The KBA Advocate is the weekly KBA legislative newsletter that contains up-to-date information on legislation that impacts your practice. It is only published when the legislature is in session and is sent to all KBA members electronically via the KBA Weekly.
As I write this report, the Kansas Legislature is preparing to enter its 24th Special Session—and only the third this century. Gov. Laura Kelly called the Special Session to deal with the Kansas Emergency Management Act. Last week, Gov. Kelly vetoed Senate Sub for HB 2054 which would have significantly amended KEMA. The bill also would have provided funding oversight for the Coronavirus Aid, Relief and Economic Security Act, granted immunity to business and healthcare groups, extended certain executive orders, and allowed the use of tele-medicine.
Once the bill was vetoed, the governor issued a new emergency declaration—a necessary action since the previous declaration was set to expire at midnight on May 26th. The new declaration removed the Ad Astra Statewide Reopening Plan and placed that authority with county governments. Going forward, county commissioners are to decide whether to place any limits before reopening. For instance, Riley County is now open with some restrictions.
The new declaration extends certain executive orders. Those include the use of remote notaries and witnesses to act via audio-visual communication, extends the deadline for tax payments, suspends rules related to the sale of alcohol and extends telemedicine criteria. The latest declaration is set to expire on June 10th.
The legislature will need to negotiate with the Governor’s office on changes to KEMA during the Special Session while negotiating the COVID-19 response that has now moved to local governments. Many legislators advocated for more local control to deal with the pandemic. It will be interesting to see how much legislating takes place when a large issue has been resolved in their favor.With the emergency declaration set to end on June 10th,legislators have a week to move issues to the governor’s desk. One weekmay be sufficient to sort out the problems and come to a mutually beneficial product, but that is not a guarantee.
One major issue is that the legislative process must start anew; there are no “carry-over” bills. Each bill will have to be introduced and move through the legislative process again, which will eat up valuable time. Another issue is deciding what bills actually get worked. KEMA and the emergency declaration are the reasons for the special session, but the legislatureis not restricted to address only those matters. Lawmakers can choose to take up any issue. While unlikely due to the time crunch, they could decide to debate abortion or Medicaid expansion, tax cuts or budgetary issues. The list could grow exponentially. Finally, the Kansas Senate may attempt to confirm the Governor’s Court of Appeals nominee, Carl Folsom. That could get political and drag the special session out even longer.
How the legislature deals with the special session remains to be seen, but given the election year consequences, anything can happen.
Finally, Gov. Kelly has called for a Special Session to begin on June 3rd. The intent for the special session would be to review the emergency management act, but other issues are certain to be discussed. Since this is a special session the legislature cannot override the Governor’s veto. In addition, all legislation would have to start fresh. There will be no carry over bills from the 2020 session. See; http://www.kslegislature.org/li_2016s/documents/info_ks_spec_session_ro.pdf
The KBA will again be interested in making remote notaries permanent, allowing the court to continue use of video conferencing and reviewing any tort reform measures.
The 2020 Kansas Legislature adjourned Sine Die at 8am Friday, May 22nd.The legislative day lasted a full 24 hours, having started at 8am on May 21st. The entire 24 hours were littered with political gamesmanship, the use of legislative maneuvers and, as Rep. John Carmichael (D-Wichita) argued, simple bushwhacking.
The largest bill for the day was the COVID bundle incorporated in Conference Committee Report for HB 2054. This bill includes provisions dealing with CARES funding, Emergency Management Act oversight; liability protections for healthcare, businesses and products; extension of executive orders until 2021; and nursing home oversight. The KBA was most interested in the extension of the executive orders for remote notaries and use of audio visual, both of which were added to the CCR. The KBA opposed the immunity protections added to the bill.
The session was hampered by the Sine Die deadline which forced legislative leaders to rush legislation. When the minority party began an informal filibuster, a member of Senate Leadership cut off debate by “calling the question”. This maneuver of “calling the question” was made on every subsequent bill to deny the minority party the opportunity to delay the process.
When this procedure’s effectiveness waned, the Senate decided to move all remaining issue to a conference committee that only requires a simple up or down vote.
The Conference Committee process was as contentious as the floor debate. This caused added delay and frustration on all sides that lead to a motion to “agree to disagree”. This motion effectively removes the minority party from the conference committee. The motion passed on party line, and the conference committee was able to negotiate the bill without democrats agreeing to the final product. This is how CCR for HB 2054 was developed.
