Kelly v. Legislative Coordinating Council ( 2020 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 122,765
GOVERNOR LAURA KELLY,
in Her Official Capacity,
Petitioner,
v.
LEGISLATIVE COORDINATING COUNCIL,
KANSAS HOUSE OF REPRESENTATIVES, and
KANSAS SENATE,
Respondents.
SYLLABUS BY THE COURT
1.
The Kansas House of Representatives and Kansas Senate are dismissed from this
action brought by the Governor to determine the authority of the Legislative Coordinating
Council to act under House Concurrent Resolution 5025.
2.
House Concurrent Resolution 5025 does not authorize the Legislative
Coordinating Council to revoke Executive Order 20-18. Its plain text requires, as a
condition precedent to exercise any Legislative Coordinating Council power, action by
the State Finance Council to permit extension of the time of the Governor's state of
disaster emergency declaration.
3.
K.S.A. 46-1202 is a general statute creating the Legislative Coordinating Council
and, in this instance, must give way to the more specific statute—K.S.A. 2019 Supp. 48-
1
925—which governs the revocation of gubernatorial executive orders issued during a
declaration of state of disaster emergency.
Original action in quo warranto. Opinion filed April 11, 2020. Quo warranto granted in part.
Clay Britton, chief counsel, Office of the Governor, argued the cause, and Lumen N. Mulligan, of
Lawrence, and Pedro L. Irigonegaray, of Irigonegaray, Turney, & Revenaugh, L.L.P., of Topeka, were
with him on the brief for petitioner Governor Laura Kelly.
Bradley J. Schlozman, of Hinkle Law Firm LLC, of Wichita, argued the cause and was on the
brief for respondents Legislative Coordinating Council and Kansas House of Representatives.
Edward D. Greim, of Graves Garrett LLC, of Kansas City, Missouri, argued the cause and was on
the brief for respondent Kansas Senate.
PER CURIAM: This is an expedited original action in quo warranto brought by
Governor Laura Kelly against the Legislative Coordinating Council, the Kansas House of
Representatives, and the Kansas Senate. It broadly concerns statutory procedures for
issuance of gubernatorial proclamations declaring a state disaster emergency and the
legislative oversight authorized for such proclamations and their attendant executive
orders under the Kansas Emergency Management Act (KEMA), K.S.A. 48-904 et seq.
This controversy arises in the wake of an emergency proclamation issued by
Governor Kelly on March 12, 2020, in response to the global public health crisis related
to the novel coronavirus (COVID-19) and her follow-up executive orders. The LCC
purported to revoke one executive order. We are asked to determine whether it acted
within its lawful authority. We hold that it did not.
2
As ultimately acknowledged by all counsel during oral arguments today, even if
we accept House Concurrent Resolution 5025 as an otherwise valid exercise of legislative
authority, its plain text did not authorize the LCC to revoke Executive Order 20-18. That
acknowledgment ends this controversy.
We need not and do not decide the merits of other arguments advanced or
attempted to be advanced by the parties—including whether a concurrent resolution
passed by the Legislature can delegate its oversight authority under KEMA to the LCC;
whether the statutes creating and enabling the LCC affect the KEMA analytical
framework; whether due process is violated by the type of notice about the Governor's
executive orders; or whether Executive Order 20-18 was a legally valid or constitutional
exercise of the Governor's authority, despite its limitation on religious gatherings.
Also, before reciting the factual and procedural background necessary to our
decision and discussing the merits of the dispositive legal issue, we note sua sponte that
the House and Senate may not be properly named as parties to this quo warranto action.
For the same reasons expressed in State ex rel. Schmidt v. Kelly, 309 Kan. 887, 891-93,
441 P.3d 67 (2019), we dismiss them from this case.
FACTUAL AND PROCEDURAL BACKGROUND
K.S.A. 48-924(b) grants the Governor a statutory power to declare a state of
disaster emergency. The pertinent part of subsection (b) provides:
"(1) The governor, upon finding that a disaster has occurred or that occurrence or
the threat thereof is imminent, shall issue a proclamation declaring a state of disaster
emergency.
....
3
"(3) The state of disaster emergency so declared shall continue until the governor
finds that the threat or danger of disaster has passed, or the disaster has been dealt with to
the extent that emergency conditions no longer exist. Upon making such findings the
governor shall terminate the state of disaster emergency by proclamation, but except as
provided in paragraph (4), no state of disaster emergency may continue for longer than
15 days unless ratified by concurrent resolution of the legislature, with the single
exception that upon specific application by the governor to the state finance council and
an affirmative vote of a majority of the legislative members thereof, a state of disaster
emergency may be extended once for a specified period not to exceed 30 days beyond
such 15-day period.
