Kansas Supreme Court Rules Legislative Council Can’t Overturn Governor’s Religious Service Ban

The Kansas Supreme Court heard oral arguments via video conference on Saturday over Governor Laura Kelly’s lawsuit against lawmakers over her executive order. (Jon Parton/CNS)

(CN) — In an expedited lawsuit brought by Democratic Governor Laura Kelly, the Kansas Supreme Court ruled Saturday evening that state lawmakers lacked the authority to overturn an executive order barring religious services of more than 10 people amid the coronavirus epidemic.

In a first for the state’s high court, justices wearing their judicial robes listened to oral arguments from their homes Saturday morning, squished together on-screen along with counsel in tiny boxes via video conference.

Kelly issued the executive order on Tuesday after state health officials determined that three religious conferences were partly responsible for the spread of Covid-19 in Kansas, which has 1,268 confirmed cases and 55 deaths as of Saturday. The order was added to the governor’s original emergency declaration issued on March 12.

On Wednesday, the Legislative Coordinating Council, made up of seven Senate and House leaders, voted to overrule her order, saying it violated the First Amendment’s protection of freedom of religion. The council, consisting of 5 Republicans and 2 Democrats, voted along party lines.

Kansas Attorney Derek Schmidt, a Republican, also pushed back against the governor, releasing a statement to state law enforcement agencies telling them not to prosecute those who violate the religious gathering order.

In an 8-page lawsuit filed Thursday with the state Supreme Court, Kelly argued that the council lacks the authority to overturn the executive order and instead requires the vote of the full Legislature. She had asked the high court to expedite the matter, hoping to resolve the question before Easter Sunday.

“In this time of crisis, the question before the court is whether a seven-member legislative commitee has the power to overrule the governor, ” said Clay Britton, chief counsel for Governor Kelly on Saturday. “The answer is no.”

At issue is a resolution passed almost unanimously by the state Legislature that extended Governor Kelly’s emergency declaration made in March to May 1. Without the resolution, the declaration would have expired and the state would not qualify for emergency assistance by the federal government.

The Supreme Court, in an unsigned decision, found that the resolution did not give the LCC the ability to overturn the executive order based solely on its wording.

The resolution allows the LCC to overrule the governor only after she asks the State Finance Council to extend the emergency declaration beyond May 1, something she hasn’t done.

“Here, the plain language requires certain conditions — the State Finance Council must have acted upon the Governor’s request for an extension of the emergency declaration — before the LCC can act on behalf of the Legislature. And no equitable principle can be used to alter that language,” the opinion states.

While the issue of religious freedom underlied the LCC’s argument for overturning Kelly’s executive order, it was clear on Saturday that the justices were looking solely to answer whether the LCC had the authority to do so.

“It is worth emphasizing a point clarified at the outset of the majority opinion,” Justice Caleb Stegall wrote in a concurring opinion. “Today’s decision does not decide the religious liberty dimensions of this dispute. All the parties, including the legislative parties, agreed that those arguments and claims are not properly before this court in this action, and must wait to another day for resolution.

The Legislature, controlled by a Republican majority in both chambers, has often fought with the Democratic governor on other issues such as the state budget and Medicaid expansion.

Britton said the Kansas Emergency Management Act clearly states that executive orders issued by the governor can only be overturned by the full Legislature.

“The emergency management act has been on the books for almost a half century and it states that during an emergency, the governor can only be overruled by the Legislature as a whole,” he said.

Bradley Schlozman, of Wichita-based Hinkle Law Firm, represented the General Attorney’s office, and Edward Greim, of Kansas City, Missouri-based Graves Garrett, represented the LCC. They argued that the resolution had the backing of Governor Kelly and that she did not take issue with it until the LCC overturned the executive order.

“If they don’t have the authority to act in the absence of the full Legislature, then you’re essentially forcing the Legislature to confer unbridled discretion on the governor and eliminating the notion of checks and balances,” Schlozman argued.

Schlozman faced push back from Justice Dan Biles, who noted that state law concerning emergency declarations does not mention the LCC and gives expanded powers to the governor.

“You’re trying to read language into a statute that’s not there,” he said. “And while it may be a good idea, all you guys had to do was amend the law and send it to the governor.”

Schlozman also revealed Saturday that Attorney General Schmidt warned the governor and lawmakers that the wording of the resolution could bring up legal questions about the LCC’s authority.

“Given that extraordinary set of facts, that everyone involved recognized the problem and decided to move forward regardless,” Justice Stegall asked Schlozman. “What is a court supposed to do with those facts?”

Stegall said his reading of the resolution appears to state that the LCC does not have authority to overturn executive orders.

“It looks like, according just to the plain text of the resolution, that the Legislature, by the language of the resolution, has given up any ability, short of reconvening, to override any executive order,” he said.

Chief Justice Marla Luckert was joined by Justices Biles, Carol Beier, Eric Rosen, Stegall, Evelyn Wilson and Senior Judge Michael Ward.

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