Johnson County judge moves toward ruling new emergency management laws unconstitutional

Portions of an expansive new Kansas emergency management law that opened the door to lawsuits challenging local COVID-19 precautions could become invalid after a Johnson County judge said this week they hold “significant constitutional problems.”

In an order Tuesday, Johnson County District Judge David Hauber asked Attorney General Derek Schmidt, who helped draft the law and is running for governor, to appear in court as he considers ruling portions of it unconstitutional.

The request came in Hauber’s ruling on a lawsuit parents filed against the Shawnee Mission School District seeking to force an end to the district’s mask mandate. The suit used procedures established by Senate Bill 40, passed in March by the Legislature in response to a backlash against state and local measures to combat the pandemic.

The action was one of many filed under the new law against Kansas school districts and local governments. In Johnson County, judges have consistently ruled in favor of the districts and governments.

Hauber went a step further on Tuesday, writing that he is “convinced” the law violates the constitution by depriving school districts and other government entities of due process.

Senate Bill 40

In addition to limiting Gov. Laura Kelly’s emergency powers, Senate Bill 40 established a process that allows Kansans “aggrieved” by local school board decisions during the pandemic to halt the actions by suing.

To retain their policies, schools must prove they’d used the most “narrowly tailored approach” to preserving public health. If the court failed to hold a hearing within 72 hours and rule within seven days, the policies would be removed in a default judgment.

As the number of new COVID-19 cases remains low and more people are vaccinated against the virus, school districts and most Kansas counties recently done away with their mask requirements, and instead encourage their use.

The portions of the bill specific to school boards are limited to COVID-19. But time frames established for complaints against actions by the governor and local governments during the current state of emergency also apply to future crises.

In his ruling, Hauber says that the bill “hobbles” the defendant and unconstitutionally eliminates their right to due process if a court cannot respond in time.

Hauber cited a statute requiring him to allow the attorney general an opportunity to appear in court before deeming the law invalid.

He gave Schmidt 10 days to respond.

In a filing Thursday, Schmidt said he would provide information on the bill and constitutional questions to the court.

In an emailed statement Kristin Babcock, a spokeswoman for the Shawnee Mission School District, said the district agreed with Hauber’s conclusion.

“He recognized that the Legislature improperly denied due process to school districts that are doing their best to navigate through a difficult and unprecedented public health emergency,” Babcock said.

In a statement Senate President Ty Masterson, an Andover Republican, said the bill was written to ensure complaints were dealt with in a timely manner.

“To suggest that gives parents an unfair advantage over bureaucrats is preposterous,” he said.

Challenges to public health actions

The ruling comes as several Kansas school districts have been fielding challenges to their mask policies under the new emergency management law.

In one case, which moved to federal court last month, attorneys representing two Johnson County school districts also argued that Senate Bill 40 is unconstitutional.

The families of 16 children in the Blue Valley and Olathe districts argued against their children being required to wear masks during the pandemic.

Attorneys for both districts asserted that the bills violated the Kansas constitution by stripping power from local school boards.

“It is so unreasonable that it unduly interferes with or hamstrings the local school board in performing its constitutional duty to maintain, develop, and operate the local public school system,” attorney Joseph Hatley, representing Blue Valley, argued in court documents.