Court order eases concerns about emergency management law

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A new administrative order issued by the Kansas Supreme Court erases some of the concerns voiced about how the state’s new emergency management law is applied, lawmakers say.

The state Supreme Court late Tuesday aftenoon issued an order clarifying how government actions related to COVID-19 can be challenged in court under the new law passed by the Legislature.

Lawmakers believe the new administrative order will settle some of the issues raised by a Johnson County judge’s order that apparently went further than what lawmakers intended when the legislation was enacted last month.

“It would seem what the Supreme Court has done satisfies the intent of SB 40,” said Republican state Sen. Kellie Warren, chair of the Senate Judiciary Committee.

Kellie Warren

“It would seem that with a less onerous and burdensome procedure that the Kansas Supreme Court has set forth, it does address some of those concerns raised by legislators regarding other district court administrative orders,” she said.

Bur Warren said she still had lingering concerns about how the law is being used by local governments that aren’t covered by the Supreme Court’s order.

The Supreme Court’s order supersedes one that 10th District Chief Judge Thomas Kelly Ryan issued setting new requirements for anyone bringing a petition under the new law.

The law now requires governments to show that emergency orders were narrowly tailored to respond to an emergency in the least restrictive way possible.

However, Ryan’s order turned the burden of proof upside down, lawmakers said.

It required the aggrieved parties to specify how the order in question could have been more narrowly tailored to respond to the emergency addressed by the government order.

The judge also required petitioners to show how their burden was substantially different from the burden on persons or businesses similarly situated but weren’t part of the complaint.

Marla Luckert

The Supreme Court’s administrative order signed by Chief Justice Marla Luckert details in great specificity how the petitions under the emergency management law need to be filed without going into explaining how the law should be interpreted.

For instance, the petition must clearly state in the case caption or document title that the petition is filed under 2021 Senate Bill 40.

The person filing the petition must state their name or their attorney’s name plus an address, email address, telephone number and fax number (if available).

The petitioner must identify the county in which the challenged action was taken, or the name of the county where the order was issued.

The petitioner must identify the body or entity whose decision, action or order
the petitioner is challenging.

Republican state Rep. Brad Ralph of Dodge City believes the new order helps alleviate some of the issues raised by the Johnson County judge.

“I’m satisfied right now with the Supreme Court exercising its administrative power…this procedure should be adequate and appropriate for anybody that wants to avail themselves of that,” Ralph said.

Ralph would not second guess the Johnson County judge’s order but added that there “may have been some misunderstanding” about the burden of proof.

“Not knowing enough about the specifics, I certainly wouldn’t say the judge was out of bounds,” Ralph said.

Warren, however, believes there are still issues that need to be addressed in the emergency management law.

She said there are issues that need to be addressed with local governments that are not bound by the court’s administrative order.

Under the law, local school boards are required to conduct a hearing within 72 hours upon receiving a complaint about an emergency order.

The board is required to issue a decision within seven days after the hearing is conducted.

The law allows an aggrieved individual to appeal the school board’s decision within
30 days to district court.

A judge has to hold a hearing within 72 hours of receiving a petition for such action.

A judge has seven days to rule. If the court doesn’t issue a ruling in seven days, the petitioner would be granted a judgment in their favor.

A similar procedure is allowed for city, county and state governments, but someone can go straight to court and get a hearing within 72 hours and a decision in seven days.

Warren has concerns about when the clock starts ticking on the 72 hours when a school district is required to hold a hearing for an aggrieved party.

Warren wants to tighten up some of those time requirements, spelling out specifically how the 72 hours and the seven days are to be calculated.

She said there are questions about when the clock starts running, whether that’s when a request for hearing is filed with the clerk of the board or when it’s delivered to members of the board.

Warren also wants to change the law in such a way that it would guarantee that local school boards would hold hearings from aggrieved parties.

She said there are reports that school boards are hiring third parties to conduct hearings, something that also would be prevented under her plan.

“It is still of concern if local governing bodies aren’t conducting the SB 40 hearings in front of the elected body,” she said.

However, Republican House members aren’t showing a lot of interest in reworking the emergency managment law during the upcoming wrapup session.

They generally say it’s too soon to recalibrate a law that is still so fresh.

“Trying to change things now is a little early,” said Republican state Rep. Fred Patton, chairman of the House Judiciary Committee.

Ralph, who served on the conference committee that developed the law with Patton and Warren, echoed a similar view.

“As is the case with a lot of laws, when you don’t allow them to have some time to mature, then you’re simply going to add to the confusion and uncertainty,” he said.

“Right now, there’s some uncertainty among some of the parties, some justified, some not,” Ralph said.

“The more that we tinker with that, the more we’re going to cause people to continue to be uncertain,” he said.