Kansas Attorney General Opinion 2020-006

May 20, 2020
ATTORNEY GENERAL OPINION NO. 2020- 6
Keith E. Schroeder
Reno County District Attorney
206 West First Avenue, 5 th Floor
Hutchinson, KS 67501-5245
Hon. Tory Marie Arnberger
State Representative, 112th District
P.O. Box 103
Great Bend, KS 67530
Hon. Susan Humphries
State Representative, 99th District
8 Sagebrush Street
Wichita, KS 67230
Hon. Barbara Wasinger
State Representative, 111th District
P.O. Box 522
Hays, KS 67601
Hon. Richard Hilderbrand
State Senator, 13th District
10337 SE 107 Terrace
Galena, KS 66739
Hon. Renee Erickson
State Representative, 87th District
26 N. Cypress Drive
Wichita, KS 67206
Hon. Brenda Landwehr
State Representative, 105th District
2611 N. Bayside Court
Wichita, KS 67205
Hon. Kristey Williams
State Representative, 77th District
506 Stone Court Lake Court
Augusta, KS 67010
Re: 	Militia, 	Defense 	and 	Public 	Safety—Emergency 	Preparedness 	for
Disasters—Disasters; 	Responsibilities 	of 	Governor; 	State 	of 	Disaster
Emergency; Powers of Governor During State of Disaster Emergency;
Orders and Proclamations; Penalty for Violation of Act or Rules and
Regulations, Orders or Proclamations Thereunder
Synopsis: 	A state of disaster emergency declaration may be ratified by concurrent
resolution of the Legislature pursuant to K.S.A. 48-924.
A second or subsequent successive disaster emergency declaration arising
from the same ongoing disaster is legally suspect, but whether a new state
of emergency arises from a disaster will depend on the facts.

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
Erickson, Humphries, Landwehr, Wasinger, and Williams
Page 2
Constitutional concerns with K.S.A. 2019 Supp. 48-925(b) include the
language that purports to authorize the legislature, by concurrent resolution,
to ratify a governor’s emergency order to keep it in effect after the period of
disaster emergency expires; the language that purports to authorize the
Legislature, by concurrent resolution, to revoke emergency orders of the
governor at any time; and the broad delegation of legislative power in that
subsection and also K.S.A. 2019 Supp. 48-925(c)(11). Under a severability
analysis, any of these issues could be grounds to invalidate the broader
legislative enactment if the provisions are inextricably bound with each
other.
Criminal prosecutions under K.S.A. 48-939 are proper only if the conduct
prohibited by an executive order was committed knowingly and willfully,
during a properly declared state of disaster emergency, and the executive
order was lawful because it had proper statutory authority and does not
violate any constitutional or statutory provision. Constitutional concerns
regarding an emergency order include the due process void-for-vagueness
doctrine and whether the order impermissibly burdens constitutional rights.
Constitutional concerns regarding the statute relied upon as authority for an
executive order include whether it is an unlawful delegation of legislative
power. Cited herein: K.S.A. 2019 Supp. 8-15,103; 17-12a508; 21-5101; 21-
5103; 21-5402; 21-5405; 21-5924; 21-6423; 21-6602; 21-6611; 31-150a;
44-636; 44-719; K.S.A. 44-1020; 48-904; 48-924; K.S.A. 2019 Supp. 48-
924a; 48-925; K.S.A. 48-939; 48-3017; 75-430; 77-415; 77-420; Kan.
Const. art. 1, § 2.
* 	* 	*
Dear District Attorney Schroeder, Senator Hilderbrand and Representatives Arnberger,
Erickson, Humphries, Landwehr, Wasinger, and Williams:
In your respective official capacities, you request our opinion1 on multiple questions
related to the Kansas Emergency Management Act (KEMA), K.S.A. 48-904 et seq., and
various orders and proclamations issued under authority of KEMA by Governor Laura
Kelly in response to the current novel coronavirus disease (COVID-19) pandemic.
Generally, your questions regard the extraordinary powers that temporarily reside with
the governor during a declared state of disaster emergency to both make law and execute
it, two powers that our constitution purposely separated between the legislative and
executive branches. The district attorney in particular presents questions specifically
1 Letter to the Attorney General from Keith E. Schroeder, District Attorney for Reno County, dated April 27,
2020. (hereafter, “Schroeder letter.”); letter to the Attorney General from Representatives Arnberger,
Erickson, Humphries, Landwehr, Wasinger, and Williams dated May 12, 2020; and three letters to the
Attorney General from Senator Richard Hilderbrand, each dated May 14, 2020.

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
Erickson, Humphries, Landwehr, Wasinger, and Williams
Page 3
relating to the authority in K.S.A. 48-939 to criminally enforce2 orders issued by the
governor3 under authority of K.S.A 48-924 and K.S.A. 2019 Supp. 48-925 during the
COVID-19 pandemic (hereafter, “emergency orders” or “orders”).4 The district attorney
seeks our opinion with “a sense of urgency, based on the unique facts facing prosecutors
in Kansas.”5 This is because in making enforcement decisions, he wishes “to avoid any
unlawful arrests or convictions stemming from the disputed nature and authority of the
Governor’s Executive Orders.”6
Because your various questions are closely related and overlapping, we are consolidating
your requests and combining your questions. Several of your questions explicitly or
implicitly ask whether the KEMA provisions themselves or any particular use of those
provisions offends the federal or state constitutions. We will address your questions as
follows:
1. 	Was Governor Kelly’s First Disaster Declaration of March 12, 2020, valid for
more than fifteen days, and if so, when did it expire?
2. 	Was Governor Kelly’s Second Disaster Declaration of April 30, 2020, valid, and
if so, when does it expire?
3. 	Is K.S.A. 2019 Supp. 48-925 facially unconstitutional?
4. 	Assuming a state of disaster emergency is in effect and K.S.A. 2019 Supp. 48-
925 is facially constitutional, are individual emergency orders issued under that
statutory authority valid and enforceable through criminal prosecution under
K.S.A. 48-939?
2 Our analysis addresses criminal enforcement of a governor’s emergency orders by prosecutors bringing
charges for violation of K.S.A. 48-939. Alternate methods of enforcing valid emergency orders of the
governor may be authorized by the KEMA but are outside the scope of this opinion. See, e.g., K.S.A. 2019
Supp. 48-925(d) (adjutant general “shall administer such orders”); K.S.A. 2019 Supp. 48-925(a) (governor
is “commander-in-chief of the organized and unorganized militia and of all other forces available for duty”);
K.S.A. 2019 Supp. 48-925(c)(10) (governor may “require and direct the cooperation and assistance of state
and local governmental agencies and officials”).
3 We focus on enforcement of orders of the governor issued pursuant to a state of disaster emergency
proclaimed under K.S.A. 48-924. On its face, K.S.A. 48-939 applies more broadly to certain “violation[s] of
any provision of this act or any rule and regulation adopted by the adjutant general under this act or any
lawful order or proclamation issued under authority of this act whether pursuant to a proclamation declaring
a state of disaster emergency under K.S.A. 48-924 or a declaration of a state of local disaster emergency
under K.S.A. 48-932.”
4 We confine our analysis to powers authorized by K.S.A. 48-924 and K.S.A. 2019 Supp. 48-925. We do
not analyze any other emergency authorities or powers, including any executive authority of the governor
derived directly from the Kansas constitution rather than from statute. You do not seek our opinion on any
emergency powers exercised by local authorities.
5 Schroeder letter at p. 1.
6 Id. at p. 5.

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
Erickson, Humphries, Landwehr, Wasinger, and Williams
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Before addressing each of those questions, we provide some background on the KEMA
and the exercise of statutory emergency powers under K.S.A. 48-924 and K.S.A. 2019
Supp. 48-925 during the COVID-19 pandemic.
Background
On March 11, 2020, the World Health Organization declared a global pandemic in
connection with the spread of COVID-19.7 On March 12, 2020, the same day the first
COVID-19-related fatality occurred in Kansas, Governor Kelly declared a statewide state
of disaster emergency under authority of the KEMA.8 On March 13, 2020, President
Donald J. Trump proclaimed a nationwide emergency9 and on March 20, 2020, the
President granted the State of Kansas an Emergency Declaration.10 On March 19, 2020,
the legislature adopted House Concurrent Resolution 5025 related to the governor’s
March 12, 2020, disaster declaration and extended that state of disaster emergency
through May 1, 2020.11 On March 29, 2020, President Trump declared the existence of a
major disaster in the State of Kansas based on COVID-19 beginning January 20, 2020,
and continuing.12 On April 30, 2020, Governor Kelly declared a second statewide state of
disaster emergency beginning March 12, 2020, and continuing.13 On May 13, 2020, the
state finance council rejected the governor’s application to extend the April 30, 2020,
disaster declaration for 30 additional days and instead voted to extend the governor’s
April 30, 2020 disaster declaration only through May 26, 2020.
To date, the governor has issued an unprecedented 31 emergency orders14 to exercise
emergency powers under K.S.A. 48-924 and K.S.A. 2019 Supp. 48-925 in less than 10
weeks since a state of disaster emergency related to COVID-19 was initially declared.
Although typically used for disasters such as severe weather, fires or floods and not
7 https://www.who.int/news-room/detail/27-04-2020-who-timeline---covid-19 (last accessed May 5, 2020).
8 Kansas State of Disaster Emergency Proclamation (March 12, 2020) (on file with the Office of the
Secretary 	of 	State); 	https://governor.kansas.gov/wp-content/uploads/2020/03/2020-03-12-
Proclamation.pdf (State of Disaster Emergency Proclamation) (last accessed May 12, 2020).
9 Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak,
Proclamation No. 9994, 85 C.F.R. 15337 (2020); https://www.whitehouse.gov/briefings-statements/letter-
president-donald-j-trump-emergency-determination-stafford-act/ (Stafford Act) (last accessed May 5,
2020).
10 Disaster Declarations of Economic Injury for the Coronavirus (COVID-19); Administrative Declarations of
Economic Injury Disasters for the Entire United States and U.S. Territories, 85 Fed. Reg. 20015 (April 9,
2020) 	(Referencing 	Declaration 	13685, 	KS00132);
https://www.federalregister.gov/documents/2020/04/09/2020-07501/disaster-declarations-of-economic-
injury-for-the-coronavirus-covid-19-administrative-declarations-of (last accessed May 18, 2020).
11 2020 House Concurrent Resolution 5025, 39 Kan. Reg. 13, 340 (March 26, 2020).
12 FEMA-4504-DR; President Donald J. Trump Approves Major Disaster Declaration for Kansas;
https://www.fema.gov/news-release/2020/03/30/president-donald-j-trump-approves-major-disaster-
declaration-kansas-0 (last accessed May 18, 2020).
13 Kansas State of Disaster Emergency Proclamation (April 30, 2020) (on file with the Office of the Secretary
of State).
14 See Executive Orders 20-03 (dated March 16, 2020) through 20-34 (dated May 19, 2020), except
Executive Order 20-30 (dated May 6, 2020) was not an exercise of emergency powers under authority of
KEMA.

