By Tim Carpenter, Kansas Reflector
TOPEKA — Republican and Democratic attorneys in the Kansas Senate sparred Wednesday over a bill praised as a deterrent to distortion of state nuisance law for ideological purposes and blasted as an unwarranted push by lobbyists unable to offer evidence of a problem.
The legislation was introduced on behalf of Varidon Strategies, a Kansas lobbying organization associated with the Alliance for Consumers Action Fund, which has portrayed plaintiffs’ trial attorneys as “shady” and seeks to change state laws to inhibit cities or counties from relying on nuisance statutes to gain traction with lawsuits.
In Senate Bill 462, Kansas would target cases sometimes described as tools of “lawfare.” Attorney General Kris Kobach expressed general support for the legislation, while the League of Kansas Municipalities and representatives of El Dorado and Overland Park objected to the bill.
Sen. Ethan Corson, D-Fairway, said the bill passed 29-11 by the Senate and forwarded to the Kansas House was conceptually flawed because it targeted a nonexistent problem.
He said no evidence was offered by the attorney general or state senators that Kansas was mired in the strategic misuse of the legal system that could be accurately described by a word blending “law” and “warfare.”
“We’ve had several of these bills in the Senate Judiciary Committee where there’s really no nexus between the bill and anything that is happening in Kansas,” said Corson, who is a candidate for governor.
Sen. Kellie Warren, a Leawood Republican who chairs the Senate Judiciary Committee, said Kansas should limit use of nuisance laws to legitimately illegal actions or products. This area of state law shouldn’t be a vehicle for legislating or regulating the lives of Kansans, she said.
During Senate debate, Warren offered an illustration of what occurred when plaintiffs engaged in “lawfare.”
“What happens is a public nuisance suit will be brought, for instance, alleging that gas stoves create climate change problems and we should be all compensated for the damage they have caused,” she said.
She said Kansas law ought to confine nuisance suits to something linked directly to a consequence. For example, she said, law suits filed against someone who allegedly oil in a lake that led to environmental damage.
Under SB 462, the lawful sale or design of products and government-authorized activities couldn’t be treated as a public nuisance. Private individuals filing a lawsuit would have to prove they suffered a unique, specific injury rather than one shared by the general public. Plaintiffs would have to prove by “clear and convincing evidence” a defendant’s actions were the direct cause of an injury. The statute of limitations would begin at the time a plaintiff discovered a condition, and the clock couldn’t be restarted with subsequent reoccurrences of the questionable activity.
The bill forwarded to the House would grant Kobach’s staff jurisdiction over so-called lawfare suits in Kansas.
In testimony to the Senate committee, Kobach said a legislative remedy should be found in Kansas to the abuse of common law doctrine on public nuisances. He said abusers of nuisance laws were able to “attack an entire industry, such as fossil fuels or firearms.”
He said the attorney general’s office should be recognized in Kansas as the only government authority in terms of litigation addressing harm suffered broadly by the people.
“Allowing cities and counties to share this authority produces a situation in which different counties have different, contradictory visions of what activities harm the people of Kansas,” he said. “Any situation in which a county or city might need to address a problem affecting a large number of residents can be better dealt with through the enforcement of local ordinances or the prosecution of existing crimes.”
O.H. Skinner, executive director of the Washington-based Alliance for Consumers Action Fund, which has lobbying ties to Varidon Strategies in Kansas, said U.S. activists and public officials were turning to litigation to control what companies could sell and consumers could purchase.
His organization has taken a keen interest in opposing legal maneuvering to ban certain cars, dishwashers, freezers and stoves.
“We are in the midst of an unprecedented campaign of lawfare by left-wing activists in courts across this country,” Skinner said. “It empowers activists and their aligned law firms to weaponize the courts, feed their political machines and achieve policy changes that could not survive the legislative process.”
Michael Koss, the city attorney in Overland Park, said the Senate bill would end the ability of municipalities to bring public nuisance claims against companies that harmed Kansans.
If the Senate legislation had been in effect, he said, Kansas municipalities couldn’t have brought nuisance claims against companies involved in the sale of opioids that resulted in financial settlements benefitting Kansans.
“The Legislature should want Kansas municipalities to participate in public nuisance actions because the collective pressure of multiple public litigants helps maximize Kansas’s leverage to secure the best settlement for Kansans,” Koss said.