CCR 2054 was debated at 5:30 a.m. by the Senate, which passed it 27-11, and at 6:45 a.m. by the House which approved it 76-34. The Kansas House was able to debate this conference committee report because its leadership extended the Midnight Rule to 8 a.m. The final bill has been enrolled with the Governor, who has 10 days to sign, veto or allow it to become law without her signature.
This bill gives the Legislative Coordinating Council authority over federal funding Kansas receives from COVID relief, rather than the office of the Governor. HB 2054 also authorizes the LCC to review COVID-related expenses incurred by state agencies.
This provision applies to both the $1.2 billion Coronavirus Relief Fund and to any federal funds received under the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act, the Families First Coronavirus Response Act (Families First Act), the Paycheck Protection Program and Health Care Enhancement Act, and any other federal law that provides moneys to the state for aid for coronavirus relief.
HB 2054 also makes several changes to the Kansas Emergency Management Act (KEMA). It ratified and confirmed the Governor’s March 12, 2020, disaster declaration through May 1, 2020 and ratifies and continues through May 31, 2020, the state of disaster emergency declared by the Governor on April 30 and extended by the State Finance Council through May 26, 2020. Without this action, the emergency will expire on May 26th.
The bill further prohibits the Governor from declaring any new COVID-19-related state of disaster emergency during 2020. To proclaim a new state of disaster emergency, the Governor will first have to make specific application to the State Finance Council, and an affirmative vote of six of the legislative members would be required, to order the closure or cessation of any business or commercial activity.
HB 2054 allows the Board of County Commissioners of any county to issue an order relating to public health that contains provisions that are less stringent than the provisions of a statewide executive order issued by the Governor. Any Board of County Commissioners issuing such an order would be required to make a finding, based upon advice from the local health officer or other local health officials, that the scope of provisions in the Governor’s executive order are not necessary to protect the public health and safety of the county to be implemented in the county.
The bill makes several changes regarding the Governor’s authority to issue executive orders in a disaster emergency and changes the penalty for violating orders from a crime to a civil penalty. It also amends some statutes regarding local health officials.
The bill provides immunity in certain COVID-related cases for health care providers, businesses and products. These would include nursing homes and adult rehabilitation facilities. The bill DOES NOT provide for premises immunity.
• Health care immunity - The bill would state, notwithstanding any other provision of law, a healthcare provider is immune from civil liability for damages, administrative fines, or penalties for acts, omissions, healthcare decisions, or the rendering of or the failure to render healthcare services, including services that are altered, delayed, or withheld, as a direct response to any COVID-19 state of disaster emergency under the KEMA.
• Business Immunity - The bill would state that, notwithstanding any other provision of law, a person (or agent of such person) conducting business in Kansas shall not be held liable for a COVID-19 claim if the act or omission alleged to violate a duty of care was mandated or specifically and affirmatively permitted by a federal or state statute, regulation, or executive order passed or issued in response to the COVID-19 pandemic and applicable to the activity at issue at the time of the alleged exposure. The bill would state this provision would apply retroactively to any cause of action accruing on or after March 12, 2020.
• Product Immunity - The bill would state that, notwithstanding any other provision of law, a person who designs, manufactures, sells, distributes, provides, or donates a qualified product in response to the COVID-19 public health emergency shall not be liable in a civil action alleging a product liability claim involving the product if any of the above actions were taken at the specific request of or in response to a written order or other directive finding a public need for a qualified product, issued by the Governor, Adjutant General, or Division ofEmergency Management, and the damages are not occasioned by willful, wanton, or reckless disregard of a known, substantial, and unnecessary risk that the product would cause serious injury to others. The bill would state this provision would apply retroactively to any cause of action accruing on or after March 12, 2020.
The bill also includes provisions addressing notarial acts and court videoconferencing. HB 2054 extends the Chief Justice’s authority created under SB 102 to issue administrative orders that allow for the use of audio-visual technology in courtrooms. The court will retain this authority until the state of emergency ends plus an additional 150 days.
• Notarial Acts - The bill would create a new section of law, outside the Revised Uniform Law on Notarial Acts (RULONA), stating that notarial acts performed by a Kansas notary public while the personal appearance requirements are suspended pursuant to an executive order or other state law, shall be valid as if the individual had met the personal appearance requirement, even if the individual failed to do so, as long as the notarial act fulfills all requirements prescribed by the executive order or other state law and all other requirements not relating to personal appearance.