"(4) If the state of disaster emergency is proclaimed pursuant to paragraph (2),
the governor shall terminate the state of disaster emergency by proclamation within 15
days, unless ratified by concurrent resolution of the legislature, except that when the
legislature is not in session and upon specific application by the governor to the state
finance council and an affirmative vote of a majority of the legislative members thereof, a
state of disaster emergency may be extended for a specified period not to exceed 30 days.
The state finance council may authorize additional extensions of the state of disaster
emergency by a unanimous vote of the legislative members thereof for specified periods
not to exceed 30 days each. Such state of disaster emergency shall be terminated on the
15th day of the next regular legislative session following the initial date of the state of
disaster emergency unless ratified by concurrent resolution of the legislature.
"(5) At any time, the legislature by concurrent resolution may require the
governor to terminate a state of disaster emergency. Upon such action by the legislature,
the governor shall issue a proclamation terminating the state of disaster emergency."
(Emphasis added.)
Under subsection (b)(1), the Governor proclaimed a state of disaster emergency on
March 12. Under subsection (b)(3), the proclamation could not last longer than 15 days
unless ratified by a concurrent resolution of the Legislature. Additional exceptions to that
ratification timeline are not relevant to our discussion.
4
Once the proclamation is declared under K.S.A. 48-924, the Governor obtains
powers set out in K.S.A. 2019 Supp. 48-925. That statute provides:
"(a) During any state of disaster emergency declared under K.S.A. 48-924, and
amendments thereto, the governor shall be commander-in-chief of the organized and
unorganized militia and of all other forces available for emergency duty. To the greatest
extent practicable, the governor shall delegate or assign command authority by prior
arrangement, embodied in appropriate executive orders or in rules and regulations of the
adjutant general, but nothing herein shall restrict the authority of the governor to do so by
orders issued at the time of a disaster.
"(b) Under the provisions of this act and for the implementation thereof, the
governor may issue orders and proclamations which shall have the force and effect of law
during the period of a state of disaster emergency declared under subsection (b) of K.S.A.
48-924, and amendments thereto, and which orders and proclamations shall be null and
void thereafter unless ratified by concurrent resolution of the legislature. Such orders and
proclamations may be revoked at any time by concurrent resolution of the legislature.
"(c) During a state of disaster emergency declared under K.S.A. 48-924, and
amendments thereto, and in addition to any other powers conferred upon the governor by
law, the governor may:
....
(7) control ingress and egress of persons and animals to and from
a disaster area, the movement of persons and animals within the area and
the occupancy by persons and animals of premises therein; [and]
....
5
(11) perform and exercise such other functions, powers and
duties as are necessary to promote and secure the safety and protection of
the civilian population.
"(d) The governor shall exercise the powers conferred by subsection (c) by
issuance of orders under subsection (b). The adjutant general, subject to the direction of
the governor, shall administer such orders." (Emphasis added.) K.S.A. 2019 Supp. 48-
925.
Within the 15-day statutory window, the Legislature adopted House Concurrent
Resolution (HCR) 5025 extending the Governor's declaration to May 1, 2020. The
resolution reads:
"WHEREAS, On March 12, 2020, Governor Laura Kelly issued a State of
Disaster Emergency declaration in response to confirmed cases of novel coronavirus
(COVID-19) in the state of Kansas and considers that a public health emergency exists
within the state of Kansas. The United States Centers for Disease Control and Prevention
(CDC) identifies the potential public health threat posed by COVID-19 both globally and
in the United States as 'high,' and the United States Department of Health & Human
Services declared a public health emergency for COVID-19 beginning January 27, 2020.
