May 22, 2020 3:00 PM

Kan. lawmakers vote to curb governor's power, bar COVID-19 suits

Posted May 22, 2020 3:00 PM
Members of the Kansas Senate voting on the COVID-19 bill just before 6:30a.m. Friday
Members of the Kansas Senate voting on the COVID-19 bill just before 6:30a.m. Friday

TOPEKA, Kan. (AP) — Republicans pushed a sweeping coronavirus measure through the GOP-controlled Kansas Legislature on Friday, aiming to shield businesses and health care providers from coronavirus-related lawsuits and take control of the state’s pandemic response from Democratic Gov. Laura Kelly.

Some Democrats predicted Kelly would veto the bill, but her office stopped short of promising that, issuing a statement Thursday accusing GOP lawmakers of trying to “cram” measures through the Legislature without vetting them. Democrats objected to curbing Kelly’s power and predicted that substandard nursing homes and manufacturers of defective personal protective equipment would be shielded from being held accountable in the state’s courts.

The bill reflects Republicans’ view that Kelly is moving too slowly to reopen the state’s economy and has been too aggressive in imposing restrictions. She imposed a statewide stay-at-home order from March 30 until May 4 and plans to lift restrictions on businesses in phases through June 23.

Lawmakers had convened Thursday for one last day in session this year after a coronavirus-mandated break that started March 20, and they extended their last day into Friday morning to get all of their work done. Democrats noted repeatedly that Republicans were passing their bill after President Donald Trump said publicly that Kelly and Arkansas’ Republican governor have “done a fabulous job” in handling the pandemic in their states.

“When you elect someone to be your general in the fight, you fire them in the middle of the fight and replace them with a committee,” said Rep. John Carmichael, a Wichita Democrat. “That’s not the way you win a war.”

Members of the Kansas House debated the COVID-19 bill just after 7a.m. Friday on a marathon final day in the statehouse- photo courtesy Rep. Cindy Holscher
Members of the Kansas House debated the COVID-19 bill just after 7a.m. Friday on a marathon final day in the statehouse- photo courtesy Rep. Cindy Holscher

The Republican plan would require Kelly to get permission from legislative leaders to keep businesses closed for more than 15 days or to exercise other broad powers granted to governors during emergencies after May 31. Counties that could document a case for lesser restrictions could impose them.

Kelly would not be allowed to order the confiscation of guns or to block their sale — steps she has never contemplated.

Also, legislative leaders also would have the final say over how the state spends $1.25 billion in federal coronavirus relief funds.

The votes for the bill were 27-11 in the Senate and 76-34 in the House and sent the measure to Kelly. Legislators adjourned their session immediately following the House vote, nearly 24 hours after they had convened.

Senate President Susan Wagle, a Wichita Republican, U.S. Senate candidate and vocal Kelly critic, argued that “financial security is just as important in our culture as health security.”

“We are here to protect Kansans’ health and to protect their pocketbooks,” Wagle said, urging colleagues to support the bill.

Kelly has said she’s open to protecting doctors, clinics and hospitals from lawsuits over decisions to delay non-coronavirus care during the pandemic. But shielding businesses from lawsuits is a priority of Republicans and business groups nationally, with Congress and other states considering it.

“There may be good defenses, but with a class-action lawsuit, the goal is not to get all the way to trial with a jury and a judge. It’s to get past the early phases of the litigation and put the pressure on the defendant to settle,” said Harold Kim, president of the Institute for Legal Reform, an arm of the U.S. Chamber of Commerce. “The immediate concern is the uncertainty. How do you remove this cloud of liability as businesses are trying to reopen?”

But the Working Kansas Alliance, a coalition of union groups, argued the bill could grant “total immunity” and labeled it “dangerous.”

Carmichael noted that some but not all businesses, including manufacturers of personal protective equipment and nursing homes, would be protected from lawsuits for negligence over coronavirus infections. Carmichael said a “negligent Chinese manufacturer” might have more protection than a Main Street business.

Because legislators adjourned for the year, they cannot override a Kelly veto. But Republicans hoped passing a bill would box Kelly in because her existing state of emergency, allowing her to tap broad powers for a response, remains in effect only through Memorial Day.

The bill would extend the state of emergency through May 31, then require Kelly to get legislative leaders’ permission to extend it.

If the state of emergency ends, some 30 orders that Kelly issued would expire. They include orders for a phased reopening of the state’s economy, as well as others banning evictions for people who can’t pay their rent during the pandemic and prohibiting utilities from cutting off services for customers who fall behind on their bills.

