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.
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.