Kansas Attorney General defends emergency management law from challenge by JoCo judge

A Johnson County judge’s constitutional challenges to new state emergency management laws are meritless and moot, the Kansas Attorney general’s office said.

In court records filed Wednesday, Solicitor General Brant Laue defended Senate Bill 40 — the expansive rewrite of Kansas emergency management law that opened the door to lawsuits against state and local COVID-19 precautions — against a Johnson County judge’s position that elements of the bill violate due process rights.

In early June, Johnson County District Judge David Hauber expressed his concerns in a ruling on a lawsuit parents filed against the Shawnee Mission School District seeking to force an end to the district’s mask mandates.

The action was one of many filed under the new law against Kansas school districts and local governments. In Johnson County, judges have consistently ruled in favor of the districts and localities.

Hauber wrote that strict time limits imposed by the law effectively eliminated the government defendant’s right to due process.

Laue wrote that the question was moot because the section of the bill relevant to school board decisions expired when GOP lawmakers chose to end the COVID-19 state of emergency last week.

Provisions of the bill regarding challenges to local and state level emergency response, however, applied to COVID-19 and any future emergency.

Laue argued that because the portion of the law specific to school boards had expired the Johnson County court could not rule on its constitutionality.

Even if the court could rule, Laue cited state and U.S. Supreme Court cases to argue that “political subdivisions of the state” like school districts and local governments do not have the same due process rights as individuals.

Provisions of the law establishing default judgment for the complainant if the court doesn’t hold a hearing within 72 hours and decide in seven days, Laue wrote, are similar to speedy trial requirements in criminal law.

The limits, he wrote, ensure questionable restrictions are not left in place indefinitely.

“If actions taken by local school boards are well-reasoned and supported by evidence, there should be no problem with a court finding those actions to be justified within seven days,” he wrote.

If Hauber chooses to strike down the time limit elements of the law, other portions of the bill, including restrictions on Gov. Laura Kelly’s emergency powers and the authority of local health officials, will stay in place.

According to the court, the Shawnee Mission School District must respond to the brief and another hearing will be held before Hauber issues his ruling.

Rep. Fred Patton, a Topeka Republican who helped draft the law, said he understood Hauber’s concern but felt the time limits were similar to actions the Legislature took in the past.

“The intent was to get before a judge quickly and have a judge render a decision fairly quickly,” Patton, an attorney, said. “The legislature tells the court in other situations how quickly it has to issue a decision.”

Sen. Kellie Warren, a Leawood Republican who worked on the bill, said the bill was meant to create safeguards.

“My main concern right now as a legislator and mother is ensuring Kansas schools are open and fully functioning this fall,” Warren said