May 21, 2020 12:00 PM

AG issues legal opinion on criminal enforcement of emergency orders

Posted May 21, 2020 12:00 PM

TOPEKA – Kansas Attorney General Derek Schmidt issued a formal legal opinion Wednesday addressing whether a state law that authorizes criminal prosecution of Kansans who violate emergency orders issued by the governor is constitutional and enforceable.

The opinion is a consolidated response to separate requests for the attorney general’s legal opinion on closely related subjects from Reno County District Attorney Keith Schroeder, State Senator Richard Hilderbrand, and State Representatives Tory Marie Arnberger, Renee Erickson, Susan Humphries, Brenda Landwehr, Barbara Wasinger and Kristey Williams, according to the Attorney General's office.

The Opinion notes that the Kansas Emergency Management Act (KEMA) places on the governor responsibility to respond to disasters and grants broad authority to do so. Because of the nature of the COVID-19 pandemic, the use of emergency powers has been unprecedented since the KEMA was enacted in 1975, with 31 emergency orders issued by the governor in the past 10 weeks. The Opinion does not address federal, state or local emergency authority outside the KEMA.

Notable conclusions in the 31-page opinion include:

  1. “[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.” [p. 13]
  2. “Three specific portions in the language of [the emergency-powers statute] are constitutionally suspect on their face. The legislature should examine them carefully to determine whether they accurately reflect the legislature’s intent. If one or more is invalid, it would become necessary to determine whether the invalid portion is severable from the remainder of the statute.” [p. 13]

Noting “the unique facts facing prosecutors in Kansas,” District Attorney Schroeder in particular requested an analysis regarding criminal prosecution of violations of emergency orders to assist local authorities “to avoid any unlawful arrests or convictions stemming from the disputed nature and authority of the Governor’s Executive Orders.”

Addressing that concern, the Opinion concludes:

  1. “Because emergency orders are not subject before issuance to the ordinary processes of deliberative governance, the lawfulness of the order cannot as readily be presupposed but is reasonably subject to question. 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.” [p. 20]

Regarding criminal enforcement, the Opinion sets out a “Recommended framework for evaluating ‘lawfulness’ of an emergency order” for use by prosecutors. Because of issues unique to emergency orders, the Opinion recommends five questions prosecutors should analyze case-by-case before any criminal enforcement action: (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, and (5) does the emergency order impermissibly burden constitutional or statutory rights?

In its criminal-enforcement section, the Opinion also includes these passages:

  1. “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.” [pp. 29-30]
  2. “We specifically recommend no criminal charges be filed until a prosecutor has exercised due diligence in addressing the questions presented in this opinion … and is satisfied that the particular order at issue is lawful and may be lawfully applied to the defendant.” [p. 31]

The opinion has been posted on the attorney general’s website and is available here.

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May 21, 2020 12:00 PM
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