The World Health Organization (WHO) declared a global pandemic on March 11,
2020: Now, therefore,
"Be it resolved by the House of Representatives of the State of
Kansas, the Senate concurring therein: That the State of Disaster Emergency declaration
issued on March 12, 2020, for the entire 105 counties of Kansas in accordance with
K.S.A. 48-924 is hereby ratified and continued in force and effect on and after March 12,
2020, through May 1, 2020, subject to additional extensions by concurrent resolution of
the Legislature or as further provided in this concurrent resolution. If the Legislature is
not in session:
6
"(1) As described in K.S.A. 48-924(b)(3), upon specific application by the
Governor to the State Finance Council, the State Finance Council may authorize once an
extension of such state of disaster emergency by affirmative vote of a majority of the
legislative members thereof for a specified period not to exceed 30 days; and
"(2) following such State Finance Council action, the Legislative Coordinating
Council, representing the Legislature when the Legislature is not in session pursuant to
K.S.A. 46-1202:
(A) Is authorized to ratify a declaration, terminate a state of disaster emergency,
revoke an order or proclamation or assume any other power granted to the legislature
pursuant to K.S.A. 48-924 or K.S.A. 2019 Supp. 48-925;
(B) may authorize additional extensions of such state of disaster emergency by a
majority vote of five members thereof for specified periods not to exceed 30 days each;
(C) shall meet not less than every 30 days to:
(i) Review the state of disaster emergency;
(ii) consider any orders or proclamations issued since the last Legislative
Coordinating Council meeting; and
(iii) consider whether such orders or proclamations, if any, are an exercise of any
power listed in K.S.A. 2019 Supp. 48-925(c)(2), (c)(4), (c)(7), (c)(8) or (c)(11); and
(D) shall have the authority to review and revoke all orders and proclamations
issued by the governor pursuant to K.S.A. 2019 Supp. 48-925(b). The chairperson of the
Legislative Coordinating Council, in consultation with the attorney general, adjutant
general and any other parties the chairperson deems necessary, shall determine if an order
or proclamation that is an exercise of a power listed in K.S.A. 2019 Supp. 48-925(c)(2),
(c)(4), (c)(7), (c)(8) or (c)(11) has been issued. If the chairperson determines that the
order or proclamation is an exercise of such power, the Legislative Coordinating Council
7
shall meet to consider such order or proclamation within three calendar days. At such
meeting, the Legislative Coordinating Council may revoke such order or proclamation;
and
"Be it further resolved: That, for the purposes of this ratification, the Governor
shall not have the power or authority to temporarily or permanently seize, or authorize
seizure of, any ammunition or to suspend or limit the sale, dispensing or transportation of
firearms or ammunition pursuant to K.S.A. 2019 Supp. 48-925(c)(8) or any other
executive authority."
On April 7, Governor Kelly used her K.S.A. 2019 Supp. 48-925(b) powers to issue
Executive Order 20-18, relating to her March 12 emergency proclamation. Among other
things, it temporarily prohibited, subject to several exemptions, "mass gatherings,"
defined as "any planned or spontaneous, public or private event[s] or convening[s] that
will bring together or [are] likely to bring together more than 10 people in a confined or
enclosed space at the same time." Executive Order 20-18 rescinded and replaced an
earlier, substantially similar executive order. But Executive Order 20-18 differed in that it
removed "[r]eligious gatherings" and "[f]uneral or memorial services or ceremonies"
from the list of "activities or facilities" exempt from the temporary prohibition of mass
gatherings.
On April 8, the LCC convened pursuant to HCR 5025. By 5-to-2 vote, it revoked
Executive Order 20-18.
The next day, Governor Kelly filed this original action in quo warranto
challenging the asserted revocation of her executive order. We agreed to expedite these
proceedings due to the nature of the public health emergency all agree is present. We
heard oral argument from counsel to the parties this morning.
8
DISCUSSION
Article III, section 3 of the Kansas Constitution grants the Supreme Court original
jurisdiction over actions in quo warranto. State ex rel. Stephan v. Kansas House of
Representatives, 236 Kan. 45, 52, 687 P.2d 622 (1984). Relief in quo warranto is
discretionary. We may entertain the current proceeding if we determine the issue is of
sufficient public concern. 236 Kan. at 53. Under the circumstances our state faces, we
easily do.
An action in quo warranto demands that an individual or corporation show by
what authority it has engaged in a challenged action. State ex rel. Schmidt v. City of
Wichita, 303 Kan. 650, 656, 367 P.3d 282 (2016). K.S.A. 60-1202(1) provides an action
in quo warranto may be brought in the Supreme Court "[w]hen any person shall usurp,
intrude into or unlawfully hold or exercise any public office, or shall claim any franchise
within this state, or any office in any corporation created by authority of this state." And
K.S.A. 60-1202(5) allows such an action "[f]or any other cause for which a remedy might
have been heretofore obtained by writ of quo warranto at common law." In this
controversy, the Governor complains about the LCC's intrusion into the legislative
scheme for overseeing her emergency authority in the face of the present public health
crisis. We are convinced that a quo warranto action is an appropriate vehicle for
questioning the LCC's authority to revoke Executive Order 20-18 under HCR 5025. See
City of Wichita, 303 Kan. at 656.
