Kelly supports severing unconstitutional parts of KEMA law


Gov. Laura Kelly opposes throwing out the state’s entire new emergency management law, urging the state Supreme Court to only jettison portions of the statute that run afoul of the Kansas Constitution.

In a brief filed with the state Supreme Court, Kelly disagreed with Johnson County District Judge David Hauber that the entire law should be set aside because parts of the statute might be unconstitutional.

“There are many provisions in (the law) that have no structural or legal connection or relationship to the challenged provisions,” the governor’s brief says.

Laura Kelly

“Those provisions can operate effectively and as intended without the offending provisions,” the brief states. “There is no need to strike those provisions.”

Kelly’s friend-of-the-court brief was one of several – if not the most prominent – that have been filed in the legal dispute over the state’s new emergency management law that will be reviewed by the state Supreme Court.

It represents the first time that the Kelly administration has explained in great detail their thoughts about the ongoing litigation.

The brief was authored the governor’s general counsel Clay Britton and a team of private attorneys, including election law attorney Mark Johnson and former Kansas U.S. Attorney Stephen McAllister.

Last July, Hauber ruled that the law deprives the government of due process while also violating the separation of powers between the judicial and legislative branches.

Hauber focused on a provision of the law that allowed aggrieved Kansans to challenge state and local health orders in court.

The law allowed Kansans to challenge a health order in court with a hearing that must be scheduled before a judge within 72 hours and a decision rendered within 10 days.

The law gives plaintiffs a decision in their favor if a ruling is not made within 10 days and the health order is not narrowly tailored using a strict scrutiny standard.

The governor’s position aligns her with Republican Attorney General Derek Schmidt who has argued against scrapping the entire law.

Kelly argues in her brief that the court should sever parts of the bill establishing a strict-scrutiny standard, narrow timelines for the courts to rule and provisions that leave open the relief available such as a countywide injunction or claims for financial damages.

Kelly also suggests that the grievance procedures for challenging a health order are “constitutionally problematic,” with the exception of language allowing someone to bring a lawsuit if an executive order issued by the governor substantially burdens religious activity.

“SB 40 makes many changes to existing law, and not all changes are at issue in this lawsuit, nor should they be subject to challenge,” the brief states.

“SB 40 includes provisions that can and should remain in place, but certain provisions raise significant constitutional concerns,” she said.

The governor’s friend-of-the-court brief generally zeroed in on the grievance process for challenging a health order in court, contending that the law violates the separation of powers doctrine and that the Legislature exceeded its constitutional authority.

“In enacting SB 40, the Legislature adopted new provisions, primarily procedural in nature, that gave broad standing to anyone who objected to emergency orders by the governor and some local government entities,” the brief states.

“Worse SB 40’s new procedures impermissibly imposed unprecedented and burdensome procedures and standards on the governor, local government entities and the courts.”

The brief tackles the tight timeline for a court to reach a decision on whether a challenged health order is legal.

The governor says the bill “creates an artificial urgency through a fast-track judicial proceeding” that “compels courts rule under duress or risk losing the ability to enter an order at all.”

The governor says the law “renders the courts but a speed bump on the way to a predetermined outcome that impacts much more than a simple personal exemption for an individual plaintiff on the basis of health status or the infringement of a particular constitutional right.

“SB 40 itself demands narrow tailoring by local governments during emergency responses to a disaster,” the governor said. “However, its own enforcement provisions lack any tailoring.”

The governor also says that the emergency management law undercuts the Legislature’s constitutional responsibilities to the state’s education system because it empowers a vocal minority.

The Legislature, the governor argues, is required under the state constitution to “provide for intellectual, educational, vocational and scientific improvement” by establishing and maintaining public schools.

But a law that gives dissenters the power to divert resources away from public safety measures at the expense of the rest of the school system doesn’t advance the state’s constitutional obligations, the governor said.

Kelly contends that the law – particularly the grievance process – wreaked “havoc on some school districts by giving a prominent and powerful platform to objectors while completely ignoring the countless employees, parents, guardians and students who support and are positively impacted by county and district safety measures.”

The governor compared the grievance process to the sword of Damocles hanging over governing bodies across the state with the prospect that any aggrieved individual can challenge a health order at any moment.

“All Kansans have equal opportunities for input on the public safety measures being debated and sometimes adopted by their local governments: participation in the meetings of those bodies and the ballot box,” the governor argues.

“SB 40 constitutionally skews the traditional system for giving Kansans their voice,” the brief said.

The brief explains why the governor signed the legislation, which came about in a compromise with Republicans and neither side getting everything they wanted.

“Like much legislation, SB 40 is a compromise; both sides made concessions to reach an acceptable agreement and neither side supported every provision in the bill.

“Gov. Kelly ultimately signed SB 40 into law despite strong concerns about some provisions,” the brief stated.

“In particular, and as her administration maintained during legislative negotiations, SB 40’s new enforcement provisions created problems for the emergency management system – especially for local government responses – without solving the problems they were intended to solve,” the brief states.