Kansas Attorney General issues opinion on governor's orders

TOPEKA, Kan. (WIBW) -- Kansas Attorney General Derek Schmidt has issued a formal legal opinion addressing whether a state law authorizing criminal prosecution of Kansans who violate emergency orders issued by the governor is constitutional and enforceable.

According to a news release from Schmidt's office, the opinion is a consolidated response to separate requests for the attorney general’s legal opinion on closely related subjects from Reno County District Attorney Keith Schroeder, State Senator Richard Hilderbrand, and State Representatives Tory Marie Arnberger, Renee Erickson, Susan Humphries, Brenda Landwehr, Barbara Wasinger and Kristey Williams.

The news release stated that the opinion notes that the Kansas Emergency Management Act places on the governor responsibility to respond to disasters and grants broad authority to do so.

Because of the nature of the COVID-19 pandemic, the use of emergency powers has been unprecedented since the KEMA was enacted in 1975, with 31 emergency orders issued by the governor in the past 10 weeks.

The opinion doesn't address federal, state or local emergency authority outside the KEMA.

Notable conclusions in the 31-page opinion include:

• The validity of the Second Disaster Proclamation issued on April 30, is "doubtful."

• Three specific portions in the language of the emergency-powers statute are "constitutionally suspect on their face." The legislature should examine them carefully to determine whether they accurately reflect the legislature’s intent. If one or more is invalid, it would become necessary to determine whether the invalid portion is severable from the remainder of the statute.”

• Noting “the unique facts facing prosecutors in Kansas,” District Attorney Schroeder requested an analysis regarding criminal prosecution of violations of emergency orders to assist local authorities “to avoid any unlawful arrests or convictions stemming from the disputed nature and authority of the Governor’s executive orders.”

Regarding criminal enforcement, the opinion sets out a “recommended framework for evaluating ‘lawfulness’ of an emergency order” for use by prosecutors.

Because of issues unique to emergency orders, the Opinion recommends five questions prosecutors should analyze case-by-case before any criminal enforcement action: (1) Was a state of disaster emergency in effect at the time of the conduct alleged to violate an emergency order, (2) was the emergency order properly published as required by statute and by principles of due process, (3) does the plain text of [the emergency-powers statute] grant authority for the particular emergency order at issue, (4) is the emergency order unconstitutionally vague in violation of due process, and (5) does the emergency order impermissibly burden constitutional or statutory rights?

In its criminal-enforcement section, the Opinion also includes these passages:
• “Never before have all Kansans been subject for an extended time to such intrusive restrictions ordered by their government. Under various emergency orders, it became a crime for Kansans to leave home without government approval, to gather more than 10 people at a time except for government-approved purposes, or to operate businesses or organizations without government approval. Quite obviously, these sorts of restrictions burdened fundamental rights — such as religion, assembly, and movement — that are constitutionally protected.”

• “We specifically recommend no criminal charges be filed until a prosecutor has exercised due diligence in addressing the questions presented in this opinion … and is satisfied that the particular order at issue is lawful and may be lawfully applied to the defendant.”

The opinion has been posted on the attorney general’s website and is available at http://ag.ks.gov/media-center/ag-opinions.