The House and the Senate's Capacity to Be Sued
Neither the House nor the Senate argues it should be dismissed because it lacks
capacity to be sued. Nevertheless, we recently observed that the legal question of whether
the Legislature, or one house of the Legislature, can be sued remains unsettled. In Kelly,
9
309 Kan. at 891, the Kansas Senate was a respondent in an action brought by the State on
relation of the attorney general. The Senate did not raise a capacity issue in that case, but
the court dismissed it as a party, expressing hesitancy "'to establish as precedent at this
time the validity of an action such as this by the attorney general on behalf of the state
directly against the legislature.'" 309 Kan. at 892 (quoting Kansas House of
Representatives, 236 Kan. at 58).
As with Kelly and Kansas House of Representatives, we again choose to dismiss
these legislative bodies as parties to this action. Their presence is unnecessary to resolve
the merits related to the LCC's authority, and we remain hesitant to establish any
precedent. Our caselaw reflects the LCC has been a party to litigation previously in this
court, so there is no new precedent in that regard. See, e.g., Legislative Coordinating
Council v. Stanley, 264 Kan. 690, 957 P.2d 379 (1998).
The Governor's Standing to Sue
Broadly, standing exists when a party has suffered a cognizable injury and there is
a causal relation between the injury and the conduct. Board of Johnson County Comm'rs
v. Jordan, 303 Kan. 844, 854, 370 P.3d 1170 (2016) (county commissioners have
standing in mandamus action against Kansas Department of Revenue). The Supreme
Court has original jurisdiction in proceedings in quo warranto, mandamus, and habeas
corpus. Kan. Const. art. 3, § 3. In cases brought under the court's original jurisdiction, the
petitioner has standing when he or she demonstrates a need to secure speedy adjudication
of questions of law for guidance of state officials. Ambrosier v. Brownback, 304 Kan.
907, 910, 375 P.3d 1007 (2016).
Further, K.S.A. 60-1203 governs standing to bring a quo warranto action as
follows:
10
"Where the action is brought by a person claiming an interest . . . adverse to a
resolution . . . which is the subject of the action, it shall be prosecuted in the name and
under the direction of such person, otherwise it shall be prosecuted in the name of the
state by the attorney general or county attorney."
We have no trouble ruling that the Governor has standing to challenge the LCC's
attempt to revoke her executive order. She argues that both the LCC's exercise of power
and the House Concurrent Resolution under which the LCC claims authority to act are
contrary to K.S.A. 2019 Supp. 48-925 and unconstitutional under article II, sections 14
and 20 of the Kansas Constitution. Her argument squarely falls within K.S.A. 60-
1202(1). She asserts an interest in the effectiveness of her disaster emergency powers that
is adverse to the LCC's claimed authority to nullify her actions.
Authority to Revoke Executive Order 20-18
HCR 5025 answers the only question that demands an answer today. 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, which
establishes conditions precedent.
First, it provides for the Governor to apply to the State Finance Council for
authorization for a one-time extension of a state of disaster emergency. That
language in section 1 of the resolution parallels K.S.A. 48-924(b)(3). The
resolution then states:
"(2) following such State Finance Council action, the Legislative Coordinating
Council, representing the Legislature when the Legislature is not in session pursuant to
K.S.A. 46-1202:
11
(A) Is authorized to ratify a declaration, terminate a state of disaster emergency,
revoke an order or proclamation or assume any other power granted to the legislature
pursuant to K.S.A. 48-924 or K.S.A. 2019 Supp. 48-925;
...
(D) shall have the authority to review and revoke all orders and proclamations
issued by the governor pursuant to K.S.A. 2019 Supp. 48-925(b)." (Emphasis added.)
Nothing in the limited record before us nor any statement made at oral argument
indicates the Governor has asked the State Finance Council for an extension of the state
of disaster emergency. Nor do the record or counsel indicate the State Finance Council
has acted upon such a request. During oral argument, Respondents' counsel conceded
these conditions had not occurred.
