Kansas Republicans target COVID-19 restrictions from state, counties, cities and schools

Titus Wu
Topeka Capital-Journal
Sen. Molly Baumgardner, left, talks Thursday with Kansas Senate President Ty Masterson before a committee hearing. Both are playing a major role in shaping Kansas Emergency Management Act legislation.

Long before January, Kansas Republicans already made it known that they wanted to rework the state's emergency management laws to adapt to a long-term emergency like the current pandemic.

They especially made it clear that they were aiming to gain oversight over the Democratic governor's emergency powers.

“I don’t believe there was any intent coming from this committee to broaden the authority of the governor,” Rep. Stephen Owens, R-Hesston, previously said. “I believe it was the intent of this committee ... to further regulate said authority, not to enhance it.”

But state legislators will likely pass lengthy bills backed by party leadership doing much more than that. Any COVID-19-related orders from the county, city or school levels would also face additional regulations and hurdles, some of which could be seen as nearly impossible to overcome.

Many of the details could still change, as the House is poised to make big changes to its first draft on Monday. The Senate went through its major revisions Thursday but could still add amendments next week.

Regardless, the intent behind the legislation isn't changing. The Topeka Capital-Journal breaks down the details and how the decision-making came about. 

Oversight over the governor

The legislation, which is being called the Kansas Emergency Management Act bill, has its biggest focus on what the governor can or can't do during an emergency.

Both House and Senate versions of the bill designate a group that must review and approve of any emergency orders the governor wants. The state attorney general also must weigh in and issue a nonbinding opinion.

Both versions have legislative leadership in that group, but the Senate version also adds in more lawmakers and tries to get all congressional districts represented. The group could be expanded further, as many politicians had complained of rural areas not being represented enough in the State Finance Council, the current group with oversight.

The governor can still issue an emergency declaration on her own, but generally, after 15 days, she must go to the Legislature or the group (when lawmakers aren't in session) to get it extended for a specific number of days. In the House version, the group can also decide during the extension whether to allow the governor to continue using her emergency powers.

The Legislature can at any time terminate any disaster declaration or revoke an emergency order.

Much of the aforementioned is the status quo, with the notable exception that Gov. Laura Kelly would seek review of emergency orders before they go into effect rather than after. That brought some concerns.

There are "situations where just every hour and every minute could be of the essence when it comes to saving lives," said Sen. Ethan Corson, D-Prairie Village. 

But Sen. Molly Baumgardner, R-Louisburg, said she finds it doubtful that the attorney general and the oversight group would just be sitting around and taking their time.

"I think the way it is right now (in the bill) provides that appropriate check and balance," she said.

The governor wouldn't be able to issue the same emergency declaration again. But the Senate version allows such for new strains of the virus, for later outbreaks or if the virus transmits itself in new ways.

The governor's executive orders also face other hurdles under the bill that would make issuing them more difficult. For one, if the order spans across multiple counties, senators want Kelly to "narrowly tailor" it to each individual county's conditions or provide a valid reason why it isn't.

Gov. Laura Kelly is perhaps the biggest target in KEMA legislation being pushed by Republicans.

And like it is now, counties can always issue less stringent orders or opt out entirely, though the House version excludes food supply-related orders. That statute is still a thing the executive branch doesn't like.

"If a county commission can override a declaration of a 'public health disaster' on the same event and determine that there is no 'public health disaster', such action can undercut a financial request by the state," said Kansas Department of Health and Environment Secretary Lee Norman.

Speaking of which, lawmakers are also seeking more oversight of federal funding flowing into the state due to an emergency.

The governor would face new and old prohibitions on what types of emergency orders she issues, even if the oversight committee agrees. She couldn't alter the criminal code, limit religious activity, seize ammunition, give preference to abortion procedures or restrict a facility's ability to provide medical services, such as banning elective surgeries. 

The ability to restrict religion for virus-related reasons has been a hot topic of debate nationally, when churches fought California over it. The U.S. Supreme Court eventually ruled in favor of churches.

Sen. Mike Thompson, R-Shawnee, added the elective surgeries section, recounting stories of cancer patients who had to put off treatment because of the ban.

"There were doctors that were sitting around literally just playing cards because elective procedures were not coming in,” said Sen. Beverly Gossage, R-Eudora, in support.

Some lawmakers are also intending to prohibit the state from mandating immunizations or deeming any businesses nonessential. 

