Staying a judge’s ruling that upended Senate Bill 40 — an update to the Kansas Emergency Management Act–would harm school districts and other local governmental entities, according to a motion filed by the Shawnee Mission School District.

A few weeks ago, Johnson County District Court Judge David Hauber ruled “unenforceable” and therefore unconstitutional an update to the Kansas Emergency Management Act. However, Kansas Attorney General Derek Schmidt earlier this week asked the court to stay, or pause, the ruling until the case worked its way through the appeals process. Attorneys for the Shawnee Mission School District today responded asking the Court to deny the AG’s request for a stay. 

According to the filing, a stay would harm local governmental entities responsible for making public health decisions “under the shadow of SB 40’s unconstitutional enforcement mechanism.”

The motion warns that COVID cases and hospitalizations in Kansas increased in the last two weeks, signaling the potential for “responsive actions and mitigation measures.”

“If COVID-19 cases and hospitalizations continue to increase, a new state of disaster emergency may be declared, which is the trigger for SB 40,” the SMSD motion reads.

SB 40 required due process for Kansas citizens

Senate Bill 40 served as the vehicle lawmakers used to overhaul the Kansas Emergency Management Act last March. Gov. Laura Kelly signed the legislation into law in late March. Provisions of the new law allow aggrieved individuals to request immediate hearings for relief when governmental entities adopt COVID-mitigation measures like mask mandates and capacity limits. 

Scott Bozarth is a plaintiff in the case that now pits the Attorney General’s office and the Shawnee Mission School District on opposite sides of a brewing legal fight. In the original case, Bozarth and Kristen Butler, parents of students in the Shawnee Mission district, requested from the Shawnee Mission district mask mandate exemptions for their students. The district superintendent denied the request for a hearing. Under SB 40’s new rules, the parents appealed to the district court.

The new law sets tight and swift deadlines for SB 40 cases. It requires courts to issue SB 40 rulings within seven days.

“I have some difficulties with the short trigger the legislature has tried to impose on the courts,” Hauber said. “This is like a temporary restraining order on steroids. One of the difficulties I have is that in order to make a measured decision, it may take longer than seven days.”

In his final ruling in the case, Hauber called SB 40 “unenforceable,” and therefore unconstitutional. The AG’s office, in its motion seeking a stay of the ruling, the AG’s office said the decision creates “confusion” and “controversy.”

Under the judge’s ruling, individuals aggrieved by COVID-mitigation restrictions have limited recourse or due process rights. However, the Shawnee Mission School District’s motion argues that the government lacked due process rights under SB 40.

COVID restrictions returning?

Attorneys for the Shawnee Mission district warn in their motion that school districts now are preparing mitigation plans for the 2021-2022 school year. Specifically, the Shawnee Mission School District will discuss a mitigation plan for the upcoming school year at a school board meeting on July 26.

Last week, the Blue Valley School District decided masks will be optional in its buildings next year. The Kansas City, Kansas, School District a few days later decided to mandate masking in its buildings.

Meanwhile, Dr. Lee Norman, the Secretary of the Kansas Department of Health and Environment told KMBC 9 News yesterday that the Governor’s office will issue updated COVID advisories.

“We will definitely issue guidance that we hope that the counties and most especially the school boards take seriously, and it will include masks,” he told the Kansas City news station. 

Bozarth worries that Hauber’s ruling means there is no longer a mechanism to limit the Governor’s emergency powers.

“And the ability for a citizen to challenge our schools’, cities’ and counties’ emergency orders is severely impeded,” he said.

Bozarth grateful for the AG’s efforts

Bozarth, the original plaintiff, is happy to see the AG’s office “actively trying to salvage a law that gave average citizens the ability to challenge governmental overreach by schools, municipalities, or even the Governor who exploit a public crisis to seize additional authority.”

Proponents of the new law say it provides needed due process to individual Kansans and business owners harmed by non-pharmaceutical COVID interventions.

“SB 40 is very limited and specific,” Bozarth said. “It allows a challenge to mandates orders and excessive use of authority.”

He believes parents and individuals should make health decisions for themselves. And businesses should decide whether to close or what COVID-mitigation strategies to employ.

“Should a stay not be granted, it is the citizens of Kansas who lose,” he said.

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