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
Erickson, Humphries, Landwehr, Wasinger, and Williams
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specifically designed for public health emergencies,15 those statutes nonetheless impose
a general responsibility on the governor to “meet[ ] the dangers to the state and people
presented by disasters,”16 which include epidemics and contagious and infectious
diseases.17 As relevant here, the statutes establish a two-part procedure for the exercise
of emergency powers. First, if the governor finds “that a disaster has occurred or that
occurrence of the threat thereof is imminent,” the governor “shall issue a proclamation
declaring a state of disaster emergency.”18 That state of disaster emergency continues
until the governor finds that the danger has passed or that an emergency no longer exists,
at which time the governor terminates it by proclamation.19 If after 15 days the governor
has not terminated the state of disaster emergency, it nevertheless ends by operation of
law unless either (a) the legislature ratifies it by concurrent resolution or (b) the state
finance council extends it a single time for not more than 30 additional days.20
Second, during the time while a proclaimed state of disaster emergency is in effect —
and only during that time — K.S.A. 48-924 and K.S.A. 2019 Supp. 48-925 authorize the
governor to exercise extraordinary powers.21 The governor exercises these powers by
issuance of orders.22 These orders, which in practice typically are styled as executive
orders, “shall have the force and effect of law during the period of a [declared state of]
disaster emergency” but “shall be null and void thereafter.”23 The legislature may revoke
these orders at any time by concurrent resolution.24
Relevant specifically to the district attorney’s questions, K.S.A. 48-939 provides that the
“knowing and willful violation of any provision of a … lawful order … issued … pursuant
to a proclamation declaring a state of disaster emergency under K.S.A. 48-924 … shall
constitute a class A misdemeanor and any person convicted of such violation shall be
15 In 2002, the legislature amended K.S.A. 48-924 specifically to address the spread of contagious and
infectious diseases among domestic animals and, in so doing, altered some of the mechanisms for ensuring
legislative oversight of emergency executive actions during an extended animal health emergency when
the legislature is not in session. See K.S.A. 48-924(b)(2) and (4). However, those mechanisms apply only
to emergencies involving the spread of disease among domestic animals, not among humans.
16 K.S.A. 48-924(a).
17 K.S.A. 48-904(d).
18 K.S.A. 48-924(b)(1).
19 K.S.A. 48-924(b)(3).
20 K.S.A. 48-924(b)(3). Separately, K.S.A. 48-924(b)(5) authorizes the legislature at any time by concurrent
resolution to require the governor to terminate the state of disaster emergency.
21 See K.S.A. 2019 Supp. 48-925(a), (b) and (c); see also State ex rel. Dodrill v. Scott, 352 S.E.2d 741,
747-48 (W. Va. 1986) (absent declared state of emergency required by statute, governor’s statutory
emergency orders are invalid); Worthington v. Fauver, 440 A.2d 1128, 1135 (N.J. 1982) (finding an
executive order valid because it was within statutory authority).
22 K.S.A. 2019 Supp. 48-925(b) and (d).
23 K.S.A. 2019 Supp. 48-925(b). Such orders may not continue in force and effect after the state of disaster
emergency has ended “unless ratified by concurrent resolution of the legislature.” Id. We doubt the validity
of this provision that purports to allow orders to remain in force and effect after a state of disaster emergency
has ended. See Question 3 below.
24 K.S.A. 2019 Supp. 48-925(b).

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
Erickson, Humphries, Landwehr, Wasinger, and Williams
Page 6
punished as provided by law therefor.”25 Under Kansas law, prosecuting attorneys,
including county and district attorneys, are responsible for determining whether to bring
charges alleging violations of the criminal laws of this state,26 including K.S.A. 48-939.
With that background in mind, we turn to specific questions.
Question 1: Was Governor Kelly’s Disaster Declaration of March 12, 2020, valid for more
than fifteen days, and if so, when did it expire?
Answer: Governor Kelly’s proclamation of a state of disaster emergency issued March
12, 2020, was extended by concurrent resolution of the legislature and expired May 1,
2020.
On March 12, 2020, Governor Kelly proclaimed a State of Disaster Emergency27
(hereafter, 	“First 	Disaster 	Proclamation”).28 	The 	First 	Disaster 	Proclamation 	cited
generally as its legal basis “the authority vested in me by the Kansas Emergency
Management Act, Chapter 48, Article 9, of the Kansas Statutes Annotated.”29 By
operation of law, that state of disaster emergency could last no more than 15 days unless
extended as provided by law.30 K.S.A. 48-924 makes available two separate and distinct
methods of extending beyond 15 days a state of disaster emergency: (a) ratification by
concurrent resolution of the legislature, or (b) extension only once by the state finance
council for a specified period not to exceed 30 days beyond such 15-day period.31 The
plain language of the statute applies the 30-day limitation only to the single extension that
may be approved by the state finance council; the statute is silent as to the number or
duration of any extensions that may be accomplished by concurrent resolution of the
legislature.
25 K.S.A. 48-939. The penalty for conviction of a Class A misdemeanor is up to one years’ confinement in
the county jail, a fine of up to $2,500, or both. See K.S.A. 2019 Supp. 21-6602(a)(1) and K.S.A. 2019 Supp.
21-6611(b)(1).
26 See K.S.A. 22-2202(q); see also Kansas Rule of Professional Conduct 3.8(a) and Comment 1 (Special
Responsibilities of a Prosecutor).
27 Kansas State of Disaster Emergency Proclamation (March 12, 2020) (on file with the Office of the
Secretary 	of 	State); 	https://governor.kansas.gov/wp-content/uploads/2020/03/2020-03-12-
Proclamation.pdf (last accessed May 12, 2020).
28 For purposes of this question, we will assume without deciding that the effective date is March 12, 2020,
as stated by the governor.
29 	See 	https://governor.kansas.gov/wp-content/uploads/2020/03/2020-03-12-Proclamation.pdf 	(last
accessed May 12, 2020).
30 K.S.A. 48-924(b)(3).
31 Compare K.S.A. 48-924(b)(3) with K.S.A. 48-924(b)(2) and (4) and K.S.A. 2019 Supp. 48-924a. The
provisions in K.S.A. 48-924(b)(3) for extending a state of disaster emergency apply to the March 12, 2020,
declaration, which is neither “to prevent the spread among domestic animals of any contagious or infectious
disease,” see K.S.A. 48-924(b)(2) and (4), nor “involving the severe weather disaster of May 4, 2007,” see
K.S.A. 2019 Supp. 48-924a.

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
Erickson, Humphries, Landwehr, Wasinger, and Williams
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On March 19, 2020, the legislature unanimously adopted the conference committee
report on House Concurrent Resolution 5025 (HCR 5025).32 That concurrent resolution
contained the following provision:
[T]he State of Disaster Emergency declaration issued on March 12, 2020,
for the entire 105 counties of Kansas in accordance with K.S.A. 48-924 is
hereby ratified and continued in force and effect on and after March 12,
2020, through May 1, 2020, subject to additional extensions by concurrent
resolution of the Legislature or as further provided in this concurrent
resolution.
Thus, the state of disaster emergency proclaimed by the governor on March 12, 2020,
was ratified by concurrent resolution of the legislature as provided by K.S.A. 48-924(b)(3),
and by terms of HCR 5025 that state of disaster emergency was extended and in effect
through May 1, 2020.33
Question 2: Was Governor Kelly’s Second Disaster Declaration of April 30, 2020, valid,
and if so, when does it expire?
Answer: The KEMA does not authorize a governor to continue to access to statutory
emergency powers by proclaiming a second or succeeding state of disaster emergency
arising from the same continuing disaster. Whether a new state of emergency arises from
the same continuing disaster is a question of fact.
On April 30, 2020, Governor Kelly proclaimed a second state of disaster emergency
related to COVID-1934 (hereafter, “Second Disaster Proclamation”). The Second Disaster
Proclamation cites generally as its authority “the authority vested in me by the Kansas
Emergency Management Act, Chapter 48, Article 9, of the Kansas Statutes Annotated.”35
It purports to be effective when issued on April 30, 2020,36 and thus overlapped for two
days with the First Disaster Proclamation.37 By law, a proclamation of a state of disaster
32 The vote in the Senate was 39-0 and in the House of Representatives, 115-0.
33 K.S.A. 48-924 also provides that a state of disaster emergency shall be terminated by the governor when
the danger has passed or emergency conditions no longer exist, K.S.A. 48-924(b)(3), or “at any time” by
concurrent resolution of the legislature, K.S.A. 48-924(b)(5). Neither of those actions to terminate the March
12, 2020, state of disaster emergency prior to May 1, 2020, occurred. Although K.S.A. 48-924 does not
expressly authorize the legislature to limit the duration for which it ratifies a state of disaster emergency by
concurrent resolution, since both the authority to “ratif[y]” and the authority to require termination “at any
time” are exercised by concurrent resolution, see K.S.A. 48-924(b)(3) and K.S.A. 48-924(b)(5), we see
nothing preventing the legislature from doing both in a single concurrent resolution as it did in HCR 5025.
34 Kansas State of Disaster Emergency Proclamation, issued by Governor Laura Kelly, April 30, 2020 (on
file with the Office of the Secretary of State). (Hereafter “Second Disaster Proclamation”).
35 Second Disaster Proclamation, Paragraph 1.
36 For purposes of this question, we will assume without deciding that the effective date is April 30, 2020,
as stated by the governor.
37 As explained in Question 1, the First Disaster Proclamation was purportedly in effect through May 1,
2020. Thus, on April 30, 2020, and May 1, 2020, both the First Disaster Proclamation and the Second
Disaster Proclamation concurrently claimed effect.

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
Erickson, Humphries, Landwehr, Wasinger, and Williams
Page 8
emergency must indicate: (a) the nature of the disaster; (b) the area or areas threatened
or affected by the disaster; and (c) the conditions which have brought about the state of
disaster emergency.38 Both disaster proclamations describe the nature of the disaster as
materially the same involving the COVID-19 pandemic and beginning with confirmation
by the Secretary of Health and Environment on March 7, 2020, that a case of COVID-19
was confirmed in Kansas and a public health emergency exists in the state.39 Both
proclamations describe the area affected by the disaster as all 105 counties in Kansas.40
In addition, both proclamations state the date the disaster affected the area as March 12,
2020, although the Second Disaster Proclamation further describes the disaster as
beginning March 12 “and continuing.”41 On May 13, 2020, the state finance council met
and rejected the governor’s application to extend for 30 additional days the state of
emergency declared by the Second Disaster Proclamation, and instead voted to extend
it through May 26, 2020.42
To determine whether KEMA authorizes issuance by the governor of the Second Disaster
Proclamation to succeed the First Disaster Proclamation, we must interpret K.S.A. 48-
924 	using 	the 	approach 	of 	Kansas 	courts 	to 	statutory 	interpretation. 	The 	most
fundamental rule of statutory construction is that the intent of the legislature governs if
that intent can be ascertained.43 That intent is to be ascertained in the first instance from
the statutory language enacted, giving common words their ordinary meanings. 44 Only if
a statute’s language is unclear or ambiguous does a court apply canons of construction
or rely on legislative history to discern the legislature’s intent.45
The plain language of K.S.A. 48-924 authorizes the governor to proclaim only one state
of disaster emergency arising from the same continuing disaster
Through K.S.A. 48-924(a), the legislature has placed responsibility on the governor “for
meeting the dangers to the state and people presented by disasters,”46 and K.S.A. 2019
Supp. 48-925 makes available certain emergency powers the governor may exercise in
fulfilling that responsibility. But the legislature also has placed strict limits on the
governor’s ability to access those emergency powers and has reserved for itself
38 K.S.A. 48-924(b)(6).
39 Compare First Disaster Proclamation “Nature of the Disaster” with Second Disaster Proclamation “Nature
of the Disaster”. The Second Disaster Proclamation contains more-detailed descriptions of events that
occurred after the First Disaster Proclamation was issued. Neither proclamation contains a separate section
setting forth the conditions which have brought about the state of disaster emergency, and it is presumed
that statutory requirement is subsumed in the “Nature of the Disaster” section of each proclamation.
40 The Second Disaster Proclamation also adds the four resident Tribes to the area affected.
41 Second Disaster Proclamation “Date that Disaster Affected the Area.”
42 	State 	Finance 	Council 	meeting, 	Wednesday, 	May 	13, 	2020. 	http://sg001-
harmony.sliq.net/00287/Harmony/en/PowerBrowser/PowerBrowserV2/20200513/-1/9539 	(recording 	of
meeting) (last accessed May 18, 2020).
43 State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 659 (2016).
44 Ullery v. Othick, 304 Kan. 405, 409 (2016).
45 Id.
46 K.S.A. 48-924(a).

