But the Supreme Court declined to say whether the law is, in fact, constitutional — calling its ultimate fate into question. A majority of the justices instead adopted a posture of restraint, saying they should avoid deciding constitutional questions if cases can be resolved in other ways.
The decision concludes, for now, a months-long court battle over revisions to emergency laws passed during the 2021 legislative session.
“We recognize this decision may be just a temporary retreat from a raging storm, but it reflects necessary adherence to a long-standing doctrine of judicial self-restraint known as constitutional avoidance,” Justice Dan Biles wrote in the majority opinion.
The immediate on-the-ground consequences of the Supreme Court opinion may be limited. Since August, the justices have been blocking enforcement of the lower court’s decision.
The law, known as SB 40, stripped authority from local health officers and Gov. Laura Kelly. It set up a system under which any “aggrieved” Kansan could bring a court challenge against a government that imposed public health measures such as mask mandates and social distancing requirements. Challenges must be brought within 30 days of the measure being imposed.
The law made much of Kelly’s executive authority subject to legislative review and barred local health officers from issuing unilateral orders.
The legal fight launched when a Johnson County judge struck down the entire law, Senate Bill 40, asserting that time limits imposed on courts by the law to rule on such challenges were unconstitutional. He also said the crafting of the bill violated the constitutional principle of separation of powers because lawmakers neglected to consider the role and procedures of the judicial branch.
The decision came in a lawsuit brought against the Shawnee Mission school district by parents challenging the district’s mask policy.
Under SB 40, the government agency that issued the order is required to prove it had protected public health in the least restrictive means possible. If a court fails to hold a hearing within 72 hours of a complaint being filed and to rule within seven days, the policies are removed in a default judgment.
Because the Legislature ignored the constitutional role and procedures of the court when drafting the law, Judge David Hauber ruled, the entire statute was invalid. Hauber also dismissed the case, saying the parents’ challenge didn’t apply under SB 40.
The Kansas Supreme Court temporarily blocked enforcement of the ruling after weeks of confusion at the onset of a summer wave of COVID-19 driven by the delta variant.
“Today’s decision provides welcome clarity that the district court erred by going out of its way to ask and then answer questions not before it about the constitutionality of SB 40,” Attorney General Derek Schmidt said in a statement. “I appreciate the Kansas Supreme Court eliminating the uncertainty hanging over Kansas emergency management law since the district court’s decision. The Legislature may also wish to thoughtfully review the concerns expressed, though improperly in this case, by the district court.”
The court on Friday reversed the portions of Hauber’s ruling that had struck down the entire law because the case had been fully resolved when the judge dismissed.
Biles wrote that “we hold it was error for the court to declare 2021 Senate Bill 40 invalid and unenforceable based on the infirmities it observed.”
This story was originally published January 7, 2022 10:37 AM .
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