Validity of Kansas governor’s disaster declaration ‘doubtful,’ attorney general says

Kansas Attorney General Derek Schmidt is calling into question Gov. Laura Kelly’s statewide restrictions on businesses and activities during the coronavirus pandemic, saying the legality of the disaster declaration granting her broad emergency powers is “doubtful.”

Schmidt’s opinion instantly raised the stakes for the Democratic governor and the future of her reopening plan as the Legislature gaveled in Thursday with some Republicans clamoring to limit her authority.

His legal opinion, dated Wednesday, contended that Kelly was on legally shaky ground when she issued a disaster declaration at the beginning of May after an earlier one expired. The Republican attorney general suggested a governor cannot issue “rolling proclamations” of emergency for the same event.

Kelly has relied on the declaration to enforce her phased-in plan to reopen Kansas, a process that will last well into June. An executive order is governing when businesses and activities, like summer camp, can resume.

“The plain language of (state law) authorizes the governor to proclaim only one state of disaster emergency arising from the same continuing disaster,” Schmidt wrote.

The current disaster declaration expires May 26. If the Legislature does nothing, Schmidt’s opinion at the very least calls into question Kelly’s ability to issue a new declaration and retain her emergency powers. At the most, it suggests the governor’s current orders – and her reopening plan – are unlawful.

The Republican attorney general advised legislators to approve the state of disaster – effectively signing off on Kelly’s actions retroactively to limit the risk of lawsuits.

While the Legislature may agree to that, Republicans are keen to restrict the governor’s powers moving forward. Senate GOP leaders have outlined a proposal that would give counties the power to set local rules that are less restriction than the statewide standards.

As of Wednesday morning, the text of the bill was not yet available.

This story was originally published May 21, 2020 at 10:12 AM with the headline "Validity of Kansas governor’s disaster declaration ‘doubtful,’ attorney general says."