March 21, 2023

Keeping Media and Government Accountable.

KEMA overhaul protects due process, privacy, prevents mask mandates

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A revision to the Kansas Emergency Management Act (KEMA) that would limit the ability of local governments and school boards to impose mask mandates — among other things — has passed an important hurdle.

The Kansas Senate Judiciary Committee last week sent Senate Bill 541 to the floor for a vote. If the bill passes there will be significant changes to the Kansas Emergency Management Act.

The bill would limit cities, counties, and school districts to 30-day directives, and would prevent colleges and local schools from requiring proof of COVID-19 vaccination.

It would also place restrictions on contact tracing, requiring the secretary of health to promulgate rules for contact tracing and imposing, among other things, strict privacy rules and penalties for breaking them — something Kansas Justice Institute Legal Director Sam MacRoberts said is a good thing. KJI, like the Sentinel, is owned by the Kansas Policy Institute.

“There’s no doubt COVID-19 is serious and has caused significant damage to our communities,” he said. “Still, contact tracing can be invasive and in some cases, unconstitutional. That’s why we filed our lawsuit in 2020 over it. So, it’s good to see the legislature is looking to re-impose limits on the process.”

MacRoberts is referring to a May 2020 case in which KJI sued Linn County over a contact tracing order that required businesses to collect the name, phone number, date of visit, and arrival and departure time of every customer, and make them available to Linn County Public Health Department on demand.

Linn County ultimately rescinded the order.

The bill also makes rules regarding the due process hearings required if someone has a quarantine order issued by a county health officer.

KEMA currently requires that anyone contesting a quarantine order be granted a hearing before a judge within 72 hours and that the court issue a decision within 7 days, and requires that if the judge doesn’t issue an order then the quarantine order is automatically lifted. SB541 would amend that to say that a judge would need to rule “without unreasonable delay,” and strikes the language granting automatic relief.

MacRoberts said that brings needed clarity to the statute.

“The bill looks to clean up some language involving due process hearings — and that’s a good thing,” he said. “When the government wields its pandemic powers, the public must be afforded a prompt and meaningful hearing — a simple, yet effective remedy against potential government overreach.”

The bill also restricts the governor from issuing orders that would shut down churches or other places of worship.

That section is in reaction to an April 2020 executive order issued by Kansas Governor Laura Kelly that limited churches — right before Easter — to 10 worshipers, but exempted libraries, shopping malls, bars, and restaurants from the restrictions.

The Kansas Supreme Court upheld the order when it was challenged, but a federal judge ultimately struck it down.

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