Limits to Kansas governor, health officials’ emergency powers restored — for now
Major revisions to the Kansas emergency management law, ruled unconstitutional last month by a Johnson County judge, will remain in place while the state Supreme Court considers an appeal.
The Kansas Supreme Court on Tuesday granted Attorney General Derek Schmidt’s request that district court judge David Hauber’s ruling be stayed until the higher court made its decision.
The stay follows more than a month of uncertainty in Kansas as COVID-19 cases and hospitalizations rise and the power of local health officials and Gov. Laura Kelly was uncertain.
The state will now operate under the emergency management rules lawmakers approved earlier this year in Senate Bill 40. The measure subjects many of Kelly’s emergency powers to Legislative review and bars local health officers from issuing unilateral orders on masking, business closures and capacity restrictions.
In a statement, Schmidt called the ruling “welcome.”
“The district court’s ruling had created unnecessary confusion about Kansas emergency management laws at a time when the rise in COVID cases makes certainty and stability in the law even more critical,” Schmidt said.
Sen Kellie Warren, a Leawood Republican who helped draft the law, said she was pleased with Schmidt’s defense of the measure.
“It restores certainty and order to how local units of government respond under SB40,” Warren said.
Kelly and local health officials largely refrained from using the powers restored by Hauber’s ruling. New mask mandates were issued by local governing bodies rather than health officers and Kelly told reporters she was reluctant to issue a new emergency order.
The ruling also restores a procedure that allows individuals or businesses “aggrieved” by a public health order to file a complaint in district court. The government agency that issued the order is required to prove they had protected public health in the least restrictive means possible. If the court fails to hold a hearing within 72 hours and rule within seven days, the policies are removed in a default judgment.
Though most public health actions had been abandoned at the time of Hauber’s ruling, new local mask mandates enacted in July and August could be challenged.
Last month Hauber ruled the time limits imposed on courts violated due process for the government entities and separation of powers between the Legislative and Judicial branches of government.
Because the Legislature ignored the role and procedures of the court when drafting the law, Hauber ruled, the entire statute was unenforceable.
Rep. Fred Patton, a Topeka Republican who helped draft the Legislation, said the ruling had created questions over what officials could do and whether individuals could challenge those decisions.
“For the sake of statewide knowing what the rules are it was important that the court issue a stay,” Patton said.
Senate President Ty Masterson, an Andover Republican, said in a statement that “now more than ever” the “checks and balances’” established by the Legislature needed to be enforced.
Hauber’s decision came in response to a complaint filed against the Shawnee Mission School District seeking an end to the district’s mask directive.
Shortly after the ruling, the attorney general’s office requested a stay of the order until the Kansas Supreme Court had weighed in. The office argued that Hauber caused confusion by striking down several laws unrelated to the complaint that led to his ruling, which was brought by parents against the Shawnee Mission School District’s mask mandate.
Hauber denied the request in district court but the attorney general’s office made a similar request of the Kansas Supreme Court later in the month.
In the request, Attorney General Derek Schmidt called Hauber’s actions improper and a “self initiated constitutional controversy over moot questions resulting in a dramatically over broad decision.”
The court granted Schmidt’s request as well as a request that the court act on an expedited schedule to clarify the state’s emergency laws. The final deadline for briefs in the case is September 16.
School Districts
Though the ruling brought back most of the limitations under Senate Bill 40, the provisions that directly impacted school districts will not be imposed.
The Legislature provided for challenges to actions by local school boards to expire with the COVID-19 state of emergency. Local government actions, such as Johnson County’s mask mandate for schools, are subject to appeal.
“As a practical matter, the stay will have no impact on school districts unless a state of disaster emergency related to COVID-19 is declared,” David Smith, a spokesman for the Shawnee Mission School District, said.
Mark Tallman, a lobbyist for the Kansas Association of School Boards, said the organization would advise school districts to consult with local legal counsel before taking any action. However, he said, the association did not believe schools would be impacted.
“We are back in a world where schools do have to follow, for example, if a local county wanted to impose a mask mandate the school district would have to follow. They no longer have exclusive control,” Tallman said.
“Some school districts are imposing mask requirements on their own authority and they are not subject to the expedited hearing requirement.”
The Star’s Sarah Ritter contributed to this story.
This story was originally published August 24, 2021 at 10:38 AM.
