photo by: Douglas County

County leaders discuss changes to state legislation regarding health orders during their meeting on March 31, 2021.

Following the recent rewrite of pandemic management laws by the Kansas Legislature, county leaders are now preparing to be the arbiters of future health orders such as mask mandates and gathering limits.

As part of the Douglas County Commission’s meeting Wednesday, legal counsel for Douglas County provided details about how the recent changes affect health orders and the commission’s new role in those decisions. The changes do not affect the current health order, but County Administrator Sarah Plinsky told commissioners that the health officer and public health department staff would be bringing an updated health order to the commission for consideration at an upcoming meeting.

Under the revisions to state law, if a local health officer determines an order is necessary that requires face masks, limits the size of gatherings, curtails the operation of businesses, controls the movement of the county’s population, or limits religious gatherings then the officer must propose that order to the board of county commissioners. The board can consider the order at its next regular meeting or hold a special meeting.

If an order is ultimately approved, it can be subject to quick court action. Under the revisions, any party “aggrieved” by an order may file a civil action in the district court of the county that issued the order within 30 days, and the court shall conduct a hearing within 72 hours and issue its order within seven days of the hearing. If the court finds the health order is not “narrowly tailored to the purpose stated in the order” and that it does not use “the least restrictive means to achieve such purpose,” then the court must grant the lawsuit’s request for relief.

County Counselor John Bullock told commissioners that the review standard called for in the legislation comes from the legal standard of “strict scrutiny,” which he said is used in other cases where the government is acting, traditionally in areas of fundamental rights. Bullock said that same “strict scrutiny” standard would now be used for the review of health orders.

“Another way to think about that is, does the order do the minimum that is necessary or more than the minimum that is necessary to achieve the stated purpose of the order?” Bullock said.

Bullock said while the new legislation does not affect the current health order, which includes mask requirements and gathering limits, once the health officer proposes a revision to the current order, the commission would be responsible for approving, rejecting or modifying the order. He said the order would then be subject to whatever judicial review may ensue after that.

Bullock said that once an order comes to the commission for consideration, he and Assistant County Counselor Brad Finkeldei — who also serves as mayor of Lawrence — could meet with commissioners in executive session to provide legal advice pertaining to the statute and the county’s role. He said any evidence presented by local health officer Dr. Thomas Marcellino or others would be in open session, as would any commission discussion about the necessity of a health order, what the health order should say, and any action the commission takes regarding the order.

In response to a question from Commissioner Patrick Kelly about how counties were responding to the changes to state law, Plinsky said that responses had been all over the board. She said some counties were waiting to see what happened with statewide orders, while others were looking to create guidelines instead of orders. Finkeldei added that Shawnee County left its order in place but said anyone could opt out of it, which he said would be slightly stronger than a recommendation but less than an order.

On March 9, Lawrence-Douglas County Public Health announced that the mass gathering limit would expand from 25 to 50, and that previous restrictions that required restaurants and bars to close at midnight would be lifted, as the Journal-World reported. The health order kept in place an indoor capacity limit of 50%, as well as mask requirements for indoor public spaces and outdoor spaces when 6 feet of distance cannot be maintained. Exceptions include people younger than 5 and those with a medical condition that prevents wearing a mask, and masks can be removed while people are eating, drinking or swimming.

Plinsky told the Journal-World via email that the new health order is still under development and there is not yet a date set for when it will go to the commission for consideration.