AG warns Legislature to take final votes in person at meetings in Topeka, or risk legal challenge

Legislators must meet in capital city — not necessarily the Capitol

KKansas Attorney General Derek Schmidt agreed to delay Sedgwick County District Court action on a lawsuit seeking damages from the state for Gov. Laura Kelly's coronavirus shutdown orders. The pause will give the 2021 Legislature a chance to consider measures to compensate businesses. (Sherman Smith/Kansas Reflector)
Kansas Attorney General Derek Schmidt joined Republican attorneys general in 21 other states pushing the federal government not to use the social cost of carbon in making regulatory decisions. (File photo by Sherman Smith/Kansas Reflector)

TOPEKA — Attorney General Derek Schmidt’s advisory opinion warns of potential constitutional challenges if the Kansas House or Senate turned to anti-coronavirus precautions during the 2021 legislative session that involved convening lawmakers outside the city of Topeka or taking final-action votes without a quorum of representatives or senators present in one room.

Questions raised due to tenacity of the COVID-19 pandemic revealed a requirement in the Kansas Constitution commanding the Legislature to meet in the capital city, but not necessarily at the Capitol building. Indeed, when this constitutional provision was adopted in 1861 the Capitol hadn’t been built.

The legal opinion said preliminary work on a bill, including committee hearings and voting on amendments to a bill, could occur through alternative rules established for social distancing reasons. However, the AG warned all final votes on a bill had to involve the simultaneous physical presence in one room of a majority of the House or Senate. There must be a quorum in that place, meaning at least 63 representatives or 21 senators.

The Kansas attorney general's advisory opinion says the Kansas Legislature must meet in the city limits of Topeka and take all final action votes in the House and Senate while physically gathered in a place. (Screen shot/Kansas Reflector)
The Kansas attorney general’s advisory opinion, in response to concerns about COVID-19, says the Kansas Legislature must meet in the city limits of Topeka and take all final action votes in the House and Senate while physically gathered in a place. (Screenshot/Kansas Reflector)

“Another one of those unusual never-saw-it-coming questions that’s presented by COVID,” Schmidt said in an interview Tuesday. “How does the state constitution’s requirements for the Legislature meeting … square with the desire by at least some to not physically come together? Could the Legislature, for example, meet by Zoom or vote remotely?”

The analysis sought by Rep. Mark Samsel, a Wellsville Republican, was based on possibility of the Legislature considering a rule allowing the House and Senate to meet while members stayed in their statehouse offices or while gathered in a large auditorium in Topeka rather than on the House and Senate floors in the Capitol.

In the opinion, the attorney general said the state’s constitution granted the Legislature broad authority to determine rules of its proceedings, but that flexibility must yield to the constitutional mandate to “meet” in a “place.” The constitution defined and the Kansas Supreme Court explained a quorum was needed to transact binding action and that it be “contemporaneously and physically present for either house of the Legislature to pass a bill on final action.”

Schmidt’s warning: “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.”

This was affirmed in the 1950s when the Legislature considered departing from basic procedural requirements in the event an enemy attack rendered it impractical to physically gather in Topeka.

“While we recognize that a more-permissive interpretation of our constitution’s requirements may be plausible,” the opinion says, “departure from the well-established practice of physically gathering together a quorum in order to vote seems likely to invite legal challenges attacking the validity of legislation passed using novel procedures. We cannot provide assurance that those challenges would fail.”