As legislators prepare to return to Topeka for the 2021 session and safely deal with COVID-19, an opinion from Kansas Attorney General Derek Schmidt advises them to meet in-person to avoid legal challenges.

The AG opinion says bills passed in virtual meetings face potential court challenges and invalidation. Schmidt penned the opinion at the request of Rep. Mark Samsel, a Wellsville Republican. In it, the Attorney General notes that the Kansas Constitution requires legislators to meet in the capital city.

“At a minimum, a quorum of the Senators or Representatives must be together in a room to constitute a meeting of that house and to vote on final action on a bill,” the opinion reads. 

Samsel asked the Attorney General to consider whether the Legislature could convene in a larger facility within the city limits of Topeka. He also asked if a quorum of legislators must be physically present to pass a bill.

“We think the answer to each of your questions is yes,” Schmidt and Assistant Attorney General AnnLouise Fitzgerald wrote in a letter in response to Samsel.

Analysis limited to Constitution, court interpretations

The AG’s Office limited its analysis to the Kansas Constitution. The Kansas Constitution requires lawmakers to meet in the capital city but not in the Capitol building, though some statutes require lawmakers to meet in chambers for specific purposes. For instance, the statute demands that legislators-elect meet in their respective chambers on the first Monday in December. They convened on Dec. 7 to elect leadership as statutorily prescribed.

Lawmakers should meet in-person to avoid having bills invalidated by the courts, the opinion advises.

“At a minimum, a quorum of the Senators or Representatives must be together in a room to constitute a meeting of that house and to vote on final action on a bill,” it reads. “A quorum is only established when a majority of the members of the Senate or of the House, respectively, are present in the same room. Bills passed by a procedure inconsistent with requirements of the Kansas Constitution may be subject to challenge in court and will be invalidated if found constitutionally infirm.”

Schmidt’s cautious approach seems to take into account the Kansas Supreme Court’s proclivity to deviate from established law to get to the desired outcome.

“…we turn to your specific question, which requires us to determine what constitutes a constitutional “meet[ing~” of the Legislature during which a bill may be passed.
Although we are aware of no cases in which Kansas courts have addressed that specifically,
we observe in general that the Kansas Supreme Court has invalidated statutes by interpreting constitutional provisions to have meaning not readily apparent from their plain text.”

Most recently, the Kansas Supreme Court discovered a right to abortion in the constitution that they tied to the ‘right to pursue happiness’ clause.  The court has also twice ordered the Legislature to increase school funding while ignoring the 1994 precedent in USD 229 v. State of Kansas, where the court said the constitution calls for a system of finance (like a formula) rather than a specific amount of money.

Session includes 165 lawmakers, hundreds of staff and lobbyists

There are 165 members of the Kansas Legislature, but making the session work includes hundreds of others including legislative staff, lobbyists, and service staff. Alan Cobb, President of the Kansas Chamber, said the health concerns are valid.

“If you want a productive legislative session, then the necessary precautions need to be in place to help keep everyone safe – just like what Kansas businesses have done to keep their employees and customers safe during this pandemic. If they don’t, then there is the chance people will be quarantined, and the Legislature won’t be able to act. None of us want a repeat of last spring when the legislative session abruptly ended,” he said.

COVID cases have been rising over the last two months but fortunately, the survival rate is holding steady at 98.9% overall.  About 45% of deaths attributed to COVID have occurred in nursing homes and the survival rate outside of nursing homes is 99.4%.

Lawmakers can change rules and customs, the AG’s opinion notes. However, in the letter to Samsel, the attorney general advises that lawmakers should be reluctant to depart from well-established procedures for enacting bills.

“While we cannot say with certainty that novel forms of casting votes on passage of bills are forbidden by our Constitution, we can say with a high degree of confidence that the most legally defensible interpretation of this unique constitutional requirement for the Legislature to ‘meet’ requires a contemporaneous physical gathering together of legislators to pass a bill,” the attorneys write.

They admit that the Constitution’s authors could not foresee the ability to communicate and debate virtually, but still conclude that a legislative quorum requires members physically present in the same room.

To depart from normal legislative procedures, lawmakers need to pass a constitutional amendment. And voters then must agree to the amendment. 

Lawmakers can meet outside of Topeka if under enemy attack

Schmidt says there is similar precedent for an amendment.

During the Cold War, Kansas lawmakers feared a nuclear attack on Topeka. They passed and Kansans approved a constitutional amendment allowing the legislature to convene outside of Topeka during disasters “caused by enemy attack.” According to the attorney general office, the amendment is specific and implies that there is no exception for other disasters, like a pandemic.

“…If the Legislature already had authority to depart from its then century-long practice of requiring the contemporaneous physical gathering together of a quorum of legislators in order to conduct legislative business such as passing bills, then the provisions of the 1959 constitutional amendment that authorize departure from ordinary procedural requirements would have been unnecessary,” they write.

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