HUTCHINSON, Kan. — Reno County District Attorney Keith Schroeder got the answer to his question to Attorney General Derek Schmidt in regard to the constitutionality of the governor's actions regarding the state's lockdown and extending that action.
Since 1787, we have operated under a form of government of the people, by the people, and for the people. Sometimes government officials tend to forget this principle. In our Country, State, and County, the Constitution defines the powers assigned to each branch of government. During times of emergency, our Constitution faces its biggest tests. Today, the question has become: “Which government official or entity had or has the power to control Reno County citizens during the current emergency health disaster?” The Constitution and statutorily created laws have not suddenly ceased to exist because of COVID-19.
Contrary to some public opinions expressed on social media, the government does have permissible Constitutional authority to take “temporary” necessary measures in order to meet a genuine public health emergency. Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). Our basic constitutional rights to freedom do not include the liberty to expose the community to communicable disease. Acting in accord with Articles 1 and 2 of the Kansas Constitution, the Legislature has enacted specific statutes dealing with the process and procedures for public emergency health disasters. (K.S.A. 48-924).
As District Attorney for the 27th Judicial District in Reno County, I am required to enforce the law in my Judicial District. It is a crime to violate a temporary state or local emergency health disaster order. (K.S.A. 48-939). The orders are essentially temporary laws. To be valid for enforcement purposes, the orders must be both constitutional and authorized by legislatively enacted statutes. As District Attorney, I will not prosecute any state or local emergency health disaster order that is without valid constitutional and statutory authority.
For many weeks I have had serious concerns about the constitutional and statutory authority supporting the Kansas Governor’s Emergency Health Disaster Orders. My concern with the Governor’s Orders has had nothing to do with their necessity or propriety for combating the spread of COVID-19; rather, my concerns have had everything to do with the legal authority behind the proclamation of the Governor’s temporary laws. If her rules are valid, I am bound by my oath of office to enforce them. On April 27, 2020, I made a formal request of Kansas Attorney General Derek Schmidt for an Attorney General’s Opinion directly related to my legal concerns.
Late last night, May 20, 2020, Kansas Attorney General Derek Schmidt issued Attorney General’s Opinion No. 2020-6. It confirmed my legal concerns about the Kansas Governor’s successive Emergency Health Disaster Orders. Therefore, as the District Attorney for the 27th Judicial District in Reno County, I am announcing that the District Attorney’s Office will not be prosecuting any cases based on executive orders of the Kansas Governor issued after May 1. Furthermore, K.S.A. 2019 Supp. 48-925 by its terms requires specific distribution of executive proclamations declaring a state of disaster emergency. “[E]ach such proclamation shall be filed promptly with the division of emergency management, the office of the secretary of state and each city clerk or county clerk, as the case may be, in the area to which such proclamation applies.” I have been unable to establish that the Governor ever complied with this legal requirement. On its face, it appears all orders of the Kansas Governor issued since her first Emergency Health Disaster Declaration on March 12, 2020, cannot be legally enforced in a criminal courtroom.
Barring action by the Kansas Legislature today indicating that continued regulation of the COVID-19 response by government should be solely handled on a State level, I strongly encourage Reno County Public Health Officer Nicholas Baldetti, pursuant to his statutory authority (K.S.A. 48-924), to publish the necessary local Emergency Health Disaster Orders necessary to protect the people of Reno County from the spread of COVID-19. The Board of Reno County Commissioners has a valid Emergency Health Disaster Declaration already in place. I am confident the input and recommendations of the Reno County Economic Recovery Task Force will assist Public Health Officer Baldetti in protecting everyone in a manner that is constitutionally sound, legally valid, and best for our local community’s unique circumstances. Fortunately, the implementation of local rules has already been facilitated by the leadership of Public Health Officer Baldetti and the voluntary hard work of hundreds of local citizens who served on the Economic Recovery Task Force.
While I have challenged the legal and constitutional authority for the Governor’s recent statewide public health orders, I do not mean to criticize the medical or public safety rationale that motivated them. Regardless of whether local government tells us what we can and can’t do, it is still our duty as citizens to act in a responsible manner to protect each other. As our economy and communities reopen, I strongly encourage everyone to use common sense and follow the recommendations of public health professionals in order to prevent the spread of COVID-19. During this public health crisis, absent specific action by the Kansas Legislature, any future Reno County Health Officer’s Orders will be enforced as temporary laws by the District Attorney’s Office, so long as the Board of Reno County Commissioners continues to declare that an emergency health disaster remains in effect.