Save the date. 

The Kansas Supreme Court will hear arguments on whether a new law stands on Oct. 26.

The court could decide to scrap entirely an update to the Kansas Emergency Management Act. Justices could keep some portions of the law while tossing others, or they might keep the law as is. Heavy political hitters, including Gov. Laura Kelly and the Kansas Justice Institute, weighed in with amicus briefs due earlier this week. (Kansas Policy Institute owns both the Sentinel and KJI.)

Johnson County District Court Judge David Hauber ruled unconstitutional an overhaul of the Kansas Emergency Management Act in August. Known as Senate Bill 40 as it worked its way through the Kansas Legislature, the law required that emergency orders be narrowly tailored, using the least restrictive means available. It also provided individuals the right to a hearing within 72-hours of filing for relief from a governmental entity imposing restrictions like mask mandates or business curfews. It allowed an appeals process through the civil courts. It also set strict deadlines for courts to take action in SB 40 cases.

Hauber, a Sebelius appointee, struck down the entire law, but Gov. Kelly, in a brief to the Court, says some provisions of the new law should stand.

Kelly asks Court to keep parts of SB 40

“Many of (SB 40’s) provisions are improvements to previous law, have not been challenged and should be permitted to remain operative,” the brief, written by a bevy of attorneys on behalf of the Governor, reads.

Specifically, the Kelly administration recommends the Court strike provisions related to the short timelines imposed on courts and the ability for individuals aggrieved to sue for unlimited damages. 

“This Court should determine that these provisions violate the Kansas Constitution, but that they can be severed from the rest of SB 40,” the brief reads.

During the initial hearing in the case, Butler et al. v. Shawnee Mission School District Board of Education, Hauber said the tight deadlines in the new law are “a temporary restraining order on steroids.” In his opinion rejecting the law in its entirety, he wrote that the new law is “unenforceable” and “hobbled local pandemic measures by ensuring that lawsuits would be filed, aided by swift court action.”

Governor asks Court to toss parts that serve as ‘heckler’s veto’

Kelly’s attorneys said those provisions likely violate separations of power doctrine between the legislative and judicial branches.  But Kelly had no problem with the State Supreme Court interfering with the Legislature when it ordered a $1 billion spending increase on schools.  In fact, she called it a “great day.”

The attorneys also write that the hearing procedures outlined in SB 40 serve as a sort of “heckler’s veto,” giving dissenters of emergency orders “the ability to divert educational resources.”

After SB 40’s adoption, some public officials admitted the burden of hearings and potential lawsuits lead to the easing of COVID-related mandates.

“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 commissioners debated and eliminated its mask mandate last spring. 

Sam MacRoberts, Litigation Director for Kansas Justice Institute, says local health officers had incredibly broad powers prior to SB 40.

“Businesses impacted by these health orders had no choice but to comply, or risk fines, prosecution, or immediate and potentially permanent closure, regardless of their COVID-19 procedures and protocols,” MacRoberts wrote in his brief.

Attorney’s calls hearings ‘Sword of Damocles’ over local government

At the time of its passage, lawmakers called that a feature, not a bug.

Sen. Kellie Warren, who helped draft the law, said then that the goal was “to bring political pressure to bear on officials before they make these orders and to make them think, is this something our constituents want?”

Kelly’s brief said the provisions hang “like a Sword of Damocles over Kansas local governing bodies. 

“It completely ignores the –at least equal–interests and rights of all parents, students, employees, and citizens who support and are positively impacted by local safety measures,” the brief reads.

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