Kansas Supreme Court issues stay of lower court’s rejection of emergency management law

Attorney general seeks pause after judge ruled statute unconstitutional

By: - August 24, 2021 10:21 am
The Kansas Supreme Court issued a stay of a ruling by a Johnson County judge who declared the state's new emergency management law unconstitutional. The attorney general is appealing the lower court decision. (Tim Carpenter/Kansas Reflector)

The Kansas Supreme Court issued a stay of a ruling by a Johnson County judge who declared the state’s new emergency management law unconstitutional. The attorney general is appealing the lower court decision. (Tim Carpenter/Kansas Reflector)

TOPEKA — The chief of the Kansas Supreme Court temporarily blocked Tuesday a district court ruling that declared unconstitutional portions of an emergency management law adopted to recalibrate government authority during the COVID-19 pandemic.

Chief Justice Marla Luckert released the one-page order triggering the stay in response to a request from Attorney General Derek Schmidt, who plans to proceed with an appeal of the July ruling by a Johnson County District Court judge that Senate Bill 40 was unenforceable.

The high court’s instruction restored restrictions woven into the emergency management reform bill approved this year by the Republican-led Legislature and signed into law by Democratic Gov. Laura Kelly. The constitutional dispute emerged when parents challenged a school district’s mask mandate under provisions included in the law.

“Today’s order from the Kansas Supreme Court granting our motion to stay the district court decision during the appeal is welcome news,” said Schmidt, who is a candidate for governor in 2022. “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.”

District Court Judge David Hauber had rejected Schmidt’s request to suspend the district court decision finding KEMA in violation of the Kansas Constitution. The attorney general argued rejection of the stay would create “legal anarchy.” The judge, however, said the attorney general raised “fantastical” arguments.

Hauber said the overhauled KEMA law deprived “relevant governmental units of due process while also violating the constitutional separation of powers between the judicial and legislative branches.”

Provisions of the statute curbed Kelly’s authority to issue emergency orders during the pandemic by shifting that power to local government entities, school boards and community colleges. The governor’s ability to extend a state of disaster past 15 days was handed to the Legislative Coordinating Council, which includes partisan leaders of the House and Senate.

The law required new executive orders by the governor to be reviewed by the Kansas Legislature or LCC. It permitted the Legislature or LCC to revoke any order issued by the secretary of Kansas Department of Health and Environment. It also allowed county commissioners to block health declarations by local health officers.

Senate President Ty Masterson, a Republican from Andover, said the Supreme Court’s directive served to preserve “certainty to our current legal framework.”

“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,” Masterson said.

Hauber waded into the legal drama after parents in the Shawnee Mission School District filed a lawsuit in opposition to a policy requiring students to wear a face covering as a shield against COVID-19. In the suit, parents Scott Bozarth and Kristin Butler asserted implementation of a mask mandate could cause “psychological harm.”

Issues raised by the lawsuit and the judge’s decision have taken on new relevance as the delta variant of COVID-19 spread throughout communities in Kansas at the same time K-12 classes resumed.

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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.