The step involving the State Finance Council must occur before the LCC's now-
challenged authority is triggered under HCR 5025(2). Subsection (2) begins with the
words "following such State Finance Council action . . . ." Because the State Finance
Council has not taken action, this circumstance does not exist and HCR 5025 does not
grant the LCC the authority to revoke Executive Order 20-18. See Stanley, 264 Kan. at
706 (holding that the LCC "is an administrative agency created by statute. Its power and
authority are defined by law" and "any exercise of authority claimed by the agency must
come from within the statutes"); Legislative Coordinating Council v. Frahm, 262 Kan.
144, 149-50, 936 P.2d 267 (1997) (same).
Respondents also have argued that the Governor acquiesced and accepted this
language as HCR 5025 was negotiated and that she did so as she encouraged the
Legislature to adjourn. Even if we accept those factual assertions as true, principles of
acquiescence do not somehow imbue the LCC with legal authority. We—and the LCC—
12
are bound by the plain language of the resolutions and bills adopted by the Legislature.
Nauheim v. City of Topeka, 309 Kan. 145, 149-50, 432 P.3d 647 (2019). Courts avoid
adding, deleting, or substituting words in statutes. State v. Snellings, 294 Kan. 149, 157,
273 P.3d 739 (2012).
Here, the plain language requires certain conditions—the State Finance Council
must have acted upon the Governor's request for an extension of the emergency
declaration—before the LCC can act on behalf of the Legislature. And no equitable
principle can be used to alter that language.
More Specific KEMA Provisions Control over General LCC Statute
In a final effort to avoid the flaws we have identified in HCR 5025 and preserve its
authority to act in this matter, the LCC suggests that it possesses the statutory authority to
revoke Executive Order 20-18 wholly independent of HCR 5025. The LCC points us to
its enabling statute, which grants it the "power to represent the legislature when the
legislature is not in session." K.S.A. 46-1202. But K.S.A. 46-1202 is a general statute
creating the LCC and in this instance must give way to the more specific statute—K.S.A.
2019 Supp. 48-925—which governs the revocation of gubernatorial executive orders
issued during a state of disaster emergency declaration. Merryfield v. Sullivan, 301 Kan.
397, 398, 343 P.3d 515 (2015) ("It is a general rule of statutory interpretation that, when
both a general statute and a specific statute govern the same topic, the specific statute
controls."). We hold that if the LCC could possess the authority to revoke such an
order—a question we expressly have declined to decide—such power would have to be
consonant with the Legislature's action under KEMA, the specific, controlling statutory
scheme.
13
CONCLUSION
The Court has considered and grants in part the Governor's Petition in Quo
Warranto. The LCC's purported revocation of Executive Order 20-18 on April 8 was a
nullity, because the LCC lacked authority do so under HCR 5025's terms. Because this
resolves the present dispute, we do not reach broader questions concerning the asserted
conflicts between HCR 5025 and K.S.A. 48-924 and 48-925.
MICHAEL E. WARD, Senior Judge, assigned.1
***
BILES, J., concurring: I agree with the outcome and rationale. I write separately to
express my doubts about HCR 5025's ability to confer oversight powers on the LCC
when the plain language of state law says otherwise. At its core, the dispute the parties
ask us to resolve turns on a more substantive question: Even if all preconditions set out
in the concurrent resolution were met, was the LCC lawfully empowered to disturb
Executive Order 20-18? Plainly, the Kansas Emergency Management Act does not
contemplate revision by concurrent resolution.
The LCC does not make even a colorable claim that its revocation of the
Governor's emergency order was a "concurrent resolution of the legislature" as would be
required under the statute. See Rules of the House, Rule 2707 (providing generally that
majority of House members necessary to adopt House concurrent resolution). Indeed, the
1
REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 122,765,
under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on
the court by the retirement of Chief Justice Lawton R. Nuss.
14
LCC carefully characterizes what it did as "exercis[ing] the power the [L]egislature
reserved for itself to quickly review and, if necessary, check the [G]overnor's use of
legislatively delegated authority."
As the majority notes, the LCC claims its authority to revoke the Governor's
executive order through the awkwardly drafted terms of HCR 5025. Slip op. 11-12. But it
is axiomatic that a legislative concurrent resolution cannot amend a statute. So how is the
LCC's position even viable? Legislation becomes law when it is passed by majority votes
of both houses of the Legislature and presented to the Governor, who must sign it or
allow it to become law without signing it. Kan. Const. art. 2, §§ 13, 14. If the bill is
vetoed by the Governor, it can still become law if that veto is overridden by two-thirds
majorities in both houses. Kan. Const. art. 2, § 14(a).
