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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.

 

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Top tags: Author: Joseph N. Molina III  2019 Session  2019-20  COVID-19  legislature  budget  2020 Legislative Session  election  Kansas Supreme Court  Brownback  Supreme Court  Judicial Branch  Medicaid expansion  school finance  Special Session  abortion  Court of Appeals  Emergency Management Act  Fall Legislative Conference  Gannon  Hard 50  2016 Session  2017 session  2017-18  Alleyne  First Adjournment  judicial branch budget  merit selection  SCR 1610  Senate 

Special Session 2020

Posted By Joseph N. Molina III, 5 hours ago
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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 week may 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 legislature is 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. 

 

See: https://governor.kansas.gov/wp-content/uploads/2020/05/Special-Session-Proclamation.pdf;

see also: https://www2.ljworld.com/news/state-government/2020/may/26/kelly-vetoes-legislation-reworking-her-emergency-powers-calls-legislature-to-june-3-special-session/

and: https://www.ksn.com/news/capitol-bureau/anything-can-happen-during-kansas-special-session-on-june-3/ 

Tags:  Ad Astra Statewide Reopening Plan  Author: Joseph N. Molina III  CARES  Carl Folsom  COVID-19  KEMA  pandemic  Special Session 2020 

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UPDATE: Special Session called by Gov. Kelly

Posted By Joseph N. Molina III, Wednesday, May 27, 2020
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On May 26th, Gov. Laura Kelly vetoed CCR for HB 2054. This bill amended laws and made appropriations regarding the COVID19 pandemic. It provided CARES funding oversight, made changes to the emergency management act, provided immunity to business and healthcare groups, extended certain executive orders, and allowed the use of tele-medicine. Each of these provisions were invalidated when the Governor vetoed the entire bill. See; https://www.kctv5.com/coronavirus/kansas-gov-laura-kelly-vetoes-bill-limiting-her-emergency-powers/article_2f652924-9f92-11ea-82a3-0b658a97dd92.html; See also; https://www2.ljworld.com/news/state-government/2020/may/26/kelly-vetoes-legislation-reworking-her-emergency-powers-calls-legislature-to-june-3-special-session/

Once vetoed, the Governor issued a new emergency declaration. This was necessary since the previous declaration was set to expire at midnight, May 26th. The new declaration removed the Ad Astra Statewide Reopening Plan and placed this authority with county governments. Going forward, county commissioners will decide whether to set any limits before reopening. For instance, Riley County is now open with some restrictions. See; https://www.ksnt.com/health/coronavirus/riley-county-health-officer-issues-order-allowing-all-businesses-to-reopen/

The new declaration extends certain executive orders; those include the use of remote notaries and witnesses to act via audio-visual communication, extends the tax payments, suspends rules related to the sale of alcohol and extend tele-medicine criterion. See; https://governor.kansas.gov/governor-signs-disaster-declaration-calls-for-special-session-warns-of-grave-consequences-to-state-without-legislative-action/

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

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Tags:  audio-visual communication for some court procedur  Author: Joseph N. Molina III  COVID-19  emergency declaration  Emergency Management Act  remote notaries  special session  veto of CCR for HB 2054 

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24-Hour SINE DIE

Posted By Joseph N. Molina III, Tuesday, May 26, 2020
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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.

COVID response – HB 2054

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.

Immunity

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 of Emergency 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.

Other Provisions

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.

 

This was one of the longest legislative days in Kansas history, lasting a full day. You can read more about it here - https://www.kansaspublicradio.org/kpr-news/kansas-gov-kelly%E2%80%99s-emergency-powers-weakened-lawmakers-who-say-she-overreacted-covid-19

See; https://www.cjonline.com/news/20200524/clock-ticking-on-gov-laura-kelly-ahead-of-expiring-emergency-declaration

See also; https://www.kwch.com/content/news/Kansas-lawmakers-push-into-Friday-morning-to-finish-legislative-session-570686711.html

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Tags:  Agree to Disagree  Author: Joseph N. Molina III  businesses and products  Calling the Question  COVID response  Emergency Management Act  executive orders  HB 2054  immunity from liability for healthcare  KEMA  Midnight Rule  remote notary  Sine Die 2020  video conferencing court proceedings 

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Veto Session 2020 Preview

Posted By Joseph N. Molina III, Monday, May 18, 2020
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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 added to our KBA Legislative page.

 

On Monday the Senate Judiciary convened to discuss the same issue with the same conferees. That hearing was held in-person in the Old Supreme Courtroom. The KBA will provide information for this hearing, as we did for the House hearing. See; http://www.kslegislature.org/li/b2019_20/committees/ctte_s_jud_1/documents/agenda/weekly/20200524.pdf 

 

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 interiman 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

 

The largest and most time-consuming issue may be the extension of the emergency order. The State Finance Council extended Gov. Kelly’s order thru May 26th. This group decided against a full 30-day extension, arguing that the legislature should have a say in determining whether the order should be continued. To further extend the emergency declaration, the legislature would need to craft a new bill and pasit in one day. Should they fail, previous executive orders would be unenforceable, and Kansas could lose out on federal dollars. See; https://www2.ljworld.com/news/state-government/2020/may/13/kansas-state-finance-council-extends-state-of-emergency-declaration-through-may-26/

 

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. 