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
Erickson, Humphries, Landwehr, Wasinger, and Williams
Page 9
significant oversight of both the governor’s ongoing access to and exercise of those
emergency powers.47 K.S.A. 48-924(b)(1) sets forth the exclusive48 means for the
governor to access the statutory emergency powers authorized by K.S.A. 2019 Supp. 48-
925 as proclaiming a state of disaster emergency as authorized by that statute.
Specifically, the statute provides that the governor “upon finding that a disaster has
occurred or that occurrence or the threat thereof is imminent, shall issue a proclamation
declaring a state of disaster emergency.”49 Importantly, the plain language of that
sentence is entirely in the singular: when the governor finds “a disaster” has occurred the
governor shall issue “a proclamation” declaring “a state of disaster emergency.”50 The
legislature could as readily have written that sentence in the plural, such as providing
when “any” disaster has occurred the governor shall issue “proclamations” declaring “one
or more states of disaster emergency.” The legislature’s use of the pronoun “a” to modify
singular nouns51 throughout that sentence describing the governor’s authority is in
contrast with how the same statutory section describes the legislature’s authority by
concurrent resolution to extend by ratification a state of disaster emergency.52 It is
presumed “that the legislature intended a different meaning when it used different
language in the same connection in different parts of a statute.”53
Moreover, that statutory language written in the singular — which refers to one disaster,
one proclamation, and one state of emergency — is consistent with the provision of K.S.A.
48-924(b)(3). That provision states that “the” disaster (also in the singular) continues until
the “threat or danger of disaster has passed” or “emergency conditions no longer exist,”
and specifically contemplates a state of disaster emergency may be ended by operation
of law even before “the” disaster may have ended.54
47 The legislature allows authorizes the governor’s access to the delegated emergency powers in K.S.A.
2019 Supp. 48-925 only through a state of disaster emergency that remains in effect for a maximum of 15
days absent action by the legislature or the state finance council. See K.S.A. 48-924(b)(3). The state finance
council may extend the state of disaster emergency, but only once and then not for more than an additional
30 days beyond the initial 15 days. See id. Otherwise, only the full legislature, acting by concurrent
resolution, see id., or by enactment of a statute, see e.g., K.S.A. 2019 Supp. 48-924a, may further extend
a state of disaster emergency.
48 K.S.A. 48-924(b)(2) is not relevant to our analysis. It applies only when “a quarantine or other regulations
are necessary to prevent the spread among domestic animals of any contagious or infectious disease.”
K.S.A. 48-924(e) also is not relevant because it applies only to a state of drought, not a state of disaster
emergency, and does not enable the governor to access the emergency powers in K.S.A. 2019 Supp. 48-
925.
49 K.S.A. 48-924(b)(1).
50 K.S.A. 48-924(b)(1) (emphasis added).
51 When used as an indefinite article in the manner applicable here, “a” modifies singular nouns. See
https://www.merriam-webster.com/dictionary/a (“used as a function word before singular nouns when the
referent is unspecified”) (last accessed May 19, 2020).
52 Compare K.S.A. 2019 Supp. 48-924(b)(1) (governor for “a” disaster shall issue “a” proclamation declaring
“a” state of disaster emergency) with K.S.A. 48-924(b)(3) (no article preceding “concurrent resolution”).
53 Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 245-46 (1992).
54 K.S.A. 48-924(b)(3).

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
Erickson, Humphries, Landwehr, Wasinger, and Williams
Page 10
Thus, the plain language of K.S.A. 48-924(b)(1) limits the governor to proclaiming a single
state of disaster emergency for any single disaster and then retains exclusively for the
legislature or the state finance council authority to decide whether that state of disaster
emergency is to be continued. It is a question of fact whether the First Disaster
Proclamation and the Second Disaster Proclamation arise from the same continuing
disaster, as opposed to different disasters, but several factors suggest strongly that they
do: first, as described above, both proclamations set forth materially the same facts of the
COVID-19 pandemic, merely updated to reflect the passage of time. Second, they both
identify the events that justify the proclamation as originating with the March 7, 2020,
confirmation by the Secretary of Health and Environment of COVID-19 in Kansas. Third,
they both identify March 12, 2020, as the date disaster affected the area, and the Second
Disaster Proclamation by its terms describes that disaster as “continuing.” Fourth, the two
proclamations overlapped by two days — April 30 and May 1, 2020 — and it strains
credulity 	to 	conclude 	that 	two 	separate 	COVID-19 	disasters 	existed 	in 	Kansas
necessitating two separate states of disaster emergency on those two days. Fifth, the
governor’s 	Executive 	Order 	20-28 	explicitly 	recognizes 	that 	“under 	the 	Kansas
Emergency Management Act there is currently no effective mechanism for additional
extensions of the State of Disaster Emergency other than passage of another concurrent
resolution through each legislative chamber.”55 The governor then identified that “the
clearest available mechanism to ensure the continued effectiveness and validity of
emergency measures … including emergency executive orders … is to issue a new State
of Disaster Declaration.56
Even if K.S.A. 48-924 is ambiguous, the rules of statutory construction counsel for the
same conclusion that a governor may not issue rolling proclamations of a state of
emergency arising from the same continuing disaster
We think the relevant statutory language is plain and does not provide for successive
declarations of a state of disaster emergency arising from the same continuing disaster,
but even if the statutory language were found to be ambiguous, a proper construction of
the statute would lead to the same result. “When appellate courts embark upon statutory
interpretation and construction, the most fundamental rule is that the legislature’s intent
governs if it can be ascertained.’57 If the plain language of the statute does not reveal the
legislature’s intent, then “the court employs the canons of statutory construction, consults
legislative history, or considers other background information to ascertain the statute’s
meaning.”58
We think at least three factors preclude interpreting K.S.A. 48-924 to grant the governor
authority to issue successive states of disaster emergency for the same ongoing disaster.
55 Executive Order 20-28 (dated April 30, 2020).
56 Executive Order 20-28 (dated April 30, 2020).
57 State v. Soto, 310 Kan. 242, 257 (2019) (citation and internal punctuation omitted).
58 Miller v. Bd. of Cty. Commissioners, Wabaunsee Cty., 305 Kan. 1056, 1059 (2017) (citations omitted).

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
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First, under the in pari materia canon of statutory construction,59 the provisions of K.S.A.
48-924 must be read together and in harmony.
The statutory architecture of K.S.A. 48-924 is replete with mechanisms designed to
ensure ongoing oversight and limitation on the duration of time a governor may exercise
emergency powers60 by proclaiming a state of disaster emergency. A state of disaster
emergency ends by operation of law after 15 days unless permitted to continue by action
of the legislature or the state finance council.61 The state finance council may extend the
state of disaster emergency, but only once and then not for more than an additional 30
days beyond the initial 15 days.62 Otherwise, only the full legislature, acting by concurrent
resolution63 or by enactment of statute,64 may authorize further extension of a state of
disaster emergency. Moreover, the legislature expressly reserved to itself the authority to
require, “at any time” by concurrent resolution, the governor to terminate a state of
disaster emergency.65 To interpret K.S.A. 48-924 in a manner allowing a governor to
issue new declarations of states of disaster emergencies that would, de facto, extend
beyond the time period authorized by statute, the state finance council, or concurrent
resolution of the legislature, clearly cuts against this overall statutory scheme. Moreover,
this sort of ongoing legislative oversight may be constitutionally required: “Absent a liberal
interpretation of the Legislature’s ability to continually oversee the Governor’s exercise of
delegated 	Legislative 	authority, 	the 	structure 	of 	KEMA 	itself 	risks 	violating 	the
constitutional demand of separate powers.”66
Second, the legislature has created statutory mechanisms for extending a state of
disaster emergency in two specific contexts inapplicable to the COVID-19 pandemic and
made a similar attempt in response to the COVID-19 pandemic. In 2002, the legislature
recognized that the spread of contagious or infectious disease among domestic animals
could require a state of disaster emergency that would last beyond a legislative session,
and enacted a mechanism for the state finance council to grant rolling extensions.67 And
after the Greensburg tornado in 2007, the legislature recognized a similar issue and
enacted specific authority for rolling extensions of that state of disaster emergency by the
59 Pankratz Implement Co. v. Citizens Nat. Bank, 281 Kan. 209, 215 (2006).
60 Further indicating an intent to maintain oversight of use of the emergency powers in K.S.A. 2019 Supp.
48-925, the legislature also reserved for itself the authority to revoke by concurrent resolution individual
orders and proclamations of the governor that exercise emergency powers during a state of disaster
emergency. See K.S.A. 2019 Supp. 48-925(b).
61 K.S.A. 48-924(b)(3).
62 Id.
63 Id.
64 See, e.g., K.S.A. 2019 Supp. 48-924a.
65 K.S.A. 2019 Supp. 48-924(b)(5).
66 Kelly v. Legislative Coord. Council, 460 P.3d 832, 841 (Kan. 2020) (Stegall, J., concurring).
67 K.S.A. 48-924(b)(4).

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
Erickson, Humphries, Landwehr, Wasinger, and Williams
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state finance council.68 The legislature made a similar but ultimately unsuccessful attempt
by concurrent resolution during the COVID-19 pandemic.69 Those specific mechanisms
would have been unnecessary if the governor already possessed authority to extend a
state of emergency for the same continuing disaster merely by issuing successive new
proclamations, and they are strong evidence that the statute vests no such authority with
the governor.
Third, interpreting K.S.A. 48-924 to authorize the Second Disaster Proclamation would
produce the absurd result that all of the carefully constructed limitations on a governor’s
access to statutory emergency powers were mere suggestions. Kansas courts “always
strive[] for a reasonable interpretation or construction that avoids an unreasonable or
absurd result.”70 But 	if 	the governor 	had authority to 	issue 	the Second 	Disaster
Proclamation, then nothing in the text or structure of K.S.A. 48-924 would act to limit a
third or fourth or subsequent proclamation. That would mean a governor could continue
unilaterally granting herself or himself access to emergency powers by issuing rolling
proclamations of a state of disaster emergency every 15 days,71 at least while the
legislature is out of session and unable to end the state of emergency by concurrent
resolution or by enactment of law. There is nothing to suggest the legislature intended the
statute to operate in that manner, effectively vesting in the governor, not the legislature
or the state finance council, control over access to delegated emergency powers.72 The
Wisconsin Supreme Court recently rejected a similarly expansive view of executive
branch authority to extend its own access to emergency powers through successive
states of emergency,73 and at least one justice of the Kansas Supreme Court has
suggested that such a result could raise constitutional concerns about the KEMA itself.74
We think the rule that Kansas courts interpret statutes to avoid unreasonable or absurd
68 K.S.A. 2019 Supp. 48-924a.
69 See 2020 House Concurrent Resolution 5025; Kelly, 460 P.3d 832.
70 Baker v. State, 297 Kan. 486, 488 (2013).
71 During the May 13, 2020, meeting of the state finance council, the governor’s chief counsel expressed a
similarly expansive view of the governor’s statutory authority, stating that if a state of emergency was not
extended by the state finance council or the legislature the governor could again – for a third time – proclaim
a new state of disaster emergency. State Finance Council meeting, Wednesday, May 13, 2020.
http://sg001-harmony.sliq.net/00287/Harmony/en/PowerBrowser/PowerBrowserV2/20200513/-1/9539
(last accessed May 18, 2020).
72 Courts in other states have recognized that under emergency-powers statutes, disasters may not be
limited to storms, floods, pandemics and other natural occurrences. See, e.g., California Corr. Peace
Officers Assn. v. Schwarzenegger, 77 Cal. Rptr. 3d 844 (Cal. Ct. App. 2008) (stating that the governor of
California can proclaim a state of emergency under Emergency Services Act based upon an inmate
overcrowding condition in a state prison); Worthington v. Fauver, 440 A.2d 1128 (N.J. 1982) (stating that
prison overcrowding was an “emergency” under the state Disaster Control Act and was thus a proper
subject of emergency executive action). The definition of “disaster” in KEMA is broad and “not limited to”
specific subjects. See K.S.A. 48-904(d).
73 See generally Wisconsin Legislature v. Palm, 2020 WL 2465677 (Wisc. 2020).
74 Kelly, 460 P.3d at 841 (Stegall, J, concurring) (“Absent a liberal interpretation of the Legislature’s ability
to continually oversee the Governor’s exercise of delegated Legislative authority, the structure of KEMA
itself risks violating the constitutional demand of separate powers.”).

