required places to avoid fines and punishments associated with breaking the law.

Businesses could lose their licenses or face monetary fines should they violate the mask mandate. Individuals will receive a warning upon their first violation, then face a series of monetary fines for non-compliance. Abate said it is up to agencies like the state police and local county health authorities to enforce the order.

Abate and Denham said in general, the mask mandate does not violate a person’s constitutional rights because the governor has the authority to mandate an order if it is intended to protect the public’s health and safety.

“It’s otherwise common sense, that wearing a face mask is a means of preventing the spread of COVID-19,” Denham said. “It is not an expression of a message, so it doesn’t violate anyone’s free speech.”

“When you take the politics out of it, it’s hard to see what right is seriously infringed when you ask someone to wear a mask in public to prevent diseases,” Abate said. “You wear seatbelts in cars, you have to have insurance on cars, when we’re interacting with other people in ways that could cause them harm, there are all sorts of regulations on our personal behavior that are perfectly constitutional.”

The governor has filed an appeal of the Scott County circuit court judge’s restraining order; no legal ruling has been made yet.

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