Since the November 2018 election of Democrat Laura Kelly as governor of Kansas, the state’s Republican-controlled legislature has found itself in an increasing number of battles with the leader of the executive branch. One of the most recent controversies—a high-stakes separation of powers dispute in April over the legislature’s authority to claw back gubernatorial executive orders issued in connection with the COVID-19 pandemic—culminated in a short-lived win for the governor before the Kansas Supreme Court.[1] Ruling solely on statutory grounds, the court held that a legislative snafu effectively deprived the legislature of the ability to abrogate pandemic-related executive orders.

I. Background 

The Kansas Emergency Management Act (“KEMA”) grants the governor a statutory power to declare a state of “disaster emergency” for virtually any reason.[2] At the time this case arose, the governor enjoyed nearly unfettered discretion during such emergencies to issue executive orders and perform such other duties “as are necessary to promote and secure the safety and protection of the civilian population.”[3] But as a check on gubernatorial power, the statute greatly restricted the duration of disaster emergencies. In particular, the governor’s declaration automatically expired after 15 days unless ratified by a concurrent resolution of the legislature.[4]

After Governor Kelly declared a disaster emergency related to COVID-19 on March 12, 2020, the legislature hurriedly passed a concurrent resolution extending the disaster emergency until May 1.[5] The resolution included a provision allowing the Legislative Coordinating Council (“LCC”)—a statutorily-created body comprised of leaders from the state’s House of Representatives and Senate that is authorized to act on behalf of Kansas’ part-time legislature during periods of recess[6]—to terminate the state of disaster emergency or revoke any executive order as it saw fit.[7]

In their haste to leave the capital, legislators did not subject the concurrent resolution’s text to the typical rigorous review by the Revisor of Statutes. As a result, the concurrent resolution inadvertently stated that the LCC had no power to modify or revoke any gubernatorial action in connection with the disaster emergency unless the State Finance Council had first extended the emergency.[8] (The State Finance Council is a separate, statutorily-created body comprised of the governor and key legislative leaders. Its myriad responsibilities include approving regulations issued by the state’s department of administration and appropriating funds for unanticipated and unbudgeted needs.)[9]

In the weeks following the issuance of the concurrent resolution, all parties recognized the scrivener’s error, but the governor opted to work with the LCC in crafting her executive orders rather than invite a confrontation that could ultimately limit her authority during the pandemic. The détente proved only temporary.

On April 7, just five days before Easter, the governor issued Executive Order 20-18, which removed “religious gatherings” and funerals from the list of activities exempted from her prior directive prohibiting mass gatherings.[10] Violations were a criminal misdemeanor under state law, punishable by up to one year in jail and a $2,500 fine.[11] The LCC majority, noting that the governor had deliberately targeted churches while still allowing bars, restaurants, libraries, and shopping malls to operate with proper social distancing, promptly voted to invalidate the executive order the next day.[12]

The governor responded by filing an original action (a petition for a writ of quo warranto) against the LCC and both bodies of the legislature in the state supreme court. Predicating her claim solely on constitutional grounds, she argued that the legislature could not empower the LCC to overturn an executive order. She insisted that the only way the legislature could abrogate her order was by satisfying traditional bicameral adoption and presentment requirements.[13]

Although confronted with legislative text that unequivocally did not support its actions, the LCC claimed that the drafting errors did not reflect the legislature’s intent and that the text as written was illogical.  The LCC pointed out in oral argument that, under the literal text of the resolution, the State Finance Council could not possibly extend the disaster emergency in this case because the maximum 30-day extension the State Finance Council could impose would expire well before the extension granted by the legislature’s concurrent resolution. The LCC further suggested that the governor had unclean hands because she had expressly agreed to the LCC’s claw-back authority (in return for the elimination of additional restrictions on her power).[14] Finally, the LCC maintained that its enabling statute conferred upon it the authority to act on behalf of the legislature as a whole during a recess, thereby rendering its actions valid in this dispute and fully consistent with legislative intent.[15]

II. The Court’s Opinion 

In a brief per curiam opinion, the Kansas Supreme Court declined to address the governor’s constitutional arguments. Instead, it ruled exclusively on statutory grounds, holding that the text of the legislature’s concurrent resolution simply did not permit the LCC to modify or strike any executive order issued pursuant to the KEMA unless and until the State Finance Council had previously extended the disaster emergency.[16] Given the lack of any action by the State Finance Council, the LCC’s conduct was void from the outset. No equitable principle, the court reasoned, could be used to alter the resolution’s clear text.[17] As for the power of the LCC to act in the legislature’s absence, the court concluded that the more specific language of the KEMA controlled over the LCC’s enabling statute.[18] 

In a concurring opinion, Justice Dan Biles said that, even if the concurrent resolution had been worded as the legislature intended, the LCC’s actions still would have been invalid because the text of the KEMA did not endow the legislature with any authority to allow the LCC to invalidate gubernatorial executive orders.[19] Citing INS v. Chadha,[20] he opined that the legislature could not nullify an otherwise valid executive order via a concurrent resolution.[21]