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
Erickson, Humphries, Landwehr, Wasinger, and Williams
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results75 precludes concluding that K.S.A. 48-924 authorized the Second Disaster
Proclamation.
On balance, we think the validity of the Second Disaster Proclamation is doubtful, but we
recognize that there are questions of fact that must be analyzed as well as opposing
arguments,76 and we cannot predict with certainty how a court might rule on these
matters. To minimize the risk of legal challenges to executive orders issued or other
emergency 	actions 	after 	May 	1, 	2020, 	authorized 	under 	the 	Second 	Disaster
Proclamation, we recommend that the legislature by statute expressly approve the state
of disaster emergency that began on March 12, 2020, similar to the statutory approval
enacted for the state of disaster emergency after the 2007 Greensburg tornado.77
Question 3: Is K.S.A. 2019 Supp. 48-925 facially unconstitutional?
Answer: 	Three specific portions in the language of K.S.A. 2019 Supp. 48-925(b) are
constitutionally suspect on their face. The legislature should examine them carefully to
determine whether they accurately reflect the legislature’s intent. If one or more is invalid,
it would become necessary to determine whether the invalid portion is severable from the
remainder of the statute.
In general, “[i]t is difficult for a challenger to succeed in persuading a court that a statute
is facially unconstitutional. Such challenges are disfavored, because they may rest on
speculation, may be contrary to the fundamental principle of judicial restraint, and may
threaten 	to 	undermine 	the 	democratic 	process.”78 	We 	recognize 	also 	that 	the
constitutionality of a statute is presumed.79 Nevertheless, provisions of K.S.A. 2019 Supp.
48-925 cause us concern under prevailing Kansas law.
The first suspect statutory language is in K.S.A. 2019 Supp. 48-925(b) and purports to
authorize emergency orders to remain in effect with the “force and effect of law” after a
state of disaster emergency has ended. In particular, that language provides that
emergency orders “shall have the force and effect of law during the period of a state of
disaster emergency” but “shall be null and void thereafter unless ratified by concurrent
resolution of the legislature.”80 This language contains no limitation, in either time or
subject matter, on the continuation of emergency orders having the “force and effect of
law” once a disaster has ended so long as the order is “ratified by concurrent resolution
of the legislature.” But under the Kansas Constitution, that is not how laws are made. To
75 State v. Arnett, 307 Kan. 648, 654 (2018).
76 One notable contrary point is that the legislature appears not to have objected to the Second Disaster
Proclamation — indeed, the State Finance Council voted 6 to 3 to extend the state of disaster emergency
declaration through May 26, 2020. 	State Finance Council meeting, Wednesday, May 13, 2020.
http://sg001-harmony.sliq.net/00287/Harmony/en/PowerBrowser/PowerBrowserV2/20200513/-1/9539
(last accessed May 18, 2020).
77 See K.S.A. 2019 Supp. 48-924a.
78 State v. Bollinger, 302 Kan. 309, 318-19 (2015).
79 Watson, 273 Kan. 426, 429 (2002).
80 K.S.A. 2019 Supp. 48-925(b) (emphasis added).

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
Erickson, Humphries, Landwehr, Wasinger, and Williams
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the contrary, “[n]o law shall be enacted except by bill,”81 and neither an executive order
of the governor nor a concurrent resolution of the legislature is a bill.82 The procedure in
K.S.A. 2019 Supp. 48-925(b) to convert an emergency order into potentially permanent
law is inconsistent with that prescribed by Article 2 of the Kansas Constitution. This
procedure established by K.S.A. 2019 Supp. 48-925(b) is inconsistent with Article 2 of the
Kansas Constitution.
The second constitutionally suspect language in K.S.A. 2019 Supp. 48-925(b) purports
to authorize “revok[ing] at any time by concurrent resolution of the legislature” emergency
orders of the governor. This mechanism appears dangerously similar to a legislative veto
by concurrent resolution. This statutory language was enacted in 1975, nine years before
our Supreme Court ruled that a similar mechanism by which the legislature sought to
retain authority to revoke regulations promulgated by administrative agencies violated the
separation of powers and presentment required by the Kansas Constitution.83 “The
legislature cannot pass an act that allows it to violate the constitution.”
We recognize it may be possible to distinguish the use of a concurrent resolution to revoke
emergency orders of the governor from revoking ordinary administrative regulations of an
executive agency, but we are nonetheless concerned about this provision.
The third concerning language in K.S.A. 2019 Supp. 48-925(b) appears on its face to
sweepingly and without any textual limitation in subsection (b) authorize the governor to
“issue orders and proclamations which shall have the force and effect of law during the
period of a state of disaster emergency.”84 If that is read as a delegation of authority not
limited to the powers enumerated in K.S.A. 2019 Supp. 48-925(c), it would represent an
unconstrained delegation of legislative power to the executive branch of government.85
81 Kan. Const. art. 2, § 20.
82 Stephan v. House of Representatives, 236 Kan. 45, 64 (1984) (stating “a resolution is essentially
legislative where it affects the legal rights, duties and regulations of persons outside the legislative branch
and therefore must comply with the enactment provisions of the constitution”). Bills “may originate in either
house” of the legislature but not in an executive order of the governor. Kan. Const. art. 2, § 12. A bill has
only one subject. Kan. Const. art. 2, § 16. When a bill amends an existing statute, it must “contain the …
section or sections amended, and the section or sections so amended shall be repealed,” Kan. Const. art.
2, § 16, but “it is axiomatic that a legislative concurrent resolution cannot amend a statute.” Kelly, 460 P.3d
at 840 (Biles, J., concurring). Bills “may be amended” by either house of the legislature, Kan. Const. art. 2,
§ 12, and upon passage shall be presented to the governor for approval or veto. Kan. Const. art. 2, § 14.
“Legislation becomes law when it is passed by majority votes of both houses of the Legislature and
presented to the Governor, who must sign it or allow it to become law without signing it. If the bill is vetoed
by the Governor, it can still become law if that veto is overridden by two-thirds majorities in both houses.”
Kelly, 460 P.3d at 840 (Biles, J., concurring) (citations omitted).
83 Stephan v. House of Representatives, 236 Kan. 45, 64-65 (1984) (finding an impermissible legislative
veto where legislature passed a concurrent resolution to modify, reject, or revoke an agency’s regulation
that the agency adopted under authority granted it by the legislature); see also Tomasic v. Unified
Government of Wyandotte County/Kansas City, Kan., 264 Kan. 293, 313-16 (1998).
84 K.S.A. 2019 Supp. 48-925(b).
85 See generally, Gundy v. United States, 139 S. Ct. 2116’ (2019).

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
Erickson, Humphries, Landwehr, Wasinger, and Williams
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The Kansas Constitution vests “[t]he legislative power of this state” in the legislature.86
Kansas courts have explained that the legislature may delegate administrative power to
the executive branch of government but generally may not delegate its legislative power.
The Kansas Supreme Court has explained the difference between the two:
Legislative power is the power to make a law, as opposed to the power to
enforce a law. A legislature may try to delegate the legislative power to
make a law. Such a delegation is improper, unless specific constitutional
authority allows the legislature to delegate its legislative power to a different
branch of government. If the constitution does not authorize a delegation of
such legislative power, then the delegation is improper as a violation of the
separation of powers doctrine and art. 2, § 1, which vests legislative power
with 	the 	legislature 	only. 	However, 	a 	legislature 	may 	delegate 	an
administrative power to a different branch of government. Administrative
power is the power to administer or enforce a law, as opposed to the
legislative power to make a law. The legislature does not need constitutional
authority to delegate administrative power because it is not delegating a
power reserved for its branch of government under art. 2, § 1.
It is often difficult to determine if the legislature has delegated the legislative
power to make a law or the administrative power to administer a law. The
difference between the two types of delegated powers depends upon the
amount 	of 	specific 	standards 	included 	within 	the 	delegation. 	If 	the
legislature has included specific standards in a delegation, then it has
already enacted the law and it is simply delegating the administrative power
to administer the law, based on the standards included in the delegation.
On the other hand, if the legislature has not included specific standards
within a delegation, then the legislature has delegated the legislative power
to 	make 	the 	law. 	Such 	delegation 	is 	improper 	without 	constitutional
authorization.
A delegated power constitutes administrative power if 	the delegation
contains sufficient policies and standards to guide the nonlegislative body
in exercising the delegated power. In other words, the legislature may enact
general provisions and delegate to an administrative body the discretion to
‘fill in the details’ if the legislature establishes reasonable and definite
standards to govern the exercise of such authority.87
Thus, if K.S.A. 2019 Supp. 48-925(b) operates to impermissibly delegate legislative
authority to the governor, it is likely unconstitutional. But a statute that delegates
administrative authority to the governor is permissible, if “the legislature establishes
reasonable and definite standards to govern the exercise of such authority” and leaves it
86 Kan. Const. art. 2, § 1.
87 Tomasic, 264 Kan. at 303-04 (internal citations and quotation marks omitted).

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
Erickson, Humphries, Landwehr, Wasinger, and Williams
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to the executive branch to “fill in the details.”88 	If not limited to exercising the powers
enumerated in subsection (c), K.S.A. 2019 Supp. 48-925(b) itself contains no standards
whatsoever to guide the governor’s issuance of orders and proclamations that “shall have
the force and effect of law.”
Nothing 	in 	the 	plain 	text 	of 	K.S.A. 	2019 	Supp. 	48-925(b) 	limits 	the 	orders 	and
proclamations it authorizes to the subject matter enumerated in K.S.A. 2019 Supp. 48-
925(c). And the powers enumerated in subsection (c) are, by their terms, “in addition to
any other powers conferred upon the governor by law,”89 and not a limitation on the power
granted in K.S.A. 2019 Supp. 48-925(b). Subsection (d) states that subsection (c) confers
powers on the governor but says nothing about limiting power under subsection (b).90
Even if the authority in K.S.A. 2019 Supp. 48-925(b) to issue orders with the “force and
effect of law” is restricted to exercise of the eleven enumerated powers in subsection (c),
that may be insufficient limitation because subsection (c)(11) broadly authorizes the
governor to “perform and exercise such other functions, powers and duties as are
necessary to promote and secure the safety and protection of the civilian population.”
While subsection (c)(11), unlike subsection (b), does provide some standards to govern
the exercise of emergency powers — the exercise must be “necessary to promote and
secure the safety and protection of the civilian population” — it is at least a reasonable
concern whether that standard is sufficiently “reasonable and definite” to ensure the
legislature’s delegation of authority to the governor remains lawful.91
88 Id. at 304. Ex parte McGee, 105 Kan. 574 (1919) is an example of such an administrative delegation.
There, the Legislature delegated authority to the state board of health to make regulations concerning, inter
alia, procedures for isolation and quarantine, and the state board of health adopted a regulation which
specified that persons infected with venereal diseases be quarantined at one of two locations. The Kansas
Supreme Court held that the statute was not an unlawful delegation of legislative authority because it set
out specific means — quarantine and isolation — by which the state board of health could act to protect
public health from dangerous communicable diseases.
89 K.S.A. 2019 Supp. 48-925(c) (emphasis added).
90 K.S.A. 2019 Supp. 48-925(d).
91 More than 60 years ago, the Kansas Supreme Court upheld a statute that authorized the state finance
council to determine how certain public funds were to be distributed and, in so doing, explained that “when
the discretion to be exercised related to a police regulation for the protection of … health … legislation
conferring such discretion may be valid and constitutional without such restrictions and limitations.” State
ex rel. Anderson v. Fadely, 180 Kan. 652, 665 (1957). But in that case, the “only legislative power involved”
was the appropriation of funds and was “exercised by the legislature”; the “duties imposed upon the finance
council were administrative in character, i.e., to ascertain the facts and conditions upon which the statutes
were declared to operate, and, when so ascertained, to allocate funds for the purposes specified.” Id. at
548. But here, the emergency powers delegated to the governor under the unrestrained language of K.S.A.
2019 Supp. 48-925(b), or under the somewhat more restrained language of K.S.A. 2019 Supp. 48-
925(c)(11), include the plainly legislative power to issue orders with the “force and effect of law.” Those
delegated powers have been exercised during the COVID-19 pandemic in a manner that criminalizes the
otherwise-lawful conduct of citizens whose fundamental liberty interests may be implicated, see discussion
in Question 4 below, and are not confined to the administrative role of deciding how appropriated funds are
to be distributed to benefit public health.

