February 27, 2024

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Confusion reigns on emergency orders after judge issues SB 40 ruling

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Morris County officials are operating as if Senate Bill 40 is still in effect thanks in part to the threat of a lawsuit. When the county announced via Facebook a mask mandate issued by the local health officer,  the attorneys at Kriegshauser Ney Law Group threatened to sue.

“Local health officers cannot unilaterally issue orders,” Ryan Kriegshauser said. “If they do, they should be sued.”

Lawmakers adopted Senate Bill 40, an update of the Kansas Emergency Management Act, in March. 

While the old law allowed local health officers to issue mandates, the new emergency management law required county commissioners to vote on proposed health orders. However, Johnson County District Court Judge David Hauber ruled the new law “unenforceable” and therefore unconstitutional in mid-July. 

While county and state officials wait for the Kansas Supreme Court to weigh in, confusion reigns.

Morris County reacts to threat of a lawsuit

In a since-removed August 4 Facebook post, Morris County announced a mask mandate ordered by Dr. Daniel Frese, the local health officer. Set to begin after midnight on August 7, the post reads, “This order may be expanded or modified by the health officer as circumstances dictate in order to mitigate the spread of COVID-19 in Morris County.” The order included requiring masks for everyone over the age of 5 in indoor and outdoor public spaces. 

Kriegshauser sent the county a letter warning that he intended to challenge the order in court. 

“I am aware of Judge Hauber’s non-binding district court decision in Johnson County,” Kriegshauser’s letter reads. “It is our position that SB 40 continues to be the law…” 

After receiving his letter, Morris County officials hastily called a commission meeting. Two of three commissioners voted to adopt the mask mandate.

Hauber’s ruling took issue with tight judicial deadlines outlined in the KEMA overhaul. SB 40 allowed businesses or individuals aggrieved by an emergency-related order–like a mask mandate or a capacity limit–to request a hearing from the governmental entity that crafted the order. It required the entity to hold the hearing within 72 hours.

The new law also outlined an appeals process that required the courts to issue a ruling within seven days. When the court or governmental entity failed to meet the statutory deadlines, the plaintiff, or aggrieved business owner or citizen, won.

Attorney General Derek Schmidt appealed Hauber’s decision to the Kansas Supreme Court. The state’s top court has yet to respond, though state officials are urging the Court to act quickly.

Ruling creates mass confusion, legislative leaders say

“The ruling’s attempt to invalidate the law has led to mass confusion about which laws are in place pertaining to public health orders and due process rights,” Senate President Ty Masterson and House Speaker Ron Ryckman wrote in a letter to the Court. “As a result, cities, counties, school districts and citizens are currently in legal limbo, operating under differing interpretations rather than the framework of certainty that had been provided by Senate Bill 40.”

Rather than face a lawsuit, Morris County opted to hold a commission meeting and vote as required under the new law. However, Gov. Laura Kelly recently told members of the press that her administration is operating as if the old emergency management law applies. Meanwhile, the Legislative Coordinating Council is operating under the new law. SB 40 expanded the number of LCC members to eight by adding the Vice President of the Senate. Senate Vice President Rick Wilborn attended and voted at the last LCC meeting on Aug. 5.

A flurry of school boards issued mask mandates for the next school year. That’s one reason that House and Senate leadership request swift action from the Kansas Supreme Court.

“This has ignited confusion, creating uncertainty for Kansas communities and schools at a time when parents are preparing to send their children back to school,” the letter from Masterson and Ryckman to the Court reads.

Parents should request SB 40 hearings now regardless of ruling

Under the original provisions of SB 40, parents requested hearings within 30 days of a new mandate Districts are adopting mask mandates even today. No one knows for certain when or even if the Kansas Supreme Court will consider an appeal to Judge Hauber’s ruling. However, parents or aggrieved citizens who want to preserve their right to an SB 40 hearing should file requests within 30 days of any new COVID-related mandates. If the Court overturns Hauber’s ruling, aggrieved citizens can make an argument that they filed hearing requests within the 30-day limitations as set out by SB 40.

“Under SB 40, aggrieved parties only have 30 days to request a 72 hour hearing. It is unlikely the Kansas Supreme Court will act in that window,” Kriegshauser said. “If people want to attempt to preserve their right to a hearing, they may have to file even though Judge Hauber’s opinion was issued.”

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