Supreme Court agrees to expedited appeal of KEMA ruling

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Photo credit: A.D. Modlin

The Kansas Supreme Court late Thursday agreed to an expedited appeal of a court ruling that threw out a new state emergency management law as unconstitutional.

The court put off making a decision on whether to stay Johnson County Judge David Hauber’s ruling, which found that the law unconstitutionally tread on the powers of the judiciary and violated the due process rights of governments.

A decision on the fate of the law will now not be reached until September at the earliest.

The court gave Attorney General Derek Schmidt until Aug. 26 to file his brief in the case.

The Shawnee Mission School District, which has challenged the law as part of a lawsuit brought contesting a mask order, has until Sept. 9 to file its response.

Any reply brief to the school district is due by Sept. 16.

A date for oral arguments was not set.

The court order, signed by Justice Eric Rosen, said exceptions would not be made to the briefing schedule without a showing of extraordinary circumstances.

Last month, 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.

HauberĀ declared the law unconstitutional partly because of limits it placed 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.

The attorney general – along with House Speaker Ron Ryckman Jr. and Senate President Ty Masterson – had 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 attorney general argued that the 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.

The school district opposed the stay request, arguing it would hurt the ability of all school districts to respond to a resurgence of COVID-19.

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.