There is no dispute K.S.A. 48-924 and K.S.A. 2019 Supp. 48-925 were duly
enacted into law. Conversely, there is no dispute HCR 5025 was not duly enacted into
law. That means the real question is whether LCC oversight had to be put into statute for
the LCC to gain these powers. My answer would be, Yes. There is a lawful way of
making that happen, and this is not it.
In State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 46, 64,
687 P.2d 622 (1984), the court held the Legislature may not by concurrent resolution
"adopt, modify or revoke administrative rules and regulations . . . without presentment to
the governor." It reasoned that the mechanism would
"violate[ ] not only the separation of powers doctrine but also the presentment
requirement contained in art. 2, § 14 of our state constitution. As made clear by the court
in [I.N.S. v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983)], a
resolution is essentially legislative where it affects the legal rights, duties and regulations
15
of persons outside the legislative branch and therefore must comply with the enactment
provisions of the constitution. Where our legislature attempts to reject, modify or revoke
administrative rules and regulations by concurrent resolution it is enacting legislation
which must comply with the provisions of art. 2, § 14. A bill does not become a law until
it has the final consideration of the house, senate and governor as required by art. 2, § 14.
This was not done here. "[Citations omitted.]" 236 Kan. at 64.
This analysis should apply with equal force to the Legislature's bungled effort here
to alter K.S.A. 2019 Supp. 48-925 through HCR 5025. And despite the LCC's claim that
it was simply fulfilling on the Legislature's behalf that body's responsibilities under the
disaster proclamation statutes, HCR 5025 tries to change the process.
KEMA assigns duties to the Governor, the Legislature, and the State Finance
Council—with no mention of the LCC, and no provision for the LCC to act in the
Legislature's stead. This is particularly notable since the Legislature made provisions in
the law for another entity, the State Finance Council, to approve disaster emergency
extensions when the Legislature is not in session. See K.S.A. 48-924(b)(3), (b)(4).
Obviously, by naming the State Finance Council for this purpose, the Legislature
contemplated a need to delegate some authority under the Act when it is not in session.
But just as plainly, it chose not to do that with respect to oversight of emergency orders.
For those, it kept the full bodies of each legislative house in the approval loop. See
Nauheim v. City of Topeka, 309 Kan. 145, 149-50, 432 P.3d 647 (2019) ("When the
language is plain and unambiguous, the court must give effect to its express language,
rather than determine what the law should be. The court will not speculate about
legislative intent and will not read the statute to add something not readily found in it.").
The concurrent resolution's asserted conveyance of oversight power is legislative
in nature. The change it attempts impacts the rights and duties of persons outside the
16
legislative branch: for one, the Governor. It did this by subjugating the Governor's
disaster powers to repeated oversight by a body other than the ones specified by KEMA.
What's more, the LCC acted on that authority in a manner that brings the alteration of
rights and responsibilities into stark relief—with practical alterations to the rights and
duties of persons outside the legislative branch. The LCC's implementation of HCR 5025
casts a cloud over the continuing validity of the Governor's emergency orders, and,
consequently a cloud over the enforcement and compliance obligations of Kansas law
enforcement officers and Kansans generally. And it did this at a critical time for our
state—in the face of an incomprehensibly complex public health crisis.
As a result, for the Legislature to validly confer oversight authority to the LCC,
bicameral adoption and presentment were required, i.e., the constitutional steps required
for a bill to become a law. That simply did not happen here. And expediency is no excuse
to circumvent legal process mandated by the people through our Constitution. If the law
is antiquated and should be changed, change it. But HCR 5025 is not the way to amend
statutes even if it had strong support in both houses.
There was no presentment as required by the Constitution to make a law. For that
reason, HCR 5025 did not vest the power for the LCC to revoke an emergency order
issued by the Governor under K.S.A. 2019 Supp. 48-925.
***
STEGALL, J., concurring: I concur with and fully join the majority opinion today
in both rationale and result. I write separately to briefly address Justice Biles' separate
opinion and to address a few points not emphasized in the majority opinion.
17
Justice Biles writes to suggest that even if HCR 5025 had effectively assigned to
the LCC the authority to revoke EO 20-18, such action would still be unlawful. I do not
take a position on that question as it is not necessary to resolve the case before us. But I
do disagree with Justice Biles when he writes that the "LCC does not make even a
colorable claim" that its action was a concurrent resolution of the Legislature in
compliance with K.S.A. 2019 Supp. 48-925(b). Slip op. at 14 (Biles, J., concurring). Part
of the LCC's argument is that its action was contemplated by—and incorporated into by
assignment—HCR 5025 when the Legislature as a whole adopted it.
