TOPEKA, Kansas — Democratic Gov. Laura Kelly won a ruling from the Kansas Supreme Court Saturday that said she holds sweeping powers to shut down operations in the state, including large church services, in the face of a public health crisis.
The high court said that a panel of legislative leaders lacked the power to reverse Kelly’s controversial limits on church and funeral services. She had said the action was needed to respond to the spread of COVID-19.
That meant that late on the night before Easter, Kelly’s order banning church gatherings of more than 10 congregants remained in force.
The ruling forced the justices to weigh in on an issue that tangles together politics, religion and debate about the powers granted to a governor when a deadly pandemic strikes.
But the court took pains to say it only looked at what powers had legislators surrendered to the governor to deal with the pandemic after they took a recess in early stages of the disease spreading through Kansas.
The ruling made clear the justices would not weigh in on the issue of whether Kelly violated religious freedoms protected by the First Amendment in her order. The LLC purported to revoke one executive order. We are asked to determine whether it acted with its lawful authority. We hold that it did not.
At issue was whether the Legislative Coordinating Council, or LCC, overstepped by trying to quash the governor’s ban on large religious services.
“The LCC purported to revoke one executive order. We are asked to determine whether it acted within its lawful authority,” the court said in an order released about 9 p.m. Saturday. “We hold that it did not.”
Power talk
Yet the legal arguments hashed out in a Zoom video conference call some 12 hours earlier centered mostly on whether a subset of legislative leaders could speak for all lawmakers and overrule emergency actions by the governor. They also explored whether drafting errors in the legislation could be overlooked in an emergency.
The back-and-forth between the justices and the lawyers for both sides seemed to reveal at least some consensus: In a rush to leave Topeka and give Kelly powers to respond to a fast-spreading, sometimes deadly illness, the Legislature made critical errors in a resolution.
Yes, lawmakers had temporarily granted emergency powers to the governor. But it was far less clear how much authority they handed off to the Legislative Coordinating Council, a committee of legislative leaders controlled by Republicans, to keep Kelly in check.
A delegation of power of that magnitude, said Justice Dan Biles, can’t be accomplished with just a legislative resolution. The law defining the role of the LCC would have to be amended, something lawmakers failed to do.
“You’re trying to read language into a statute that’s not there,” Biles said to one of the lawyers pleading the Legislature’s case. “While it may be a good idea, all you guys had to do was amend the law and send it to the governor.”