• Video Conferencing- The bill would amend a provision enacted in 2020 House Sub. for SB 102 to allow the Chief Justice of the Kansas Supreme Court to issue an order authorizing the use of two-way electronic audio-visual communication (videoconferencing) in any court proceeding, when the Chief Justice determines such action is necessary to secure the health and safety of court users, staff, and judicial officers, by removing language limiting application of this provision to periods during any state of disaster emergency under KEMA.
The Kansas Legislature is gearing up for the May 21st Veto Session. The one-day veto session has manufactured a sense of urgency among key committees and forced them back into action to prepare for the session. The goal is to have bills in a position to be voted on when session reconvenes. For that to happen, committees need to vet proposals and build new bills using the shells of discarded ones from the regular session.See;https://kasb.org/legislature-to-reconvene-on-final-day-of-session-may-21/
Thus far, House Commerce, Tax, and Judiciary committees have met to work up COVID-19 related items. Judiciary held a 2-hour plus information hearing last Wednesday on immunity for COVID claims. You can watch the entire hearing here - https://www.youtube.com/watch?v=D3ZhwJRwvbg. The testimony was addedto our KBA Legislative page.
In addition to COVID-19 related items, the Senate Judiciary Committee will take up HB 2447 dealing with the use of audio-visual technology in courtrooms and HB 2713 concerning remote notaries. Both items were near the end of the legislative process when the “stay at home” order forced everything to close. The KBA has supported these items since they were introduced and will continue to support them during the Senate hearing.
There will need to be one amendment to HB 271 to ensure that remote notaries performed during the emergency declaration are deemed valid. Both items should pass out of the Senate Judiciary Committee. The sole complication is timing and whether there is enough time to get both bills passed out of the Senate.
Time is a critical issue for legislators during this one-day session. The list of possible legislation is long and includes complex issues that normally require years to pass. The effort to amend the emergency management act should require an interim study. But legislative leaders are intent on pushing it through in one day. COVID liability is another issue that should be discussed in an interim—an idea proposed by Rep. Pam Curtis (D-Wyandotte)—but there is a real possibility that a proposal will be moved out of both chambers and sent to the governor. See;https://www.cjonline.com/news/20200512/kansas-coronavirus-update-senate-house-step-into-web-of-covid-19-tax-liability-and-budget-issues
This week is shaping up to be a grueling one. Both sides have dug in on several issues with the final outcome still in limbo. The one constant is that the governor is in a strong position since she holds a veto stamp with no opportunity for the legislature to override it. This may force opposing sides to negotiate and compromise, resulting in a product that neither is satisfied with, but which allows the state to move forward. Such is the practical outcome of legislation crafted in a rush.
You can watch real-time updates of the veto session by following @KansasBarLeg.
Disagreement with that decision was brought by Senate President Wagle and Majority Leader Denning, both of whomfavored a three-day veto session. Their goal was to pass legislation to provide oversight on the $1.2 billion CARES act federal funds, implement changes to the emergency management act and provide liability protection for businesses dealing with COVID-19. See;https://twitter.com/JimDenning4KS/status/1258473610664173568/photo/1
The LCC voted down the three-day proposal, as the majority of the committee felt these issues needed more vetting and did not want to rush legislation that could have unintended consequences. The LCC then decided to return on May 21, Sine Die for a one-day veto session.In response, senate leadership directed four committees to begin meeting as soon as possible: Judiciary, Commerce, Tax, and Financial Institutions and Insurance. The idea is to have proposed legislation vetted and in a position to be voted on May 21st.
Senate Judiciary Committee will meet for three consecutive days beginning on May 18th. These meeting will be in-person and held in the Old Supreme Courtroom on the third floor of the Capitol starting at 9:30 a.m.
House Judiciary Committee will meet via Zoom, streamed throughYouTube, on May 13th, May 15th and May 18th. Meetings will begin at 3:30p.m. The House will take a broader look at the COVID-19 issues at play, discuss emergency management authority and deal with the KORA exceptions bill from the regular session.
Of interest to the KBA is a COVID-19 liability proposal. The idea has been moving throughout the states and would provide businessesthat are now reopening protection from COVID-19 related lawsuits. The KBA has been invited and plans to participate in both committee meetings.