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
Erickson, Humphries, Landwehr, Wasinger, and Williams
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If any language in K.S.A. 2019 Supp. 48-925 is facially unconstitutional, is that language
severable from the statute or is the entire statute constitutionally infirm?
If any specific provisions of K.S.A. 2019 Supp. 48-925 are facially unconstitutional, the
question arises whether the invalid provisions are severable or whether the remainder of
the 	statute 	is 	invalid 	as 	well. 	Kansas 	courts 	apply 	a 	two-part 	test 	for 	whether
unconstitutional provisions may be severed while leaving the remainder of a statute intact.
Whether the court may sever an unconstitutional provision from a statute
and leave the remainder in force and effect depends on the intent of the
legislature. If from examination of a statute it can be said that the act would
have been passed without the objectionable portion and if the statute would
operate effectively to carry out the intention of the legislature with such
portion stricken, the remainder of the valid law will stand.92
In declining to sever unconstitutional provisions but instead invalidating a much broader
legislative enactment, the Kansas Supreme Court recently reaffirmed that rule: “[I]f the
void and valid parts of the statute are so connected with each other in the general scheme
of the act that they cannot be separated without violence to the evident intent of the
legislature, the whole must fail. These rules are of everyday enforcement in the courts.”93
To determine whether any of the above language, if unconstitutional, may be severed
from the remainder of K.S.A. 2019 Supp. 48-925 requires analysis of whether doing so
would do “violence to the evident intent of the legislature” or whether the act “would have
been passed without the objectionable portion.”94
In summary, we recommend the legislature review these three specific provisions and
determine whether they are written in a manner that accurately and precisely reflects the
intent of the legislature.
Question 4: Assuming a state of disaster emergency is in effect and K.S.A. 2019 Supp.
48-925 is facially constitutional, are individual emergency orders issued under that
statutory authority valid and enforceable through criminal prosecution?
Answer: 	The 	validity 	and 	enforceability 	of 	individual 	emergency 	orders 	must 	be
determined on a case-by-case review of the content of the order and, in a criminal
prosecution, its application to a particular set of facts involving a particular defendant.
The use of K.S.A. 48-939 to criminalize violations of emergency orders requires analysis
through a criminal-law lens. Because K.S.A. 48-939 is an unusual criminal statute, law
enforcement officers and prosecutors must carefully analyze case-by-case how it may
lawfully be applied before using it to criminally enforce a governor’s emergency order. We
92 Brennan v. Kansas Ins. Guar. Ass’n, 293 Kan. 446, 463 (2011).
93 Gannon v. State, 304 Kan. 490, 526 (2016) (quoting State v. Smiley, 65 Kan. 240, 247 (1902)).
94 Id.

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
Erickson, Humphries, Landwehr, Wasinger, and Williams
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will first provide background on criminal-law principles that inform our analysis and then
will set forth a recommended framework for any prosecutors considering bringing criminal
charges under authority of K.S.A. 48-939.
Background on criminal statutes
In Kansas, “criminal statutes are generally strictly construed against the State, [although]
this principle is subordinate to the rule that judicial interpretation must be reasonable and
sensible to effectuate the legislative design and the true intent of the law.”95 The general
rule is “that all crimes are established by legislative act.”96 	The Kansas Criminal Code
provides that “[n]o conduct constitutes a crime against the state of Kansas unless it is
made criminal in this code or in another statute of this state.”97 Likewise, “[i]t is also the
rule in this state that a criminal statute will not be extended by courts to embrace acts or
conduct not clearly included within its prohibitions.”98 A person commits a violation of
K.S.A. 48-939 by committing a “knowing and willful violation of any provision of … a lawful
order … issued under … a proclamation declaring a state of disaster emergency under
K.S.A. 48-924.” We first examine the peculiarities of the statute and then discuss each of
the requirements for its violation.
Since it was enacted 45 years ago, K.S.A. 48-939 rarely has been used. We have located
no appellate or reported district court cases interpreting K.S.A. 48-939 and only two prior
attorney 	general 	opinions 	that 	mention 	the 	statute, 	but 	without 	any 	analysis 	or
interpretation.99 Our inquiries discovered only six convictions and two additional arrests
not resulting in conviction since the statute took effect July 1, 1975.100 During the current
COVID-19 pandemic, public reports indicate criminal charges have been threatened
against a Junction City church101 and were filed but later dismissed against a McPherson
barber.102
To secure a conviction under K.S.A. 48-939, a prosecutor must prove beyond a
reasonable doubt that a person acted knowingly and willfully in violation of an emergency
order.103 	Under 	the 	Kansas 	Criminal 	Code, 	“[a] 	person 	acts 	‘knowingly’ 	or 	‘with
knowledge’ with respect to the nature of such person's conduct or to circumstances
95 State v. Barlow, 303 Kan. 804, 813 (2016) (citations omitted).
96 State v. Sexton, 232 Kan. 539, 542 (1983).
97 K.S.A. 2019 Supp. 21-5103(a).
98 Id. at 543 (citing State v. Doyen, 224 Kan. 482, 488 (1978)).
99 See Attorney General Opinion Nos. 81-193 and 95-75.
100 In response to our request, the Kansas Bureau of Investigation identified two convictions in 2019 (both
in Sheridan County), one in 2018 (Sheridan County), and three in 2016 (two in Lyon County and one in
Ness County). It also identified two arrests but no convictions in 2018 in Marion County, both involving
violations of a burning ban ordered by the governor under KEMA.
101 First Baptist Church v. Kelly, 2020 WL 1910021, at *2 (Kan. April 18, 2020).
102 Chance Swaim and Johnathan Shorman, Kansas AG questions Governor’s authority after charges
dropped 	against 	barber, 	Wichita 	Eagle, 	May 	11, 	2020, 	available 	at
https://www.kansas.com/news/coronavirus/article242647601.html (last accessed May 18, 2020).
103 K.S.A. 2019 Supp. 21-5202.

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
Erickson, Humphries, Landwehr, Wasinger, and Williams
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surrounding such person's conduct when such person is aware of the nature of such
person's conduct or that the circumstances exist.”104 This is a familiar standard to
prosecutors. Because of the unusual structure and workings of K.S.A. 48-939, however,
a prosecutor must first ensure that he or she understands the contours of the order’s
prohibitions before bringing a charge under that statute.
Unlike most criminal statutes, K.S.A. 48-939 does not itself set forth the conduct that
constitutes a crime, and not all conduct of a defendant that must be proven by the state
is described within that statute.105 Rather, K.S.A. 48-939 criminalizes conduct that is
defined by separate instruments — emergency orders of the governor — and essentially
incorporates those emergency orders by reference into the criminal statute itself. While
rare, Kansas does have other criminal statutes that penalize conduct defined in separate
instruments, but K.S.A. 48-939 differs from even those few other statutes in one important
regard: only K.S.A. 48-939 requires, by its plain terms, that the separate instrument
setting forth the prohibited conduct itself be “lawful.”106 This textual difference cannot be
overlooked. “It is presumed that the legislature understood the meaning of the words it
used and intended to use them.”107 The legislature’s unusual action of expressly limiting
the application of K.S.A. 48-939 to violations of “lawful” emergency orders without doing
the same in other criminal statutes that operate in a similar manner may reasonably be
explained by the fact that the separate instruments referenced in other statutes were
created by judicial process108 or regulatory processes109 that by law incorporate principles
of due process such as notice and an opportunity to be heard.110 In contrast, a governor’s
emergency 	order 	circumvents 	all 	ordinary 	procedures 	for 	exercising 	legislative 	or
administrative power — it is, after all, an emergency order — and arguably has undergone
104 K.S.A. 2019 Supp. 21-5202(i).
105 Most criminal statutes are self-contained. For example, K.S.A. 2019 Supp. 21-5402(a)(1) sets forth fully
and completely the conduct constituting one of the state’s most serious crimes, premeditated murder in the
first degree, as “the killing of a human being committed … [i]ntentionally, and with premeditation.” At trial,
“each of the following claims must be proved: (1) The defendant intentionally killed [insert name]. (2) The
killing was done with premeditation. (3) This act occurred on or about the _____ day of _____, _____, in
_______ County, Kansas.” See Pattern Instructions Kansas Criminal 54.110 (4th ed.) (Sept. 2019 update).
Definitions of the terms “intentional” and “premeditation” found at PIK 4th 54.150 typically also would be
included with this instruction.
106 Compare K.S.A. 48-939 (criminalizing violations of “lawful” orders) with, e.g., K.S.A. 2019 Supp. 21-
5924 (violation of a protective order), K.S.A. 2019 Supp. 21-6423 (violation of a consumer protection order),
K.S.A. 2019 Supp. 44-719(c) (criminalizing violations of certain Department of Labor regulations), and
K.S.A. 2019 Supp. 17-12a508(a) (criminalizing violations of certain securities regulations) (each containing
no express requirement that judicial order or regulation that is violated be “lawful”).
107 State v. Robinson, 261 Kan. 865, 875 (1997) (quoting Bank of Kansas v. Davison, 253 Kan. 780, 788
(1993)).
108 See, e.g., K.S.A. 2019 Supp. 21-5924 (criminalizing violation of a civil protective order) and K.S.A. 21-
6423 (criminalizing violation of a civil consumer protection order).
109 See, e.g., K.S.A. 2019 Supp. 44-719(c) (criminalizing violation of certain provisions of employment
security act and regulations) and K.S.A. 2019 Supp. 17-12a508(a) (criminalizing violation of certain
securities rules or orders).
110 The Due Process clause of the Fourteenth Amendment generally requires at a minimum that the
government afford persons notice and an opportunity to be heard before depriving them of a protected
liberty or property interest. State v. Hurley, 303 Kan. 575, 582 (2016).

