The Balancing Test

Rep. Jason Petrie (Elkton) and Sen. Whitney Westerfield (Crofton)

Benjamin Franklin observed long ago, "Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety."  Government acts properly when it offers support to the people and does so while holding sacred their constitutional liberties.  Kentuckians grant this limited authority to government to carry out this supportive role, but retain sole authority to decide what is best for themselves.

No one questions that government should take action in times of emergency, but it must be balanced both to meet the emergency and preserve our “essential” liberties.  Rights exist not only in times of peace and tranquility, but also in times of emergency.  Recent rulings by federal courts have determined that Governor Andy Beshear issued orders in response to COVID-19 that failed to maintain the required balance and violated Kentuckians’ constitutional rights.  

Governor Beshear violated the federal and Kentucky constitutions by discriminating against people of religious faith.  Rights associated with religious liberty receive particular constitutional priority.  Arguably, there is no more important right than the right to hold religious beliefs and act upon them. The Governor’s blanket orders prohibited people of faith from gathering at their houses of worship while many other places were left open and encouraged to use CDC guidelines such as social distancing and practicing safe hygiene.  The Governor did not extend the same opportunity to houses of worship.

“Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.“

Similarly, the Governor’s orders unconstitutionally prohibited Kentuckians from traveling.  The right to travel applies broadly among Kentuckians and poses a great threat when restricted.  The mobile nature of society requires the ability of persons to travel without undue restriction, and is especially significant where there is no natural border between states.

Whether constitutional rights are honored eventually is irrelevant.  Constitutional rights are so foundational to our civil society and the balance of power between government and the governed, that they warrant expedited review by courts to avoid irreparable harm.  If the government delays considering an issue, it effectively terminates any real protections afforded by the constitution.  Regrettably, Governor Beshear has chosen in each legal challenge to wait for a court ruling detailing the Governor’s violations before issuing new orders.

Recently, a group of Kentuckians filed another lawsuit against Governor Beshear for violating their constitutional rights to assemble peaceably and protest.  Stationing Kentucky State Police in and around the Capitol to restrict access, banishing demonstrators to a distant parking area, and placing Emergency Response Team members with sharpshooter equipment in and atop the Capitol Annex, evidences a government-first mentality that belies a fear of the very people government is charged with serving.  Constitutional rights cannot yield to the executive branch, especially at the seat of its operations.  Our federal and state constitutions memorialize the fact that the rights of each person existed prior to government, and that those rights are superior to both kings and governors.

Governor Beshear, in particular, cannot plead ignorance of the law or inexperience in government.  The Governor is the son of an attorney, and an attorney himself.  The Beshear family has been in state government for the last five decades. He is the son of a former House member, lieutenant governor, and governor.  Immediately preceding his current position, the Governor acted as Attorney General charged with defending constitutional rights.  This Governor, more than any, should understand constitutional rights and appreciate the necessity of their full protection.

Only during its next regular session, which convenes in January 2021, may the General Assembly act on behalf of the people by modifying existing laws, enacting new legislation, adopting resolutions, performing official inquiries, censuring and impeaching.  Until then, note carefully the actions of this Governor.

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Rep. Jason Petrie (Elkton) represents the 16th House District, including all of Todd and Logan Counties, and a part of Warren County, Kentucky. Sen. Whitney Westerfield (Crofton), represents the 3rd Senate District, including all of Christian, Todd and Logan Counties. Both legislators serve as Chair of the Judiciary Committee for their respective legislative chambers.

Passed the Halfway Mark

We kicked off week nine of the 2020 Regular Session with a visit from two special guests in the Senate chamber, Save the Children Action Network President, Mark Shriver and award-winning actress, Jennifer Garner. Many might not know that Jennifer Garner grew up in West Virginia where she witnessed the effects of generational poverty on children, similar to those we see in rural Kentucky. With the help of local advocates, Ms. Garner and Mr. Shriver are working to preserve funding for Save the Children’s early childhood education and literacy programs, which serve more than 12,000 children throughout the Commonwealth. It was an honor to welcome them to Frankfort. 

The Kentucky General Assembly crossed another mile marker this week by reaching the deadline to file new bills. Slightly less than 1,000 bills were filed — 286 Senate bills and 647 House bills. With the bill filing deadline behind us, we now have a more complete view of the issues lawmakers will take up this year. There are sure to be tough decisions and compromises made in the final weeks ahead.

Senate Bill (SB) 2, the proposed voter ID requirement, passed in the House on Tuesday with various amendments to find a compromise among House members.  However, the Senate voted to “not concur” with these changes, and is therefore asking the House to recede from its changes to the bill.  If the House does not “recede,” SB 2 may then move to a conference committee, made up of both House and Senate members, for further discussion.  If a compromise between chambers can be hammered out, the Conference Committee issues a new draft that then gets a vote in each chamber.