Many Democrats believe Kelly could declare another state of emergency. However, state Attorney General Derek Schmidt, a Republican, issued a legal opinion late Wednesday saying that Kansas law doesn’t allow multiple declarations during the same emergency. His opinion is non-binding, but could inspire legal challenges to Kelly’s actions.

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TOPEKA, Kan. (AP) — Republicans on Friday were advancing a big package in the GOP-controlled Kansas Legislature that would shield businesses and health care providers from coronavirus-related lawsuits while also taking control of the state’s pandemic response from Democratic Gov. Laura Kelly.

GOP leaders expected both the House and Senate to vote by dawn Friday on a sweeping bill drafted by Republicans. It reflects their view that Kelly is moving too slowly to reopen the state’s economy and has been too aggressive in imposing restrictions. She imposed a statewide stay-at-home order from March 30 until May 4 and plans to lift restrictions on businesses in phases through June 23.

Democrats strongly opposed the curbs on Kelly’s power. They also were skeptical of the protections against lawsuits, fearing such measures could prevent businesses from being held accountable for negligence or misconduct, even though supporters said that wouldn’t happen.

On Thursday, Kelly’s office stopped short of saying she would veto the GOP’s bill, but accused Republicans of trying to “cram” measures through the Legislature without vetting them. Lawmakers had convened Thursday for one last day in session this year after a coronavirus-mandated break that started March 20, and they extended their last day well past midnight to get all of their work done.

“Everything tends to be suspect, even if it comes in a package that might look pretty,” said Rep. Stephanie Clayton, a Kansas City-area Democrat. “We’ve seen ugly and strange things happen this late.”

The Republican plan would require Kelly to get permission from legislative leaders to keep businesses closed or to exercise other broad powers granted to governors during emergencies after May 31. Legislative leaders also would have the final say over how the state spends $1.25 billion in federal coronavirus relief funds.

“The oversight’s always good,” said House Majority Leader Dan Hawkins, a Wichita Republican. “In this situation, a lot of people think she went too far, so this is how we deal with it.”

Kansas saw coronavirus cases rise to more than 8,600 as of Thursday, with more than 200 COVID-19-related deaths, according to Johns Hopkins University. But recent increases in cases have been driven largely by outbreaks in meatpacking plants, a state prison in Lansing and in the Kansas City area. Twenty-one of the state’s 105 counties reported no cases as of Wednesday, and 48 had seen no new cases within the previous two weeks.

Kelly has said she’s open to protecting doctors, clinics and hospitals from lawsuits over decisions to delay non-coronavirus care during the pandemic. But shielding businesses from lawsuits is a priority of Republicans and business groups nationally, with Congress and other states considering it.

“There may be good defenses, but with a class-action lawsuit, the goal is not to get all the way to trial with a jury and a judge. It’s to get past the early phases of the litigation and put the pressure on the defendant to settle,” said Harold Kim, president of the Institute for Legal Reform, an arm of the U.S. Chamber of Commerce. “The immediate concern is the uncertainty. How do you remove this cloud of liability as businesses are trying to reopen?”

Republicans said businesses and medical providers still could be sued over negligence or misconduct. But the Working Kansas Alliance, a coalition of union groups, argued the bill could grant “total immunity” and labeled it “dangerous.”

Rep. Jim Ward, a Wichita Democrat and attorney, said considering protections from lawsuits normally would require months of work.

“These were significant pieces of legislation that were thrown together haphazardly and thrown together in a quilt,” Ward said.

Because legislators were not scheduled to be in session again this year after they adjourned Friday, they could not override a Kelly veto. But Republicans hoped passing a bill would box Kelly in because her existing state of emergency, allowing her to tap broad powers for a response, remains in effect only through Memorial Day.

The bill would extend the state of emergency through May 31, then require Kelly to get legislative leaders’ permission to extend it.

If the state of emergency ends, some 30 orders that Kelly issued would expire. They include orders for a phased reopening of the state’s economy, as well as others banning evictions for people who can’t pay their rent during the pandemic and prohibiting utilities from cutting off services for customers who fall behind on their bills.

Many Democrats believe Kelly could declare another state of emergency. However, state Attorney General Derek Schmidt, a Republican, issued a legal opinion late Wednesday saying that Kansas law doesn’t allow multiple declarations during the same emergency. His opinion is non-binding, but could inspire legal challenges to Kelly’s actions.