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no process111 that ordinarily is due before the government criminalizes the conduct of its
citizens. Because emergency orders are not subject before issuance to the ordinary
processes of deliberative governance, the lawfulness of the order cannot as readily be
presupposed but is reasonably subject to question. In light of the rare requirement that
only willful and knowing violations of provisions of “lawful” emergency orders be punished
criminally,112 prosecutors considering bringing charges under authority of K.S.A. 48-939
should specifically analyze 	the 	lawfulness of 	any individual 	order 	before bringing
charges.113
Bearing the above in mind, we offer the following framework to aid prosecutors in that
case-by-case analysis to assist, as requested, in “avoid[ing] any unlawful arrests or
convictions stemming from the disputed nature and authority of the Governor’s Executive
Orders.”114
111 The Kansas Constitution, for example, ordinarily requires that laws, including those that require or
prohibit certain conduct of citizens under pain of criminal conviction, be adopted by both houses of the
Legislature upon public vote of a quorum and be presented to the governor See Kan. Const. art. 2, §§ 10,
13, 14(a). But those procedures are bypassed by K.S.A. 48-939, which leaves entirely to the governor to
define prohibited criminal conduct through the issuance of an emergency order that is never reviewed or
voted upon by the legislature.
112 The only other statutes we have located that expressly criminalize a “lawful” external instrument have
significant limitations. K.S.A. 8-1503 (misdemeanor to willfully refuse to comply with “lawful order” of police
officer or fireman”) has been applied by courts only in strictly limited manners, see State v. Greene, 5 Kan.
App. 2d 698 (1981), and K.S.A. 31-150a(a) (misdemeanor to violate any “lawful order” of the state fire
marshal) applies only to regulations that have undergone a legally required process and scrutiny before
issuance.
113 See Kansas Rule of Professional Conduct 3.8(a) (prosecutor shall refrain from prosecuting a charge
that the prosecutor knows is not supported by probable cause); State v. Abbott, 277 Kan. 161, 164 (2004)
(“probable cause is the reasonable belief that a specific crime has been committed and that the defendant
committed the crime”). At a minimum, prosecutors must be prepared to rebut a defendant’s challenge to an
order’s lawfulness. A close analogy may be drawn to involuntary manslaughter as defined by K.S.A. 21-
5405(a)(4), which prohibits “the killing of a human being committed … during the commission of a lawful
act in an unlawful manner.” The Pattern Instructions Kansas Criminal for that crime provide the state “must
… prove[] … [t]he killing was done … during the commission of a lawful act.” PIK 54.180 (4 th ed.) (emphasis
added), and the Kansas Supreme Court has recognized that in that manslaughter statute whether an act
was “lawful” is a fact question for the jury that must be proven by evidence. State v. Gregory, 218 Kan. 180,
184-86 (1975). Although the statute requires the act be “lawful,” and the PIK states that juries are typically
instructed accordingly, in practice the lawfulness of the act usually is presented by the State only after a
defendant has raised the issue. There is some case law suggesting that other statutes requiring by their
terms that a separate instrument be “lawful” the state may bear the initial burden of proving an order’s
lawfulness as part of its case-in-chief. See, e.g., Greene, 5 Kan. App. 2d at 704-05 (narrowly construing
the meaning of “lawful order” of a police officer or fireman in K.S.A. 8-1503); State v. Anthony, 798 A.2d
1099, 1101-02 (Me. 1983) (finding that state failed to prove lawfulness of order, necessary to convict for
“defiance of a lawful order”); People v. Leonard, 62 N.E. 2d 831, 836 (N.Y. Ct. App. 1984); Scriber v. State,
86 A.3d 1260 (Md. Ct. App. 2014) (considering “lawful order or direction of a police officer”).
114 Schroeder letter at p. 5.

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
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Recommended framework for evaluating “lawfulness” of an emergency order115
In the COVID-19 state of disaster emergency, the number and complexity of emergency
orders has been unprecedented; as a result, in any enforcement action under K.S.A. 48-
939 law enforcement and prosecutors must take great care to ensure they can properly
identify what conduct constitutes a crime and what elements must be proven.
Given the unusual nature of K.S.A. 48-939, we recommend that before commencing any
criminal enforcement action under authority of K.S.A. 48-939, prosecutors conduct a
specific analysis of the lawfulness of the order they propose to act upon.116 K.S.A. 48-
939 has three elements: 	(1) “the knowing and willful violation of (2) any provision of a
lawful order … (3) issued under 	… 	a proclamation declaring a state of disaster
emergency under K.S.A. 48-924.” To be “lawful” within the meaning of K.S.A. 48-939, an
emergency order, in addition to ordinary requirements that would attach to the filing of
criminal charges, should satisfy at least the following five inquiries:
1. Was a state of disaster emergency in effect at the time of the conduct alleged
to violate an emergency order?
An emergency order issued outside a state of disaster emergency properly in effect
pursuant to K.S.A. 48-924 is not lawful. The status of any state of disaster emergency
since March 12, 2020, is discussed above in Questions 1 and 2. A prosecutor should
become satisfied a proper state of disaster emergency was in effect at the time of the
alleged violation of an emergency order before bringing charges under authority of K.S.A.
48-939.
A prosecutor also should analyze case-by-case whether the state of disaster emergency
has at least some articulable factual basis as applied to the local jurisdiction where the
conduct giving rise to criminal enforcement under K.S.A. 48-939 occurs. To illustrate the
point with a hypothetical example, it is questionable whether a Missouri River flood in
Doniphan County could form the basis for proclaiming a statewide state of disaster
emergency that would enable criminal charges under K.S.A. 48-939 for violating an
emergency order applied in Morton County.
The existence, geographic scope, and duration of a state of disaster emergency117 are
predicated on findings of facts such as whether a disaster “has occurred,” is “imminent,”
115 The issues presented here are intended to illustrate some of the novel analysis that would attach to a
prosecution under K.S.A. 48-939 and not to be an exhaustive list of issues a prosecutor must consider in
filing criminal charges under that statute.
116 This recommended analysis is intended to address specific issues present in K.S.A. 48-939 and would
be in addition to any other analysis law enforcement or prosecutors ordinarily would conduct before
effecting a criminal enforcement action.
117 Under K.S.A. 48-924, a state of disaster emergency must be connected to a “disaster,” K.S.A. 48-924(a)
and (b)(1), as defined in K.S.A. 48-904(d) as “the occurrence or imminent threat of widespread or severe
damage, injury or loss of life or property resulting from any natural or manmade cause, including, but not
limited to, fire, flood, earthquake, wind, storm, epidemics, contagious or infectious disease, air

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
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“has passed,” or “emergency conditions no longer exist” in the “area or areas threatened
or affected.” The statute directs the governor to “find[]” those facts.118 The governor’s
discretion in that regard is vast, and local authorities, including prosecutors, may not
second-guess the decision of the governor to declare a state of disaster emergency under
K.S.A. 48-924. But in an extreme case, even involving emergency powers, discretion can
be abused,119 so a prosecutor responsible for filing criminal charges under authority of
K.S.A. 48-939 should include this inquiry in the analysis.
2. Was the emergency order properly published as required by statute and by
principles of due process?
An order issued but not properly published is not lawful for purposes of criminal
prosecution.120 Principles of due process require that a criminal defendant have notice of
what conduct is prohibited before being prosecuted for engaging in that conduct, and that
principle generally requires publication before statutes or regulations can become
effective, and service before judicial or administrative orders may be enforced.121
Although the issue of when an emergency order may become legally effective may be
subject to debate, we recently recommended that no criminal enforcement of executive
orders be undertaken until after the order is published by the Secretary of State in the
Kansas Register.122 That approach will provide the same notice that ordinarily is provided
contamination, blight, drought, infestation, explosion, riot, terrorism or hostile military or paramilitary action.”
The statute contemplates that a state of disaster emergency be confined to “the area or areas threatened
or affected by the disaster.” K.S.A. 48-924(b)(6). The statute authorizes and directs the governor to
determine whether, K.S.A. 48-924(b)(1), and where, K.S.A. 48-924(b)(6) (proclamation must contain “the
area or areas threatened or affected by the disaster”), a disaster exists, and the statute also requires the
state of disaster emergency continue only until “the threat or danger of disaster has passed, or the disaster
has been dealt with to the extent that the emergency conditions no longer exist.” K.S.A. 48-924(b)(3). If the
requisite conditions no longer exist, then the governor “shall terminate the state of disaster emergency.”
K.S.A. 48-924(b)(3).
118 K.S.A. 48-924(b)(1) and (b)(3).
119 Nat’l Tax-Limitation Com. v. Schwarzenegger, 8 Cal. Rptr. 3d 4 (Ct. App. 2003) (unpublished).
120 The Kansas Constitution provides that statutes may take effect only when “published as provided by
law.” Kan. Const. Art. 2, § 19. Governors have traditionally filed each executive order with the secretary of
state — a practice analogous to how acts of the legislature are caused to be published so they may satisfy
the constitutional requirement for publication. See also K.S.A. 75-430(a)(2) (providing for publication in the
Kansas Register of “all executive orders and directives of the governor” filed with the Secretary of State).
121 The due process requirement for notice is particularly important in the criminal law, see, e.g., Johnson
v. United States, 135 S. Ct. 2551, 2557 (2015), because due process demands that persons subject to the
law must have “an opportunity … to avoid the consequences of the law.” Lambert v. California, 355 U.S.
225, 229 (1957). Since orders of the governor have the “effect of law,” see K.S.A. 2019 Supp. 48-925, and
violations of the orders may give rise to criminal penalties, see K.S.A. 48-939, this elementary principle
attaches to these executive orders. See also Alexander v. Adjutant General’s Office, 18 Kan. App. 2d 649
(1993) (an executive order that has force of law “occupies the same position as a statute and may be
interpreted” in like manner).
122 Memorandum to Kansas Prosecutors and Law Enforcement re: State and Local Law Enforcement Duties
and Authorities under Emergency Powers Invoked in Connection with COVID-19 Response (March 24,
2020) 	at 	8, 	available 	at 	https://ag.ks.gov/docs/default-source/publications/ag-memo-to-kansas-law-
enforcement-and-prosecutors.pdf?sfvrsn=1979ac1a_4. 	This 	memorandum 	explained 	provisions 	of
emergency powers statutes but did not address issues of constitutionality. See id. fn. 2.

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
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with acts of the legislature that affect constitutionally protected life, liberty, or property
interests.123
In addition, K.S.A. 2019 Supp. 48-925 by its terms requires specific distribution of
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.”124 In the case of the March 12, 2020, and April 30, 2020, state of
disaster emergency proclamations that apply statewide, the statute by its plain terms
requires those proclamations be “filed” with every county and city clerk in Kansas — more
than 700 in total.125 Before filing criminal charges under authority of K.S.A. 48-939 in any
local jurisdiction, a prosecutor should confirm the requisite state of disaster emergency
proclamation was on file with the appropriate county clerk and any city clerk where the
violative conduct is alleged to have occurred.
3. Does the plain text of K.S.A. 2019 Supp. 48-925 grant authority for the particular
emergency order at issue?
An emergency order that exceeds the authority of its authorizing statute is not lawful.
K.S.A. 2019 Supp. 48-925 delegates authority to the governor to issue emergency orders
under the KEMA that have the “force and effect of law,”126 and emergency orders draw
their authority from that statute. Therefore, the authority for any particular emergency
order must be found in K.S.A. 2019 Supp. 48-925 or the order cannot be “lawful.”127
Analyzing whether a particular emergency order falls within its statutory authority is similar
to analyzing whether a regulation issued by an administrative agency is authorized by
statute.128 Just as “[r]ules or regulations of an administrative agency, to be valid, must be
123 The Kansas Constitution provides that statutes may take effect only when “published as provided by
law.” Kan. Const. art. 2, § 19. See also K.S.A. 75-430(a)(2) (providing for publication in the Kansas Register
of “all executive orders and directives of the governor” filed with the Secretary of State). The Kansas
Register is available at https://kssos.org/pubs/pubs_Kansas_register.asp. K.S.A. 48-924(b)(6) requires that
“[e]ach such proclamation shall be disseminated promptly by means calculated to bring its contents to the
attention of the general public and, unless the circumstances attendant upon the disaster prevent the same,
each 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.”
124 K.S.A. 48-924(b)(6) (emphasis added).
125 Kansas has 105 counties and more than 600 cities.
126 We confine our analysis here to the bases for emergency orders enumerated in K.S.A. 2019 Supp. 48-
925(c)(1) through (c)(11). As discussed in Question 3 above, K.S.A. 2019 Supp. 48-925(b) contains a much
broader delegation of authority, but because that delegation of authority contains no standards or guidelines
for its use and on its face is essentially unlimited we think it is unconstitutional.
127 As discussed in Question 3 above, the plain language of K.S.A.48-925(b) may on its face authorize
emergency orders that go beyond the powers enumerated in K.S.A. 2019 Supp. 48-925(c). But that would
present serious questions about the constitutionality of the statute. Therefore, we will assume here that the
proper analysis is confined to the powers enumerated in subsection (c).
128 We recognize the governor has separate constitutional and common law executive authority upon which
she may draw. Our analysis in this opinion is limited to the application of K.S.A. 48-924 and K.S.A. 2019
Supp. 48-925.