The KBA will also advocate to make permanent the use of audio-visual technology in courtrooms and use of remote notaries. Both are needed to continue social distancing measures and protect vulnerable individuals from the virus. Whether those issues pass on the only day of veto session remains to be seen.
Last week, Gov. Laura Kelly (D-Topeka) extended the State of Emergency for the State of Kansas until May 15th. The State Finance Council can extend this emergency declaration for another 30 days if needed. In conjunction with this new emergency order, EO 20-28, Gov. Kelly reissued all previously approved executive orders:
Once Gov. Kelly extended the State of Emergency, the Kansas Judicial Branch extended its Administrative Orders. Chief Justice Marla Luckert issued six new administrative orders on May 1 that updated directions to state courts and court users as the state slowly reopens, following the plan outlined by the governor. The orders continue some of the strategies put in place at the beginning of this pandemic response and provide updated guidance for gradually reopening state courts and increasing the number and types of service delivered the people of Kansas.
State courts have been operating in a limited capacity since March 18 under earlier Supreme Court orders issued in response to the COVID-19 pandemic. Courts initially were restricted to only essential functions, but were later permitted to perform additional functions, to the extent local resources and circumstances allowed.
Essential functions generally include:
determining probable cause for persons arrested without a warrant;
warrants for adults and juveniles;
juvenile detention hearings;
care and treatment emergency orders;
protection from abuse and protection from stalking temporary orders;
The new plan is to revisit the idea of returning before May 3rd which would be a day before Gov. Kelly could lift the statewide “stay at home” order. The complication is that local governments have the power to continue or extend “stay-at-home” orders. While the Kansas Legislature is exempt from this “stay at home” order, the optics would be less than ideal, given that a majority of legislators fall within the “At-Risk” group. See; https://kasb.org/nb0422-3/
If the Veto Session resumes—and that is still an “if” at this point—the legislature could discuss the State revenue shortfalls, Executive Order reform and possibly Medicaid Expansion. However, none of these items are on any agenda currently, and with just eight bills passed so far this session, it is unlikely we will see a flurry of bills headed to the governor during veto.
Yesterday, the Consensus Revenue Estimating Group released its April estimates for state general funds through FY 2021. The numbers are sobering in their decline. Estimators believe revenue will decline by nearly $1.25 BILLION over the next 14 months. The State will lose almost $90 million per month over this stretch. The effects will not be immediate, as projections have the State ending this fiscal year (June 30) with a smidge over $200 million. The cliff comes in FY2021 when the State loses $650 million and ends with a budget hole of eight percent. The big losers are obvious to point out, but income tax will be down almost $300 million in FY21. Sales tax also takes a big hit, projecting $110 million in the red. You can review the entire report here: http://www.kslegresearch.org/KLRD-web/Publications/CRE/2020_CRE_ShortMemo_4-20-2020.pdf
Gov. Kelly has already stated she plans to freeze hiring and eliminate discretionary spending. Legislative leaders will convene by video conference this week to discuss options to move forward. Leadership is calling for a plan to reopen the state economy. Gov. Kelly is working on one, but she stated there needs to be more testing to avoid possible re-closure should the virus spike again.
State government understood that closing major parts of the economy, delaying income tax payments until September and footing the bill to fight COVID-19 would have an economic impact. The issues now are when to reopen and what to cut once we get back.
The case itself was as interesting as the circumstances surrounding its adjudication. The timeline was expedited, with the case being filed on April 9 and the ruling issued on April 11, the same day as the hearing. The basics of the case are that Gov. Kelly expanded her “stay at home” executive order on April 7th to include religious organizations. See; https://governor.kansas.gov/wp-content/uploads/2020/04/20-18-Executed.pdf This was due to three clusters of COVID-19 infections tracked to church gatherings. On April 8, the Legislative Coordination Council, on a 5-2 party-line vote, revoked this executive order under their authority in HCR 5025. However, the court found a technical issue in HCR 5025 concerning the State Finance Council’s role in Emergency Declarations. The court determined that the Legislative Coordinating Council was not the proper oversight authority. The court held that “[t]he LCC's purported revocation of Executive Order 20-18 on April 8 was a nullity, because the LCC lacked authority do so under HCR 5025's terms.” The court did not discuss the effect the Executive Order had on limiting religious gatherings nor did it invalidate the emergency declaration issued by the Governor.
