Kelly, in dropping Kansas coronavirus rules, blunted GOP criticism and legal risks

In late April, Gov. Laura Kelly sketched a grim portrait of the challenges Kansas faced as she outlined a cautiously phased plan to ease the lockdown imposed to fight the spread of the coronavirus. She spoke of balancing public health against unsustainable economic damage.

Like a Jenga tower, a single misstep, she said, could send the whole thing tumbling down. “This is deadly serious, with both lives and livelihoods hanging in the balance,” she told Kansans in a televised address.

Less than a month later, more than a million Kansas residents are, for all intents and purposes, free to return to their pre-pandemic lives. This despite hundreds of new infections reported every few days and people continuing to die.

Kelly has abruptly abandoned all mandatory statewide restrictions, effectively ending her reopening plan weeks ahead of schedule and sending counties scrambling to set their own policies. The result is a confusing patchwork of local rules, with some of the state’s largest counties having decided to impose no limits at all.

Why did she suddenly dispense with the plan? The Democratic governor has offered conflicting explanations, blaming the Republican-controlled Legislature and citing unspecified data supporting her decision.

Adding to the mixed messaging was her own top health official. Kansas Department of Health and Environment Secretary Lee Norman said the process going forward will be “highly irregular” and that the state was entering “uncharted, experimental waters” that could lead to a “startling” spike in new cases.

On Friday, Norman acknowledged that from a public health perspective, he would have preferred to keep the mandatory reopening plan in place.

Kelly hasn’t elaborated on her reversal since announcing it Tuesday. She was scheduled to address reporters on Friday, but then canceled her appearance.

But the clear effect of lifting restrictions has been twofold: quashing Republican opposition and staying out of court.

Dropping the statewide directives handed Republicans a massive concession that has largely silenced criticism that she wasn’t giving counties enough local control. Anger had been building for weeks over rules that kept some businesses closed and limited others and didn’t allow local governments to set less restrictive limits.

That move, in turn, dramatically lowered the chances of a lawsuit challenging her emergency orders. A legal battle could have endangered her entire pandemic response, which extends far beyond social distancing rules to include deployment of the National Guard and other resources across the state.

“By doing this, it removes the chance that really anyone will sue to question that,” Rep. Fred Patton, a Topeka Republican, said. “Because now you don’t have businesses closed, you don’t have people being harmed by this necessarily.”

Unexpected change

Kelly abandoned her statewide limits – which were still keeping bars, summer camps and large outdoor venues closed – on Tuesday, the same day she vetoed a bill the Legislature passed the previous week that would have effectively rendered her reopening plan moot. The measure would have allowed counties to impose restrictions less strict than Kelly’s rules.

Instead, the governor called a special session of the Legislature to begin Wednesday. She wants legislators to craft a new emergency powers bill.

Kelly also issued a new disaster proclamation, which grants her broad powers in emergencies. The declaration, her third of the pandemic, allows her to continue waiving regulations and deploying resources such as the National Guard in response to the crisis.

While the veto of the emergency powers bill had been expected, the sudden end to all statewide restrictions took some officials by surprise.

“I think for us as public health professionals charged with protecting the health of our residents, obviously we weren’t expecting that,” Sanmi Areola, Johnson County public health director, said of Kelly’s decision. “There are reasons, major public health reasons, behind recommending those phased approaches.”

Still, Johnson County health officials decided they will not impose their own coronavirus restrictions. Instead, they are strongly recommending that residents and businesses follow Kelly’s plan.

On Tuesday, Kelly acknowledged the new declaration was “not ideal,” but said political games by the Legislature required it.

Lawmakers passed the bill limiting the governor’s powers on the final day of the regular session after meeting for more than 24 hours. Because it was the last day of session, legislators had said any bill passed after midnight would be legally vulnerable, but they pressed on anyway.

“Unfortunately, this is a direct result of the Legislature’s unfortunate actions last week,” Kelly said.

But asked by a reporter why she abandoned statewide restrictions, the governor offered a different explanation.

