Ryan Kriegshauser, an attorney who represented numerous clients in COVID-19 legal actions, said the 2022 Legislature should adopt a sweeping bill limiting power of elected city, county and school board officials to impose restrictions on the public during emergencies. (Kansas Reflector screen capture from Kansas Legislature YouTube channel)
TOPEKA — The Senate Judiciary Committee plowed into a bill Monday mandating state-imposed limits on actions of cities, counties, school boards and higher education institutions in a health to health emergency that was so complex it took more than 30 minutes for a legislative staff member to summarize.
The Kansas Chamber, attorneys filing lawsuits against during the pandemic and individuals irritated by city or school board actions praised the bill. It was denounced by organizations representing city and county governments, public education and proponents of child vaccinations. A House member suggested references to religious freedom in the bill could be stricken, because worship was constitutionally protected.
“This bill is kind of a conglomeration of the issues we have come up over the past year in litigation,” said Ryan Kriegshauser, an attorney who represented numerous clients in COVID-19 legal actions. “We tried to make this expansive.”
The product of that work — Senate Bill 541 — would affirm businesses could seek compensation from government if forced to close. It would limit officials in cities, counties and school districts to 30-day directives as well as give local school boards and college boards sole authority to make operational decisions. The bill would prevent colleges and K-12 schools from compelling anyone to carry a document regarding vaccination status. It would allow students, teachers and visitors to schools to opt out of mask or vaccination mandates.
In addition, the Senate bill would revive a ban on contact tracing, limit duration of state and county health orders to 30 days, and extend to child-care facilities a prohibition on turning people away due to suspicion of disease infection. It would expand a property tax break to businesses temporary closed due to public emergency.
Jay Hall, general counsel of the Kansas Association of Counties, said the bill was flawed because counties would no longer have a role in determining how K-12 school boards and college boards responded to contagious diseases.
It makes sense to continue relying on safety recommendations of county health officers when striving to deal with spread of infectious disease because schools and cities may not have medical professionals on staff, he said.
“Boards of education may not have anyone with infectious disease training,” he said. “Similarly, the governing body of a community or technical college may not possess that expertise.”
He said 30-day limitations on restrictions tied to public health didn’t take into account the unknown shape of diseases and what portion of the population would be placed at risk. Passage of this type of restriction on local government doesn’t fully contemplate risks Kansans might face, he said.
Sarah Irsik-Good, a member of Immunize Kansas Coalition, said the organization objected to the bill because it would have far-reaching implications far beyond COVID-19. She said the legislation would transform the definition of “religious beliefs” to justify rejection of vaccinations, masking, social distancing and other preventative steps through adoption of a threshold akin to a philosophical objection.
She said the provision would dangerously undermine wellness vaccines required for child care and school enrollment.
“Vaccinations continue to be among the greatest achievements of public health. Since the 1940s, as new vaccines are introduced, the incidence of infectious diseases that once affected thousands of Americans have plummeted,” Irsik-Good said. “Polio and rubella are gone in the U.S. Diphtheria is rare. However, ‘historical amnesia’ of the consequences of vaccine-preventable diseases have fueled vaccine hesitancy over the years. As a result, measles is now resurgent in the U.S. and we are at risk of losing measles elimination status.”
The Senate committee didn’t take action on the bill Monday, but Sen. Kellie Warren, a Republican seeking the nomination for attorney general, requested the bill’s introduction in the Senate. She also spoke in defense of the bill.
Biz closures and a ‘farce’
Eric Stafford, who represents the Kansas Chamber, said extensive reforms embodied in Senate Bill 541 would tackle the compensation issue when government “uses” or restricts business activity. In 2021, Gov. Laura Kelly vetoed Senate Bill 273 that established a business relief fund to compensate businesses that suffered economic losses when shut down during the pandemic to limit spread of COVID-19.
“With that behind us, we must look forward in implementing proper protections for private business and property owners whose businesses are impacted during emergencies, and hold local governments accountable in their decisions so they must weigh the costs associated with any decision to limit business activity,” Stafford said.
Kriegshauser, who praised the 23-page Senate bill, said locally elected county and school officials had been proactive in attempting to thwart the Legislature’s reform in Senate Bill 40. In part, the Kansas Emergency Management Act granted people an opportunity to challenge mandates in district court through an expedited process.
“Units of government, particularly counties and school boards are working to basically use any loophole to get around some of the Senate Bill 40 requirements,” Kriegshauser said. “The school board hearings were in many ways a farce.”
That legislation as well as the pending Senate bill were designed to restrain government during a pandemic that so far contributed to the death of 7,988 people, hospitalization of 19,500 and infection of 767,000 Kansans since March 2020.
In addition, Kriegshauser said, the law firm had observed “a lot” of health professionals were reported to the Kansas Board of Healing Arts for alleged violations. For example, Sen. Mark Steffen, a rural Hutchinson Republican and anesthesiologist, said he was under investigation by the BOHA.
Kriegshauser said physicians had expressed reluctance at signing documents in support of a patient’s request for a mask exemption because of fear it might result in a BOHA complaint.
Trudeau and Putin
Carrie Barth, the parent of two school-age children in Baldwin City, said she supported the bill because it would reign in government officials who abused the word “emergency.” She said Douglas County officials established an emergency mask order.
“There is no emergency,” she said. “We have seen the same abuse of ’emergency’ across the globe in other countries with Justin Trudeau, the prime minister of Canada, using their emergency act to be able to freeze peaceful protesters bank accounts which goes against their bill of rights. Do you see the similarities of abuse? It has become trendy to overuse the word emergency. It is a disgrace and goes against our freedoms.”
Sen. Dennis Pyle, R-Hiawatha, and a member of the Senate Judiciary Committee, said many issues raised by the Senate bill would be resolved if the Legislature had accepted his idea of a law forbidding any business from imposing a mandate without approval of state lawmakers. Absent that law, he said, the Legislature has an obligation to serve state interests by restraining local government overreach.
He pointed to Russian President Vladimir Putin’s invasion of Ukraine as evidence of what could go wrong with unrestrained government power.
“We have a prime example today of government out of control and that’s Mr. Putin,” Pyle said. “We see what can happen when government wants to mandate their will on people. We see that today. It’s being played out before us. Yes, that’s not the best example, but this brings it home. We need effective leaders that have the worldview that is based on what our founders believed.”
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