Did the state’s Legislative Coordinating Council have the power to override Governor Laura Kelly’s executive order limiting the size of church and funeral gatherings? Does it have any power if lawmakers are on recess? And does it have any power if the State Finance Council doesn’t act first?
Those were three of the main overall questions the Kansas Supreme Court had for Clay Britton, the governor’s chief legal counsel, and for Brad Schlozman and Ed Greim, the legal team representing the Coordinating Council and the Legislature as a whole during a rare weekend hearing Saturday. The hearing was rapidly scheduled after Governor Kelly filed suit, claiming violations of state law and the Kansas Constitution after the Coordinating Council overturned Tuesday’s executive order limiting church and funeral gatherings to 10 people maximum.
Schlozman says the Coordinating Council has the power to overturn executive orders during extraordinary situations like the current COVID-19 pandemic.
Schlozman says state law grants the Coordinating Council broad representative powers. He also says the language involved “did not reflect everyone’s understanding” about those powers, however. Schlozman also said Attorney General Derek Schmidt, who recommended the executive order not be imposed by law enforcement, pointed out the resolution’s legal issues but those were sidestepped by the governor’s office and legislative leadership.
Britton, meanwhile, says the power to override executive orders is with the Legislature as a whole — as stated in the Kansas Emergency Management Act and approved in a concurrent resolution granting the governor wider-than-normal powers during the ongoing COVID-19 pandemic. He also says the concurrent resolution takes the Coordinating Council out of the decision-making picture because it acted without prior action from State Finance Council.
On top of those arguments, Britton says the Coordinating Council’s actions should be void because its power is recognized when the Legislature is in session — and even though it’s on break, it’s still in session until sine die in late May.
There are text questions with the state laws in this case, but both Britton and Greim asked the Supreme Court to at least consider constitutional questions about the Coordinating Council’s legal standing and its role.
Both sides also say the immediate legal concerns as presented Saturday are separate from any potential issues of religious suppression, which have been mentioned as a side effect of the governor’s executive order from Tuesday. As such, both sides told justices the religious side of the overall issue would have to be resolved with a different lawsuit.
Chief Justice Marla Luckert says the justices began conferencing shortly after the hearing and left open the possibility of a ruling later in the day.
