City mask ordinances are constitutional, Kansas attorney general says

Wichita’s mask ordinance is allowed by the Kansas Constitution, according to a statement from the Kansas Attorney General’s Office.

Attorney General Derek Schmidt has dismissed the idea that the governor’s mask mandate is enforceable by police. But Tuesday his office confirmed that cities have the authority to enforce mask ordinances.

“To the best of our knowledge, the Legislature has not enacted state law that prohibits cities from enacting local ordinances that regulate the wearing of facemasks,” Kansas Attorney General’s Office spokesman Clint Blaes said in a statement.

The statement comes as other cities across Kansas — such as Salina and Winfield — pass ordinances requiring masks in public. It also delivers a crushing blow to one line of argument used by opponents of local mask mandates who say city mask ordinances are unenforceable.

The Wichita City Council passed an ordinance Friday requiring masks be worn in public following a surge of COVID-19 cases in Sedgwick County. Violators may be fined $25-$100.

Wichita Mayor Brandon Whipple said he’s pleased, but not surprised, that the attorney general’s blessed the city ordinance.

“What this does is it allows cities to get back to the point of this whole thing, which is protecting the community during a public health crisis,” he said.

Whipple said cities, which have largely taken a backseat to state and county governments, are being thrust into a leadership role on the pandemic response as state and county government sidestep controversial decisions.

“Everything got off track when the Legislature decided to politicize the pandemic,” Whipple said. “After that, county commissioners across the state decided to follow the Legislature’s lead to score political points to try to help their re-election campaigns.

“Wichita and other cities, luckily, don’t have an election year right now, so we can actually focus on public health instead of politics.”

The three council members opposed to the ordinance — Bryan Frye, James Clendenin and Jeff Blubaugh — said Friday that the mask ordinance was passed on shaky legal ground and that they wanted to wait for Schmidt to weigh in before making a decision.

A majority of the council disagreed with that argument. Whipple, Cindy Claycomb, Becky Tuttle and Brandon Johnson voted to approve the measure after City Attorney Jennifer Magana assured them ordinance was lawful.

On Tuesday, Schmidt’s office clarified the city’s legal standing.

“As we explained last week, the Legislature has limited the governor’s use of emergency powers under the Kansas Emergency Management Act. Under those new limitations, counties may opt out of the governor’s emergency orders by adopting less-stringent alternatives. Cities do not have authority to enforce the governor’s orders, including the order regarding facemasks.

“However, under the Kansas Constitution, cities do have home rule authority to legislate locally regarding their own affairs. Under that authority – which is different from the Kansas Emergency Management Act – cities generally may adopt their own ordinances on any subject unless the Legislature or some other provision of law prohibits them from doing so. To the best of our knowledge, the Legislature has not enacted state law that prohibits cities from enacting local ordinances that regulate the wearing of facemasks.”

Blubaugh had wanted the council to hold off on passing an ordinance Friday until it could be reviewed by the attorney general.

”This time the attorney general’s office backed (Magana) up and it appears the right decision was made, but I still want to ensure we’re within the boundaries of the law,” Blubaugh said.

He said members of the Legislature told him before Friday’s meeting that the city couldn’t legally take action on public health issues.

“From what I had been instructed by a couple of members of our state Senate that had messaged me the night before, (they) told me that the powers to do anything for health reasons resides, under prior state law, with the counties and the state health offices,” Blubaugh said. “I had been led to believe it was not correct and that’s why I wanted a second attorney’s opinion on it and of course the attorney general was the one to go to.”

Blubaugh said he remains uncomfortable with the process by which the council gets legal advice.

“We do not have an attorney who represents the City Council,” Blubaugh said. “We have an attorney that works for the city manager.”

Blubaugh said he’s asked Magana in the past if he could have a confidential conversation with her that wouldn’t be shared with City Manager Robert Layton.

“She flat out told me no,” he said.

He also said he’s uncomfortable with the amount of information he’s getting on coronavirus in the community.

The city manager and mayor, along with several county officials, have a weekly call with area hospital officials. Blubaugh said he thinks all council members should be on that call.

“We should all be getting the same information,” he said.

That argument has been made across the street at the County Commission as well.

Commissioner David Dennis particularly has objected numerous times because only Chairman Pete Meitzner and Vice Chair Lacey Cruse get to be on the hospital calls.

If the call is opened to additional commissioners, it would then be a public meeting and would have to be open to anyone wanting to watch.

Whipple, who has been in on the weekly hospital calls, said hospital leaders are concerned about the recent spike in cases and think a mask mandate is the best way to slow the spread of the coronavirus without closing down businesses or ordering people to stay at home.

“We shutdown our economy about two months to try to fight COVID, but since we’ve reopened our numbers are higher than they’ve ever been. If that doesn’t start going down, we paid that price for nothing, we lost all that ground.”

This story was originally published July 8, 2020 at 9:59 AM.