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Tags:  audio-visual in courtroom  Author: Joseph N. Molina III  COVID-19  emergency management act  extension of emergency order  House judiciary committee meeting  remote notaries  Senate judiciary committee meeting  veto session 2020 

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2020 Veto Session Agenda

Posted By Joseph N. Molina III, Monday, May 11, 2020

On May 6th, the Legislative Coordinating Council met to decide the fate of the 2020 legislative session. This panel, chaired by Speaker Ryckman with Senate President Wagle, Majority Leader Denning, Minority Leader Hensley, Rep. Finch, Rep. Hawkins And Rep. Sawyer, decided to return for a single day of Veto Session on May 21st. See; https://www.thekansan.com/news/20200506/kansas-legislature-to-return-for-one-day-to-finalize-work-with-focus-on-covid-19

 

Disagreement with that decision was brought by Senate President Wagle and Majority Leader Denning, both of whom favored 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 through YouTube, on May 13th, May 15th and May 18th. Meetings will begin at 3:30 p.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 businesses that are now reopening protection from COVID-19 related lawsuits. The KBA has been invited and plans to participate in both committee meetings. 

Tags:  2020 veto session  audio-visual in courtrooms  Author: Joseph N. Molina III  CARES Act  Emergency Management Act  LCC  Liability protection for businesses  remote notary 

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Executive and Administrative COVID-19 Orders Extended

Posted By Joseph N. Molina III, Tuesday, May 5, 2020

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:  

https://governor.kansas.gov/wp-content/uploads/2020/04/EO-20-28-Reissuing-and-Extending-Certain-EOs.pdf (use of audio visual technology for notaries and witnesses is extended in Section 1(l) of EO 20-28). EO 20-28 provides some clarity and stability as Kansas transitions from a “stay at home” phase to Phase 1 of reopening. 

 

The Phase 1 plan can be reviewed here - https://governor.kansas.gov/wp-content/uploads/2020/04/EO-20-29-Implementing-Phase-One-of-Ad-Astra-Plan.pdf 

See; https://www2.ljworld.com/news/2020/apr/29/kelly-extends-state-of-emergency-through-may-14-state-to-receive-550000-new-tests-in-coming-weeks/

See also; https://www.wibw.com/content/news/WATCH-LIVE-Gov-Laura-Kelly-daily-COVID-19-news-conference-set-for-200-pm-570046811.html 

 

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; 
  • first appearances; 
  • bond hearings; 
  • warrants for adults and juveniles; 
  • juvenile detention hearings; 
  • care and treatment emergency orders; 
  • protection from abuse and protection from stalking temporary orders; 
  • child in need of care hearings and orders; 
  • commitment of sexually violent predators; and 
  • isolation and quarantine hearings and orders.

 

05-01-202020-PR-049: Relating to District Court Operations in Counties Affected by a Stay-at-Home Order or Subject to a Directive Closing a County Courthouse or Other Judicial Office

 
05-01-202020-PR-048: Order Relating to District Court Operations in Counties Not Affected by a Stay-at-Home Order or Subject to a Directive Closing a County Courthouse or Other Judicial Office

 
05-01-202020-PR-047: Suspending Deadlines and Time Limitations in Judicial Proceedings

 
05-01-202020-PR-046: Suspending Deadlines and Time Limitations Under K.S.A. 2019 Supp. 22-3402

 
05-01-202020-PR-045: Authorizing Two-Way Audio-Visual Communication in Any Court Proceeding

 
05-01-20: 2020-PR-044: Reissuing Administrative Order 2020-PR-36 under Governor’s April 30, 2020, State of Disaster Emergency Declaration 

 

Finally, the Legislative Coordinating Council will meet Wednesday, May 6th to discuss returning to the Capitol for the Veto SessionSee; http://www.ksrevisor.org/docs/LCCSpMeet_2020/Agenda%205-6-2020.pdf 

Tags:  Author: Joseph N. Molina III  COVID-19  EO 20-28  essential functions  Executive Orders  Kansas Judicial Branch  pandemic  State of Emergency 

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Veto Session?

