Kansas Supreme Court announces ruling in case involving revocation of governor’s executive order

The Kansas Supreme Court today invalidated the Legislative Coordinating Council’s April 8 revocation of Governor Laura Kelly’s COVID-19 Executive Order 20-18.

After hearing arguments electronically this morning in Kelly v. Legislative Coordinating Council et al., the Court ruled swiftly and narrowly, relying on the plain language of House Concurrent Resolution No. 5025. The Court said the revocation could not stand because the resolution failed to give the LCC the necessary power to override the Governor’s order.

The Court’s decision did not address several other issues that had been mentioned in the parties’ written filings—including whether the Legislature’s attempt to give the LCC authority to act while it was away from Topeka was lawful and whether the Governor’s order infringed on religious freedom.

The majority opinion, written for the Court and not signed by an individual justice, said: “As ultimately acknowledged by all counsel during oral arguments today, even if we accept House Concurrent Resolution 5025 as an otherwise valid exercise of legislative authority, its plain text did not authorize the LCC to revoke Executive Order 20-18.”

Justices Dan Biles and Caleb Stegall concurred in the majority’s decision and wrote separately.

Justice Biles challenged the Legislature’s authority to grant the LCC powers by current resolution rather than statute.

Justice Stegall responded to Justice Biles and noted the LCC’s assertion that drafting flaws in the concurrent resolution were noticed by legislators, the governor’s staff, and the attorney general and should have been resolved before the LCC’s attempt to revoke generated fast-track litigation.

Access to a recording of today’s oral argument is available on the Supreme Court’s oral argument archive webpage.

All documents filed in this case are available to the public on the Kelly v LCC case page at www.kscourts.org.