The medical marijuana bill, HB 136, was referred to the Senate Judiciary Committee this week and I’m continuing to read through the proposal, marking it up with questions and comments. I plan to meet with the bill sponsor next week to work through those concerns. Separately, House Resolution 5, which urges national drug organizations, such as the U.S. Food and Drug Administration, to expedite research into the potential therapeutic benefits and risks of using marijuana for health purposes, passed the Senate with broad bipartisan support.

Today, women make up less than 25 percent of the tech and computer science workforce. SB 193 establishes a goal of increasing participation in computer science courses by underrepresented groups, including females, minorities, students with disabilities, English language learners, and students whose families are eligible for free or reduced-price lunch. SB 193 includes the number of computer science courses or programs offered in each school, as well as the nature of those courses or programs, and the number of instructors required. I am proud to support this bill and hope to see an increase in computer science participation upon its passage. 

In the healthcare space, we’ve been active on several bills including a measure which passed this week to rein in “surprise medical billing.” This occurs when patients receive care — often unwittingly — outside of their insurer’s network and subsequently get a bill for inordinate amounts of money that can potentially bankrupt a family. SB 150 seeks to stop the practice by requiring insurers to cover surprise medical billing. SB 150 would require the state insurance commissioner to establish a database of billed health care service charges, and it would provide a dispute resolution program for medical insurers and providers to work out their differences over these out-of-network charges, not the patient.  While the bill isn’t as aggressive as I’d like, we hope it spares families from getting hit with bills that send them over a financial cliff.

Once again, a bill to criminalize the “doxing” of minors, SB 182, passed the Senate. By definition, doxing is the act of publicly identifying or publishing private information about someone, especially as a form of punishment, intimidation, or revenge. This legislation stems from the students in Northern Kentucky who were doxed following the posting last year of an infamous video of a student with a Native American protester in Washington D.C. The students at that school and even their families have been threatened and harassed by strangers seeking to intimidate them. SB 182 is a commonsense step to address the growing problem of cyber harassment in today’s digital-driven era, and would protect the privacy of minors.

As usual, a number of other bills moved through the Senate this week, including these:

SB 21 allows veterinarians to report the abuse of animals under their care. Currently, veterinarians are prohibited by law from reporting abuse of animals under their care unless they have the permission of the owner or are under a court order. 

SB 80 is the statutory companion to the Marsy’s Law constitutional amendment (SB15), and is identical to the process from 2018 when it last passed. SB 80 lays out various implementation details for Marsy’s Law including expanding the definition of victim to include all felony offenses and the most serious misdemeanors, what happens when there are multiple victims, or who has the power to assert the victim’s rights if a victim is deceased.  These statutory changes are contingent on the ratification of Marsy’s Law by the voters.

SJR 35 directs the Cabinet for Health and Family Services to establish the Task Force on Services for Persons with Brain Injuries.

SB 115 amends the statute regarding the tuition waiver for Kentucky foster or adopted children to include graduate programs and extends the eligibility time period to 10 consecutive or non-consecutive semesters up to age 28.

SB 136 requires home health aides who have not provided services to clients who have Alzheimer’s disease or other forms of dementia to complete four hours of approved dementia training. 

SB 148 Requires individuals applying to claim certain agriculture exceptions to first apply for an agriculture exemption number from the Kentucky Department of Revenue (DOR). The bill further requires that DOR develop a searchable agriculture exemption number database for sellers and retailers to use for verification. 

SB 159 sets regulations for the operation and maintenance of splash parks and to establish their separation from facilities with full-blown swimming pool installations.

Thank you for staying engaged in the legislative process. It is an honor to serve you in Frankfort and I welcome your questions and comments about these issues or any other public policy issue, As always, please call me toll-free at 1-800-372-7181, email me at Whitney.Westerfield@LRC.ky.gov.

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Note: Senator Whitney Westerfield (R-Hopkinsville) represents the 3rd District including Christian, Logan, and Todd counties. He is the chairman of the Judiciary Committee. Senator Westerfield also serves as a member on the Veterans, Military Affairs and Public Protection Committee; the Agriculture Committee; the Capital Planning Advisory Board; the Natural Resources and Energy Committee; the Tobacco Settlement Agreement Fund Oversight Committee; the Program Review and Investigations Committee; the Child Welfare Oversight and Advisory Committee; the Public Assistance Reform Task Force, and as a liaison member of the Budget Review Subcommittee on Justice and Judiciary. For a high-resolution .jpeg of Senator Westerfield, please visit https://legislature.ky.gov/Legislators%20Full%20Res%20Images/senate103.jpg