Attorney general to appeal emergency-power decision, warns of ‘legal anarchy’

Johnson County judge’s ruling appears to make new Kansas law unenforceable

By: - July 22, 2021 9:33 am
Kansas Attorney General Derek Schmidt is preparing to appeal to the Kansas Supreme Court the controversial Johnson County District Court judge's ruling invalidating a new state law overhauling emergency powers that touch upon actions of the judicial, legislative and executive branches of state government. (Noah Taborda/Kansas Reflector)

Kansas Attorney General Derek Schmidt is preparing to appeal to the Kansas Supreme Court the controversial Johnson County District Court judge’s ruling invalidating a new state law overhauling emergency powers that touch upon actions of the judicial, legislative and executive branches of state government. (Noah Taborda/Kansas Reflector)

TOPEKA — Attorney General Derek Schmidt wants the Kansas Supreme Court to directly consider an appeal of the lower court decision declaring unconstitutional a new state law realigning government authority during disaster emergencies.

Schmidt filed notice to challenge the Johnson County District Court ruling and requested that lower court promptly issue a stay of its orders in the case pending appeal. Without suspension of the ruling, the Republican attorney general said uncertainty about practical application of the ruling could trigger “legal anarchy.”

On July 15, Johnson County District Court Judge David Hauber issued a 27-page ruling in response to a lawsuit filed by parents opposed to the Shawnee Mission School District’s policy requiring wearing of masks. He determined the GOP-led Legislature’s bill signed by Democratic Gov. Laura Kelly disregarded core principles of separation of power among branches of government and the right of due process.

In addition to granting students, parents and employees the opportunity to challenge public school district policy, the law decisively reduced a governor’s authority during statewide emergencies. In terms of the COVID-19 pandemic, the law transferred to a legislative council oversight of executive orders and extensions of disaster declarations.

Hauber’s ruling noted “fantastical” legal arguments submitted by the attorney general in the district court case. The judge also criticized the law as a impediment to the ability of local governments to respond to the pandemic.

In the appeal, Schmidt said the new emergency management law would be rendered unenforceable within days if the district court didn’t issue a stay of its ruling. Many restrictions on power held by a governor reflected a belief among some Republican lawmakers that the governor responded improperly to a pandemic that has killed more than 5,000 Kansans and reared its head this summer with an aggressive variant of COVID-19.

“If another emergency of any sort were to occur, this court’s order would create confusion about the validity of these provisions and harm the state’s ability to respond,” the attorney general said in court documents filed Wednesday.

On Tuesday, the governor said her staff was working to decipher the district court’s ruling as the Delta variant continued to spread and forced more unvaccinated people into hospitals. She said the executive branch was concentrating on testing and vaccination programs rather than potential issuance of executive orders.

“We are not sure of the implications of the court ruling,” Kelly said.

She said there was no bright line for determining what public health directives could be issued by the governor’s office in wake of the COVID-19 surge.

“There’s no red line,” Kelly said. “Just focused on doing what we can to get people vaccinated and make the variant irrelevant to them.”

Kelly signed Senate Bill 40 in March to help protect several of her emergency orders under the Kansas Emergency Management Act, but shared concern about the Legislature’s reach into executive authority.

“The bill includes provisions that I do not support and that could complicate our emergency response efforts, but I will continue to work with legislators and local leaders to keep Kansans safe and healthy during this pandemic,” she said at that time.

John Milburn, a spokesman for the attorney general, said the district court judge didn’t make clear what he intended to invalidate. The attorney general didn’t believe any portion of Senate Bill 40 should have been undermined by the district court, Milburn said.

“Yet,” Milburn said, “the court went out of its way to answer questions nobody was raising.”

Schmidt is seeking the Republican nomination for governor in 2022 and Kelly is seeking re-election.

The legal challenge in district court against the Shawnee Mission School District was brought by parents Scott Bozarth and Kristin Butler, who cited “psychological harm” of masking policies.

The school district’s response included an argument that the state law giving parents wider authority to challenge district policy was unconstitutional. The Kansas Association of School Board’s legal assistance fund filed a brief in the case on behalf of 280 school districts and 31 educational cooperatives. In addition, the attorney general’s office submitted a brief that argued the case was moot because Kansas’ disaster emergency declaration tied to the COVID-19 pandemic had expired June 15.

The district court judge, however, sided with the school district and denounced the attorney general’s argument of mootness because the state law in question would apply to future disasters.

“The common thread in the SB 40 enforcement provisions, whether for this or any future pandemic (such as the Delta variant), is that, under the guise of giving local governments the authority to address specific pandemic issues, SB40 actually hobbled local pandemic measures by ensuring that lawsuits would be filed,” the judge’s ruling said.

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Tim Carpenter
Tim Carpenter

Tim Carpenter has reported on Kansas for 35 years. He covered the Capitol for 16 years at the Topeka Capital-Journal and previously worked for the Lawrence Journal-World and United Press International. He has been recognized for investigative reporting on Kansas government and politics. He won the Kansas Press Association's Victor Murdock Award six times. The William Allen White Foundation honored him four times with its Burton Marvin News Enterprise Award. The Kansas City Press Club twice presented him its Journalist of the Year Award and more recently its Lifetime Achievement Award. He earned an agriculture degree at Kansas State University and grew up on a small dairy and beef cattle farm in Missouri. He is an amateur woodworker and drives Studebaker cars.

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