TOPEKA – (July 10, 2020) – Kansas Attorney General Derek Schmidt today issued the following statement regarding the numerous inquiries his office is receiving from citizens throughout the state seeking information about what public-health requirements currently are in effect and how those requirements may affect them:
“The rapid flurry of public-health regulations and orders adopted recently by the state, individual counties, and various cities has left many Kansans understandably confused and struggling to understand what rules currently apply to them. Sometimes, the rules change from one day to the next. This problem appears limited to a relatively few local jurisdictions because, in a large majority of counties, all levels of government are acting in harmony – for example, either the state, county and perhaps city all require wearing masks in public or none does – so the requirements for citizens are uniform and consistent within those counties. But in a few local jurisdictions – at this time, most notably Sedgwick County/Wichita – the state, county and/or city have adopted separate requirements that may differ from each other in what precisely they require or how they are enforced.
“Many Kansans have contacted the attorney general’s office seeking help in navigating this unusual legal maze. Unfortunately, as legal counsel for the State of Kansas, the attorney general’s office cannot act as a private attorney by giving legal advice to individual citizens, groups, businesses or organizations about what requirements may or may not apply to their particular circumstance – especially when requirements are imposed locally by county or city officials.”
In an effort to be helpful, the attorney general’s office offers the Frequently Asked Questions below, which reflect some of the most-common questions our office is receiving. These FAQs are intended to provide general, plain-English information that may be useful to citizens or organizations with questions about current public-health government requirements during the COVID-19 response. These FAQs are not intended to provide comprehensive information nor to constitute legal advice about how various laws, ordinances, orders or other government actions may apply in any particular circumstance or any specific jurisdiction. Citizens or organizations seeking legal advice to rely upon should consult their own legal counsel.
FAQ #1: Why is it so difficult to figure out what the legal requirements apply to me regarding wearing masks or other COVID-19 related requirements?
Multiple levels of government, governing bodies and/or officials may be exercising separate legal authorities at the same time, each trying to address the same or a similar COVID-19 issue such as the wearing of masks. For example, the governor has authority to issue legally binding emergency orders under the Kansas Emergency Management Act and has done so regarding masks, but the KEMA also authorizes county commissions to weaken or opt out of the governor’s orders within their county and many counties have done so. In counties where the governor’s order is in effect, violation of the order is not a crime that may subject an offender to arrest by the police or sheriff or to imprisonment upon conviction – rather, it is a civil wrong enforceable by the local county or district attorney, who is authorized to file a lawsuit against a violator and seek a court-ordered civil penalty and/or an injunction to stop the violation.
The Secretary of Health and Environment also has separate authority granted by different state statutes to issue legally binding public health orders, although to date he has not exercised that power in ways that have gathered public attention. Violation of the Secretary’s orders may be a crime in some situations.
Local health officers are granted authority by still another set of state statutes to issue their own legally binding public health orders that generally apply within their county, although in at least some cases state law authorizes county commissions to modify or overturn a local health officer’s order. These local orders may have the force of law, and violating them may in some situations be a crime – although not all of these orders are necessarily subject to criminal enforcement.
Cities are granted the power of “home rule” directly by the Kansas Constitution. This power authorizes cities to govern their local affairs by adopting local ordinances governing any subject not otherwise forbidden by a higher law. Of course, city ordinances may not violate the Kansas or federal constitution, nor federal law, nor state law. The penalties for violating a city ordinance are determined by the city that enacted it, within limits set by state law.
Counties do not have constitutional home rule but may nevertheless have authority to adopt ordinances or orders that regulate certain matters relevant to COVID-19.
FAQ #2: If I want more information about specific requirements in my area and potential penalties for violations, who should I ask?
The governing entity that imposed the requirement is likely the best source of information about that requirement, including any applicable age, disability or health exemptions. So questions about city requirements should be directed to city officials and questions about county requirements to county officials. Regarding state requirements, questions about requirements imposed by the governor may be directed to the governor; however, questions regarding how the governor’s orders are being implemented and enforced locally may be better directed to county authorities. Ultimately, the responsibility for actually enforcing these various state, county or city orders and requirements probably falls to one or more of the following: Your local county or district attorney, your local city attorney, or your local police department or sheriff’s office.
FAQ #3: If I think a requirement should be changed, what can I do?
If you want a current requirement changed, communicating your request to the governing entity that imposed the requirement -- most likely the county commission or city governing body -- is likely the best option. Ultimately, all of these various authorities are created or controlled by state law, which is enacted by the Legislature and the governor, so if you want the law to be different in the future, you may want to discuss that with your state legislators. Be aware the Legislature is not currently scheduled to reconvene until January.
FAQ #4: Regarding facemasks in particular, what is the easiest way to be sure I’m complying with any state or local legal requirements?
Wearing a facemask while at indoor public places or outdoor places where you are not able to practice social distancing in accordance with public health recommendations is likely to keep you in compliance with any state and local mask requirements.