With mask mandates possibly returning, Kansas court paves way for new lawsuits by the ‘aggrieved’
The Kansas Supreme Court’s decision on Friday leaving in place the state’s COVID response law allows Kansans to continue challenging restrictions schools and local governments may issue in response to the pandemic.
Under the law, known as SB 40, any “aggrieved” Kansan can bring a fast-track court challenge against a government that imposes public health measures such as mask mandates and social distancing requirements.
Challenges must be brought within 30 days of the measure being imposed. If a court fails to hold a hearing within 72 hours of a complaint being filed and to rule within seven days, the health directives are removed in a default judgment.
The rapid-fire process for challenging health orders faded into the background in the fall, as cases declined and localities and districts lifted masking rules. Since August, the Supreme Court had also paused implementation of the Johnson County judge’s decision that found SB 40 unconstitutional.
But the latest wave of cases and hospitalizations, driven by the omicron variant, has led some officials to consider new mandates. Douglas County reinstated masking requirements earlier this week, for instance. Johnson County decided Thursday to continue requiring masks for students up to 6th grade.
Friday’s court opinion means anyone “aggrieved” by local orders – an expansively vague definition – can continue to push to overturn them.
The Supreme Court ruled that a Johnson County judge was wrong when he declared SB 40 unconstitutional. The justices didn’t make an ultimate determination about whether the law is constitutional, but made clear the judge had overstepped in his decision.
The opinion might not be the final say on SB 40, however. The court’s decision to not decide whether the law is actually constitutional may lead to future lawsuits seeking to overturn it.
Justice Dan Biles acknowledged as much, writing in the majority opinion that the justices “recognize this decision may be just a temporary retreat from a raging storm” but that they had decided to show restraint.
This story was originally published January 7, 2022 at 12:58 PM.
