Legislative Response to the COVID-19 Pandemic and Related Litigation

State of Disaster Emergency Declaration, HCR 5025, and EO 20-18

On March 12, 2020, Governor Kelly issued a state of disaster emergency proclamation and related executive orders impacting government and the private sector in response to the COVID-19 pandemic. On March 19, the Legislature passed HCR 5025, ratifying and continuing the state of disaster emergency until May 1, 2020, “subject to additional extensions by concurrent resolution of the Legislature or as further provided in this concurrent resolution.” The resolution provided that the Legislative Coordinating Council (LCC) was authorized to review and revoke certain executive orders and proclamations.

Following three COVID-19 cluster outbreaks tracked to religious gatherings, Governor Kelly issued a new executive order (EO 20-18) on April 7 that would prohibit more than 10 people to gather at churches and other religious facilities. On April 8, the LCC convened and revoked EO 20-18 pursuant to HCR 5025.

Litigation Related to EO 20-18

Kelly v. LCC. In response to the LCC’s revocation of EO 20-18, Governor Kelly filed a lawsuit in the Kansas Supreme Court challenging the LCC’s action. On April 11, the Court ruled that the plain text of HCR 5025 did not authorize the LCC to revoke EO 20-18.

First Baptist Church v. Kelly. EO 20-18 was also challenged on constitutional grounds by two churches and their pastors. On April 15, First Baptist Church of Dodge City, Kansas, sought permission from the Governor to hold indoor services utilizing appropriate social-distancing guidelines. After the Governor denied the request, the church filed a complaint in federal court, seeking a temporary restraining order (TRO), a preliminary injunction, and a permanent injunction prohibiting Kansas from enforcing EO 20-18 against the plaintiffs, and judgments declaring that the order violated the 1st Amendment and Kansas’ Religious Freedom Restoration Act. The court granted the plaintiffs’ TRO on April 18. On April 30, the Governor issued a new executive order allowing religious gatherings as long as social distancing guidelines are followed, and plaintiffs voluntarily dismissed their complaint on May 4.

Senate Sub. for HB 2054 and 2020 Special Session

On May 21, 2020, the Legislature convened for its Sine Die Session, and passed Senate Sub. for HB 2054 (HB 2054), a response to the COVID-19 pandemic in Kansas providing certain relief related to health, welfare, property, and economic security during the public health emergency. The bill also created new provisions related to emergency management and amended several provisions in the Kansas Emergency Management Act (KEMA). The Governor vetoed HB 2054 on May 26, 2020.

The LCC authorized the House and Senate Committees on Judiciary to hold meetings to review portions of HB 2054 on June 2. Consequently, the Senate Committee on Judiciary held three days of informational hearings on the status of negotiations between legislative leadership and the Governor’s Office, including a draft bill based upon such negotiations. On June 4, the Legislature passed HB 2016, a bill containing many modified provisions of HB 2054. On June 8, Governor Kelly signed HB 2016 into law.

Special Committee on KEMA

During the 2020 Interim Session, the LCC authorized a 13-member Special Committee to review KEMA, HB 2016, and oversight and emergency management approaches utilized in other states, and to make recommendations to the Legislature on any improvements or changes that should be considered. Following six days of testimony, the Special Committee discussed a list of topics raised by conferees and members and recommended several items for further study by standing committees during the 2021 Legislative Session.

2021 Legislative Session

In January 2021, the Legislature passed SB 14, which extended until March 31, 2021, the state of disaster emergency related to the pandemic in Kansas and various related provisions. The bill also prohibited the Governor, during any state of disaster emergency related to COVID-19, from issuing any order that substantially burdens or inhibits the gathering or movement of individuals or operation of any religious, civic, business, or commercial activity.

In March 2021, the Legislature passed three additional bills (SB 40, SB 283, HB 2126) further extending provisions previously extended by SB 14, as well as amending and creating new law related to the pandemic and KEMA.

The Legislature also passed House Sub. for Sub. for SB 273, which would have created a COVID-19 Small Business Relief Act to provide compensation for certain businesses impacted by an order making a restriction related to the pandemic, but the Governor vetoed the bill.

Litigation Related to SB 40

Among other provisions, SB 40 provides a grievance process for employees, students, or students’ guardians to request a hearing to contest any action taken, order issued, or policy adopted by a school board during the COVID-19 state of disaster emergency. Under the bill, a school board must conduct a hearing within 72 hours of the request, and the bill allows aggrieved parties to file a civil action in district court within 30 days of the school board’s decision. Such hearing at the district court level must also be conducted within 72 hours of receiving the petition, and the court must grant relief unless the court finds the action, order, or policy is narrowly tailored to respond to the state disaster emergency and uses the least restrictive means to do so.

Butler et. al v. Shawnee Mission School District Board of Education

In June 2021, two parents of Shawnee Mission students requested a hearing in Johnson County District Court pursuant to SB 40 to contest a mask policy adopted by the school board. District Court Judge Hauber asked Attorney General Derek Schmidt to intervene in the case to respond to “identifiable constitutional issues” in SB 40. Judge Hauber ruled SB 40 unconstitutional on grounds that it violated the school board’s due process rights and the separation of powers doctrine, and he declared the entirety of the law unenforceable. The Attorney General appealed the decision to the Kansas Supreme Court on July 15, and a stay of the District Court order pending appeal was granted by the Supreme Court on August 24. Oral arguments in the appeal were heard on October 26.