LAWRENCE — Kansas Gov. Laura Kelly’s executive order limiting in-person religious gatherings to fight the coronavirus stands, the state Supreme Court ruled hours before Easter Sunday began.
In a narrow ruling, the court said top Kansas Republican leaders didn’t follow the procedures outlined in a resolution approved by the full Legislature when they voted earlier this month to revoke Kelly’s order.
The decision paved the way for Kelly’s order to be in effect over Easter, though it was unclear how widely it would be enforced. Most churches have already canceled in-person services and Attorney General Derek Schmidt, a Republican, has advised police and sheriffs not to arrest or criminally charge anyone violating the order.
Some churches defied Kelly’s order Sunday. Pastor Aaron Harris of Calvary Baptist Church in Junction City said about 21 people attended his Easter service in a church that usually seats 300, The Wichita Eagle reported.
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The unsigned majority opinion, released just after 9 p.m. Saturday, said the resolution’s plain text requires the State Finance Council — a body comprised of legislative leaders and chaired by the governor — to first grant an extension of Kelly’s emergency powers before the Legislative Coordinating Council, a body made up only of top legislators, can revoke her orders. No justices dissented, but two issued separate, concurring opinions.
The opinion drew no conclusions about broader questions of public health and religious freedom — or whether the resolution conflicts with state law, as Kelly argued.
“Because this resolves the present dispute, we do not reach broader questions concerning the asserted conflicts” between the resolution and state law, the opinion says.
The decision capped an extraordinary week of escalating conflict between Kelly and Republican leaders over the order.
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. On Tuesday Kelly issued an executive order prohibiting mass gatherings of more than 10. The decision effectively eliminated any chance of holding large in-person Easter services.
The order sparked immediate backlash from Republicans, who condemned the order as an infringement on religious freedom. They expressed concerns that the order, which carries the force of law, could result in arrests and fines of those defying it, even as they urged people to avoid crowds.
The Legislative Coordinating Council, or LCC, on Wednesday voted along party lines to revoke the order. 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.
On Thursday, Kelly sued to overturn the decision.
The lawsuit led to an extraordinary Saturday session of the Kansas Supreme Court, where justices heard oral arguments for the first time ever over videoconference, which was livestreamed on YouTube. Thousands of people watched.
“Today’s ruling does not change my commitment to maintaining open lines of communication and collaboration with the Legislature. The only way to get through this is by working with — not against — each other in a bipartisan fashion,” Kelly said in a statement.
The House Republican members of the LCC issued a joint statement saying the dispute was never about whether people should gather at church during the pandemic.
“The answer to that is clearly no. The question was whether people should be arrested and jailed for going to church. The Governor believed they should be. We think that goes too far,” the lawmakers said.
The court’s decision raises concerns over the “bigger picture” and means Kansas’ emergency disaster declaration will expire on May 1, and with it, Kelly’s emergency powers.
“While everyone is hopeful this pandemic subsides soon, the reality is a longer period of emergency disaster authority will likely be needed in order to protect Kansans and our state’s relief funding,” the lawmakers said. “The governor’s decision to go to court instead of compromise has created a new level of uncertainty that does nothing to help our state through this crisis. Working together is the only way we address that uncertainty, protect the health of our state, and save people’s lives.”
Senate President Susan Wagle, a Wichita Republican who is also running for U.S. Senate, said the order had displayed Kelly’s “misplaced priorities” amid the crisis.
“Other Governors have kept places of worship open with strong encouragement for people to stay home and practice good social distancing. I have faith in Kansans and encourage them to do the same,” she said in a statement.
The governor’s office didn’t immediately comment Saturday night. But during oral arguments, Kelly’s chief counsel, Clay Britton, said the LCC overstepped its authority.
“In this time of crisis, the question before the court is whether a seven-member legislative committee has the power to overrule the governor,” Britton said. “The answer is no.”
After reading the opinion, House Minority Leader Tom Sawyer said he’s not sure what comes next. Saywer, a Wichita Democrat, is a member of the LCC who supported the governor’s order addressing religious services, but was outvoted by the Republicans on the panel.
He said the LCC is scheduled to meet Monday to review three more of Kelly’s orders, but Saturday’s ruling basically precludes taking any action to overturn them until after the State Finance Council meets and extends the state of emergency.
In taking the case, the court had 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.
“They ruled in favor of the governor basically on a technicality,” Sawyer said. “None of the big questions are addressed here.
“It just comes back to the fact that the (resolution) was poorly constructed. and because of that, the LCC doesn’t have the power yet to revoke the executive orders,” he said.
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 — HCR 5025 — giving the Council the power to review and, in some instances, revoke Kelly’s emergency orders during the present crisis.
The language of the resolution appeared to require State Finance Council action first. That never happened, however.
“The Respondents claim that HCR 5025 allows the LCC to represent the Legislature when the Legislature is not in session. But they fail to consider its plain language,” the court said in its opinion.
In a concurring opinion, Justice Dan Biles expressed doubt that state law allows a resolution to give the LCC oversight powers. And Justice Caleb Stegall, in his own concurring opinion, said the plain text of the resolution requires the State Finance Council to act first and that during oral argument the “LCC conceded that this was the only possible reading of the plain language.”
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