Easter near, Kansas Supreme Court weighs fate of Kelly order limiting church gatherings

The fate of Gov. Laura Kelly’s order limiting the size of church gatherings remained uncertain Saturday morning as the Kansas Supreme Court entertained the possibility of striking down a resolution that had extended Kelly’s emergency powers during the coronavirus pandemic.

The governor’s attorney implored the justices not to go that far, warning such a decision would risk millions in federal relief funds.

“If that were to happen we would have significant problems in terms of managing the response to this emergency,” Kelly’s chief counsel, Clay Britton, said under questioning from justices.

Attorneys for the governor and the Republican-controlled Legislature clashed over whether a seven-member council of top lawmakers had unlawfully revoked an executive order by Kelly limiting church gatherings to 10 people ahead of Easter. Chief Justice Marla Luckert indicated the court planned to rule quickly, possibly later Saturday.

Kelly has issued a series of orders over the past month, including closing school buildings, halting some evictions and foreclosures, and implementing a statewide stay-at-home order. The Legislative Coordinating Council has taken no action against any of them.

But on Tuesday, with Easter approaching, Kelly issued a new order prohibiting mass gatherings of more than 10 that no longer exempted religious gatherings. The decision effectively eliminated any chance of holding large in-person Easter services.

As the number of reported cases of the coronavirus in Kansas continues to climb, health authorities have said four clusters are tied to church gatherings. While most churches have canceled in-person Easter services, the order has sparked an intense fight over religious freedom.

The court’s extraordinary Saturday session marked the first time it has ever held oral arguments electronically. It is easily the most high-profile case before the court since Luckert took over leadership of the court in December.

‘Fresh start’

The dispute has raised fundamental questions about religious liberty and public health. But with the clock ticking down toward Easter, the court appeared to signal that any decision issued Saturday won’t address the constitutionality of the order itself.

The justices appeared most interested in whether a resolution approved by the Legislature lawfully allows the Legislative Coordinating Council to review and revoke the governor’s emergency orders and what would happen if the court invalidates the resolution.

The council comprises House Speaker Ron Ryckman, House Speaker Pro Tem Blaine Finch, House Majority Leader Dan Hawkins, House Minority Leader Tom Sawyer, Senate President Susan Wagle, Senate Majority Leader Jim Denning and Senate Minority Leader Anthony Hensley.

Bitton said the executive orders the governor has issued would expire.

“We also would be unable to effectively and efficiently draw down millions in federal relief funds that are contingent on the existence of a declared emergency in the state,” Britton said. “So there would be some significant collateral concerns and damage that would be done by that.”

Justice Dan Biles suggested that state law doesn’t allow the LCC to act.

“To me, you’re trying to read language into a statute that’s not there and while it may be a good idea, all you guys had to do was amend the law and send it to the governor,” Biles told an attorney for the LCC.

Luckert wrestled with the practical implications of striking down the resolution.

Under Kansas law, the governor can usually only invoke emergency powers for a limited time unless the Legislature extends them. Invalidating the resolution could require lawmakers to return to Topeka in the middle of a pandemic to re-extend Kelly’s powers.

“So where are we, even if we have enormous sympathy for the practical reality of what would result with having to bring the Legislature back to session?” she asked.

Edward Greim, an attorney for the LCC, suggested the consequences wouldn’t be as dire as Britton indicated, saying Kelly could issue a new disaster declaration and reissue her executive orders.

“What we really ought to do is have something that gives us a fresh start,” Greim said. “I think we do have to go on and reach the issue about whether this resolution can survive.”

Council’s role

In taking the case, the court has decided to wade into the often-fraught relationship between the Democratic governor and the Republican-controlled Legislature. Whatever the justices decide could alter the balance of power between the branches as the pandemic continues.

Often, the LCC’s job centers on the administrative minutiae of running the Capitol. But in this case, facing uncertainty over when the full Legislature will meet again, lawmakers last month approved a concurrent resolution giving the Council the power to review and, in some instances, revoke Kelly’s emergency orders during the present crisis.

Kelly’s new order prohibiting mass gatherings of more than 10, and no longer exempting religious turnouts, came after Lee Norman, secretary of the Kansas Department of Health and Environment, said three clusters of the coronavirus had been traced back to church gatherings. By Friday, he had attributed four clusters to religious events.

Republican leaders say the order, which carries the force of law and could lead to fines and jail time for those who break it, represented an overreach by the governor and a violation of religious liberty. They have also pointed to exceptions that appear to give secular businesses and organizations more latitude than houses of worship.

Attorney General Derek Schmidt, a Republican, had also argued the order is likely unconstitutional and has advised police not to enforce it.

On Wednesday, the Legislative Coordinating Council voted along party lines to revoke it. Kelly sued the next day.

Rep. Brenda Landwehr, R-Wichita and chairwoman of the House Health and Human Services Committee, said she sees the case as a political power play by the governor.

“I believe it’s because she wants to have the ultimate authority with no check and balance,” she said. “If she had a concern with this (LCC oversight), she would have raised it before the first LCC meeting, And she didn’t. As long as they went along with her she was fine with it, but then when they disagreed with her, then she raised the question. Now who’s playing politics? The governor.”

Rep. John Carmichael, a Wichita Democrat, said he doesn’t expect the court to rule on the issue of whether Kelly’s action to limit church gatherings is constitutional, because the Legislature itself doesn’t have standing to make that case.

To reach the constitutional question, a person would need to come forward and file a separate case alleging that they were personally harmed by the governor’s limits on religious services during the pandemic.

“I think the court will easily find that the Legislature intended to ratify the governor’s emergency declaration,” said Carmichael, an attorney. “That carries with it a number of powers, including, arguably, the power to close churches and take other actions that are necessary to preserve health and safety.”

The issue will come down to whether the court believes it can keep that in effect but overrule, or “sever,” the provisions of the resolution that appear to conflict with state law by granting the LCC oversight of the governor’s orders.

This story was originally published April 11, 2020 at 11:49 AM with the headline "Easter near, Kansas Supreme Court weighs fate of Kelly order limiting church gatherings."