Governor wants court to determine if Republican legislators can overrule her executive orders; attorney general warned of problem with resolution

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TOPEKA — Kansas Supreme Court justices for the first time in the court’s history appeared by video conference Saturday morning to referee a battle royal between Democratic Gov. Laura Kelly and Republicans who oppose her ban on large church gatherings.

Justices planned to make a swift decision on who has ultimate authority to manage an unprecedented health crisis — the governor, or a GOP-led panel of legislators.

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The Legislature in March passed a resolution giving the governor extended emergency powers for dealing with COVID-19. The resolution, which passed by near-unanimous vote, also gives the Legislative Coordinating Council the ability to overturn an executive order.

The LCC, a panel of five Republicans and two Democrats, on Wednesday reversed the governor’s decision to limit church gatherings to no more than 10 individuals. A day later, the governor petitioned the Supreme Court to intervene.

Justices agreed to expedite the case to reach a decision ahead of Easter Sunday. They connected with attorneys via Zoom, a video conference platform, to exchange legal points. More than 3,400 observers tuned in to watch the live broadcast.

Clay Britton, the governor’s chief counsel, told justices there is nothing in state law to give the LCC the ability to overrule the governor during an emergency declaration.

"This is a time of unprecedented crisis and danger,“ Britton said. ”Lives are on the line, clearly. Every day counts. Every minute counts."

Kelly issued the order to limit church crowds during Holy Week after learning of multiple coronavirus breakouts connected to religious gatherings. Statewide, health officials have documented 55 deaths and 1,268 infections from COVID-19.

Kansas Attorney General Derek Schmidt hired Wichita attorney Bradley Schlozman and Kansas City, Mo., attorney Edward Greim to represent the LCC. They said the governor was directly involved in negotiations that led to the resolution and complained she never raised concerns about the LCC’s authority until she was overruled.

"If they don't have the authority to act in the absence of the full Legislature, then you're essentially forcing the Legislature to confer unbridled discretion on the governor and eliminating the notion of checks and balances,“ Schlozman said.

Justice Dan Biles questioned Schlozman’s reasoning. State statute dealing with emergency declarations gives the governor broad powers and says nothing of the LCC. A concurrent resolution like the one in question can’t amend the law, Biles said.

"You're trying to read language into a statute that's not there,“ Biles said. ”And while it may be a good idea, all you guys had to do was amend the law and send it to the governor.“

Schlozman and Greim also argued the court should either uphold or nullify the resolution in its entirety. If the resolution is invalid, there is no emergency declaration and all of the governor’s executive orders pertaining to COVID-19 would expire.

The hearing also revealed that Schmidt had warned legislators and the governor that the viability of the LCC’s authority could be questioned.

"Are you telling us,“ Justice Carol Beier asked, that the attorney general "was aware that this drafting snafu exists?"

Schlozman said Schmidt identified the problem when consulted.

In a filing before the court, Schmidt’s office says his advice to police stands: Ignore the governor’s order on church crowds, regardless of lawsuit.

Kansas Supreme Court justices Biles, Beier, Marla Luckert, Eric Rosen, Caleb Stegall and Evelyn Wilson will decide the case along with Senior Judge Michael Ward, who filled a court vacancy for the purpose of hearing this case.

Luckert, the court’s chief justice, said the court would reach a decision as quickly as possible.

Check back for updates as this story develops.