Kansas Legislature Passes Bill Barring COVID-19 Lawsuits

By | May 25, 2020

Republicans pushed a sweeping coronavirus measure through the GOP-controlled Kansas Legislature on May 22, 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 she said in a media briefing that she was not yet ready to announce plans for specific bill signatures or vetoes.

“Just like the entire Kansas Legislature I also haven’t had time to read or review the complex and consequential legislation they passed in the middle of the night,” she said, describing the wrap-up session as the “most embarrassing, irresponsible display of government that we have witnessed throughout this ordeal.”

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 on May 21 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.”

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.

Heather Hollingsworth contributed to this report from Mission, Kansas.

Topics COVID-19 Lawsuits Kansas

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