The Chief Justice ordered courts to move to emergency operations and limited courthouse access and the legislature passed a resolutionproviding tens of millions of dollars to combat the health and economic damage of COVID-19. The objective was to provide necessary operational authority and funding to deal with the pandemic while closing out the session as quickly as possible. The concern over community spread was an issue on the minds of every person in the Capital.
In a showing of bipartisanship, the Kansas legislature was able to pass a barebone budget, complete a transportation bill and give the governor, albeit limited, powers to deal with the virus outbreak. This all happened in under 7 days.
The state of Kansas took the lead on the COVID-19 precautionary front. The state was the first in the country to close public schools. Other states have followed suit since that time and large states, including California and New York have instituted even more restrictive measures. The governor has imposed several additional restrictions to help reduce the spread of the COVID-19 including:
Furlough of non-essential state employees for two weeks starting Monday, March 23.
Prohibit mass gatherings likely to draw 10 or more people.
Temporary restriction on evictions and foreclosures until May 1, 2020.
Closure of bars, restaurants and related businesses; take-out only.
Suspension of utility disconnects.
These restrictions are just the beginning and more restrictions may be implemented. Most currently the Governor has allowed the hospitality industry to take out $20,000 in short term loans at no interest for up to 6 months. The governor has the authority to offer these types of programs because the legislature passed HCR 5025.
HCR 5025 grants the governor additional emergency powers, while also placing certain limitations and oversight on this authority by the Legislative Coordinating Council. The Governor has emergency powers in statute to deal with natural disasters and other kinds of situations generally foreseeable. HCR 5025 prevents the Governor from enacting restrictions on the sale of firearms and ammunition as well as prevent the confiscation or otherwise take control of the assets and accounts of local governments.
On Saturday, March 28th Governor Laura Kelly announced the state of Kansas would implement a statewide “stay at home” order. This order would begin on Monday, March 30th and run thru April 19th. The order can be extended should circumstances warrant. You can review the order here: Gov Kelly Executive order.pdf
The stay at home order requires all citizens to shelter in homes to slow the spread of COVID-19. The order exempts essential workers for the order when performing their duties. The order breaks down essential functions into four distinct categories. They are listed as Kansas Essential Function Framework. The KEFF categories are CONNECT, DISTRIBUTE, MANAGE & SUPPLY.
The KEFF exempts such things are attending religious ceremonies (KEFF 300 MANAGE 12(b) and transporting cargo and passengers by air (KEFF 200 SUPPLY 4). Legal services are considered an essential function under KEFF 300 MANAGE 12(c).
It is important to note that when performing an essential function, it is advised to follow all safety protocol by operating in groups of no more than 10 and maintaining a safe distance of 6 feet.
The latest Executive Order supersedes all local government stay at home orders.
The Kansas legislature passed to several bills aimed directly at addressing COVID-19 health and economic concerns. They include:
SB 27 extends unemployment eligibility for workers filing claims January 1, 2020 and later.
SB 142 expands the waiver authority for meeting education requirements (e.g., hours of attendance).
SB 102 grants the Judicial Branch with authority to extend statutory deadlines, time limitations on court proceedings and authorizes video conferencing
Many lawyers have questions about remote notaries. The KBA is working with the Ks SOS office on this issue. There are several organizations that have similar concerns and these concerns have been forwarded to the governor’s office. The hope is the governor will issue an executive order on the topic but as of, yet no order had been approved.
The KBA is supporting a bill, HB 2713, that would allow remote notaries. This bill is still in the legislative process and will be a priority should the legislature return on April 27th.
Kansas Supreme Court
The Kansas Supreme Court has also acted quickly to protect litigants, lawyers and staff. On March 18, 2020, the Supreme Court released Administrative Order 2020-PR-016 directing all district and appellate courts to cease all but emergency operations until further order.
The court has also issued additional orders that include:
Individual judicial districts are also operating under difficult circumstances. Courts are still open, but many are doing it virtually. Johnson County held a webinar update yesterday that outlined their new process and procedures. Chief Judge Kelly Ryan stated that all hearing that can be done remotely should be done remotely. For those things that are not lawyers can contact the court. One change is that the courthouse is open but only one entrance.
Again, this is a district by district issue with some districts lacking the infrastructure to turn to a virtual courthouse. The Judicial Center is closed to the public but can be contacted thru other means.