Business owners, parents, and Kansas residents face uncertainty if counties or school boards issue new COVID-related mandates after a Johnson County judge this week ruled that SB 40, an update of the Kansas Emergency Mandate Act, is unconstitutional. 

Judge David Hauber’s opinion calls Senate Bill 40, “unenforceable.” That’s the bill used to lawmakers overhaul KEMA with an eye toward providing due process to those aggrieved by COVID-related mandates. 

“The common thread in the SB 40 enforcement provisions, whether for this or any future pandemic (such as the Delta variant), is that, under the guise of giving local governments the authority to address specific pandemic issues, SB 40 actually hobbled local pandemic measures by ensuring that lawsuits would be filed, aided by swift court action,” Hauber writes.

Kansas Attorney General Derek Schmidt’s office said it will appeal the decision.

“On its own volition, the court created a controversy about the statute where none exists now that the state of emergency has ended,” a spokesperson from the AG’s office said in a statement.

In the meantime, parents of Johnson County school children concerned about district COVID mandates will have no recourse if a school board mandates masks or crafts other emergency-related policies.

The KEMA law requires governments like school boards and county commissions to narrowly tailor emergency orders using the least restrictive means available. And it provides individuals the right to a hearing within 72 hours of filing for relief from government-imposed emergency restrictions like mask mandates and capacity limitations.

Sam MacRoberts, litigation director at the Kansas Justice Institute, said the updated law “is a cutting-edge piece of legislation designed to give every day Kansans a voice at a prompt hearing.

“The right to be heard is critically important, perhaps even more so in a pandemic,” he said. “Although imperfect, its goals were, and continue to be, laudable.”

Judge Hauber, an appointee of former Democratic Gov. Kathleen Sebelius, writes that the tight deadlines for hearings and adjudication of SB 40 cases violate constitutional separation of powers.

“SB 40 also 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 writes.

The government is the defendant in SB 40 cases. The law requires the government to prove its restrictive policies, like mask mandates and capacity limits, work. When the court or a government entity like a school board or county commission cannot meet the statutory deadlines, the plaintiff wins. 

“Many local units of government simply capitulated under the pressure,” Hauber writes.

Within a month of SB 40’s passage, many local governments dropped mask mandates and other COVID-19 restrictions. Officials admitted the statutory change and potential for court proceedings tipped their hands.

“Our attorneys are telling us with no doubt that we are going to be inundated with a number of lawsuits. That’s going to clog up our courts. That’s going to clog up our legal systems,” Sedgwick County Commissioner David Dennis said as the commission lifted its mask mandate.

When the law passed, proponents of the KEMA overhaul suggested that’s a feature, not a bug. 

Sen. Kellie Warren, a Leawood Republican, shepherded the bill through the Legislature. She said SB 40’s purpose was “to bring the political pressure to bear on the officials before they make these orders and to make them think, is this something our constituents want?”

Scott Bozarth, a father of students in the Shawnee Mission School District, filed the case in which Hauber issued the ruling that SB 40 is unconstitutional. Bozarth is frustrated by the decision.

SB 40 hearings do not allow punitive or monetary damages. Instead, the hearings provide limited restraining orders.

“A school can quite literally enforce a strict and restrictive mandate overnight, however asking them to hear — not decide– a grievance within three days is unfair,” Bozarth said. “If I were to claim somebody was a threat to me, the court would grant me a restraining order almost immediately and have a hearing later.”

Bozarth asked the court to hear him out while the school was harming his child.

“And instead of looking at the issue, the court questioned whether I could even make a claim against the school,” Bozarth said. “And somehow in all of this, it’s the school and the court that are the victims? It’s unbelievable.”

SB 40 provided Bozarth the option to file his court case without the help and cost of an attorney, though the district used two attorneys to make its argument in court.

“I believe the idea behind SB 40 is important and crucial. People — us peasants — need a way to be heard and challenge decisions we believe violate fundamental rights,” he said. “I can’t afford an attorney and hours of litigation to restrain a school — one of the best-funded districts in Kansas–from hurting my children.”

He looks forward to the Attorney General’s office continuing the fight.

“I’m so thankful and proud of our state lawmakers who tried to write a law to give my children and me a voice,” he said. “I’m so thankful the Attorney General stepped up for us Kansans as well. I’m happy his office took an interest in trying to protect citizens’ ability to question governmental overreach.”

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