Delaying a judge’s order throwing out the state’s new emergency management law would hurt school districts’ response to a resurgence of COVID-19.
Lawyers for the Shawnee Mission School District are making that argument in asking the Kansas Supreme Court not to delay a lower-court ruling that found the new law was unconstitutional.
They contend that allowing the law to continue would keep school districts across the state from nimbly responding to the spread of COVID-19 as students return to school.
Granting a stay, the district argues, would subject school boards to an “unconstitutional” and “unworkable” grievance process allowing parents to challenge new health protocols in court with an expedited hearing and decision process.
“These hearing procedures abuse the education and court systems, mow over well- established school district and court procedures and violate the separation of powers and the fundamental due process rights of school districts and other governmental entities,” lawyers for the district argue.
Last month, Johnson County District Judge David Hauber ruled the law was unconstitutional, zeroing in on sections that allowed Kansans to go to court to challenge health orders, which are reemerging with COVID-19 cases now on the rise.
Hauber declared the law unconstitutional partly because of limits it places on the judiciary to settle a challenge to a health order, including issuing a ruling within seven days or granting a judgment in favor for the plaintiff.
Attorney General Derek Schmidt – along with House Speaker Ron Ryckman Jr. and Senate President Ty Masterson – have asked the Supreme Court to stay the lower-court ruling until an expedited decision can be reached on an appeal of the judge’s order.
They argue that judge’s decision to invalidate the law has led to “mass confusion” about which laws are in place pertaining to public health orders.
The school district insists that allowing unconstitutional parts of the law to remain in place would hurt school boards across the state as they try to deal with new increases in the number of COVID-19 cases.
With class set to start Wednesday in Shawnee Mission, the district should be able to respond to the threat of COVID-19 without fear of facing the grievance procedure provided for in the legislation, school lawyers argue.
“No reason exists for granting a stay that outweighs the risk of continued constitutional violations and further disruptions to the Shawnee Mission School District’s efforts to operate its schools in a safe and appropriate manner,” the district argued.
“A stay of the district court’s order would harm the Shawnee Mission School District…and all other governmental targets of SB 40 that have the responsibility to address pandemic issues and make critical public health decisions.”
The district notes that the Johnson County Commission has already issued an order – effective Monday – that required elementary and second school students to wear masks.
The district says the school board has already responded to the county’s order with a plan for addressing the spread of COVID-19.
The school district’s lawyers said the number of COVID cases and hospitalizations have increased by 70% in the last two weeks.
If the stay is granted, the district – and the county – would be put in a position where it would have to defend its actions against the grievance process that the court has already found unconstitutional.
The attorney general has argued Hauber’s ruling affected seemingly unrelated parts of the law, namely the ability of leading lawmakers on the Legislative Coordinating Council to extend any disaster emergency issued by the governor.
The bill also required county commissioners to approve any order proposed by the county health officer that mandated face masks, limited business operations, restricted the size of religious gatherings or controlled the movement of the population.
Schmidt has raised questions about what kind of emergency management law the state has in place now that the one passed last session has been struck down.
The school district said the issue is not about confusion but rather that the state is upset about the scope of the judge’s ruling.
The district argues that the attorney general had a chance to sever the unconstitutional provisions of the bill but didn’t address the issue.
It contends that the attorney general immediately appealed the court ruling without asking the lower court to amend or narrow the scope of its ruling.
“Because the strategic decision was made to not seek to alter or amend the judgment and separate out any provisions of SB 40 at the district court, a blanket stay should not (be) issued to push the consequences of that strategy decision on the Shawnee Mission School District.”
State, local governments and school boards, under the law that was struck down, 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.
