Sedgwick County will likely have to drop its COVID-19 mask mandate this week because of action in the state Legislature, county commissioners said Monday.
A bill that passed in Topeka last week essentially strips the commission and the local health officer, Dr. Garold Minns, from placing any restrictions on businesses for the remainder of the coronavirus pandemic, commissioners said.
Dropping the mandate is not on the county’s official agenda at this point, but could come up at the county staff meeting on Tuesday and/or the regular meeting Wednesday.
Gov. Laura Kelly is expected to allow the bill to become law after urging legislative Democrats to support it as the best deal she could make with a Legislature that is overwhelmingly Republican and conservative.
“We were advised to vote for that because it could be worse,” said Rep. Elizabeth Bishop, D-Wichita. “And I’ve seen things that are worse.”
The bill, known as Senate Bill 40, makes several changes in county authority to respond to emergencies.
The biggest one is that it allows any resident who feels aggrieved by a county emergency order, including a mask mandate, to file a lawsuit — and it tips the scale in court in favor of the challengers.
SB 40 requires the courts to hold hearings on challenges within 72 hours. “The court shall grant the request for relief unless the court finds such order is narrowly tailored to the purpose stated in the order and uses the least restrictive means to achieve such purpose,” the bill says.
The judge would have to make those findings within seven days, or the challenger would win by default.
If the county were to continue the mask mandate, the likely result would be clogged courts and a loss at the end of the day, Commissioner David Dennis said.
“Even if they were all consolidated (into one lawsuit), I don’t think we’re going to win because the bar is so low,” Dennis said. “The bar is so low on who an aggrieved party is . . . and the bar is so low in the courts, actually I don’t see that we have much authority left.”
Commission Chairman Pete Meitzner said he’s also concerned about the potential for widespread litigation arising from SB 40 if the county were to keep its mandate.
“I’m not in favor of taking on however many lawsuits or aggrieved people” might file legal challenges, he said.
Meitzner also pointed out that when COVID was new, nobody really knew what the right response should be. The Legislature closed down its session early and lawmakers went home, he said.
“I think state legislators felt that there were some errors in the past year, so this is their effort to come back in and armchair quarterback of something that happened back in March (2020) when they weren’t even in session,” he said.
Commissioner Sarah Lopez, a supporter of the mask regulations, said SB 40 is “extremely frustrating” to her, because “the state is trying to dictate everything we do.”
“I obviously think taking masks away right now is not smart,” Lopez said. “We need to continue to listen to not just Dr. Minns, but also top scientists around the country and around the world. In our community alone, everybody (among public health experts) is singing the same thing, which is we need to keep masks in place.”
Commissioner Jim Howell said he agrees with the part of the SB 40 that puts local health orders in control of the commission and out of control of the health officer.
“I firmly believe that the elected officials need to vote,” Howell said. “We need to be on the record and be accountable to the public and be able to discuss and explain any order that’s handed down.”
Howell said he’s not particularly worried about SB 40 at this time because of the declining number of COVID cases, hospitalizations and deaths in Sedgwick County, but he expressed concern that it might render county commissions “virtually powerless” in setting public health restrictions.
“This strips us of our power to a degree that I don’t know if we have any ability to really control the spread,” he said. “It kind of completely relies on education and the behavior of the individuals who live here. Had we had SB 40 last March, I don’t know how this would have played out.”
He said he thinks Kelly and the county moved too quickly on shutdowns and restrictions last year. But he said he probably would have supported those kinds of measures later when cases started spiking — and he supports commissions having that authority.
“We should be more reserved in issuing restrictive health orders where we start restricting the freedom of our people,” Howell said. “But I would like to have some ability to do things that make sense when the data indicates we need to go in that direction.”