Kansas Attorney General Derek Schmidt is asking the Kansas Supreme Court to pause a District Court judge’s ruling that the SB 40 emergency management law is unconstitutional. Schmidt’s office filed a motion seeking relief from the state’s top court yesterday afternoon.

“The district court’s actions—a self-initiated constitutional controversy over moot questions resulting in a dramatically overboard decision—were entirely improper. And they have combined to create unnecessary and disruptive confusion about the state of the Kansas Emergency Management Act,” the Attorney General’s office said in its petition to the Kansas Supreme Court.

Johnson County District Judge David Hauber, a Sebelius appointee, ruled SB 40 unconstitutional in mid-July. In his judicial opinion in Butler v. Shawnee Mission School Board, Hauber says a recently updated Kansas Emergency Management Act, is unenforceable. Schmidt’s office sought a stay of Hauber’s decision until appeals are exhausted. However, Hauber declined to issue the stay.

“If there is any confusion, it is rooted in SB 40,” Hauber wrote in a district court order denying the AG’s original request for a stay. “The Court restored the baseline constitutional rights of the (Shawnee Mission School) District that was hampered by SB 40’s enforcement provisions.”

Schmidt’s office now asks the Kansas Supreme Court to weigh in. The AG first seeks from the state’s highest court a stay of Hauber’s original order pending the outcomes of appeals. According to court filings, Schmidt intends to expedite an appeal.

SB 40 overhauled Kansas Emergency Management Act

SB 40 is legislation lawmakers used to overhaul the Kansas Emergency Management Act last spring. It became law in March. The law modified how the Governor extends a state of disaster emergency. It allowed individuals to request from local governing bodies and school boards a hearing or file civil suits related to COVID-19 mitigation orders.

Plaintiffs Kristin Butler and Scott Bozarth sued the Shawnee Mission School District in June. Butler and Bozarth, parents of students in the school district, filed the suit after the SMSD officials refused to grant them a hearing to consider waiving a mask mandate for their children.

In a preliminary ruling in the case, Hauber denied the requests of Butler and Bozarth, writing their requests are moot because the state’s emergency declaration order expired on June 15. However, Hauber wrote that his opinion would not be finalized until Attorney General Derek Schmidt’s office weighed in on some of the issues Hauber said the case raised. 

Specifically, Hauber said in court that SB 40’s provisions that require courts to rule on SB 40 cases within a number of days likely violated the separation of powers between the judicial and legislative branches. 

“SB 40…constricts how courts operate dictating strict and short deadlines that necessarily preempt other cases already on the docket, creating burdens of proof that are not justified by undefined rights and then offering a truncated due process scheme that offers little protection to the defendant,” Hauber wrote in the formal opinion that rendered SB 40 temporarily defunct.

AG’s office seeks expedited appeal

In his request to expedite the appeal, the AG’s office said Hauber’s decision creates uncertainty about the current status of the state’s emergency management law. Gov. Laura Kelly, however, in a press conference last week, said her administration is operating under the old Kansas Emergency Management Act.

Prior to the legislative update, KEMA authorized the Governor to declare a state of emergency for 15 days without the approval of the Legislature or the State Finance Council.  It could be extended for up to 30 days, and Gov. Kelly issued 30-day extensions as original orders expired.

She stopped short of declaring an emergency last week, though she did initiate orders mandating face masks in state-owned buildings.

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