Lawsuits challenge mask mandates in two counties

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Lawsuits were filed against two counties over mask mandates on Friday, contending that the health orders were overly broad under a new state emergency management law passed by the Legislature earlier this year.

One lawsuit was brought against a Johnson County health order requiring masks for students through the sixth grade who are enrolled in public and private schools.

The lawsuit was brought on behalf of a Blue Valley middle school student – only identified in the court filing as M.M.C. – who claims the mask mandate interferes with their learning ability, completing their class work or interacting with their friends.

“School enforcement of the order has caused teachers and administrators to discriminate against and punish unmasked students that have otherwise have had no disciplinary action,” the lawsuit states.

“Such enforcement activity has placed M.M.C. in fear of imminent school discipline during the day,” the lawsuit stated.

A Johnson County spokeswoman declined comment.

A second lawsuit was lodged against Morris County by a Council Grove man and former Marine who believes in “personal freedom and choice.”

The Morris County health order requires all businesses and organizations to mandate masks for all customers, employees and visitors inside public spaces.

The Morris County mandate also requires masks for outdoor public spaces when social distancing can’t be accomplished.

Like the Johnson County lawsuit, Neil Litke of Council Grove says the Morris County health order requiring masks too broad.

The Morris County counselor was out of the office Friday afternoon and unavailable for comment.

The two lawsuits, filed by Olathe attorneys Ryan Kriegshauser, Josh Ney and Alan Vester, are based on the new emergency management law that requires that health orders are to be narrowly tailored in the least restrictive way possible.

In the case of Johnson County, the lawsuit contends that the health order lasts 295 days and seeks a more narrow time frame of 30 days so that it can be reviewed monthly by the Johnson County Commission as the health climate changes.

The lawsuit contends that the health order isn’t narrowly tailored, which under the law is grounds for granting a judgment in favor of the plaintiff.

A similar case is made in Morris County, where according to the lawsuit it will remain in place until it’s rescinded by the county health officer.

Like in the Johnson County lawsuit, the plaintiff is seeking to narrow the window for the health order to 30 days so it will be reviewed monthly to account for changing health conditions.

The lawsuits are the first that have been filed since the state Supreme Court stayed a lower-court ruling throwing out the emergency management law passed this year.

Johnson County District Judge David Hauber ruled that the law passed last session deprives the government of due process while also violating the separation of powers between the judicial and legislative branches.

Attorney General Derek Schmidt has appealed the ruling to the state Supreme Court, which has agreed to take up the case on an expedited basis.

Hauber zeroed in on sections of the law that allowed Kansans to go to court to challenge health orders, which are reemerging with COVID-19 cases now on the rise.

Unlike school health orders that might be challenged, the plaintiffs can go right to court when contesting a health order issued by a county.

In the cases of schools, the school district must hold a hearing before going to court.

The court still must hold a hearing within 72 hours and rule within seven days although in these two lawsuits the plaintiffs have agreed to waive to strict adherence to the timelines but have requested a hearing as soon as possible.

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

The latest dustup over masks comes as the state is battling a surge in COVID-19 as the delta variant spreads and a sector of the public has been reluctant to get the shot.

Masks have been a political hot spot in Kansas and elswhere with some Republican leaders, including U.S. Sen. Roger Marshall, saying they don’t work although studies and medical experts have concluded otherwise.