Kansas Supreme Court questions validity of Johnson County judge’s COVID ruling

·4 min read

Kansas Supreme Court justices Tuesday questioned whether a Johnson County judge overstepped his authority in July when he ruled that major revisions to the state’s emergency management laws were unconstitutional.

Typically, courts and judges seek to avoid ruling on broad constitutional grounds. But when Johnson County parents used the appeals process established in Senate Bill 40 to challenge the Shawnee Mission School District’s mask policy, Johnson County District Judge David Hauber seemed to depart from that pattern. Not only did the parents’ challenge not apply under SB 40, he said, but that the law itself violated the Constitution’s due process and separation of powers provisions.

The case came before the supreme court for oral arguments Tuesday. It is uncertain when justices will issue a decision on the matter.

In August, the state Supreme Court paused implementation of Hauber’s ruling until it reviewed the case.

Though most public health actions had been abandoned by the time of Hauber’s ruling, new local mask mandates enacted in Johnson and Morris counties were challenged after the Supreme Court ruling came down.

The hearing was the latest in a nearly five-month court battle over revisions to the Kansas emergency laws passed during the 2021 Legislative session.

The changes stripped authority from local health officers and Gov. Laura Kelly. They set up a system under which any “aggrieved” Kansan could bring a court challenge against a government that imposed public health measures such as mask mandates and social distancing requirements. Challenges must be brought within 30 days of the measure being imposed.

The law made much of Kelly’s executive power subject to Legislative review and barred local health officers from issuing unilateral orders.

Kansas Solicitor General Brant Laue argued that Hauber lacked authority to delve into constitutional issues after determining the challenge was invalid. His authority further diminished after parts of the law expired alongside Kansas’ COVID-19 state of emergency in July, Laue said.

“I don’t think the court needs to or should reach the constitutional issues,” he said. “Court’s do not decide moot issues. Particularly not moot constitutional issues.”

But the attorney for the Shawnee Mission School District, Gregory Goheen, said the court acted within its power and interest.

“There was clearly jurisdiction to decide on the front end by the district court,” Goheen said. “If Senate Bill 40 is unconstitutional, that raises the question of whether the district court has jurisdiction to consider that issue and I think the court has the ability to raise that issue.”

The legal fight began in July when Hauber struck down the entirety of SB 40, asserting that time limits imposed on the courts by the law to rule on such challenges were unconstitutional. He also said the crafting of the bill violated the constitutional principle of separation of powers because lawmakers neglected to consider the role and procedures of the judicial branch.

Under SB 40, the government agency that issued the order is required to prove it had protected public health in the least restrictive means possible. If a court fails to hold a hearing within 72 hours of a complaint being filed and to rule within seven days, the policies are removed in a default judgment.

Because the Legislature ignored the constitutional role and procedures of the court when drafting the law, Hauber ruled, the entire statute was invalid..

In Tuesday’s arguments, Justice Dan Biles questioned whether Senate Bill 40 ever applied to the Shawnee Mission School District appeal in the first place. The complaint was filed more than 30 days after the mask policy went into place and the court failed to hold a hearing within the required 72 hours.

“It seems like the court has some skin in the game when it relates to Senate Bill 40 because the court’s in violation of it,” Biles said.

Goheen, the school district’s attorney, argued the court’s violation of the time limits could have landed the case at the Supreme Court anyway.

Other justices questioned whether the district court had authority to act. It had already ruled that the parents did not have a case against the school and the statute specifically allowing lawsuits against school districts expired a month before Hauber issued his final ruling.

“Would any of that rolling boulder even get started running if Senate Bill 40 just plain did not apply to the case?” Chief Justice Marla Luckert asked.

The case garnered interest across Kansas as a result of it’s real-time impact on COVID-19 response at every level of government. Political and policy groups across the political spectrum submitted briefs.

Notably, Gov. Laura Kelly entered a brief explaining that, though she signed Senate Bill 40, she had serious qualms about the appeal process. She urged the court to allow the bill to stand while ruling the time limits imposed on courts unconstitutional.

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