Greim argues before Kansas Supreme Court in emergency session broadcast online

Eddie Greim argued in front of the Kansas Supreme Court in that court’s first-ever online argument, held on an emergency basis at 9 a.m. on Saturday, April 11 via Zoom video conferencing.

Greim represented the Kansas Senate in a lawsuit filed by Kansas Governor Laura Kelly against the Kansas legislature and a special legislative body, the Kansas Legislative Coordinating Counsel (LCC). The argument was followed live by thousands of viewers across the country, and the controversy and ultimate decision were covered by national media and watched closely by constitutional specialists.

The fast-developing case resulted from a surprise decision by the Governor on Tuesday, April 7, to revoke one of over 20 exceptions to her previous executive order imposing social distancing requirements on various businesses and gatherings. The exception had allowed indoor gatherings of more than 10 individuals for religious purposes so long as 6-foot social distancing was maintained. It paralleled exceptions for bars, restaurants, malls, and libraries.

The following day, the Kansas legislature’s LCC revoked the Governor’s action, acting under authority of a resolution the legislature had negotiated with the Governor which had granted her emergency powers in exchange for limits on those powers. One of those negotiated limits was the LCC’s right to review and revoke gubernatorial orders.

The next day, the Governor sued, claiming that the portion of the parties’ deal allowing the LCC to revoke her orders had been unconstitutional all along. Citing the upcoming Easter holiday, the Governor asked the Kansas Supreme Court to immediately reinstate her order without permitting argument or a response by the legislature.

Greim’s client — along with the Kansas House and LCC, represented by Wichita lawyer Brad Schlozman — received the Governor’s lawsuit on Thursday night; Greim’s team jumped into action and filed responsive briefs the following morning, Good Friday, at 11 a.m. They defended the constitutionality of the Governor and legislature’s deal, which, they argued, complied with principles of the separation of powers.

After over an hour of argument on Saturday morning, the court immediately went into conference. It ultimately awarded a victory to the Governor on Saturday night, just before Easter, but on a narrow ground not raised by the Governor: the court held that there was a drafting error in the resolution granting the Governor and LCC their respective powers. That error had accidentally imposed a prerequisite for the LCC’s exercise of authority which had not yet occurred, depriving the LCC of authority to act.

For that reason, the Governor’s order was allowed to stand. Left unanswered was the broader question of whether the Governor can continue to exercise emergency authority under the flawed resolution the Governor had negotiated with the legislature. That resolution will soon expire; unless the Governor reaches a new deal, her powers terminate on May 1.

Additionally, the question that originally motivated the LCC’s action was not litigated in the case: whether it was constitutional for the Governor to target religious institutions by removing an exemption that she continued to extended to malls, libraries and bars. That question is being addressed in separate litigation being brought on behalf of religious groups by the Alliance Defending Freedom, a nonprofit that frequently litigates religious liberty issues.

On Saturday, April 19, a federal court issued a TRO against the Governor, but litigation will continue.

In the meantime, Graves Garrett continues to monitor executive orders and legislation in Missouri, Kansas, and across the country, as governors, legislatures, state agencies, and local governments begin to flex unprecedented powers under largely untested laws and ordinances. The firm’s team of trial litigators and appellate advocates has deep experience in constitutional and election law at both the state and federal levels.