Johnson County judge strikes down law which allowed individual challenges to COVID-19 restrictions; AG vows appeal

Andrew Bahl
Topeka Capital-Journal
A Johnson County judge struck down provisions of a sweeping change to the state's emergency management law which allow individuals to challenge COVID-19 mitigation protocols put in place by local and state governments.

A Johnson County judge struck down provisions of a sweeping change to the state's emergency management law, which allow individuals to challenge COVID-19 mitigation protocols put in place by local and state governments.

The ruling from Judge David Hauber invalidates core portions of the Kansas Legislature's efforts to increase oversight on local governments and Gov. Laura Kelly in handling the pandemic. It also restores the ability of local health officers to issue orders without the oversight of other county officials.

But Republican lawmakers voted last month to end the state's COVID-19 emergency declaration, meaning many of the other provisions under Senate Bill 40, signed into law earlier this year, will end. 

Hauber's ruling argued that many of the provisions could be brought back in the future if another disaster is declared, either for COVID-19 or another public health matter.

"Whether it is this pandemic, a variant that may require another pandemic emergency, or any kind of future emergency, this issue is too important and capable of repetition to be ignored," Hauber wrote in his ruling.

Virus cases in the state are again starting to rise due to the Delta variant, although it is unclear whether that will prompt another emergency declaration. 

Under SB 40, individuals can demand a hearing or file a civil suit challenging COVID-19-related orders from a local governmental body, school board or public health officer, with strict time limits on when a hearing must be held and a verdict rendered.

If a hearing isn't convened quickly enough under SB 40, the order must be struck down, regardless of the legal merits of a person's claims.

The measure also gives a panel of primarily Republican legislators more control over any executive orders issued by Kelly to respond to the pandemic.

More:COVID-19 is making a Delta variant-fueled comeback in southeast Kansas. Health officials are urging vaccinations.

Hauber's ruling assailed the law, calling it "unenforceable" and a violation of the separation of powers. He termed arguments from Attorney General Derek Schmidt's office in support of the law to be "fantastical" and that Schmidt ignored its "glaring deficiencies" in arguing it was constitutional.

He echoed a prior ruling in arguing that the time requirements in the law, in effect, created unreasonable demands on the judiciary, as the strict deadlines cause the court to pre-empt other business to hear the challenges under SB 40.

"It is the ultimate legislative stick intended to goad and/or supplant judicial rules and functions and it promotes the equivalent of legal anarchy," Hauber wrote.

While SB 40 contains a provision allowing the bulk of the law to stand, even if parts are struck down in court, Hauber said there was no choice to throw out the whole thing as "the enforcement provisions are the act."

In a statement Thursday, Schmidt spokesperson Clint Blaes said the office planned to appeal.

"On its own volition, the district court created a controversy about the statute where none exists now that the state of emergency has ended," Blaes said in an email.

The case came about as part of a group of parents who sought to use SB 40 to challenge Shawnee Mission school district's requirement that students wear mask to stop the virus' spread. 

Hauber dismissed that case but went further, arguing the law "presents significant constitutional problems" and required the Schmidt's intervention to defend its merits. 

In a brief filed in late June, Brant Laue, the state's solicitor general, argued the matter was moot after the emergency order ended. Nonetheless, he said the law wasn't overly burdensome and should be upheld.

More:Most Kansas schools ditching mask rules even as Delta variant is driving a COVID-19 resurgence

“If actions taken by local school boards are well-reasoned and supported by evidence, there should be no problem with a court finding those actions to be justified within seven days,” Laue wrote in the filing.

In a statement, Senate President Ty Masterson, R-Andover, said the bill was supported by a bipartisan coalition of lawmakers and that the judge was a left-leaning partisan.

"It is certainly not surprising that a Sebelius-appointed judge would engage in judicial activism by striking down provisions that give Kansans enhanced due process rights in the face of restrictions imposed by bureaucrats," Masterson said.