After intervention by Kansas Attorney General Derek Schmidt, the Kansas Supreme Court has issued a stay in the case involving Senate Bill 40 — which gives Kansans aggrieved by a government COVID action the right to request a hearing — among other things.
In mid-July, a district court judge in Johnson County ruled the law an unconstitutional infringement upon separation of powers, and “unenforceable.”
Schmidt filed a motion to stay with Judge David Hauber, who issued the original order, but Hauber denied the motion.
Schmidt appealed the ruling to the Kansas Supreme Court, which today issued the stay.
“Today’s order from the Kansas Supreme Court granting our motion to stay the district court decision during the appeal is welcome news,” Schmidt said in a release. “The district court’s ruling had created unnecessary confusion about Kansas emergency management laws at a time when the rise in COVID cases makes certainty and stability in the law even more critical.”
Senate President Ty Masterson agreed.
“With the decision to stay Judge Hauber’s ruling regarding SB 40, the Kansas Supreme Court has thankfully brought certainty to our current legal framework,” Masterson said in a release. “Now, more than ever, it is important that the checks and balances we enacted remain in place, and that due process rights continue for Kansas citizens.”
The background
Earlier this year, parents Kristin Butler and Scott Bozarth sought SB 40 hearings with the Shawnee Mission school board under the updated Kansas Emergency Management Act. The law, updated via Senate bill 40, allows parents and aggrieved citizens to seek hearings from governmental entities harmed by COVID mitigation policies like mask mandates and emergency capacity limits. Shawnee Mission’s superintendent denied Butler’s and Bozarth’s hearing requests. They appealed the decision by filing a suit in district court, as the new law allows.
KEMA requires local school boards to conduct a hearing within 72 hours of a request from an employee, student, or guardian of a student aggrieved by a district emergency policy. The updated law also allows parties aggrieved by a school board’s decision to file a civil action within 30 days of the board’s decision. It requires the court to grant a request for relief and issue a court order within seven days after a hearing.
During the Butler and Bozarth hearing, Hauber said SB 40 imposes a short trigger on the courts.
“This is like a temporary restraining order on steroids,” the judge said. “One of the difficulties I have is that in order to make a measured decision, it may take longer than seven days.”
In his request to expedite the appeal, the AG’s office said Hauber’s decision created uncertainty about the current status of the state’s emergency management law. Prior to the legislative update, KEMA authorized the Governor to declare a state of emergency for 15 days without the approval of the Legislature or the State Finance Council. It could be extended for up to 30 days, and Gov. Kelly issued 30-day extensions as original orders expired.
Questions remain
The Court’s decision states that KEMA has expired, and therefore questions of constitutionality are moot, so it remains unclear whether SB40 remains in effect or not. The Sentinel has reached out to Schmidt’s office for clarification and will be publishing further analysis of the Court’s ruling soon.
As of publication time, no date for a hearing in the appeal has yet been set.
Editor’s note: the original version of this story inadvertently attributed comments about Judge Hauber to the Supreme Court; those comments were actually in the Attorney General’s brief. We regret the error.
