AG Derek Schmidt: Legality of using criminal law to enforce emergency orders under review

Office of the Kansas Attorney General

TOPEKA – (May 11, 2020) – Kansas Attorney General Derek Schmidt today said his office has been asked for its formal legal opinion on whether a state law that authorizes criminal prosecution of Kansans who violate emergency orders issued by the governor is constitutional and enforceable. The attorney general issued the following statement:

“I continue to encourage all Kansans to follow the recommendations of public health professionals to help prevent the spread of COVID-19 as our economy and communities reopen. At the same time, a local prosecuting attorney has requested our office review whether violations of emergency orders issued by the governor may lawfully be enforced and punished as crimes. We have agreed to conduct that legal review. 

“An unprecedented 27 statewide emergency executive orders have been issued in the past eight weeks on subjects ranging widely from stay-home, mass gatherings and business closures to alcohol sales, evictions and trash collection. The Kansas constitution grants the legislature, not the governor, power to define what behavior may subject Kansans to potential arrest, criminal prosecution, fines or imprisonment. No appellate court has determined whether the legislature, through provisions of the Kansas Emergency Management Act, has lawfully delegated that power to the governor. Even if delegation is generally permissible, we have been asked specific legal questions that could affect the ability of law enforcement and prosecutors to criminally enforce emergency orders under authority of K.S.A. 48-939. We are working diligently and will issue our formal legal opinion on these important questions as soon as possible.”