“We didn’t keep the plan mandatory because we looked at the data that were available to us and other information that was available to us and decided that what we really needed to do from the state perspective now is to move into the economic recovery phase of this, under an emergency declaration act,” Kelly said. “So we felt that this was a better route to take right now.”

The governor’s office didn’t directly answer a question about the data and information Kelly was referring to. The state’s reopening metrics, which include the rate of new cases, hospitalizations and deaths per capita, have all been trending in a positive direction, Norman has said.

Lauren Fitzgerald, a Kelly spokeswoman, said in a statement that had the Legislature extended the previous disaster declaration, which Kelly issued at the end of April, the governor would have continued to follow her reopening plan. She said Kelly “continues to encourage counties to implement the plan under their own local orders as they decide what is in the best interest of their communities.”

“The governor did not have any choice here,” Rep. John Carmichael, a Wichita Democrat, said. The bill lawmakers approved was “clearly unacceptable.”

Lawsuit possible

Republicans had been growing increasingly angry with each successive proclamation, with some contending Kelly has no legal authority to issue repeated proclamations for the same disaster. Republican Attorney General Derek Schmidt bolstered that position last week when he released an opinion calling multiple proclamations “legally suspect.”

Schmidt’s opinion provided powerful ammunition to anyone who wanted to file a lawsuit challenging Kelly’s authority. The potential for litigation has hung over Kelly’s pandemic response since April, when she sued in state court to overturn an attempt by top Republican legislators to terminate an executive order limiting in-person religious services.

She won the case, but two churches later sued in federal court, where a judge temporarily blocked enforcement of the order. Kelly later dropped the directive.

Under the new proclamation, Kelly is keeping in place non-controversial executive orders, such as directives allowing expanded use of telemedicine and extending professional licensing deadlines. But the orders that had generated GOP pushback – like those limiting mass gatherings and halting some foreclosures and evictions – are gone.

Rep. Blake Carpenter, a Derby Republican, wrote on Facebook that it was “very questionable” whether Kelly can legally issue a new disaster declaration.

“So she issued a new order that has enough differences where they could argue that it is a different order if she was sued,” Carpenter said.

New confusion

Kelly and Norman have both admitted the move will cause confusion among the public.

“It’s going to be highly irregular from one county to the next and it’s going to be very confusing and I don’t think people do well with confusion,” Norman said.

In a news conference with KU Health System leaders on Thursday. Norman suggested he could still shut down businesses if they aren’t following public health practices, however, saying state law gives him that authority if “it’s an inherently and unsafe business.”

On Friday, Norman said it is “absolutely not” his intention to police businesses. But he said he does have discussions with local health officials.

“Fortunately, it’s not been required to have a mandatory closure order from me yet. And I would not want to,” Norman said.

In response to questions, KDHE spokeswoman Ashley Jones-Wisner wrote in an email that lifting the statewide restrictions makes fighting the virus more difficult. Asked about counties that aren’t imposing new rules, she wrote that accelerating the public health measures in Kelly’s reopening plan “would be premature.”

But a number of counties from all areas of the state are imposing no local restrictions or only non-mandatory recommendations.

Ford County, home to virus clusters linked to massive meatpacking plants, is offering just recommendations. On its website, the county said it is supporting “home rule” for local businesses and governments “to institute measures that better fit each individual, business and level of local government.”

McPherson County, where barber Luke Aichele briefly became a conservative icon after reopening his shop in defiance of restrictions, won’t impose any limits.

Dennis Kriesel, director of the Kansas Association of Local Health Departments, said some of his members are in communities on the downward side of the peak and had been wanting to be more lax than the governor’s plan.

At the same time, Kelly’s statewide standards had also alleviated pressure on health authorities in counties where local elected officials wanted to reopen. But the shield the governor’s orders provided is now gone.

“Because it’s a local decision in a lot of cases I think they’ve had to back off and just sort of let things be maybe more lax than they would like because that’s just the political reality,” Kriesel said.

The Star’s Sarah Ritter contributed reporting

This story was originally published May 29, 2020 at 3:54 PM.