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.

Follow the Money

Less than 3 weeks away from the May Primary Election and the truth about one of the Democratic candidates for Governor finally finds its way to light.

Andy Beshear owes his political success, in part, to blood money from Purdue Pharma. We know his former firm was defending Purdue — the maker of the deadly oxycontin — against Kentucky. We know the outgoing AG’s office settled the “billion-dollar case” for peanuts because Purdue’s former lawyer just won election as Kentucky’s newest Attorney General and would be in charge of the lawsuit on the other side; a tremendous conflict of interest. We know Andy Beshear has repeatedly bragged, until Oklahoma’s recent $270 million settlement with the drug manufacturer, about how Kentucky’s was the largest settlement (at a paltry $24 million) in the country. We also know that Andy has repeatedly denied any connection with Purdue in his law practice.

The same cannot be said for his campaign to be AG. Three weeks out from Election Day, when the race was effectively tied, Andy’s good friends at Purdue Pharma dropped $100,000 to the Democratic Attorneys General Association (DAGA):

DAGA’s Form 8872, Year-End Report (2015), available here.

The very next day, DAGA sent a cool $250,000 to the Bluegrass Democratic Attorneys General Association, a PAC established to help Andy:

KREF Report

And on that same day, the Bluegrass DAGA sent the $250,000 to a SuperPAC formed to help Andy called the Bluegrass Alliance for Consumer Rights:

KREF Report

Andy Beshear should be ashamed. Maybe a call gets made near the end of the close campaign and a client arranges for some last minute help. Andy benefited from a timely donation of $100,000, earned from the addiction to a drug that was shamelessly and ruthlessly marketed and sold across the country, irreparably harming so many families in Kentucky alone.

• Purdue Pharma blood money

• Defending child abusers by blaming victims

• A corrupt lieutenant serving federal prison time

• Accepting donations from the corrupt lieutenant

This man does not deserve to be a public servant, much less the Governor of the Commonwealth.

Defense

Over the course of the historic first week of the 2017 Regular Session two bills were passed that aimed to give greater information to women seeking an abortion and to restrict when abortion should be available because the unborn child can feel pain from the procedure.

House Bill 2 – The Ultrasound Informed Consent Act

HB2 require an ultrasound be performed prior to an abortion so that the mother can be fully informed about the procedure and the life she carries before making the decision to choose abortion.

Senate Bill 5 – Pain Capable Unborn Child Protection Act

SB5 prohibits abortions after the 20th week of pregnancy, except in cases of medical emergencies, because the babies can feel pain.

Both bills contained emergency clauses, making them take legal effect immediately upon the Governor's signature.  The ACLU promptly sued the Commonwealth over HB2 (ultrasound) on the grounds the bill is unconstitutional.  I disagree.

Unfortunately, the duty of defending the law falls on the shoulders of an attorney general I have little faith will actually work hard to defend the law's constitutionality.  And General Beshear removed all doubt with the following press statement on the matter:

As attorney general, it is my duty to enforce the Constitution. It is also my duty to defend laws where the constitutionality is questionable and finality is needed. Adhering to these duties is why, after close review, my office will defend the agencies sued over House Bill 2 that seek our representation. Whether a mandatory ultrasound and explanation is constitutional has split the two federal appellate circuits that have directly addressed it. The Sixth Circuit that includes Kentucky, has not rendered a decision. I will advise that this matter has risks and potential costs, which resulted in over $1 million in legal fees to North Carolina, which lost its defense. Conversely, my office will not represent the state on any challenge to Senate Bill 5, the 20-week ban. This law is clearly unconstitutional based on our review of numerous federal appellate rulings, which state that identical statutes in other jurisdictions are illegal under numerous Supreme Court decisions. While these decisions may not please advocates on either side, my duty is to the law.

Given the AG's lukewarm support for legislation protecting human life, passed by an overwhelming bipartisan number of legislators representing the vast majority of the people of the Commonwealth, I joined with the House Judiciary Chair, Hon. Joseph Fischer; the Speaker of the House, Hon. Jeff Hoover; and the President of the Senate, Hon. Robert Stivers, in filing an amicus brief in support of HB2.

You can view the brief and other court filings right here:

Note the detail and passion of the General's response to the ACLU's motion for the temporary restraining order to temporarily stop the ultrasound requirement.  Spoiler Alert: "...the Attorney General does not take a position on the Plaintiffs' Motion for a Temporary Restraining Order." 

Here's the ACLU lawsuit challenging the constitutionality of HB2 if you care to read it: