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Mask Dispute Reaches Kansas Supreme Court, Bringing Law Limiting Government Involvement into Question

Parents challenging the Shawnee Mission School District's mask mandate have taken their case to the Kansas Supreme Court. (Photo by Suzanne Perez, Kansas News Service)

TOPEKA, Kansas  Parents took a fight over school masks in the Shawnee Mission School District to the Kansas Supreme Court Tuesday, and a controversial law limiting state and local pandemic responses is hanging in the balance.

Oral arguments over the constitutionality of Senate Bill 40 focused on due process, the timeliness of the challenge and whether a district court ruling calling the law unconstitutional should be overturned.

At the heart of the lawsuit is a bill fueled by Republican dissatisfaction with Democratic Gov. Laura Kelly’s response to the COVID-19 pandemic. The GOP had been pushing back against Kelly’s actions, like closing businesses early in the pandemic and ordering masks.

Earlier this year, legislators approved SB 40, a bill that limited actions the governor, school boards and local health officials could take. It created systems for speedy legal challenges to health orders and gave state lawmakers more oversight.

It ultimately made it so easy for people to challenge health orders, and put such tight restrictions on the court response, that a district court judge calling the law unconstitutional said it created “legal anarchy.”

The Johnson County District Court sided with Shawnee Mission and further ruled that SB 40 was unconstitutional, bringing the lawsuit to the Kansas Supreme Court.

“The district court should be reversed,” Solicitor General Brant Laue said. “The court erred.”

Laue, arguing for Attorney General Derrick Schmidt who intervened to defend the constitutionality of SB 40, said Tuesday morning the district court shouldn’t have ruled on the bill. Schmidt said the case was moot because Johnson County District Court Judge David Hauber’s ruling on the bill came one month after the state’s emergency declaration ended.

Because SB 40 amended the state’s emergency management act, Hauber said it could affect future emergencies and ruled on it even though the emergency had expired.

The bill also created a system for people to challenge health orders aimed at curbing the spread of COVID. People who were “aggrieved” could file suit against local governments or school boards when they took actions like requiring masks. Courts were on a speedy 10-day timeline to review and rule on the complaints. Judges were given stricts guidelines for approving or knocking down health orders.

Those tight deadlines concerned the Shawnee Mission school district, said Greg Goheen, who was representing the school district. He questioned whether that quick process could ever give schools a fair and impartial day in court.

Justice Eric Rosen said the deadlines laid out in SB 40 could interfere with courts’ ability to try other cases if judges have to abruptly take up challenges to local health orders.

“Am I to drop everything?” he asked. “I don't understand that. I don’t see how the Legislature can tell a court to do that.”

The Johnson County judge said SB 40 was unconstitutional in part because it deprives government units of the right to due process. Laue, however, argued the district court judge raised that issue on his own and had no right to make that ruling.

“The courts are arbitrators of legal questions raised by parties, not by themselves,” Laue said.

Justice Dan Biles also said the entire legal case could be questionable because it was filed too late.

The bill requires any complaints of mandates to be filed 30 days after it goes into effect. The complaints against the Shawnee Mission School District were filed months after implementation, and for that reason, Biles said the bill never applied to the policy that was complained about.

Laue said he understands there are some issues with the timing, but told justices the parents received an email from the district about the mask policy in May and filed their complaint after that.

“I understand what happened but it doesn’t matter,” Biles said.

The Kansas Supreme Court will now consider the issue before handing down a ruling.

-30-

Abigail Censky contributed to this report. 

Blaise Mesa reports on criminal justice and social services for the Kansas News Service in Topeka. You can follow him on Twitter @Blaise_Mesa. Stephen Koranda is the news editor for the Kansas News Service. You can follow him on Twitter @Stephen_Koranda. The Kansas News Service is a collaboration of Kansas Public Radio, KCUR, KMUW and High Plains Public Radio focused on health, the social determinants of health and their connection to public policy. Kansas News Service stories and photos may be republished by news media at no cost with proper attribution and a link to ksnewsservice.org.

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