Kansas Attorney General Derek Schmidt is asking a judge to delay an order declaring the state’s new emergency management law unconstitutional and unenforceable.
Solicitor General Brant Laue on Wednesday filed a motion with Johnson County District Judge David Hauber, requesting him to stay his ruling to allow for an expedited appeal to the Kansas Supreme Court.
“If this court’s order is not stayed, the confusion created by that order will persist and potentially hamper the state’s ability to respond to a future disaster emergency, inviting the very sort of ‘legal anarchy’ that troubled the court,” Laue wrote.
The law put in place a number of procedures for judges to follow if someone went to court to challenge an emergency health order issued by the governor, local governments and school districts.
Hauber found that the law went too far, unconstitutionally encroaching on the authority of the courts and denying due process to government defendants.
“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.
While Hauber focused on parts of the law allowing Kansans to challenge health orders, Laue raised questions about other provisions of the law that appear to be unrelated.
Laue, in his motion, pointed to a section of the law that expands membership of the Legislative Coordinating Council from seven members to eight to include the Senate vice president.
“Surely, there is no constitutional problem with this provision or any reason why it cannot be severed from the allegedly unconstitutional applications of SB 40,” Laue argued in his brief.
“But the broad language of the court’s opinion creates uncertainty about this provision, uncertainty that could produce harm given the various responsibilities of the LCC,” he argued.
Laue immediately turned to parts of the law which gave the LCC – made up of Democratic and Republican legislative leaders – the power to extend any disaster emergency issued by the governor.
The law gives the governor the power to call a 15-day state of disaster emergency and gives the LCC the power to extend it for multiple periods of 30 days.
The LCC’s authority under the law also extended to disaster emergencies related to domestic animals, plants, raw agricultural commodities, animal feed or processed food.
The issue has particular relevance now as COVID-19 starts making a resurgence as its variant spreads across the state line from Missouri into Kansas.
Previously, the State Finance Council, which has broader legislative membership and includes the governor, would decide whether to extend emergency declarations.
With the new law that was struck down, questions persist about who would have that authority now, Laue wrote.
The new law also provides that an executive order issued by the governor during any new COVID-10 related emergency could be revoked by the Legislative Coordinating Council or the Legislature.
“If another emergency of any sort were to occur, this court’s order would create confusion about the validity of these provisions and harm the state’s ability to respond to the disaster,” he wrote.
“This court’s decision is creating unnecessary and disruptive confusion about the validity of other provisions of SB 40 not at issue in this case,” Laue wrote.
In addressing case brought against the Shawnee Mission School District, Hauber zeroed in sections that allowed Kansans to go challenge health orders in court.
State, local governments and school boards, under the law, were required to hold a hearing on any grievance brought against a health order 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 says 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 plaintiff would be granted a judgment in their favor.
The law also provided the same grievance process for orders issued by cities and counties. It also applied to community colleges and executive orders issued by the governor.
The judge found that while the law was developed under the “guise of giving local governments the authority to address specific pandemic issues,” it actually “hobbled” their efforts by enacting legislation that would ensure lawsuits would be filed.
Hauber took particular aim at a provision of the law that declared a judgment in favor of the plaintiff if a decision wasn’t reached in seven days.
“It is difficult to fathom what the drafters of SB 40 used as a legal template for this default provision which seems to be unprecedented in the law,” the judge wrote.
“SB 40 essentially allows a hurried declaration of important legal rights, or allows a default declaration that lacks any judicial input,” he wrote.
Hauber noted that the speedy approach called for by the law could impose burdens on the judiciary.
While Johnson County judges may be able to field claims and set aside other cases, some judicial districts might not be staffed adequately to deal with the claims.
“There may be numerous reasons a judge may not be able to get a decision out in seven days, whether there are more emergent cases, an unforeseen calamity or even the ability to research and issue a reasoned opinion.”
“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 timeframe,” Hauber wrote.