Posted By Joseph N. Molina III, Tuesday, April 28, 2020

The Kansas Legislature was scheduled to return to wrap up the 2020 session yesterday, April 27th. That plan was scuttled last week when the Legislative Coordinating Council postponed the restart due to COVID-19 concerns. See; https://www.cjonline.com/news/20200422/kansas-coronavirus-update-legislative-session-delayed-two-thirds-of-lawmakers-at-risk-of-contracting-virus

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/

Nevertheless, there is a strong push by a group of legislators to start the reopening process. This group, 80 plus strong and all Republican, want a plan from the governor. House Majority Leader Dan Hawkins posted the letter with signers on his Facebook page this past week. Should the “stay-at-home” order be rescinded, it would be difficult for these legislators to avoid returning to Topeka after taking such a hardline stance on reopening the economy. See; https://www.kwch.com/content/news/KS-lawmakers-call-on-governor-to-begin-work-on-plan-for-reopening-economy-569649601.html

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.

The Kansas Legislative Research Department has released its 2020 legislative summary of bills passed. This is the shortest initial summary in my 12 years with the KBA. It is only 12 items deep, with four of those items being executive order- or concurrent resolution-related. Of the eight bills signed into law, two dealt directly with COVID-19 actions. The only major bills to pass were the state budget (SB 66) and the transportation plan (House Sub for SB 173). Other bills are primed for passage, but that depends on the actions taken during veto. See; http://www.kslegresearch.org/KLRD-web/Publications/SummaryofLegislation/PreliminarySummaries/2020-preliminary-summary.pdf

Tags:  2020 legislative summary  2020 Veto Session  Author: Joseph N. Molina III  Legislative Coordinating Council  Medicaid Expansion  Stay-at-Home 

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COVID-19 Financial Impact

Posted By Joseph N. Molina III, Tuesday, April 21, 2020
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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

See; http://www.kslegresearch.org/KLRD-web/Publications/CRE/2020_CRE_ShortMemo_4-20-2020.pdf,

See also; https://www.kansascity.com/news/politics-government/article242142976.html

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.

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Tags:  April 2020 estimates  Author: Joseph N. Molina III  Consensus Revenue Estimating Group  COVID-19 

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Kelly v. LCC

Posted By Joseph N. Molina III, Monday, April 13, 2020

On Saturday, April 11, 2020 the Kansas Supreme Court heard Kelly v. LCC via ZOOM. This case was the first to be held over video conference with all attendees participating remotely. It was quite a thing to witness. See; https://www.youtube.com/watch?v=OhnQYvyZXgY&feature=youtu.be

Click to View Video

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.

See; https://www2.ljworld.com/news/2020/apr/11/kansas-supreme-court-hears-arguments-in-governors-suit-against-lawmakers-decision-could-come-saturday/

 

See also; http://wyandottedaily.com/kansas-supreme-court-gov-kellys-order-limiting-church-attendance-to-10-persons-or-fewer-stands/

The big question now is whether the Kansas Legislature revisits the idea and passes another concurrent resolution that properly checks the governor’s authority. That remains to be seen.

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Tags:  Author: Joseph N. Molina III  COVID-19  Executive Order 20-18  HCR 5025  Kansas Supreme Court  Kelly v LCC  State Finance Council  Zoom 

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COVID-19 UPDATE

Posted By Joseph N. Molina III, Tuesday, April 7, 2020

COVID-19 has forced each branch of government to re-evaluate their operating structure and make decisions based on the health of citizens and staff. The governor declared a state of emergency (Governor Kelly outlines new executive orders to improve public safety regarding COVID-19 pandemic); and shut down schools (Governor Kelly recommends the Kansas State Department of Education temporarily close schools to implement comprehensive education plan amidst COVID-19 pandemic)

The Chief Justice ordered courts to move to emergency operations and limited courthouse access and the legislature passed a resolution providing 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.

HCR 5025 - Governor’s Emergency Powers

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 Department of Health and Environment has provided information that may prove useful. This resource center has quarantine information, along with tool kit for everyday issues that are altered because of the crisis. See; http://www.kdheks.gov/coronavirus/COVID-19_Resource_Center.htm?panel=14

COVID-19 LEGISLATION

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:

04-03-20: 2020-PR-032: Order Amending 2020-PR-016
04-03-20: 2020-RL-031: Order Suspending Certain Deadlines and Time Limitations in Kansas Municipal Courts Due to the COVID-19 Emergency
03-30-20: 2020-RL-027: Order Suspending Certified Copies Requirement Under Supreme Court Rule 2.04
03-20-20: 2020-PR-024: Order Clarifying Emergency Operations from the Court Regarding Emergency Protection from Abuse and Stalking
03-18-20: 2020-PR-016: Imposing Statewide Judiciary Restricted Operations Due to COVID-19 Emergency (Links to Enrolled 2020 House Substitute for Senate Bill No. 102 and March 19, 2020, Kansas Register)
03-16-20: 2020-PR-015: Restrictions to mitigate COVID-19 spread
03-12-20: 2020-PR-013: Kansas judicial branch policy on pandemic disease

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.

Tags:  Author: Joseph N. Molina III  COVID-19  COVID-19 state  legislature  state 

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