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within the statutory authority conferred upon the agency,”129 so too with emergency orders
authorized by K.S.A. 2019 Supp. 48-925. “[R]ules or regulations that go beyond the
authority authorized, which violate the statute, or are inconsistent with the statutory power
of the agency, have been found void.”130
But there is a critical procedural difference between analyzing whether a rule or regulation
exceeds statutory authority and whether an emergency order does: by law, the legality of
a rule or regulation has been examined and approved before it is published,131 but
emergency orders are published without any requirement for review and approval of their
legality. A prosecutor, therefore, before commencing enforcement under authority of
K.S.A. 48-939 should carefully analyze whether the particular emergency order is
authorized by K.S.A. 48-925(c).
K.S.A. 2019 Supp. 48-925(c)(1) through (c)(10) enumerate specific powers the governor
may exercise under authority of that statute. It is well established that the starting point
for interpreting statutes is “the plain language of the statute, giving common words their
ordinary meaning. If the plain language of a statute is unambiguous, we do not speculate
as to the legislative intent behind it and will not read into the statute something not readily
found in it.”132
In analyzing whether any particular emergency order is within the authority granted by the
statute, it is necessary to find plain language in the statute granting that authority. Since
the COVID-19 state of disaster emergency was proclaimed March 12, 2020, and through
the date of this opinion, the governor has issued 31 executive orders related to the
pandemic under authority of K.S.A. 48-924 and K.S.A. 2019 Supp. 48-925.133 By their
terms, these orders do not specify the statutory subsection or subsections from which
they draw authority but only generally invoke “authority granted … by K.S.A. 48-924 and
K.S.A. 2019 Supp. 48-925.” Therefore, in determining whether each order is “lawful” it is
necessary for a prosecutor to search the statute and make a determination whether it is
authorized by the plain language of any statutory provision. The statutory authority for
some of these orders may not be readily apparent in the specific statutory language of
subsections (c)(1) through (10).
For example, Executive Order 20-05 orders “all Kansas utility providers not under the
jurisdiction of the Kansas Corporation Commission temporarily [to] suspend the practice
of disconnecting service to Kansas citizens for non-payment”134 and Executive Order 20-
06 “direct[s] and order[s] all financial institutions operating in Kansas to temporarily
suspend the initiation of any mortgage foreclosure efforts or judicial proceedings and any
129 Malone Oil Co. v. Dep’t of Health & Env’t, 234 Kan. 1066, 1068 (1984).
130 Id.
131 K.S.A. 77-420.
132 Univ. of Kansas Hosp. Auth. v. Bd. of Cty. Comm’rs of Unified Gov’t of Wyandotte Cty./Kansas City, 301
Kan. 993, 998-99 (2015) (citations and internal quotation marks omitted).
133 See Executive Orders 20-03 (dated March 16, 2020) through 20-34 (dated May 19, 2020).
134 Executive Order 20-05 (dated March 17, 2020).

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
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commercial or residential eviction efforts or judicial proceedings.”135 But no enumerated
power granted by K.S.A. 2019 Supp. 48-925(c)(1) through (c)(10) can reasonably be
construed as plainly authorizing those actions.136 Executive Order 20-08 presents a
different issue. That order appears, inter alia, to suspend several statutes, rules and
regulations 	governing 	telemedicine,137 	and 	K.S.A. 	2019 	Supp. 	48-925(c)(1) 	does
specifically authorize suspending statutes, rules and regulations. But the authority
granted by subsection (c)(1) is restricted by its plain language; it does not authorize
suspension of any statute, rule or regulation, but only of provisions of (a) a regulatory
statute that (b) “prescrib[es] the procedures for conduct of state business” and even then
only (c) “if strict compliance with the provisions of such statute … would prevent, hinder
or delay in any way necessary action in coping with the disaster.”138 For purposes of
determining whether violations of Executive Order 20-08 may be prosecuted as a violation
of K.S.A. 48-939, therefore, a prosecuting attorney must make a determination whether
the statutory language authorizes the suspension in that order.
Even if none of the specifically enumerated authorities set forth in subsection (c)(1)
through (10) applies, an emergency order might be said to draw statutory authority from
the broad language in K.S.A. 2019 Supp. 48-925(c)(11).139 But even that subsection has
some limits apparent from its plain language, which authorizes exercise of only those
functions, powers and duties that are “necessary to promote and secure the safety and
protection of the civilian population.” For some of the emergency orders issued during the
COVID-19 emergency, it is at least questionable whether they are “necessary” to
“promote and secure the safety and protection” of persons.140 Also, the various provisions
of K.S.A. 2019 Supp. 48-925 must be read in harmony.141 An order would be suspect if it
is in conflict with other provisions of the statute or other legal authority. For example,
Executive Order 20-27 states as its purpose to “safely allow for the sale and consumption
of unconsumed alcoholic liquor through takeout or curb-side delivery during this COVID-
19 pandemic.”142 It accomplishes that purpose by suspending certain statutory provisions
that restrict the carry-out sale of certain alcoholic beverages143 and then creating new
135 Executive Order 20-06 (dated March 17, 2020). Executive Order 20-10 (dated March 24, 2020) rescinded
Executive Order 20-06 and replaced it with modified provisions addressing the same subject matter.
136 See Oakland State Bank v. Bolin, 141 Kan. 126 (1935); Langworthy v. Kadel, 141 Kan. 250 (1935).
137 See Executive Order 20-08 (dated March 20, 2020) at para. 1.
138 K.S.A. 2019 Supp. 48-925(c)(1).
139 But see Question 3 above, discussing concern about the facial validity of K.S.A. 2019 Supp. 48-
925(c)(11).
140 See, e.g., Executive Order 20-20 (dated April 9, 2020) (altering rules for notaries public); Executive
Order 20-05 (dated March 17, 2020) (prohibiting disconnection of utility and internet services); Executive
Order 20-27 (dated April 22, 2020) (permitting restaurants to serve alcoholic beverages for carry-out
consumption).
141 Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 925-30 (2013) (construing statute
to determine which of three subsections of K.S.A. 55-1210 most specifically addressed the situation before
the court).
142 Executive Order 20-27 (dated April 22, 2020) at p. 2.
143 Id. at p. 2, paragraph 1. Notably, K.S.A. 2019 Supp. 48-925(c)(1) authorizes the governor to suspend
certain statutes, but it is not certain this suspension satisfies the three-part test in that statute as described

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restrictions governing those carry-outs.144 The apparent authority for this order is K.S.A.
2019 Supp. 48-925(c)(11), since it does not readily fit within any of the 10 specifically
enumerated powers. Yet, one of those enumerated powers — K.S.A. 2019 Supp. 48-
925(c)(8) — expressly authorizes just the opposite: the governor may “suspend or limit
the sale, dispensing or transportation of alcoholic beverages.” It is questionable whether
a general provision of law like K.S.A. 2019 Supp. 48-925(c)(11) can authorize actions that
appear directly contrary to what a specific provision contemplates.145 Similarly, the
executive orders restricting foreclosures146 are in tension with decisions of the Kansas
Supreme Court during the Great Depression that specifically invalidated an attempt by
the 	legislature 	to 	delegate 	to 	the 	governor 	power 	to 	extend 	a 	moratorium 	on
foreclosures.147
4. Is the emergency order unconstitutionally vague in violation of due process?
For 	criminal 	enforcement 	purposes, 	an 	emergency 	order 	is 	not 	lawful 	if 	it 	is
unconstitutionally vague. Kansas courts use a two-prong inquiry to determine whether a
statute is unconstitutionally vague in violation of the Due Process Clause of the
Fourteenth Amendment.
First, the ordinance must give adequate notice to those tasked with
following it. More specifically, the ordinance must convey sufficient definite
warning and fair notice as to the prohibited conduct in light of common
understanding and practice. We have recognized that an ordinance that
requires or forbids the doing of an act in terms so vague that persons of
common intelligence must necessarily guess at its meaning and differ as to
its application is violative of due process. But on the other hand, Kansas
has long held that an ordinance is not unconstitutionally vague if it employs
words commonly used, previously judicially defined, or having a settled
meaning in law.
In the second prong of our inquiry, we require that an ordinance’s terms
must 	be 	precise 	enough 	to 	adequately 	protect 	against 	arbitrary 	and
discriminatory action by those tasked with enforcing it. We acknowledge
that a law is invalid if it violates either prong. However, the more important
aspect of the vagueness doctrine is not actual notice but the other principal
element of the doctrine — the requirement that a legislature establish
above. Thus, it is likely this Executive Order draws authority at least in part from the catchall provision,
K.S.A. 2019 Supp. 48-925(c)(11).
144 The new restrictions are established by paragraph 2 of Executive Order 20-27 (dated April 22, 2020) at
p. 2.
145 “‘It is a general rule of statutory interpretation that, when both a general statute and a specific statute
govern the same topic, the specific statute controls.’” Kelly, 460 P.3d at 839 (quoting Merryfield v. Sullivan,
301 Kan. 397, 398 (2015)). See also Northern Natural Gas Co., 296 Kan. at 925-30.
146 Executive Order 20-06 (dated March 17, 2020) replaced by Executive Order 20-10 (dated March 23,
2020).
147 See Oakland State Bank v. Bolin, 141 Kan. 126 (1935); Langworthy v. Kadel, 141 Kan. 250 (1935).

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
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minimal guidelines to govern law enforcement. And in analyzing this second
prong for vagueness, we are further mindful that the standards of certainty
in an ordinance punishing criminal offenses are higher than in those
depending primarily upon civil sanctions for enforcement.148
A prosecutor considering criminal enforcement under K.S.A. 48-939 should carefully
determine whether the emergency order at issue satisfies both prongs of the vagueness
inquiry: Does the emergency order give fair notice as to the prohibited conduct, and are
its terms precise enough to adequately protect against arbitrary and discriminatory
enforcement? If an emergency order fails either prong, then criminal enforcement is
constitutionally impermissible. In making that determination, a prosecutor should bear in
mind several characteristics of emergency orders issued since the March 12, 2020,
proclamation of a state of disaster emergency related to the COVID-19 pandemic.
First, many of these orders, particularly the various versions of stay-home orders and the
orders restricting mass gatherings, underwent multiple updates and replacements since
a state of disaster emergency first was proclaimed on March 12. In many instances,
subsequent orders by their terms required that they be “read in conjunction with previous
executive orders responding to the COVID-19 pandemic” or that provisions in a new order
supersede “any contrary or less restrictive language” in prior orders without more
precisely specifying which provisions were superseded and which remained in effect.149
148 City of Lincoln Ctr. v. Farmway Co-Op, Inc., 298 Kan. 540, 545-46 (2013) (internal citations, quotation
marks and punctuation omitted).
149 To illustrate, consider the progression of the principal orders that have restricted the mobility of Kansans
since a state of disaster emergency was proclaimed March 12, 2020 the mass-gathering orders and the
stay-home orders. Executive Order 20-04 was the first to restrict mass gatherings. See Executive Order
20-04 (dated March 17, 2020). It was modified by reference in Executive Order 20-07, the order closing
schools, which provided that “[a]ny contrary or less restrictive language in EO 20-04 is superseded by this
order,” without specifying which provisions of the prior order might be superseded. See Executive Order
20-07 (dated March 17, 2020). Executive Order 20-14 then rescinded Executive Order 20-04 and replaced
it with a more-restrictive mass gathering restriction that enumerated 27 types of gatherings exempt from
the limitation but defined no terms used in those exemptions. See Executive Order 20-14 (dated March 24,
2020). Executive Order 20-15 soon followed, establishing the Kansas Essential Functions Framework
(KEFF) that set forth in general terms various categories of activities that would be exempt from local
governments’ stay-home orders. See Executive Order 20-15 (dated March 24, 2020). 	Soon thereafter
Executive Order 20-16 established a statewide stay-home order that directed “all individuals within the state
of Kansas … to stay in their homes or residences unless performing an essential activity,” and proceeded
to set forth various essential activities including those identified in the KEFF. To determine whether one
could leave one’s home for a particular activity, the enumeration of essential activities set forth in Executive
Order 20-16 had to be “read in conjunction with previous executive orders responding to the COVID-19
pandemic” because “[a]ny contrary provision in previous executive orders, including Executive Order 20-
15 … is superseded by this order.” See Executive Order 20-16 (March 28, 2020). Days later, Executive
Order 20-18 “rescinded and replaced” Executive Order 20-14 and established still more-restrictive mass
gathering requirements; the new order required that it “be read in conjunction with previous executive orders
responding to the COVID-19 pandemic” and that “[a]ny less restrictive provision in previous executive
orders is superseded by this order” but gave no further indication of which provisions of prior orders
survived, which were superseded, and which might operate in conjunction with provisions in the new
executive order. See Executive Order 20-18 (dated April 7, 2020). Executive Order 20-24 then extended
Executive Order 20-16 “in its entirety” through May 3, 2020, see Executive Order 20-24 (dated April 16,