To me, this claim is at least colorable in light of the vexing separation of powers
problems created when one branch of government delegates its power to another branch
as the Legislature has done (in part) in KEMA. Absent a liberal interpretation of the
Legislature's ability to continually oversee the Governor's exercise of delegated
Legislative authority, the structure of KEMA itself risks violating the constitutional
demand of separate powers. See Solomon v. State, 303 Kan. 512, 538, 364 P.3d 536(2015) (Stegall, J., concurring) ("The separation of powers contains no opt-out clause.
The departments are not free to ignore the strictures of separate powers upon a mutual
declaration of cooperation in furtherance of some jointly agreed upon governmental
objective.").
Next, given the extraordinary nature of this action and the heightened public
attention it has drawn, I find it necessary to address one argument gestured at by the LCC
but not actually joined. As the majority opinion explains, HCR 5025's plain text requires
an act of the State Finance Council to trigger the ability of the LCC to exercise the power
assigned to it by the Legislature as a whole. It is important to emphasize that at oral
argument, the LCC conceded that this was the only possible reading of the plain language
of HCR 5025.
18
Having conceded the textual ground of the battle, counsel for the LCC suggested
at one point that the language in HCR 5025 did not accurately reflect the Legislature's
intent and could be bypassed. In support of this argument, counsel pointed out that the
entirety of HCR 5025(1)—along with the introductory phrase in HCR 5025(2)—can have
no legal or practical effect and is therefore nonsensical.
Indeed, the LCC appears correct on this point. The statute referenced in HCR
5025(1)—K.S.A. 48-924(b)(3)—only authorizes the State Finance Counsel to extend a
gubernatorial state of disaster emergency declaration 30 days beyond the initial 15-day
period contemplated by KEMA. See K.S.A. 48-924(b)(3) ("[N]o state of disaster
emergency may continue for longer than 15 days unless ratified by concurrent resolution
of the legislature, with the single exception that upon specific application by the governor
to the state finance council and an affirmative vote of a majority of the legislative
members thereof, a state of disaster emergency may be extended once for a specified
period not to exceed 30 days beyond such 15-day period."). Counsel points out that 45
days beyond the Governor's initial declaration will occur earlier than May 1, 2020—the
date of the Legislature's already-adopted extension. So, it appears that under HCR 5025
the State Finance Council cannot extend the declaration past May 1 under any imaginable
scenario.
Further, it appears K.S.A. 48-924(b)(3) operates only while the Legislature is in
session. A different statute—K.S.A. 48-924(b)(4)—gives the State Finance Council
broader power to extend a disaster declaration when the Legislature is out of session. See
K.S.A. 48-924(b)(4) (providing that "when the legislature is not in session and upon
specific application by the governor to the state finance council and an affirmative vote of
a majority of the legislative members thereof, a state of disaster emergency may be
extended for a specified period not to exceed 30 days" and further stating that the State
Finance Council may then "authorize additional extensions of the state of disaster
19
emergency by a unanimous vote of the legislative members thereof for specified periods
not to exceed 30 days each") (Emphasis added.). Again, the text of HCR 5025—
suggesting that when the Legislature is out of session the State Finance Council could
operate under a statute intended to apply only when the Legislature is in session—is self-
contradictory.
All of this is enough to convince me that HCR 5025(1) and the introductory phrase
of HCR 5025(2) are—as the LCC insists—at best a poor reflection of the Legislature's
intent. Both the Governor and the LCC suggest that this court could therefore choose to
side-step that portion of the Concurrent Resolution and rule directly on the question of
whether the LCC could exercise any authority under HCR 5025(2)(A) and (2)(D). Giving
the LCC the benefit of a good-faith rendition of the best version of their argument—as I
think we must in this extraordinary and expedited action—the LCC essentially argues
that a literal reading of HCR 5025 would produce absurd results.
Though not couched in our traditional statutory interpretation lingo, the LCC
suggests: (1) it is absurd for HCR 5025(1) to contemplate a meeting of the State Finance
Council that is both legally impossible and practically impotent; (2) this absurdity renders
HCR 5025 ambiguous as to whether the State Finance Council must act before the LCC
can act; (3) this court should therefore look behind the plain language used by the
Legislature to discern legislative intent; and (4) the Legislature intended the LCC to act in
the manner that it has acted.
