The Kansas Legislature passed a bill Tuesday that supporters say sets ups new checks and balances intended to give Kansans more of a voice in how state government responds to public emergencies.
The bill passed 118-5 in the House and 31-8 in the Senate less than 24 hours after a joint House-Senate conference committee crafted a bill limiting the power of the governor, the state health secretary and local public health officers to issue orders.
It also gives Kansans more power to legally challenge emergency orders at all levels of government if they think their rights have been trampled.
The Legislature passed the new emergency management bill about two weeks before the state’s existing emergency declaration expires on March 31. Republicans leaders say they are optimistic Gov. Laura Kelly will sign the bill.
As both chambers passed the bill, Democrats and Republicans agreed there were items they didn’t like but said it was likely they best product they could produce.
The bill implements “more checks and balances providing due process, ensuring the buck stops with elected officials, preventing the closure of businesses and churches by the governor and ending the current mandates,” Republican state Sen. Mike Thompson said.
“Do I wish the bill would go further? Absolutely. I believe the core responsibility of state government is to protect the liberties of people and don’t believe units of governent should impose lockdowns, restrictions and mask mandates we’ve seen in the last year.”
The Shawnee lawmaker said the bill was a step to bringing normalcy back to the state although he conceded he still believes more work needs to be done on the proposed emergency management law.
Over in the House, Democratic state Rep. John Carmichael of Wichita acknowledged that the bill was’t completely to his liking either.
“I think all of us would agree that this is not the bill that we want,” Carmichael said.
“The only problem is that we each want something different,” he said. “There’s a lot in this bill that in my judgment that should not be in this bill.
“Similarly, I know there are many members who wanted additional provisions in this bill that are not in this bill,” he said.
“I am firmly convinced that this is the best we will be able to do.”
The bill would extend the governor’s existing emergency declaration to May 28 although the governor’s executive orders issued related to the COVID-19 pandemic would be revoked on March 31.
The governor has issued more than 60 executive orders since the pandemic began last year. Lawmakers said the governor could reissue those executive orders although they would be now subject to more legislative oversight.
Any new executive orders issued after March 31 would be subject to being revoked by the Legislature or the Legislative Coordinating Council, which is currently made up of seven members of House and Senate leadership.
The bill passed by the Legislature would allow the governor to call a state of emergency for 15 days, which could be extended by the Legislature – or the Legislative Coordinating Council when not in session – for periods not to exceed 30 days.
The law would prohibit the governor from declaring a new emergency related to COVID-19 this year without the approval of five members of the LCC, which the bill expands to eight members by adding the Senate vice president.
Counties would still have the power to adopt rules less stringent than any order issued by the governor.
The bill restricts the power of local health officers, who some lawmakers thought wielded too much power to close down businessess with emergency health orders during the pandemic.
Businesses are now asking the Legislature to provide compensation for closures during the pandemic and one has filed a lawsuit in Sedgwick County asking a judge to force the state to cover its losses.
The bill would require county commissioners to approve any order proposed by the county health officer that mandated face masks, limited business operations, restricted the size of religious gatherings or controlled the movement of the population.
The counties would be required to review any order proposed by the health officer at its next regular meeting – or a specially called meeting – before it could take action on the order.
The bill only allows local school boards to close schools.
It also would dictate that only the governing body of a community college or a technical school could close an institution as well.
The law provides legal recourse for Kansans to go to court if they believe they’ve been aggrieved by the actions of the governor, a local school board, community college or local government with regulations that were too burdensome.
The new bill would give anyone who believes they have been hurt by an executive order issued by the governor the explicit authority to go to court.
They could go to court within 30 days after the executive order was issued and a court hearing would need to be held within 72 hours.
The proposed bill says a judge “shall grant relief” unless the court finds that the executive order was narrowly tailored to respond to an emergency in the least restrictive way possible.
A judge would have 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.
The legal process would be similar for local governments, school boards and communuity colleges as well.
However, the bill would require school boards and community colleges to hold hearings for aggrieved individuals before they could go to court.
The bill also would allow the Legislature to revoke orders issued by the state health secretary. The LCC could revoke those orders if the Legislature is not in session.