For the most part, orders issued by the state health department are similarly restricted as those by the governor.

'Aggrieved' persons and local hurdles

Counties can opt out of the governor's emergency orders for the sake of local control. But for counties (and practically anybody else) who want to opt in or establish their own virus-related orders, the state GOP has different ideas, as seen mostly in the Senate version.

Also applicable at the state level, counties and cities can't "substantially burden or inhibit the gathering or movement of individuals or operation of any religious, civic, business or commercial activity, whether for-profit or not-for-profit."

In the Senate's draft, the only exception is if using justification based on "accepted scientific reasons." But religious activity can't be affected, period.

State Sen. Beverly Gossage greets Senate President Ty Masterson from a distance. She added in a provision stripping county health officers from issuing any health orders, only recommendations.

There was a whole debate over that phrase, which is mentioned throughout the Senate bill several times, as senators attempted to define it.

"We don't narrow our scope so that it's a rubber stamp of whatever the CDC says," Thompson said.

Gossage added in a definition, which at first said that scientific data must be based on scientific trials and not any observational studies, expert opinions or anecdotal experiences. Corson objected.

"The reality of this world is we may have to rely on trained folks providing expert opinion,” he said, noting how trials and solid understanding can take time when facing a new disease. Excluding evidence such as "expert opinion" would "leave us paralyzed," he said.

Others agreed, and the exclusions were struck from the definition. 

The most notable hurdle lawmakers want to put on state and local COVID-19 restrictions is the right for any "aggrieved" Kansans to request a hearing in court and/or the governmental body itself to see if the order is necessary. The burden of proof would fall on the government.

A hearing would then have to be conducted or scheduled within 72 hours of receipt of such request. Such a requirement could possibly be time- and resource-consuming if every person feeling aggrieved by an order exercised that right, effectively discouraging any COVID-19 orders.

For the order to stay in place for the person, the city or county has to show "clear and convincing evidence" the order was necessary, reasonable, based on science and intended to reduce the disease's spread, per the Senate version.

In the House's draft, where this mechanism applies just to the governor's executive orders, the state has to show a strict scrutiny standard for orders limiting gatherings, movement or operations. That means showing the order "is narrowly tailored to respond to the state of disaster emergency and uses the least restrictive means to achieve that purpose."

All other executive orders would face a lower standard, showing the order "is necessary to achieve an important interest related to the state of disaster emergency."

Proponents of the KEMA bill thought compensation should go further beyond relief from a COVID-19 order, such as attorneys' fees.

The bill "seems to contemplate that these parents, who are lay people, will just wander into a courtroom, file a petition ... that the court would know this statute exists and give them 72 hours, that these parents would somehow know how to serve the county and get through all the procedural stuff before the hearing," said Ryan Kriegshauser on behalf of the Kansas Chamber. "It's too much to ask of parents without counsel to jump through all that."

Others pointed out the fact that the possibility of closed courts due to a pandemic could affect people's ability to get a hearing.

"What would an aggrieved person do if their final line of review were the district courts, and the courts were closed?" said Sen. Kellie Warren, R-Leawood. "I want to make aggrieved persons provided as much relief as possible." 

Other regulations and schools

For some governmental authorities, there won't even be any order to review. Under the Senate bill, county health officers would be stripped of any authority to issue orders and can only issue recommendations.

Gossage added this provision in, referencing how some small towns have expressed annoyance of county health departments imposing their orders on them.

Health officers such as Gianfranco Pezzino have quit their jobs for reasons such as what some might see as political interference in pandemic-related decisions.

If Republican senators have their way, it isn't just counties and cities that would have to go through hearings with aggrieved persons. Local school boards might have to as well.

While the House still keeps some power with the State Board of Education, the Senate version says only the local school board can make decisions on orders affecting operations of schools — no one else, not even the county or city. 

Jay Hall, of the Kansas Association of Counties, said he fears this would "handicap" county authorities from doing their jobs, as schools are still part of the community.

"Public health officials would lack the ability to prevent the spread of communicable diseases within the county. This is very concerning," he said.

Lawmakers also wanted to make sure that private schools couldn't be closed down by the governor or education officials.

Ultimately, regardless of whatever else is added or changed, the KEMA legislation, if passed, could prompt a legal challenge.

"Does the governor have powers under the Kansas constitution with or without the legislature's consent in times of emergency to save life and property?" asked Rep. John Carmichael, D-Wichita. "I would feel equally uncomfortable answering that question."