Kansas Supreme Court reverses judge’s decision throwing out COVID-19 statute

Justices assert district court shouldn’t have waded into constitutional issues

By: - January 7, 2022 11:08 am
The Kansas Supreme Court reversed a district court decision Friday that found unconstitutional a state law allowing people to challenge COVID-19 prevention policies adopted by a school district. (Screen capture/Kansas Reflector)

The Kansas Supreme Court reversed a district court decision Friday that found unconstitutional a state law allowing people to challenge COVID-19 prevention policies adopted by a school district. (Screen capture/Kansas Reflector)

TOPEKA — The Kansas Supreme Court reversed a district court decision Friday that threw out a lawsuit filed against a school district’s use of COVID-19 pandemic prevention measures and declared the underlying state law a violation of the state and federal constitutions.

Justices of the state’s highest court faulted the Johnson County District Court’s decision to weigh in on constitutionality of Senate Bill 40 adopted by the 2021 Legislature. The Supreme Court agreed the district court judge properly tossed the lawsuits because they weren’t filed soon enough, but the justices concluded the trial judge procedurally went too far by unnecessarily wading into constitutional considerations.

Justice Dan Biles, appointed by Democratic Gov. Kathleen Sebelius, wrote the “decision may be just a temporary retreat from a raging storm” of political and legal intrigue as the state worked through government boundaries on emergency management.

“It reflects necessary adherence to a long-standing doctrine of judicial self-restraint known as constitutional avoidance,” Biles’ opinion said. “This rule strongly counsels against courts deciding a case on a constitutional question if it can be resolved in some other fashion, especially when the question concerns the validity of a statute enacted by our coordinate branches of state government.”

District Court Judge David Hauber had dismissed a lawsuit filed by parents against the Shawnee Mission School District because the plaintiffs didn’t challenge the district’s face-covering policy within the mandatory 30 days. Hauber also ruled the pandemic law approved by the Legislature unconstitutionally deprived school districts of due process and interfered with the judicial system by mandating a verdict within 10 days.

Hauber’s opinion said: “One can imagine the reaction from legislators if courts routinely demanded that a given legislative committee or chamber enact a law or report a bill out of committee within a certain time frame.”

Attorney General Derek Schmidt, who is a Republican candidate for governor, intervened in the case before the district court and appealed the lower court ruling on constitutionality of Senate Bill 40.

Supreme Court Chief Justice Marla Luckert, appointed by Republican Gov. Bill Graves, offered a separate opinion. She argued the appeal by the attorney general’s office should have been dismissed for lack of jurisdiction. Luckert said the district court didn’t have authority to reach Senate Bill 40’s constitutionality once it decided the lawsuits were untimely.

Justice Caleb Stegall, placed on the court by Republican Gov. Sam Brownback, joined Luckert’s dissent.

Provisions of COVID-19 state law applicable to school districts expired last summer, but statute aimed at restraining county governments was left in place by the Supreme Court.

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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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