The Kansas Supreme Court today invalidated the Legislative Coordinating Council’s April 8 revocation of Gov. Laura Kelly’s COVID-19 Executive Order 20-18.
After hearing arguments electronically this morning in Kelly v. Legislative Coordinating Council et al., the court ruled swiftly and narrowly, relying on the plain language of House Concurrent Resolution No. 5025. The court said the revocation could not stand, because the resolution failed to give the LCC the necessary power to override the governor’s order.
The court’s decision did not address several other issues that had been mentioned in the parties’ written filings—including whether the legislature’s attempt to give the LCC authority to act while it was away from Topeka was lawful and whether the governor’s order infringed on religious freedom.
The majority opinion, written for the court and not signed by an individual justice, said: “As ultimately acknowledged by all counsel during oral arguments today, even if we accept House Concurrent Resolution 5025 as an otherwise valid exercise of legislative authority, its plain text did not authorize the LCC to revoke Executive Order 20-18.”
Justices Dan Biles and Caleb Stegall concurred in the majority’s decision and wrote separately.
Justice Biles challenged the legislature’s authority to grant the LCC powers by current resolution rather than statute.
Justice Stegall responded to Justice Biles and noted the LCC’s assertion that drafting flaws in the concurrent resolution were noticed by legislators, the governor’s staff, and the attorney general and should have been resolved before the LCC’s attempt to revoke generated fast-track litigation. Access to a recording of today’s oral argument is available on the Supreme Court’s oral argument archive webpage.
During the oral arguments, it was pointed out that there were flaws in the Legislature’s bill that passed.
Gov. Kelly issued a statement:
“My top priority has always been the safety and well-being of all Kansans,” Gov. Kelly said in the statement. “I know this pandemic is extremely hard for everyone. Each unprecedented action I’ve been forced to make in recent weeks has been taken in close consultation with the Kansas Department of Health and Environment, the Kansas Division of Emergency Management, the Attorney General, legislators and key stakeholders. That process will continue.
“Most other states, at the urging of the White House and Centers for Disease Control and Prevention, have taken similar steps to protect Americans to slow the spread of COVID-19,” the governor said.
The decision comes as the Kansas Department of Health and Environment announced Saturday an additional 102 confirmed cases and five deaths, bringing the state’s total to 1,268 confirmed cases and 55 deaths across 61 counties.
“I want to thank the Supreme Court for its expedited review under difficult circumstances,” Gov. Kelly said, referring to the Supreme Court meeting for the first time in the court’s history by video conference. “Our response to this unprecedented pandemic has necessitated that even our most fundamental institutions find alternative methods that preserve public health.”
The ruling held that the seven-member LCC lacked authority to revoke Executive Order 20-18 and that the LCC’s ability to exercise such authority is controlled by the Kansas Emergency Management Act.
“Today’s ruling does not change my commitment to maintaining open lines of communication and collaboration with the Legislature. The only way to get through this is by working with—not against—each other in a bipartisan fashion.”
The House Leadership, including Speaker Ron Ryckman, Majority Leader Dan Hawkins and Speaker Pro Tem Blaine Finch, issued a statement:
“The question was never whether people should gather in churches during these times. The answer to that is clearly no. The question was whether people should be arrested and be jailed for going to church. We think that goes too far.
“The Court went a different direction in the Governor’s lawsuit and instead focused on the emergency disaster resolution itself. So, while the Governor can now move forward with the criminal provision she sought on churches, we’re more concerned about the bigger picture.
“The Court’s decision causes the state’s emergency disaster declaration to expire on May 1, which could jeopardize federal disaster relief funding,” according to the Republican leaders. “While everyone is hopeful this pandemic subsides soon, the reality is a longer period of emergency disaster authority will likely be needed in order to protect Kansans and our state’s relief funding.
“The Governor’s decision to go to court instead of compromise has created a new level of uncertainty that does nothing to help our state through this crisis. Working together is the only way we address that uncertainty, protect the health of our state, and save people’s lives.”
All documents filed in this case are available to the public on the Kelly v LCC case page at www.kscourts.org.
The opinion is at https://kansascourts.org/l/mprR2kp37Gc0kx3O2lB1EdErNdVE_NRNe5TDZDg7wR0.
The attorney general, top law enforcement officer in Kansas, said that it can’t be enforced, so what good is it. He’s protecting our rights even if the governor tries to make church illegal. I’m still staying home.