Johnson County judge rules SB 40, Kansas COVID-19 emergency powers law, unconstitutional

Shawnee Mission masks

The judge said the law violated local governments' due process rights and also violated the separation of powers between the legislative and judicial branches of government. The case began when two parents in the Shawnee Mission School District sued over the district's decision not to give them a hearing under SB 40 to challenge the district's mask rule last school year. File photo.

A Johnson County judge says SB 40, a law passed this spring aimed at curtailing local governments’ emergency powers during the COVID-19 pandemic, is unconstitutional.

In the same ruling, Judge David Hauber sided with the Shawnee Mission School District in dismissing two parents’ complaints over not being given public hearings under SB 40 to challenge the district’s mask rules last school year.

Hauber ruled that the law’s accelerated process for allowing citizens to raise grievances against COVID-19 policies deprives local governments — including school districts — of due process and violates the separation of powers between the legislative and judicial branches.

A spokesperson for Attorney General Derek Schmidt said his office plans to appeal the decision.

Why it matters: The ruling comes as COVID-19 case numbers are again rising in Kansas, the Kansas City metro and beyond, driven by a surge caused by the more contagious Delta variant.

Local school districts are deciding what, if any, pandemic protocols will be in place when students return to in-person classes next month, including mask rules.

While other Johnson County public school districts have already said they plan to make masks optional, SMSD has yet to finalize its policy for next school year.

Not moot: In responding to the judge’s request for a brief in the case, Kansas Attorney General Derek Schmidt contended that SB 40 is now moot, following the expiration of the statewide disaster emergency on June 15, and a ruling on its constitutionality was not needed.

But Hauber rejected that reasoning, in part, because he said some of the law’s provisions could be used again if another disaster emergency, whether pandemic-related or not, is issued in the future.

Hauber explicitly mentioned the Delta variant in his decision, suggesting a sudden increase in case numbers could lead to a new state of emergency, in which some of SB 40’s provisions could be in play again.

For these reasons, Hauber said SB 40 still raised “significant due process issues.”

Problems with SB 40 process: Most critically, Hauber said SB 40’s truncated process for allowing citizen grievances violated local governments’ due process rights.

“Under the guise of giving local governments the authority to address specific pandemic issues, SB 40 actually hobbled local pandemic measures by ensuring that lawsuits would be filed, aided by swift court action. Many local units of government simply capitulated under the pressure,” Hauber wrote.

He noted that SB 40 required local governmental bodies, like school boards, to take up citizens’ challenges within 72 hours and then gave them seven days to reach a decision.

Similarly short timeframes governed how quickly local courts had to hear appeals to local governments’ decisions to such challenges.

Hauber said this “hurry up and decide” scheme essentially gave the advantage to complaining citizens.

“It is the ultimate legislative stick intended to goad and/or supplant judicial rules and functions, and it promotes the equivalent of legal anarchy,” Hauber wrote.

Schmidt admitted as much in his brief defending SB 40, contending that if a school board was not able to justify its COVID-19 restrictions within the timeframe laid out by SB 40, then “judgment should be entered in favor of school children.”

But Hauber sided with local governments in dismissing that notion, citing SMSD’s own brief, which argued that SB 40 never addressed the “best interests of students” but solely focused on “adult, political concerns.”

Ultimately, Hauber said SB 40 is “unenforceable” because of the quick timeframe laid out in its provisions.

Parents’ complaints dismissed: Hauber also sided with SMSD against two parents who had brought suit against the district for not giving them a public hearing under SB 40 in order to challenge the rule that masks be worn inside school buildings at all times last school year.

The judge noted that neither parent was harmed by the district’s mask policy.

One parent received a medical exemption for her child. And the second parent chose not to obtain an exemption, Hauber said, “preferring to attack the mask policy” instead.

“The Court is not critical of any parent who feels strongly that government action might be regarded as arbitrary or even harmful to one’s child,” Hauber wrote. “But there are existing legal procedures to address such potential violations.”

What happens next: Schmidt’s office says it plans to appeal Hauber’s ruling.

In a statement Thursday, Clint Blaes, the Director of Communications for the Attorney General’s office, said:

“On its own volition, the district court created a controversy about the statute where none exists now that the state of emergency has ended. Attorney General Schmidt strongly disagrees with the ruling in this case. We plan to appeal to defend the validity of the statute as it was enacted by the Legislature and signed into law by Governor Kelly.”

SMSD did not immediately return a request for comment on how the ruling could impact the school board’s upcoming deliberations on COVID-19 protocols going into the new school year.

Read Judge Hauber’s full ruling below: 

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