Reno County DA won’t file charges for violations of coronavirus executive orders

A Hutchinson prosecutor says he will not file criminal charges against people who violate coronavirus-related executive orders issued by the governor.

Reno County District Attorney Keith Schroeder said Thursday in a news release that his office will not prosecute any cases based on executive orders issued after May 1. He attributed the decision to guidance from Kansas Attorney General Derek Schmidt.

The lack of prosecution appears to extend to all orders issued since the emergency health disaster declaration on March 12. Schroeder said Gov. Laura Kelly has apparently failed to comply with a legal requirement for distributing proclamations, meaning all of her executive orders related to the COVID-19 pandemic “cannot be legally enforced in a criminal courtroom.”

Schmidt’s legal opinion issued Wednesday calls the legality of the disaster declaration granting her broad emergency powers “doubtful.” He suggested the governor cannot issue “rolling proclamations” of emergency for the same event.

Kelly issued a disaster declaration at the start of May after the previous one expired.

Schroeder was one of several public officials who had asked the attorney general for a legal opinion on the governor’s executive orders. Schmidt said in a news release that Schroeder specifically requested an analysis of criminal prosecutions to help local authorities “avoid any unlawful arrests or convictions stemming from the disputed nature and authority of the Governor’s Executive Orders.”

The district attorney said his legal concerns were confirmed by Schmidt.

“While I have challenged the legal and constitutional authority for the Governor’s recent statewide public health orders, I do not mean to criticize the medical or public safety rationale that motivated them,” Schroeder said in a statement. “Regardless of whether local government tells us what we can and can’t do, it is still our duty as citizens to act in a responsible manner to protect each other.”

The district attorney said his office will enforce orders from the Reno County public health officer Nicholas Baldetti as long as the local emergency declaration remains in effect.

“Contrary to some public opinions expressed on social media, the government does have permissible Constitutional authority to take ‘temporary’ necessary measures in order to meet a genuine public health emergency,” Schroeder said, citing Jacobson v. Commonwealth of Massachusetts, a 1905 Supreme Court case involving compulsory vaccination laws. “Our basic constitutional rights to freedom do not include the liberty to expose the community to communicable disease.”

“I am required to enforce the law in my Judicial District,” Schroeder continued. “It is a crime to violate a temporary state or local emergency health disaster order. (K.S.A. 48-939). The orders are essentially temporary laws. To be valid for enforcement purposes, the orders must be both constitutional and authorized by legislatively enacted statutes. As District Attorney, I will not prosecute any state or local emergency health disaster order that is without valid constitutional and statutory authority.”

Schroeder said he has “been unable to establish that the Governor ever complied” with a legal requirement that proclamations be filed with emergency management officials, the secretary of state and county and city clerks.

Schroeder’s announcement came as the Legislature met on Thursday, where lawmakers discussed limits on Kelly’s emergency powers. Schmidt had recommended that lawmakers “by statute expressly approve the state of disaster emergency.”

This story was originally published May 21, 2020 at 4:33 PM.