Kansas Supreme Court says legislative panel didn’t have authority to revoke governor’s order

photo by: Screenshot/Kansas Supreme Court

The Kansas Supreme Court convenes via video conference, Saturday, April 11, 2020, to hear arguments in Gov. Laura Kelly’s lawsuit against legislative leaders who overturned her executive order banning religious and funeral services of more than 10 attendees during the coronavirus pandemic.

A seven-person legislative committee overstepped its legal authority in revoking an executive order from Gov. Laura Kelly, the Kansas Supreme Court ruled late Saturday, hours after hearing oral arguments.

With the court’s ruling, the governor’s ban on gatherings of more than 10 people — which includes religious gatherings and funerals — remains in effect.

At issue in the case was whether the Legislative Coordinating Council, made up of seven leaders in the Kansas House of Representatives and Senate, had the authority to revoke the executive order, which Kelly issued in order to slow the spread of COVID-19.

Simply put, the LCC did not, the Supreme Court ruled in a majority opinion.

“That acknowledgment ends this controversy,” the decision read.

“Today’s ruling does not change my commitment to maintaining open lines of communication and collaboration with the Legislature,” Kelly said in a statement after the ruling. “The only way to get through this is by working with — not against — each other in a bipartisan fashion.”

The Court ruled in the case extremely narrowly. It only addressed whether the LCC had the legal authority to revoke a governor’s executive order, and it said it did not need to address any argument as to whether the revocation was in violation of the state Emergency Management Act or the state constitution.

Also, the decision explicitly does not address the question of whether Kelly’s decision to include religious gatherings in statewide gathering limitations was a violation of religious freedom, as the Legislature as a body can’t have an individual liberty infringed on.

The oral arguments Saturday, for which members of the court met remotely, were almost entirely devoid of any mention over the constitutionality of Kelly’s order with regard to religious freedom, as well.

Instead, Kelly’s chief counsel, Clay Britton, and outside counsel for the Legislative Coordinating Council and state Legislature spent their time debating whether the seven-member LCC had the statutory authority to revoke an executive order issued during a time of emergency.

Britton said that clearly the answer was no.

“This case is about the rule of law during an unprecedented public health emergency,” he said. “During an emergency, the governor can only be overruled by the Legislature as a whole via a concurrent resolution from all 165 members.”

Several justices raised questions for both parties about how to most effectively interpret existing state statutes about how to define whether the Legislature is in session. The Legislature as a whole has been in recess since late March and is currently set to return in late April for an adjournment session — though that may be put on hold because of the pandemic.

In this case, Britton argued, it would be easier to answer whether the resolution violates the state’s Emergency Management Act by attempting to substitute a system of shared authority during a time of emergency, rather than let the office of the governor have decision-making power.

The legal team for the LCC and state legislators was headed by Brad Schlozman, a Kansas attorney known for defending states accused of voter suppression and who made national headlines in 2018 when he defended Dodge City after the town moved its only polling location outside of city limits.

The crux of the argument by Schlozman and his co-counsel Edward Greim was to look at the founding statute for the LCC and interpret the general language about the committee’s powers to find the authority to revoke an executive order, as the LCC did Wednesday.

Justices at times seemed skeptical of this argument. Justice Caleb Stegall, the former chief counsel to Gov. Sam Brownback and a staunch conservative, at one point during Saturday’s arguments likened the case to Attorney General Derek Schmidt and Republican lawmakers knowing there was a problem with the LCC’s authority but choosing to ignore it until a situation arose with which they were uncomfortable — like an order limiting in-person religious services.

“What is a court to do with that?” Stegall asked.

Kelly v. LCC Oral Argument

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