The Kansas Supreme Court reversed a ruling from a district court judge declaring Senate Bill 40, — which gave due process rights to those affected by a quarantine order — unconstitutional; and issued a stinging rebuke to the district court judge who initially struck down the law known as SB 40.

“In this COVID-19 era case disputing public school policies mandating face masks, we confront a threshold question about the district court’s decision to dive into constitutional waters to consider the validity of newly enacted legislation when none of the litigants asked it to do so and the court itself acknowledged the legislation did not apply to the case,” Justice Dan Biles wrote for the court. “Given these circumstances, we hold it was error for the court to declare 2021 Senate Bill 40 invalid and unenforceable based on the infirmities it observed. We reverse that portion of the court’s judgment subject to this appeal and express no opinion about S.B. 40’s constitutionality.”

Biles was referring to an earlier ruling by Johnson County District Court Judge David Hauber in July of last year, calling the law “unenforceable,” and ruled the law was unconstitutional by violating local officials’ right to a fair legal process in settling complaints over their actions. He also wrote that the Legislature overstepped its authority, violating the doctrine of separation of powers.

“One can imagine the reaction from legislators if courts routinely demanded that a given legislative committee or chamber enact a law or report a bill out of committee within a certain time frame,” Hauber wrote in his opinion.

Kansas Attorney General Derek Schmidt, among others, quickly stepped in to ask for the court to hear the case on an expedited basis, and grant a stay which left SB 40 in effect until the case could be heard.

Both requests were quickly granted.

The Kansas Court ruled Jan. 7 of this year that Hauber, in raising constitutional issues on his own — issues being argued by none of the parties in the case — had violated the doctrine of “constitutional avoidance” which requires that constitutional issues be raised only if the case can be resolved no other way.

“Before it gave notice to the Attorney General the court knew it very likely had a nonconstitutional path for disposing of this case on undisputed grounds,” Biles wrote. “The court should have considered the constitutional avoidance doctrine’s application to its concerns under these obvious circumstances and restrained itself from going further.”

Biles went on to write: “It cannot be emphasized enough that by the time … [original plaintiffs] … had failed to come forward with additional evidence, the district court had already acknowledged S.B. 40 was inapplicable to the case without that evidence. And the court understood that both the statewide state of disaster emergency and the school year had ended. The district court erred by ignoring the constitutional avoidance doctrine and failing to abide by it.”

Kansas Justice Institute, AG Schmidt react

The Kansas Justice Institute, like The Sentinel, owned by the Kansas Policy Institute, had — as had Schmidt — filed a request to intervene in the case.

KJI Litigation Director Samuel MacRoberts applauded the decision.

“The Kansas Supreme Court’s ruling keeps SB 40 in place — thankfully so,” he said. “There’s no doubt COVID-19 is serious and has caused significant damage to our communities. Still, when the government wields its pandemic powers, the public must be afforded a prompt and meaningful hearing—a simple, yet effective remedy against potential government overreach.” 

Schmidt likewise was pleased with the decision, noting that all seven justices agreed the decision should be struck down — five concurring with Biles opinion and the other two in a dissent saying they would have simply dismissed the appeal on the grounds that Hauber had no authority to rule on constitutional grounds to begin with.

“Today’s decision provides welcome clarity that the district court erred by going out of its way to ask and then answer questions not before it about the constitutionality of SB 40,” Schmidt wrote in a statement. “I appreciate the Kansas Supreme Court eliminating the uncertainty hanging over Kansas emergency management law since the district court’s decision. 

Constitutional issues of SB 40 not addressed 

The Court did not address any of the constitutional issues raised by Hauber — those were not part of the appeal — but only that any constitutional questions were not properly addressed in this case.

“The Legislature may also wish to thoughtfully review the concerns expressed, though improperly in this case, by the district court,” Schmidt said.

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