In another concurring opinion, Justice Caleb Stegall reasoned that the LCC’s delegation of authority argument was colorable “in light of the vexing separation of powers problems created when one branch of government delegates its powers to another branch.”[22] Here, he reasoned, “[a]bsent a liberal interpretation of the Legislature’s ability to continually oversee the Governor’s exercise of delegated Legislative authority, the structure of KEMA itself risks violating the constitutional demand of separate powers.”[23]

Justice Stegall further agreed that the concurrent resolution’s requirement of State Finance Council action as a prerequisite to LCC invalidation was a legal impossibility and produced absurd results.[24] But, he added, while this ambiguity arguably might sanction the court looking behind the text to legislative intent, particularly in the urgency of a pandemic, the concurrent resolution could just as easily be rewritten to allow the State Finance Council to extend the disaster emergency beyond the deadline imposed by the legislature.[25] As a result, he determined the most prudent course of action would be to:

hold fast to the tried and true bedrock of legal interpretation and analysis—the words on the page. This commitment both constrains judicial action in circumstances where judges are ill-suited to make rules on the fly and gives the policy-making branches of government the greatest leeway to fix problems of their own making.[26]

Finally, Justice Stegall noted that the court was affirmatively not reaching the potentially significant religious liberty dimensions of the governor’s actions.[27] Those concerns were later the subject of federal court litigation that resulted in the issuance of an injunction against enforcement of the governor’s order.[28]

III. The Aftermath 

Less than two months after the court issued its opinion, the legislature amended the KEMA to strip the governor of much of the considerable powers she had previously possessed during a disaster emergency. The new legislation, which the governor signed into law on June 8, extended the state of disaster emergency through September 15.[29] But it prohibits the governor from proclaiming any new COVID-19-related disaster emergency during 2020 unless the State Finance Council validates her declaration by an affirmative vote of at least six of the eight members.[30] The legislation also prevents her from directing the cessation of activities of any business for more than 15 days,[31] altering any election laws or procedures due to the pandemic,[32] or closing schools absent a majority vote by the state board of education[33] (which she failed to attain when she subsequently tried to do so).[34] The bill further authorizes each board of county commissioners to adopt public health provisions that are less restrictive than those imposed by the governor.[35]  And it eliminates the criminal penalties for violations of executive orders and treats infringements as mere civil offenses.[36] In sum, the governor’s victory in the Kansas Supreme Court turned out to be brief.

 

Note from the Editor:

The author of this article, Mr. Schlozman, served as counsel to the Kansas Legislative Coordinating Council and the Kansas House of Representatives in the case. The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at info@fedsoc.org.


[1] Kelly v. Legislative Coordinating Council, 460 P.3d 832 (Kan. 2020). 

[2] Kan. Stat. Ann. § 48-924(b).

[3] Id. § 48-925(c)(11).

[4] Id. § 48-924(b)(3). The KEMA also allowed a disaster emergency to be extended by an affirmative vote of the State Finance Council. Id. § 48-924(b)(4). But the State Finance Council never took any action in the case.

[5] H.R. Con. Res. 5025 (Mar. 20, 2020).

[6] Kan. Stat. Ann. § 46-1201 et seq.

[7] H.R. Con. Res. 5025 § 2(A), (D).

[8] Id. §§ 1-2.

[9] Kan. Stat. Ann. § 75-3708 et seq.

[10] In Executive Order 20-14, the governor had imposed restrictions on mass gatherings, but included an array of exemptions. Executive Order 20-18, which superseded Executive Order 20-14, incorporated nearly all of the same exemptions except those for funerals and religious gatherings.

[11] Kan. Stat. Ann. § 48-939.

[12] See Jonathan Shorman, Renee Leiker, and Michael Stavola, War over Easter: Kansas lawmakers revoke Gov. Kelly’s order limiting church gatherings, K.C. Star, Apr. 8, 2020, available at https://www.kansascity.com/news/politics-government/article241861126.html.

[13] See Pet’r Pet. 6-7; Mem. Supp. Pet. 7-13.

[14] See Resp’t Resp. 14-15.

[15] See id. at 5-9.

[16] Legislative Coordinating Council, 460 P.3d at 838-39.

[17] Id. at 839.

[18] Id.

[19] Id. at 840.

[20] 462 U.S. 919 (1983).

[21] Legislative Coordinating Council, 460 P.3d at 840-41.

[22] Id. at 841.

[23] Id.

[24] Id. at 842.

[25] Id.

[26] Id. at 843.

[27] Id. at 843-44.

[28] First Baptist Church v. Kelly, 2020 WL 1910021 (D. Kan. Apr. 18, 2020).

[29] H.B. 2016, § 5(a).

[30] Id. § 5(b).

[31] Id. § 6. Extensions of business closures are permitted only with a supermajority vote of the State Finance Council, which is controlled by Republican leaders in the legislature.

[32] Id. § 33 (codified at Kan. Stat. Ann. § 48-925(f)).

[33] Id. § 7.

[34] See Jonathan Shorman and Dion Lefler, Kansas Board of Education rejects Kelly order delaying schools opening to stem virus, WICHITA EAGLE, July 22, 2020, available at https://www.kansas.com/news/politics-government/article244401862.html.

[35] H.B. 2016, § 33 (codified at Kan. Stat. Ann. § 48-925(h)).

[36] Id. § 36.