Kansas AG pushes state Supreme Court to maintain limit on COVID-19 powers

By: - August 3, 2021 1:57 pm
Attorney General Derek Schmidt, right, said the 39-state settlement of a predatory college loan lawsuit would provide $10.28 million in debt relief to 435 students in Kansas. It's part of a $1.85 billion settlement deal with Navient. (Sherman Smith/Kansas Reflector)

Attorney General Derek Schmidt, right, said the 39-state settlement of a predatory college loan lawsuit would provide $10.28 million in debt relief to 435 students in Kansas. It’s part of a $1.85 billion settlement deal with Navient. (Sherman Smith/Kansas Reflector)

TOPEKA — Republican Attorney General Derek Schmidt is asking the state’s highest court to intervene and clarify what he called an unnecessary and confusing ruling on new legislation concerning the Kansas Emergency Management Act.

Schmidt announced Tuesday he had requested the Kansas Supreme Court put a hold on a recent lower court ruling and maintain a new law that limits the governor and local officials’ authority to impose restrictions aimed at limiting the spread of COVID-19. He is asking for the stay while appealing the ruling from Johnson County District Judge David Hauber that Senate Bill 40 is unconstitutional. 

“The issues the court sought to reach had been rendered moot by the expiration of the pertinent section of SB 40. Yet the court charged forward with its constitutional agenda notwithstanding that it had already ‘denie[d] the plaintiffs any relief as being moot and untimely,’” Schmidt wrote in the motion to the state Supreme Court.

The bipartisan compromise, which Gov. Laura Kelly signed into law in March, prevents further limitations on public gatherings, statewide mask mandates or business and school closures, and gives Kansans another path for challenging mask requirements or school policies they disagree with. Parents can seek relief from the court should a school board uphold a policy.

Earlier this month, Hauber said the legislation was unconstitutional and that the Legislature was trying to promote “legal anarchy.” He also ruled the entire bill was unenforceable and criticized the Legislature’s disregard for due process and separation of branches of government. 

“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, aided by swift court action,” Hauber wrote. “Many local units of government simply capitulated under the pressure.”

Schmidt notified the district court July 21 that he would appeal the decision and asked the lower court for a stay in the decision until the appeal was complete. That motion was denied by the court last week, prompting Schmidt to appeal to the state Supreme Court.

In court filings, Schmidt called Hauber’s ruling “unnecessary” and said it was causing “disruptive confusion” because many provisions in the bill were not at issue in the case but were nevertheless deemed unenforceable. He said he expects the court to act quickly and clear up the confusion.

Schmidt’s action was criticized Monday by Kansas Democratic Party Chairwoman Vicki Hiatt, who likened his political stance to that of former Secretary of State Kris Kobach.

She also lambasted Schmidt for issuing a subpoena demanding a journalist turn over information gathered while writing stories about a Jefferson County man who served 16 years in prison for a murder he did not commit. Schmidt has since withdrawn the subpoena.

“These flagrant violations of constitutionality made by Derek Schmidt show that he’s more concerned with turning the pandemic response into a political circus and harassing journalists than giving local communities the tools they need to continue our economic recovery,” Hiatt said. “Schmidt continues to use the power of his office to play political games and needs to answer for his antics.”

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Noah Taborda
Noah Taborda

Noah Taborda started his journalism career in public radio at KBIA in Columbia, Missouri, covering local government and producing an episode of the podcast Show Me The State while earning his bachelor’s degree in radio broadcasting at the University of Missouri School of Journalism. Noah then made a short move to Kansas City, Missouri, to work at KCUR as an intern on the talk show Central Standard and then in the newsroom, reporting on daily news and feature stories.

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