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
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As a result, there are significant practical difficulties in determining which provisions of
which of these orders were in effect and which had been suspended or superseded at
any given point in time.
Second, material terms used in the various stay-home and mass-gathering orders are
undefined and may be less precise than terms ordinarily used in criminal statutes, thus
rendering difficult a determination of what conduct is subject to the order and what is
exempt. Even a term as fundamental as “mass gathering” has been redefined and means
something materially different in more recent orders than it did in earlier orders.150
Consider, for example, the broad exemptions to restrictions on citizens’ mobility set forth
in the Kansas Essential Functions Framework, which throughout most of the COVID-19
emergency has been a key determinant of the purposes for which a person could lawfully
leave home or gather with others.151 Exempt from those restrictions were purposes such
as providing cable access network services, distributing electricity, conducting elections,
and exploration and extraction of fuels, all of which were undefined. Recognizing this
imprecision, a mechanism was established by which a business uncertain whether it
performed an essential function and thus was exempt from the stay-home provision could
2020), and the next day Executive Order 20-25 rescinded the most-recent previous mass-gatherings order,
Executive Order 20-18, and replaced it with new restrictions on mass gatherings that also were to be “read
in conjunction with previous executive orders responding to the COVID-19 pandemic—including Executive
Order 20-16” and again providing that “[a]ny less restrictive provision in previous executive orders is
superseded by this order,” without further specifying what might constitute a “less restrictive provision.” See
Executive Order 20-25 (dated April 17, 2020). The state of disaster emergency then expired on May 1, and
all existing order thus became null and void by operation of law. For that reason, executive order 20-28 re-
issued by reference some, but not all, previous executive orders, although the stay-home order (Executive
Order 20-16) and the most recent mass gatherings orders (Executive Orders 20-16 and 20-24) were
extended only through May 3. See Executive Order 20-28 (dated April 30, 2020). Executive Order 20-29
provided that the prior stay-home and mass-gathering orders (Executive Orders 20-16, 20-24 and 20-25)
were “no longer in effect” after May 3, replacing them with new restrictions on mass gatherings and
businesses, education, activities and venues, while still requiring that the requirements of the new order
“be read in conjunction with other executive orders responding to the COVID-19 pandemic that are still in
effect and supersedes any contrary provisions of previous orders.” See Executive Order 20-29 (dated April
30, 2020). Executive Order 20-31 rescinds and replaces Executive Order 20-29 but also requires the
provisions of Executive Order 20-31, including mobility restrictions, be “read in conjunction with other
executive orders responding to the COVID-19 pandemic that are still in effect and supersedes any contrary
provisions of previous orders.” See Executive Order 20-31 (dated May 14, 2020). Five days after Executive
Order 20-31 was issued, it was rescinded and replaced by Executive Order 20-34, which states it also
should be read in conjunction with prior orders “that are still in effect and supersedes any contrary provisions
of previous orders.” See Executive Order 20-34 (dated May 19, 2020).
150 Compare Executive Orders 20-18 and 20-25 (defining “mass gathering” as “any planned or
spontaneous, public or private event or convening that will bring together or is likely to bring together more
than 10 people in a confined or enclosed space at the same time”) with Executive Orders 20-29 and 20-31
(defining “mass gathering” as “instances in which individuals are in one location and are unable to maintain
a 6-foot distance between individuals … with only infrequent or incidental moments of closer proximity”).
See also Executive Order 20-34 (increasing mass-gathering limit to 15 individuals but otherwise maintaining
revised definition of “mass gathering”).
151 See Executive Order 20-15, Executive Order 20-16, Executive Order 20-24, and Executive Order 20-
29. Other executive orders regarding mass gatherings include a list of exempt activities or facilities that
were apparently considered essential by the governor. See EO 20-04; 20-14; 20-18.

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
Erickson, Humphries, Landwehr, Wasinger, and Williams
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contact a government official for an individualized determination,152 a procedure quite
unusual in determining who may be subject to criminal liability under a statute and that
may lend itself to arbitrary or discriminatory enforcement. Similar issues arising from a
lack of definition persist. Thus, prosecutors considering criminal enforcement of these
orders under authority of K.S.A. 48-939 should carefully consider whether both prongs of
the vagueness analysis are satisfied.
5. 	Does the emergency order impermissibly burden constitutional or statutory
rights?
An emergency order is not lawful if it impermissibly infringes on federal or state
constitutional rights or on applicable statutory rights. As one federal court recently
expressed the principle, “There is no pandemic exception to the Constitution of the United
States.”153 While governments generally are afforded significant latitude to respond to
emergencies,154 constitutional and statutory rights are not suspended and emergency
restrictions may not impermissibly burden fundamental rights nor may they be applied or
enforced unevenly or unfairly.155 Thus, even during an emergency—perhaps particularly
then—prosecutors should carefully determine whether applying a particular emergency
order to a particular defendant by means of criminal prosecution under K.S.A. 48-939
would violate the defendant’s constitutional or statutory rights. Neither benevolent
intentions by the government, nor public fear and discontent during an emergency, nor
public support for a government action can save an unconstitutional governmental
intrusion on the rights of citizens.156
The current COVID-19 response has required unprecedented use of emergency powers
under K.S.A. 48-924 and K.S.A. 2019 Supp. 48-925. Never before have all Kansans been
subject for an extended time to such intrusive restrictions ordered by their government.
Under various emergency orders, it became a crime for Kansans to leave home without
government approval, to gather more than 10 people at a time except for government-
152 See Executive Order 20-16 paragraph 9(b). The Kansas Division of Emergency Management issued
guidance seeking to clarify Executive Order 20-16. See EO 20-16 -1 Guidance – Essential Activities and
Essential Functions; EO 20-16-2 Guidance Clarifying that Restaurants and Bars May Not Reopen for Dine-
In Service, available at https://governor.kansas.gov/essential–functions-guidance/ (last accessed May 12,
2020).
153 Berean Baptist Church v. Cooper, No. 4:20-CV-81D (E.D.N.C. May 16, 2020).
154 See, e.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905) (upholding mandatory vaccination
requirements).
155 See First Baptist Church, 2020 WL 1910021 (granting temporary restraining order to prevent
enforcement of governor’s emergency order found likely to unconstitutionally burden free exercise of
religion).
156 Well-intended or popular emergency actions taken during times of crisis have produced some of liberty’s
great historical errors. See, e.g., Korematsu v. United States, 323 U.S. 214 (1944) (upholding presidential
executive order during World War II requiring Japanese-Americans to move into relocation camps),
Youngstown Sheet & Tube Co. v. Sawyer, 43 U.S. 579 (1952) (reversing presidential executive order during
Korean War directing Secretary of Commerce to seize and operate steel mills), Hamdan v. Rumsfeld, 548
U.S. 557 (2006) (invalidating military commission procedure used in connection with detention of alleged
terror suspect).

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
Erickson, Humphries, Landwehr, Wasinger, and Williams
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approved purposes, or to operate businesses or organizations without government
approval. Quite obviously, these sorts of restrictions burdened fundamental rights — such
as religion,157 assembly,158 and movement159 — that are constitutionally protected.
In general, the United States Constitution “specially protects those fundamental rights and
liberties which are, objectively, deeply rooted in this Nation’s history and tradition.”160
State actions that “impinge on [fundamental] personal rights protected by the [U.S.]
Constitution” are “subjected to strict scrutiny” as to their validity.161 The strict scrutiny test
typically is described as follows: “[T]the Government must demonstrate that it is the least
restrictive means to achieve a compelling governmental interest.”162 State constitutional
or statutory limits163 also may apply to constrain the use of emergency orders.
To date nationwide, legal challenges to emergency orders have alleged unlawful
infringement on religious rights, free speech rights, and assembly rights, among others.
Courts have struck down some orders as unconstitutional164 and upheld others.165 In
Kansas, the only constitutional challenge to date of a governor’s emergency order
succeeded166 as did a constitutional challenge to a local order.167
Before filing charges under authority of K.S.A. 48-939, prosecutors should carefully
determine the appropriate level of scrutiny that would adhere and analyze the application
of the particular order accordingly.
Conclusion
For the reasons set forth above, we conclude that several unique legal hurdles exist in
any criminal prosecution for violation of an executive order under authority of K.S.A. 48-
157 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) (strict scrutiny applies
to burdens on religion unless neutral and generally applicable).
158 Nat’l Ass’n for Advancement of Colored People v. State of Ala. ex rel. Patterson, 357 U.S. 449, 460-62
(1958).
159 Shapiro v. Thompson, 394 U.S. 618 (1969) (recognizing fundamental right to travel).
160 Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (citations and quotation marks omitted).
161 City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).
162 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 749 (2014) (Kennedy, J., concurring) (citation and
quotation marks omitted).
163 See Memorandum from Attorney General Derek Schmidt to Kansas Prosecutors and Law Enforcement
(Addendum 1), April 8, 2020, available at https://ag.ks.gov/docs/default-source/documents/addendum-1-
to-law-enforcement-duties-and-authorities-memo.pdf?sfvrsn=7a60ac1a_2 (last accessed May 6, 2020).
164 Berean Baptist Church, No. 4:20-CV-81D (finding likelihood of success on the merits and granting a
temporary restraining order); Maryville Baptist Church, Inc. v. Beshear, No. 20-5427, slip op. at 10 (6 th Cir.
May 2, 2020) (enjoining state from enforcing orders prohibiting drive-in church service); Tabernacle Baptist
Church, Inc. of Nicholsville, Ky. v. Beshear, No. 3:20-CV-00033-GFVT, slip op. at 12 (E.D. Ky. May 8, 2020)
(granting statewide temporary restraining order enjoining the state from enforcing the prohibition on mass
gatherings with respect to in-person religious services).
165 See, e.g., Friends of Danny DeVito v. Wolf, No. 68 MM 2020, 2020 WL 1847100 (Pa. Apr. 13, 2020).
166 See First Baptist Church, 2020 WL 1910021 (TRO entered April 18, 2020, emergency order withdrawn).
167 Taylor v. Allen, No. 2:20-CV-2238-HLT-ADM (D. Kan. filed May 10, 2020) (local order withdrawn).

Mr. Keith E. Schroeder, Senator Richard Hilderbrand, and Representatives Arnberger,
Erickson, Humphries, Landwehr, Wasinger, and Williams
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939. Because this statute is unusual, we recommend prosecutors and law enforcement
who may be considering criminal enforcement actions under authority of K.S.A. 48-939
proceed with caution and deliberation to ensure all applicable requirements for bringing
and sustaining criminal charges are satisfied. We specifically recommend no criminal
charges be filed until a prosecutor has exercised due diligence in addressing the
questions presented in this opinion, specifically in Question 4 above, and is satisfied that
the particular order at issue is lawful and may be lawfully applied to the defendant.
We also recommend the legislature carefully review the KEMA and consider reforming
any provisions that are constitutionally suspect, clarifying any provisions that are
ambiguous, ensuring the statute properly limits delegated powers, and ensuring a
sufficient mechanism exists for effective and ongoing oversight of the executive’s exercise
of statutory emergency powers. The legislature also should by law confirm the existence
of a lawful state of disaster emergency at least since April 30, 2020, and enact an
unclouded method for future extensions of a state of disaster emergency during the
current COVID-19 pandemic.
Sincerely,
/s/Derek Schmidt
Derek Schmidt
Kansas Attorney General
/s/Athena Andaya
Athena Andaya
Deputy Attorney General
/s/AnnLouise Fitzgerald
AnnLouise Fitzgerald
Assistant Attorney General
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