Kansas Justice Institute, like everyone, is closely monitoring the Covid-19 pandemic. Naturally, as local health officers issue public gathering bans and stay-at-home orders, people have questions. There are no easy answers.
Kansas law allows local health officers to “exercise and maintain supervision” over infectious or contagious disease cases. They are empowered “to prohibit public gatherings when necessary.” Another statute permits local health officers to “use all known measures to prevent the spread of any such infectious, contagious or communicable disease[.]”
The local health officer can isolate or quarantine individuals if it is “medically necessary” and “reasonable to prevent or reduce the spread of the disease or outbreak” until the “individual no longer poses a substantial risk of transmitting the disease to the public[.]” KSA § 65-129b(a)(1)(B). This “129b Order” must be specific and must inform the public of their ability to contest the order.
Courts “shall appoint counsel” to represent individuals who are “not otherwise represented[.]” A challenge to the health officer’s order will take place within 72-hours absent extraordinary circumstances. At the hearing’s conclusion, the judge must lift the quarantine order “unless the court determines that the isolation or quarantine order is necessary and reasonable to prevent or reduce the spread of the disease or outbreak believed to have been caused by the exposure to an infectious or contagious disease.” For more information, see Robert W. Parnacott, Anthrax, Smallpox, and Flu, Oh My! The Law of Infectious Disease Control in Kansas, J. Kan. B. Assn. (Oct. 2009). Republished with permission.
Although health officers and the governor have broad powers, they are not unlimited. A public gathering ban or “shelter in place” order nonetheless raises constitutional concerns. The order should use the least restrictive means available to accomplish its purpose. The order’s exceptions matter too. A public gathering ban that applies to movie theaters but not plays, for example, is suspect. Banning small religious ceremonies but not large gatherings in shopping malls would be even more problematic. The Kansas Constitution Bill of Rights provides even greater protection of the free exercise of religious beliefs than the First Amendment to the United States Constitution. A temporary order lasting beyond the health crisis would raise even more issues. There isn’t a one-size-fits-all solution. What’s potentially reasonable in one county might not be in another. The details matter.
In the near term, the Governor will continue issuing Executive Orders, local health officers will issue their orders, and Kansas Justice Institute will closely monitor the rapidly changing legal landscape.
This general information does not constitute legal advice and does not establish an attorney-client relationship. Instead, all information, content, and materials available in this resource are offered for general informational purposes only. Contact Kansas Justice Institute via our website if you believe your rights have been violated and you seek representation.