When the reality of COVID-19 began to set in for Kansas, Sedgwick County District Attorney Marc Bennett expected the pandemic would be more of a glancing blow than a knockout punch to the state’s court system.
Even as jury trials were suspended in the state, Bennett said, he figured getting things back up and running by Memorial Day wouldn’t be a problem.
The reality was far different, he told the Special Committee on the Kansas Emergency Management Act last month.
"I figured, in the moment, we figured it would be resolved and, at the latest, we’ll be doing jury trials by July 4," Bennett said. "We’ve had one jury trial in Wichita."
With Gov. Laura Kelly set to again petition the State Finance Council on Wednesday for an extension of her COVID-19 emergency declaration, the courts will again be a major factor in the decision-making process for lawmakers.
The emergency order is used to ensure the state’s COVID-19 response continues uninterrupted, allowing emergency operations to be maintained and ensuring the state can access federal relief funds.
It was renewed last month after Kelly and Republican legislators clashed for several hours over whether language should be added to assure residents that businesses won’t be closed as they were in the pandemic’s early days.
But part of what pushed members into voting for the extension was lobbying by the Kansas County and District Attorneys Association, as well as Bennett.
Not renewing the order would potentially free those who are awaiting trial as the state’s court system slowly recovers from the pandemic, they argued.
That is because of a law passed earlier in the pandemic giving Marla Luckert, chief justice of the Kansas Supreme Court, the ability to suspend certain deadlines, including state statute outlining how quickly individuals must be brought to trial.
In order for the chief justice to issue the order in the first place, however, an emergency declaration must be in place.
Leavenworth County District Attorney Todd Thompson, president of the KCDAA, said they would push lawmakers to extend the declaration on those grounds.
"Without the extension, and until we have approval and a procedure to safely have juries into the courtrooms, we continue to run the risk of having trials dismissed," Thompson said in an email. "This is not something we feel is fair to the justice system or safe for our communities."
Defendants have "speedy trial" rights outlined under the U.S. Constitution, but Kansas is a state that fleshes out those rights in statute. The problem, many in the state’s legal system realized, is that those deadlines are impossible to apply during a pandemic or other emergency.
Under the new law, there would be a potential buffer of several months to allow courts to have time to resume normal operations, but district attorneys have argued it isn’t long enough for them to get back up to speed.
Lawmakers have considered changing this, but Rep. Fred Patton, R-Topeka, said any changes will have to wait until the legislative session begins in January.
"I think that’s the short-term fix, that the chief justice continues to have the ability to suspend some of those statutory deadlines," Patton, chair of the House Judiciary Committee, said in an interview.
In the meantime, the ability for courts to resume operations depends on where you are in the state, Shawn Jurgensen, Luckert’s special counsel, told lawmakers Tuesday.
Smaller judicial districts have said they could begin eating away at the case backlog quickly.
And in Wichita, where jury trials have resumed, precautions have been implemented, including plexiglass in courtrooms and an outdoor tent processing those arriving for jury duty.
"Jury trials are not going to look like they did before the pandemic because things will move noticeably slower," Jurgensen told the Joint Legislative Budget Committee.
As it stands now, it is likely that "someone will make a lot of money doing appeals," as Bennett put it, challenging whether a defendant’s rights have been violated during the pandemic.
Attorney General Derek Schmidt agreed.
"This is a global pandemic that is unprecedented in the last century that has materially disrupted the operations of the judiciary," Schmidt said in an interview. "You have to challenge the way its been managed, that’s your job as defense counsel."
One potential long-term option is to eliminate the statutory speedy trial provision altogether, although that is likely to cause consternation from defense attorneys and advocates concerned about the rights of the accused.
Still, Bennett noted that other states did not have speedy trial provisions outlined in state law. Instead, defendants would merely petition the court if they felt their rights were being violated.
"They simply let the courts handle speedy trial issues through the long established case law," he said.
Other options exist as well. Lawmakers could elect to give more power to the chief justice, letting them suspend deadlines even in the absence of an emergency declaration.
But other legislators who said Kelly had too much power in dictating the state’s pandemic response are equally queasy about giving the judiciary unchecked abilities.
"I’m having trouble writing a blank check," said Rep. John Barker, R-Abilene.
In the end, Patton said, a compromise may well emerge to temporarily unchain courts from statutory speedy trial requirements while ensuring they eventually resume to protect the rights of the accused.
"Will the State Finance Council extend? Will the Legislature change this or that? You don’t know," he said. "If we were to put something in place that would suspend it for a period of time, with a set end date, that may make everyone more comfortable."
In the meantime, however, the State Finance Council has a more pressing decision to make on extending the emergency declaration.
Each extension lasts for only 30 days, meaning the order will expire on Oct. 15 unless action is taken.
One member of the council, Sen. Carolyn McGinn, R-Sedgwick, said the issues facing the court system would likely still be on the minds of lawmakers as they thoroughly review the governor’s order.
Still, she predicted a less combustive meeting than what occurred in September.
"It’s not like anything has changed since the last time we made that decision," McGinn said. "Unless I find out differently from my colleagues, I’m guessing we’ll probably be looking at an extension."