The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In yesterday's Kansas Supreme Court emergency checks-and-balances decision, the court dealt with what one of the Justices described as an oral argument as a "drafting snafu"—a legislative concurrent resolution (HCR 5025) dealing with the governor's emergency powers, which apparently was written in a way that didn't reflect what anyone meant, and was indeed internally inconsistent. (See this post for more.)
Among other things, this meant that the Legislative Coordinating Council [LCC], an important body that represented the Legislature when it had adjourned after passing the resolution, acted for weeks even though its actions contravened the text of the resolution. (The resolution empowered the LCC to act only once certain steps had been taken by the Governor and another legislatve body, but the LCC started acting right away.)
Justice Caleb Stegall wrote a separate concurrence, which among other things said:
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 problem—we, collectively, may not have been placed in the immensely difficult position of litigating the lawfulness of EO 20-18 [an order extending a gathering ban to cover churches] in the few days just before Easter.