Limits reimposed on COVID-19 response from state, local officials after Kansas Supreme Court decision
The Kansas Supreme Court has halted a lower court decision to throw out a sweeping set of laws designed to place limits on the state's COVID-19 response, meaning a suite of restrictions on state and local officials have been re-imposed as they continue to respond to an increase in the virus' spread.
Last month, Johnson County District Court Judge David Hauber struck down Senate Bill 40, which was signed into law earlier this year, in a far-reaching and surprising decision that thrust the state's pandemic response into chaos.
The move temporarily invalidated the Kansas Legislature's efforts to increase oversight on local governments and Gov. Laura Kelly in their handling of the pandemic. Many of those provisions expired after Republican legislators declined to renew the state's COVID-19 emergency declaration.
But those restrictions that did not expire will now be in effect again, at least until the Supreme Court has the chance to issue a fuller ruling on the law's constitutionality. That isn't expected until mid-September at the earliest, even though the justices agreed to expedite the process at the behest of Attorney General Derek Schmidt.
Schmidt, who has vehemently argued against Hauber's ruling, arguing in a motion seeking the stay that it was "improper" and a "self-initiated constitutional controversy."
In a statement, he cheered the high court's move, which came in a simple, one-page ruling from Chief Justice Marla Luckert.
“Today’s order from the Kansas Supreme Court granting our motion to stay the district court decision during the appeal is welcome news," Schmidt said. "The district court’s ruling had created unnecessary confusion about Kansas emergency management laws at a time when the rise in COVID cases makes certainty and stability in the law even more critical.”
County, state officials have COVID-19 powers restricted again
For now, restrictions on the powers of local health officers to issue mitigation orders have been re-imposed. Kelly is also once again checked on her ability to issue a new COVID-19 emergency order to deal with the ongoing rise of cases related to the delta variant.
The governor has pushed back on calls to issue such an order, arguing it requires legal and logistical coordination given confusion surrounding the emergency management laws. Under SB 40, she could issue an initial 15-day emergency but any subsequent renewals of the order would be handled by a group of top legislators, most of whom are Republicans.
SB 40 also gives that panel of lawmakers, called the Legislative Coordinating Council, more control over any executive orders issued by Kelly to respond to the pandemic.
The legal battle dates back to a fight over a citizen challenge to a mask mandate in Shawnee Mission School District. Previously, individuals can demand a hearing or file a civil suit challenging COVID-19-related orders from a local governmental body, school board or public health officer, with strict time limits on when a hearing must be held and a verdict rendered.
Hauber's ruling, however, went beyond the merits of the citizen complaint and struck down the entire legislation, calling it "unenforceable" and saying it created an undue burden on the judiciary.
While school districts can no longer have their orders challenged by aggrieved citizens, counties still run the risk of such suits. This could pose complications for Johnson and Douglas counties, which have issued mask mandates for young children in schools, and Wyandotte County, which has a mask requirement in place for indoor spaces.
Rep. Fred Patton, R-Topeka, said the stay was an important move to minimizing confusion about the current COVID-19 response landscape. Previously, there was uncertainty about whether Hauber's order in Johnson County applied statewide, as well as which version of the state's emergency management code lawmakers were subject to.
"At least now we all know what we're operating under," Patton said.
The ruling comes amid a new rise in COVID-19 cases, largely fueled by the delta variant, which has begun filling hospital beds across the state. The Kansas Department of Health and Environment reported a rise of 2,778 cases over the weekend and only 33% of the state's intensive care beds are open as of Monday.