Health order grievances tied to end of emergency declaration

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When leading lawmakers decided not to extend Gov. Laura Kelly’s ongoing COVID-19 emergency declaration, they likely brought an end to the ability of parents to challenge health orders implemented by school districts.

The grievance procedures enacted by the Legislature for school districts were tied to the COVID-19 emergency declaration, which was set to end Tuesday after leading lawmakers decided against the governor’s request for an extension.

They were part of a new emergency management bill that the Legislature passed this year to replace the previous law that was viewed as inadequate for dealing with a long-term disaster like a pandemic.

Interviews with lawmakers and school officials indicated the grievance procedure would end with the disaster declaration even though there are two ongoing lawsuits challenging the law in state and federal court.

The fate of those two lawsuits remains to be seen although it is believed they could now be moot with the decision not to extend the declaration past Tuesday.

A Johnson County judge recently raised questions about the constitutionality of the law in a case brought by two parents against the Shawnee Mission School District over masks.

District Judge David Hauber said the law established very short deadlines for hearings and decisions that conflicted with local rules, Supreme Court rules and penalized government defendants if a decision was not reached quickly.

Hauber said the law tipped the “scales of justice” in favor of plaintiffs.

The judge asked for Republican Attorney General Derek Schmidt to respond to his questions.

In a preliminary response, Schmidt immediately raised the issue of whether the issue would still be relevant after the emergency declaration came to an end.

“The attorney general’s submissions will address any factual developments in this regard, as well as the potential issue, if the disaster declaration expires without any extension,” Solicitor General Brant Laue wrote in the court filing.

The attorney general’s office declined comment on Tuesday. A spokesman for the Shawnee Mission School District did not return phone calls.

Republican state Rep. Fred Patton, chairman of the House Judiciary and one of the authors of the new law, said he thought the lawsuits would be moot now that the emergency disaster will end after Tuesday.

Patton said the grievance procedures for elementary and secondary schools as well as community colleges were tied to the COVID-19 declaration.

“Once this disaster goes away…those two provisions are gone. They no longer apply,” Patton said in an interview before the LCC decided against extending the declaration.

Patton said he would argue that any existing lawsuits against school districts would now be moot since the emergency declaration ended.

“There is no remedy they can ask for because the provisions that allow you to challenge are no longer in effect,” he said.

Patton noted, however, the grievance process for orders issued by cities and counties will remain in place for future emergency declarations.

The law passed by the Legislature gave parents the ability to go to court if they believed their children had been hurt by an order issued by local governments and school boards during the COVID-19 emergency declaration.

Local governments and school boards, under the law, were required to hold a hearing on the grievance within 72 hours.

Any civil action brought within 30 days of the hearing must be heard in court within three days as well.

The law said  a judge “shall grant relief” unless the court finds that the order was narrowly tailored to respond to an emergency in the least restrictive way possible.

A judge had seven days to rule. If the court didn’t issue a ruling in seven days, the petitioner would be granted a judgment in their favor.

Democratic state Rep. John Carmichael, a member of the conference committee that wrote the bill, shared a similar view as Patton.

“At the time we were discussing the legislation, it was pretty clear to everyone that this is only for the duration of the emergency,” he said.

“And when the emergency goes away, these emergency procedures are supposed to go away,” the Wichita lawmaker said.

Mark Tallman, lobbyist for the Kansas Association of School Boards, said there seemed to be consensus that the grievance process ends with the declaration.

“I believe the consensus of our legal team is that those hearings would no longer apply because the statute ties them to that particular disaster declaration,” Tallman said.

“I don’t know if whether that’s definitive or anyone would challenge that,” he said.

“But that is our understanding of what seemed to be legislative intent.”

Republican state Rep. Brad Ralph said to the best of his recollection of the debate that the grievance process ended with the emergency declaration.

The Dodge City lawmaker was hesitant to speculate on the fate of ongoing challenges, but believed that they could very well be moot at this stage.

“The courts are not in the business of providing advisory opinions,” he said.

“If the issue now no longer is ripe, it becomes moot and the courts dismiss those,” he said. “I can’t tell you that I know what would happen.

“But it seems like that might be the most likely.”