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TOPEKA, Kan. — Kansas’ highest court on Friday kept intact a law that allows people to sue counties over mask mandates and other COVID-19 restrictions and obtain quick trial-court decisions.
The Kansas Supreme Court declined to consider whether a law requiring trial-court judges to rule on such lawsuits within 10 days is constitutional. While the justices split 5-2 over the reasons, they were unanimous in concluding that a Johnson County judge had no business striking down the law in a case that dealt with another legal question.
The court’s sidestep left in place a law seen by conservatives in the Republican-controlled Legislature as an important check on local officials’ power as Kansas experiences a surge in new COVID-19 cases. The surge is stressing hospitals and nursing homes, and Democratic Gov. Laura Kelly declared a state of emergency Thursday so that she could ease licensing regulations to make it easier for them to hire new employees or fill vacant jobs.
But both the court’s majority and Attorney General Derek Schmidt, a Republican who defended the law, strongly hinted that the law remains vulnerable to a future legal challenge.
“The Legislature may also wish to thoughtfully review the concerns expressed, though improperly in this case, by the district court,” Schmidt said in a statement. Lawmakers open their annual session on Monday.
When the court heard attorneys’ arguments in the case in October, three justices expressed skepticism that the law was constitutional. In the majority opinion, Justice Dan Biles said the case before the high court “compels” the justices to follow the courts’ general rule of not ruling on constitutional questions when a case can be resolved in another way.
“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 restraint,” Biles wrote.
In his ruling last summer, Johnson County District Judge David Hauber declared that the law denied counties their right to due legal process and interfered with the courts’ power to handle their own business. But he did so in a lawsuit against a mask mandate imposed by the Shawnee Mission School District in the Kansas City area – not Johnson County.
School districts aren’t covered by the law that applies to counties, and a separate law mandating the same expedited legal process in lawsuits against school districts expired in June.
Schmidt, who argued that Hauber overstepped his authority, said Friday that the Supreme Court decision “provides welcome clarity.”
The school district’s attorneys asked the Supreme Court to let Hauber’s ruling stand because counties can impose mask mandates that apply to schools and that counties still face an unworkable deadline for settling legal challenges to COVID-19 restrictions.
The district said in a statement that the case highlighted “the highly problematic nature” of the law and it anticipates that “any future similar legislation will be challenged and likely struck down by the courts.”
Biles wrote that Hauber decided “to dive into constitutional waters” without any of the parties in the case asking him to do so. Hauber ruled in a lawsuit brought by two parents upset with the Shawnee Mission’s mask mandate last year and denied their request to overturn it.
“Our decision here should not be seen as sanctioning judicial timidity,” Biles concluded.
The dissenters were Chief Justice Marla Luckert and Justice Caleb Stegall. They said the court simply should have ruled that Hauber didn’t have any jurisdiction to rule on the law applying to counties and dismissed Schmidt’s appeal of Hauber’s decision.
Meanwhile, in some respects, COVID-19 has become less deadly in Kansas. Since Dec. 1, deaths reported by the state health department have represented 0.4% of the new cases reported – less than half of the 0.9% in November.
The percentage of cases resulting in hospitalizations is also lower, according to the state’s data, 1.7% since Dec. 1, compared with 2.6% in November.
But the number of new reported, confirmed and probable COVID-19 cases has exploded. The state has averaged 2,652 per day since Dec. 1 – and the figure this week topped 5,700 per day. In November, the average was 1,021.
The spike could mean a larger total number of deaths and hospitalizations. The state health department reported an average of 27 new hospitalizations a day in November, and the average is 44 a day since Dec. 1. The average number of deaths was nine per day in November and has averaged 11 per day since Dec. 1.
“It really is right now a viral blizzard because there is a lot of infections,” said Dr. Sam Antonios, chief clinical officer at Ascension Via Christi, which operates multiple Kansas hospitals.
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