"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."

|The Volokh Conspiracy |

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.

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  1. 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.”

    As this involves a civil right, and they knowingly did this, could this possibly constitute a “color of law” violation? The court is essentially saying that the state actor’s unlawful action made it “immensely difficult” for the churchgoers to litigate their rights.

    Of course, what I would have done is tell the Governor that since she was part of the conspiracy to give the LCC powers that it didn’t possess, that she agreed to let it have those powers, she’s now bound by their decision here.

    1. Dr. Ed: I don’t think that’s right. Churchgoers remain free to litigate their rights, by suing in court under the Kansas RFRA or the Kansas Constitution. It’s just that one extra, nonjudicial check on the Governor’s power — the LCC veto — was botched as a result of the drafting snafu.

      1. The issue was to attend church on the most holy of Christian holidays — Easter. An injunction is moot at this point as Easter was this Sunday, now passed. So that’s moot.

        They can’t sue for damages unless either the Kansas RFRA or Constitution includes a relevant tort claims act, which I doubt.

        That’s why I was thinking the conspiracy to deny civil rights, in that the state knew this. I think this whole mess is going to SCOTUS — Massachusetts gun stores can sell guns to cops but no one else…

      2. Btw, churches did just that and prevailed, at least initially[1].

        [1] https://ecf.ksd.uscourts.gov/cgi-bin/show_public_doc?2020cv1102-14

  2. “we, collectively, may not have been placed in the immensely difficult position of litigating”

    Will no one cry for the poor judges forced to work Saturday?

    1. No. Not even one of us.

    2. Eh, I took it less as personal difficulty and more that the necessarily rushed nature of the proceedings makes coming to a properly litigated/deliberated answer more difficult.

      1. I think Sarcastr0 is exactly right here: The difficult is that the parties’ briefing was immensely rushed, as was the court’s decision, and that can lead to errors in decisionmaking (and in the reasoning, which becomes precedent for the future).

        Indeed, the briefs didn’t cover all the key issues, likely because they were so rushed, and some of the significant points only came up during oral argument. And while I think the opinion is generally well-reasoned (based on my own rushed review of it), it may well contain some lurking problems that could have been avoided if the Justices had more time to think through things.

        1. One thing a lot of nonlawyers here might not appreciate is how many arguments and how much evidence is missed or not presented well if you only have 48 hours or less to prepare papers. You can’t reach witnesses. You can’t do a lot of research. You basically brainstorm and put in whatever you think of.

          I know there are all sorts of reasons why this is sometimes the reason courts have to do business this way. But it’s never really good, and some of the worst decisions made by courts (including some very famous US Supreme Court decisions) were made under this sort of time pressure. Ideally, any time you can do something on a 21+ day briefing schedule, you are going to get better arguments on both sides and better decisions.

    3. “Will no one cry for the poor judges forced to work Saturday?”

      It’s not just that — those judges have to undergo retention votes every six years and this is the sort of thing that a “vote no” campaign could be based on.

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