We have said before that we may depart from our strict adherence to the plain text
of a law if that plain reading produces obviously absurd results. A court "must construe a
statute to avoid inherently unreasonable or absurd results." State v. Arnett, 307 Kan. 648,
654, 413 P.3d 787 (2018). We presume "the legislature does not intend to enact useless or
meaningless legislation. . . . Equally fundamental is the rule of statutory interpretation
20
that courts are to avoid absurd or unreasonable results." State v. Frierson, 298 Kan. 1005,
1013, 319 P.3d 515 (2014). "Additionally, when the meaning of a statute is not clear from
its plain language, we may consider the provisions of the entire act with a view toward
reconciling and bringing them into harmony if possible. . . . The court always strives for a
reasonable interpretation or construction that avoids an unreasonable or absurd result."
Baker v. State, 297 Kan. 486, 488, 303 P.3d 675 (2013); see Manning, The Absurdity
Doctrine, 116 Harv. L. Rev. 2387, 2394 (2003) ("The absurdity doctrine rests on the
intuition that some such outcomes are so unthinkable that . . . courts may safely presume
that legislators did not foresee those particular results and that, if they had, they could and
would have revised the legislation to avoid such absurd results.").
The problem with this version of the LCC's best argument is that it is not obvious
why this court should rewrite HCR 5025 in the LCC's preferred manner—by avoiding the
problematic language entirely. Even when construing a patently absurd statute, courts
still must privilege clues emanating from the text itself over post hoc claims of intent.
Here, the absurdity pointed out by the LCC could just as easily be rectified by changing
the citation in HCR 5025(1) from K.S.A. 48-924(b)(3) to K.S.A. 48-924(b)(4). That
change may make more sense out of the textual hash. It fits with the language of the
Concurrent Resolution contemplating a Legislature not in session and it would avoid the
factual impossibility of the State Finance Council being unable to extend the Governor's
declaration beyond May 1, 2020. See K.S.A. 48-924(b)(4) (permitting serial extensions
of 30 days each).
Given this (along with the uniqueness of these proceedings), my best judgment is
to hold fast to the tried and true bedrock of legal interpretation and analysis—the words
on the page. This commitment both constrains judicial action in circumstances where
judges are ill-suited to make rules on the fly and gives the policy-making branches of
government the greatest leeway to fix problems of their own making.
21
One final point bears mentioning. All the parties here—along with the Attorney
General—have participated in one way or another in multiple meetings surrounding the
issues raised by HCR 5025. All the parties participated without objecting to—or even
questioning—the LCC's power to act under HCR 5025. And at oral argument, we learned
for the first time that the parties were aware of the textual problems from the very
beginning.
Counsel for the LCC explained that "the issue … was identified, and so the
Governor's office and the legislative leadership and even the Attorney General got
together and said you know this is sort of a problem here." Counsel went on to say that
the "Attorney General advised them, my understanding, that this was going to be a
problem, and the Legislature and the Governor's office said 'well let's just go forward
because we're dealing with extraordinary times here.'" During his rebuttal time, the
Governor's counsel did not dispute this recitation of the facts.
We have no record of these facts. So we cannot know for certain what happened.
But counsel's explanation has the virtue of at least making sense of the seemingly
insensible. How could the LCC meet in direct and obvious contravention of HCR 5025—
with the Governor's tacit approval or acquiescence—and nobody raised a hand to
question the propriety of what was happening?
Without a doubt, everyone involved has been putting forth an extraordinary effort
to keep Kansans safe in unprecedented times. And certainly everyone involved is a
dedicated public servant with the best intentions to perform his or her duties to the best of
their abilities for the benefit of us all. Nonetheless, public officials have an ongoing duty
to adhere to the law. This duty doesn't evaporate in a crisis—in fact, a crisis may heighten
the duty. Had someone questioned the authority of the LCC to ratify or reject Governor
Kelly's executive orders under HCR 5025 at the outset—when they knew there was a
22
problem—we, collectively, may not have been placed in the immensely difficult position
of litigating the lawfulness of EO 20-18 in the few days just before Easter.
And finally, it is worth emphasizing a point clarified at the outset of the majority
opinion. Today's decision does not decide the religious liberty dimensions of this dispute.
All the parties, including the legislative parties, agreed that those arguments and claims
are not properly before this court in this action, and must wait to another day for
resolution.
REPORTER'S NOTE: This opinion is subject to revisions due to the accelerated
timeline for the hearing and disposition of this case.
23