Who went too far?
A Johnson County district judge who found the state’s new emergency management law unconstitutional? Or the Legislature that authored the law?
The Kansas Supreme Court on Tuesday grappled with those issues as it tried to decide the fate of the new emergency management law passed last session.
The bill – known as SB 40 – gave Kansans new legal recourse if they believed they’ve been aggrieved by a health order issued by the state and local governments, including school districts.
The law came about in response to complaints that health officers across the state had over-asserted their authority with restrictions – such as stay-at-home orders and mask mandates – that were imposed during the COVID-19 pandemic.
The justices tried sorting out whether the Legislature went too far when it set strict deadlines for judges to follow when reviewing challenges to local health orders.
They also tried to conclude whether Johnson County District Judge David Hauber went beyond the primary issues in the case to declare the law unconstitutional.
Earlier this year, Hauber found the law unconstitutional, partly because it treaded on the powers of the judiciary by setting tight timelines for the courts to rule on challenges to health orders or risk granting judgments in favor of plaintiffs.
The district court ruling was an outgrowth of a lawsuit brought against the Shawnee Mission School District over a mask mandate.
Hauber ruled against the parents who sued the district, but he went on to raise overall questions about the constitutionality of the law, especially the timelines it imposed on courts to decide challenges to health orders.
Under the law, judges are required to hold hearings on a health order challenge within 72 hours and rule within seven days or the plaintiffs would win the case.
Several justices on Tuesday questioned the timelines the Legislature set for the court to make decisions on a challenge to a health order.
“Based on separation of powers and…interfering on the district court’s ability to decide a case, the timing of a case – to me that presents a lot of problems,” Justice Eric Rosen said.
Rosen asked how the law doesn’t interfere with the court, which may have to take time out of a major criminal case that’s been in the works for months to hear a challenge to a health order within 72 hours and rule within seven days.
“How does that not interfere with the very basic functioning of the district court’s duties? I don’t understand that,” he said
“I don’t see how the Legislature can tell a court to do that.”
It was a similar concern expressed by Chief Justice Marla Luckert.
She called the timelines a “pretty heavy enforcement measure” for a court to rule on a challenge to a health order.
Justice Dan Biles pressed the state about whether the Legislature has the power to order judgments in favor of plaintiffs as required under the law.
“Does the Legislature have the power to simply say that if any member of the public objects and they don’t get a decision from the court in a certain amount of time, they win whatever they asked for?” Biles asked.
Solicitor General Brant Laue, representing the Legislature, said lawmakers have that power, although he suggested the law is open-ended enough so the legal dispute could work itself out in many different ways.
“The Legislature didn’t provide all of the details for how an (legal) action should or could proceed,” Laue said.
“I think one could envision any number of different scenarios where working with the parties, the court would enter some sort of an order that perhaps isn’t the kind of judgment that your honor is anticipating,” Laue said.
However, Biles said there was nothing in the law to reflect Laue’s claim about an open-ended result for a civil action brought under the statute.
“I would agree there’s a lot of detail left out of the statute,” he said.
Earlier in the hearing, Biles raised questions about Hauber’s ruling and whether he went too far after dismissing the initial complaints brought against the school district.
“Since the parties aren’t raising the issue, what is it that permits the district court to pivot and start addressing constitutional issues about Senate Bill 40?” Biles said in question to the Shawnee Mission lawyer Greg Goheen.
“When a party hasn’t raised a constitutional issue, do we look at it as an abuse of discretion that the court made this pivot?” he asked.
Goheen said he believed it was within the authority of the district court to raise the constitutional question, especially since the hearing in the case was held beyond the 72-hour requirement set by the law.
“I don’t know that I would view it as an abuse of discretion,” Goheen said.
“I still think it was within the discretion or the right of the district court to consider or raise the issue,” he said.
“Frankly, in this case, the district court went about that in the correct manner.”
Justice Caleb Stegall quizzed Goheen about what controversy was there left for the court to decide after dismissing the complaint brought by the parents.
“The district court said SB 40 doesn’t apply. Case over. What’s left to allow the district court to sort of hook into?” Stegall said.
Goheen noted that Judge Hauber issued what was described as a preliminary ruling in which the attorney general was given the opportunity to answer the constitutional questions that the judge first raised.
“Can you help me understand what a preliminary ruling is. That is not a creature I understand,” Stegall said.
Goheen said the first ruling issue by the judge in early June was not final and could not be appealed based on how it was framed.
He said there was still opportunity for the state to respond as well as the plaintiffs to return to court with more information.
About a month later, the court issued a final order declaring the law unconstitutional.
The court also has been interested in whether the law even applies in this case since the school’s mask mandate was implemented almost a year before it was challenged.
The challenge was filed about nine months beyond the 30-day limit established by the new emergency management law for bringing grievances against a health order.
“The thing that’s been bugging me – the premise that I’ve got – is that Senate Bill 40 never applied to this litigation,” Biles said.
“This policy was something from nine or 10 months ago, and the statute’s pretty clear,” he said.
“The policy of the board that you attack has to have been enacted within 30 days.”
Chief Justice Luckert shared a similar tought.
“Would any of that running boulder even apply to this case because of the timing of the school board decision?”
The court recently issued an order asking the lawyers in the case to address whether Kansans must make a timely request for a school district hearing to challenge a health order before they can go to court.
The court’s order potentially telegraphs how the justices are viewing the legal challenge to the state’s new emergency management law, which a lower-court judge threw out because it was unconstitutional.
The court’s order seemed to suggest that the justices might decide the case on standing – did the plaintiffs suffer harm from the order – rather than the overall constitutional issues raised by a Johnson County judge, leading lawmakers have said.
