Kansas attorney general to intervene as constitutionality of emergency management law questioned

Andrew Bahl
Topeka Capital-Journal
Attorney General Derek Schmidt announced he will intervene in a challenge to a Johnson County mask mandate.

Attorney General Derek Schmidt said Thursday in a legal filing that his office will seek to intervene in a challenge to a Johnson County mask mandate — a case which has burgeoned into a threat to the constitutionality of a sweeping set of reforms to the state's emergency management law.

Senate Bill 40, passed by the Kansas Legislature and signed into law earlier this year, is most notable for instituting new constraints on powers given to the governor and executive branch in an emergency. It comes as a reaction to Gov. Laura Kelly's often controversial COVID-19 pandemic response.

But the bill also included a sweeping provision allowing individuals to 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.

The threat of lawsuits was enough to get many local governments to yank mask-wearing orders and other COVID-19 mitigation protocols. But several citizens did challenge orders, particularly in school districts, with most of the challenges coming in Johnson County.

One of those cases was dismissed by Johnson County District Judge David Hauber earlier this week after three Shawnee Mission School District parents challenged that district's mask wearing and COVID-19 mitigation protocols. 

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But Hauber went further and argued the law "presents significant constitutional problems" that require Schmidt to intervene before he makes a fuller ruling on whether the law should stand.

Most notably, he said the time limits for responding to any citizen complaints hinder the due process rights of the governmental body who implemented a particular COVID-19 order.

If a hearing isn't convened quickly enough under SB 40, the order must be struck down, regardless of the legal merits of a person's claims.

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"The judicial trigger in SB 40 is: 'do this now or else,' Hauber wrote, noting the law "tips the scales of justice" toward the person bringing the lawsuit "as a judicial goad."

Per statute, Schmidt has the right to intervene in any case where the constitutionality of a Kansas law is implicated. Hauber said he would hold off on a final ruling until Schmidt can make his case, although a hearing has yet to be scheduled on the matter.

Johnson County has been the largest battleground over district mask-wearing requirements. A judge dismissed a similar SB 40 challenge from a county commissioner in April and a separate case was moved to federal court at the request of two school districts involved.