Court order exempts Diocese of Covington from statewide school mask mandate

Fog covers Covington Catholic High School in Park Hills, Ky., Saturday, Jan 19, 2019.  (AP...
Fog covers Covington Catholic High School in Park Hills, Ky., Saturday, Jan 19, 2019. (AP Photo/Bryan Woolston)(KFYR)
Published: Aug. 19, 2021 at 6:25 PM EDT
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CAMPBELL COUNTY, Ky. (WXIX) - A federal judge issued a temporary restraining order on Thursday narrowly exempting schools within the Catholic Diocese of Covington from Gov. Andy Beshear’s statewide mask mandate.

Parents in the Diocese sued to challenge Beshear’s Aug. 10 executive order requiring all teachers, staff, students and visitors in Kentucky schools wear masks regardless of vaccination status.

Beshear acted to remove the case from Campbell County Circuit Court, which placed it on the docket of US District Court Judge William Bertelsman.

Bertelsman referenced laws passed by the Kentucky General Assembly in 2021 that limited Beshear’s ability to issue pandemic orders premised on his emergency powers, as the governor did with the Aug. 10 mask mandate.

In particular, Senate Bill 1 provided that, once a state of emergency has expired, the governor cannot declare a new emergency “based on the same or substantially similar facts and circumstances as the original declaration or implementation without the prior approval of the General Assembly.”

SB1 also limits executive orders restricting the functioning of certain institutions (but particularly schools) to 30 days unless extended by the General Assembly.

“The Executive Branch cannot simply ignore laws passed by the duly-elected representatives of the citizens of the Commonwealth of Kentucky. Therein lies tyranny,” Bertelsman wrote.

The mask requirement implemented by the Kentucky Department of Education is not affected by the order, nor is the Cabinet for Health and Family Services’ emergency regulation for childcare centers.

A legal saga in Kentucky

Bertelsman’s ruling comes as the latest in a series of overlapping challenges to the governor’s pandemic orders, one complicated by the General Assembly’s passage of SB1 and the rest.

The short of it: Conflicting circuit court orders are in effect alternately enjoining Beshear’s pandemic measures and, at the same time, halting enforcement of the General Assembly’s new laws. How the Kentucky Supreme Court rules in cases related to those orders will decide the future of masks in schools (and much else.)

The long of it:

Beshear sued to challenge SB1 and the other new laws in February on the grounds that they unconstitutionally limit the governor’s emergency powers.

A Franklin County Circuit Court judge in March sided with Beshear and awarded a statewide temporary injunction against the laws.

Three months later, the Kentucky Supreme Court heard arguments on two cases involving two temporary injunctions, one being a direct appeal of the Franklin Court order by Kentucky Attorney General Daniel Cameron on justiciability grounds. The other deals with an order out of the Scott County Circuit Court against the governor’s pandemic measures.

The Supreme Court has not yet delivered an opinion on either case.

Separately, a Boone County Circuit judge issued a permanent injunction against Beshear’s pandemic orders on June 10.

That order arose in a long-running case brought by Northern Kentucky businesses against Beshear’s pandemic orders last year. The businesses filed for a restraining order, which made its way to the Kentucky Supreme Court on appeal.

The Kentucky Supreme Court delivered its opinion last November. It ruled against the restraining order, saying Beshear’s original pandemic orders were a proper use of executive power and were not a violation of the separation of powers.

The Supreme Court also remanded the case back to Boone County Circuit Court, where, at least ostensibly, it is proceeding on the underlying legal questions.

The Boone County Circuit Court’s permanent injunction of June 10 came at the request of the plaintiffs using SB1 as its legal basis.

Cameron, in turn, used the Boone County injunction as partial support for his filing with the Kentucky Supreme Court on Aug. 11 to the effect that Beshear’s school mask mandate is unconstitutional.

With so many conflicting rulings and undecided challenges, Bertelsman might have had his work cut out for him on the Covington Diocese question.

In fact, he has little trouble dispensing with them. In a footnote, he simply says state law questions aren’t binding on federal courts.

In the same footnote, he permits himself to “predict” how the Kentucky Supreme Court would rule in the pending cases.

Hence his ruling for the restraining order, premised in part on SB1, despite the Franklin County Circuit Court order halting enforcement of that statute.

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