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KS AG Schmidt questions prosecution of emergency order violators

Kansas Capitol
Posted at 7:28 AM, May 21, 2020
and last updated 2020-05-21 17:47:17-04

KANSAS CITY, Mo. — Kansas Attorney General Derek Schmidt issued a legal opinion Wednesday night on whether Kansas can prosecute residents who violate emergency orders issued by Gov. Laura Kelly.

The legal opinion only addresses powers under the Kansas Emergency Management Act and does not address other state, federal or local authority.

Schmidt essentially said that criminal prosecution of the violations would have to be taken on a case-by-case basis.

He questioned the validity of emergency orders when there is no legislative process before they are issued.

"In light of the rare [statutory] requirement that only … violations of … 'lawful' emergency orders be punished criminally, prosecutors considering bringing charges under authority of [the emergency-powers statute] should specifically analyze the lawfulness of any individual order before bringing charges," the opinion read.

Schmidt specifically questioned the current disaster proclamations in place in Kansas for the COVID-19 pandemic.

“[T]he validity of the Second Disaster Proclamation [on April 30, 2020] is doubtful … To minimize the risk of legal challenges to executive orders issued or other emergency actions after May 1, 2020, authorized under the Second Disaster Proclamation, we recommend that the legislature by statute expressly approve the state of disaster emergency," the opinion read.

Late Thursday, Kelly's office responded to the legal opinion, saying that she did not find it to be an attempt at an "honest conversation about reviewing and modernizing" the law.

"If it were, the Attorney General would not have released his legal opinion in the middle of the night right before the last day of the legislative session, and the Legislature would not be trying to cram multiple pieces of legislation – many of which have not been thoroughly vetted by the public – into what is traditionally a ceremonial end of the legislative session," her office said in the statement. "Governor Kelly welcomes the conversation about KEMA, but in a thoughtful manner that allows stakeholders like local government officials and emergency managers to weigh in on this important subject."

Schmidt called the social distancing rules put in place by Kelly "intrusive" and said they violate Kansans' constitutional fundamental rights.

“Never before have all Kansans been subject for an extended time to such intrusive restrictions ordered by their government. Under various emergency orders, it became a crime for Kansans to leave home without government approval, to gather more than 10 people at a time except for government-approved purposes, or to operate businesses or organizations without government approval. Quite obviously, these sorts of restrictions burdened fundamental rights — such as religion, assembly, and movement — that are constitutionally protected," the opinion read.

Schmidt recommended that if prosecutors do decide to pursue criminal charges of emergency order violations, they ask themselves five questions first.

  1. Was a state of disaster emergency in effect at the time of the conduct alleged to violate an emergency order?
  2. Was the emergency order properly published as required by statute and by principles of due process?
  3. Does the plain text of [the emergency-powers statute] grant authority for the particular emergency order at issue?
  4. Is the emergency order unconstitutionally vague in violation of due process?
  5. Does the emergency order impermissibly burden constitutional or statutory rights?

Johnson County, KS
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