School mask mandate challenge before Kansas Supreme Court stirs broader legal issues

Decisions of Johnson County judge at heart of constitutional drama

By: - October 26, 2021 1:37 pm
The Kansas Supreme Court conducted oral argument Tuesday in the appeal of a Johnson County District Court judge's decision in the challenge of a Shawnee Mission School District mask order. (Screen capture/Kansas Reflector)

The Kansas Supreme Court conducted oral argument Tuesday in the appeal of a Johnson County District Court judge’s decision in the challenge of a Shawnee Mission School District mask order. (Screen capture/Kansas Reflector)

TOPEKA — A lawsuit filed by parents of children subjected to the Shawnee Mission School District’s mask mandate Tuesday evolved into a Kansas Supreme Court debate about due process rights, separation of powers, legislative authority and judicial independence.

At the core of the dispute is whether to let stand a Johnson County District Court judge’s ruling that Senate Bill 40, which granted parents extraordinary authority to challenge COVID-19 pandemic orders, was unconstitutional. The school district’s attorney argued the district court justifiably waded into constitutional waters to denounce the law, but an attorney representing the Kansas attorney general urged justices to reverse the lower court because the judge improperly considered the case.

In August, the state’s highest court stayed the district court ruling to provide a window to consider issues raised by the judicial drama.

Justice Dan Biles said during the oral argument conducted online that he was puzzled by the district court judge’s view that he could address potential constitutional conflicts even if those issues hadn’t yet been raised in court by the plaintiffs or defendant. The law in question was designed by Republicans to restrain emergency powers of Gov. Laura Kelly and set boundaries for local governments during the pandemic.

“What is it that permits the district court to pivot and start addressing constitutional issues about Senate Bill 40?” said Biles, an appointee of Democratic Gov. Kathleen Sebelius.

Brant Laue, solicitor general of Kansas, said the Supreme Court would be justified in reversing Judge David Hauber. Laue said the judge inappropriately leapt into constitutional complexities. It was wrong to do so, Laue said, because those issues weren’t raised by plaintiffs Scott Bozarth and Kristin Butler, who were concerned the school district’s mask order would cause “psychological harm” in children.

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

Greg Goheen, representing the Shawnee Mission School District, said the district court had discretion to consider how the overhauled Kansas Emergency Management Act could deprive school districts and other local government units of due process or violate constitutional separation of powers between the legislative and judicial branches.

“There was clearly jurisdiction to decide the matter at the front end by the district court,” Goheen said.

In the order denying relief to Butler and Bozarth, the district court judge questioned constitutionality of Senate Bill 40, specifically its requirement that a court hold a hearing within 72 hours of the filing of a challenge. Another provision would automatically direct relief to the plaintiffs if the court did not issue an order within seven days.

The Johnson County judge declared the law “unenforceable,” creating a temporary scramble at the Capitol in terms of what standard should be followed as the pandemic advanced.

Attorney General Derek Schmidt, who is a candidate for governor in 2022, filed an appeal based on a belief the district court should have considered the issue moot because the relevant part of Senate Bill 40 no longer applied to the school district. The state also argued the constitution didn’t grant due process rights to school districts or other political subdivisions of the state.

Justice Caleb Stegall, appointed by Republican Gov. Sam Brownback, suggested the mootness argument offered by the attorney general’s office meant that any court decision or opinion in this case was essentially advisory.

“Your position is, ‘This case ended. There is no controversy here. The court can’t provide any meaningful relief to any party,'” Stegall said. “So, whatever the court does, isn’t it just an advisory opinion?”

Justice Keynen Wall, placed on the Supreme Court by Democratic Gov. Kelly, wondered if the district court judge should have considered the concept of “constitutional avoidance,” which is a body of law encouraging judges to decide cases — when possible — without pointing to constitutional topics.

Laue, the solicitor general, said the doctrine ought to have guided the judge away from a constitutional framework in his final decision. He said the judge contributed to a “classic example of where a case should not go forward.”

Justice Eric Rosen, who served 12 years on the Shawnee County District Court before appointed to the Supreme Court by Sebelius, said he was troubled Senate Bill 40 required judges to conduct a hearing within 72 hours and produce a decision in one week.

He offered a hypothetical: “I’m a district court judge. I’ve set a case that’s taken months to set — a first-degree murder case, a rape case. Am I do drop everything, take 72 hours off, take 10 days off that trial? How does that not interfere with the very basic functioning of the district court? I don’t see how the Legislature can tell a court do do that.”

Goheen, representing the school district, said the “very unreasonable” deadline placed in statute by the Republican-controlled Legislature represented a violation of the separation of powers.

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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.