Kansas Attorney General Derek Schmidt announced yesterday that his office is intervening in an SB 40 case. The AG’s office made its announcement after a district court judge issued a preliminary order inviting the AG to weigh in on the case.
In Judge David Hauber’s order, he said he will await intervention from AG Schmidt before finalizing his opinion in a case between two Shawnee Mission parents and the Shawnee Mission School District.
Parents Kristin Butler and Scott Bozarth sought SB 40 hearings with the Shawnee Mission school board under the updated Kansas Emergency Management Act. The law, updated via Senate bill 40, allows parents and aggrieved citizens to seek hearings from governmental entities harmed by COVID mitigation policies like mask mandates and emergency capacity limits. Shawnee Mission’s superintendent denied Butler’s and Bozarth’s hearing requests. They appealed the decision by filing a suit in district court, as the new law allows.
The KEMA revamp also creates a set of deadlines for holding hearings and issuing judicial opinions. In his preliminary opinion to Butler and Bozarth, Hauber takes issue with some elements of the new law.
Judge questions parts of new emergency management law
“One of the difficulties with SB 40, however, is that it provides little in the way of procedures,” he wrote. “It provides short deadlines and an immediacy that appears intended to short-circuit other court cases which often have emergency issues, such as domestic violence or business restraining orders. Even in domestic violence protection cases, the defendant has 21 days from the filing of the petition to respond at a hearing.”
KEMA requires local school boards to conduct a hearing within 72 hours of a request from an employee, student, or guardian of a student aggrieved by a district emergency policy. The updated law also allows parties aggrieved by a school board’s decision to file a civil action within 30 days of the board’s decision. It requires the court to grant the aggrieved’s request for relief and issue a court order within seven days after a hearing.
During the Butler and Bozarth hearing, Hauber said SB 40 imposes a short trigger on the courts.
“This is like a temporary restraining order on steroids,” the judge said. “One of the difficulties I have is that in order to make a measured decision, it may take longer than seven days.”
Courts, legislature co-equal branches of government, judge warns
He said the courts are a separate, co-equal branch of government that isn’t under the control of the state legislature.
“The short trigger… is probably a violation of the separation of powers,” he said. During the hearing, he hinted that it would be appropriate for Attorney General Derek Schmidt to opine on the issue. Judge Hauber formalized the request a week later when he issued his opinion in Butler and Bozarth’s civil suit.
“By copy of this order, the Court invites the attorney general to appear and intervene and be heard on this matter,” Hauber wrote.
Schmidt’s office announced it will address factual developments about the case as well as an issue of mootness should the Governor’s emergency declaration expire before the hearing.
Though Hauber said his opinion is not finalized, he denied Butler and Bozarth’s request for the Shawnee Mission School District to drop its mask mandate. Hauber said their requests for relief are moot. The state’s emergency declaration is set to expire on June 15. Additionally, it’s summer break, so the Shawnee Mission district isn’t forcing their students to wear masks via compulsory attendance at the moment. Bozarth said he isn’t surprised by the judge’s opinion, but he is disappointed that the basis of his suit isn’t the primary issue addressed by the court.
“It’s my position that the Shawnee Mission School District has implemented a policy that ignores federal statute and individual rights,” he said. “Whether or not SB 40 is a viable legal route to challenge a policy, I believe it’s a grave injustice to ignore the reason for these SB 40 hearings. Instead of focusing on the root cause of SB 40 hearings, the focus is on whether or not we the people even have the right to challenge a potentially illegal and criminal policy.”
Plaintiff disappointed, but not surprised, by judge’s opinion
During the hearing, Hauber suggested Bozarth and Butler consider a traditional lawsuit where they could seek damages or file a civil rights complaint. Bozarth said they chose to use the SB 40 process because it represented a quick, inexpensive way to challenge a policy that he believes is harmful to children. Bozarth isn’t a lawyer, but individuals can represent themselves in SB 40 hearings under provisions of the new law.
“The issue a lot of people face is we have very little ability to challenge local or state policy that we believe is harmful,” he said. “It takes a lot of time, effort, expertise, and money to challenge a well-funded school district. SB 40 is an opportunity to raise serious issues regarding COVID emergency policies for those that don’t have the resources to retain an attorney and litigate for months in court.”
Like the judge, Bozarth wanted the Attorney General to intervene.
“As well-intentioned as SB 40 may be, there are clearly some problems with it,” he said. “I appreciate what our legislators have done to give us some recourse, and I believe the AG has a great opportunity to take the reins and lead the way in pursuit of protecting the rights and liberties of Kansans.”