The Kansas Supreme Court overturned Friday a lower court decision that struck down a sweeping set of changes to the state’s emergency management laws, ruling the district court judge erred in his handling of the case.
The court’s 5-2 decision did not make any assertions about the overall validity of Senate Bill 40, legislation signed into law last year that checked the powers of Gov. Laura Kelly and local health officers to craft COVID-19 restrictions.
The implementation of SB 40 does not functionally change, as the supreme court opted to halt the lower court ruling from taking effect until the case was resolved.
Writing for the majority, Justice Dan Biles said the July decision by Johnson County District Court Judge David Hauber to strike down SB 40 was overly aggressive, as other options were available to Hauber to resolve the case.
Related:Johnson County judge strikes down law which allowed individual challenges to COVID-19 restrictions; AG vows appeal
The legal battle dates back to a 2021 fight over a citizen challenge to a mask mandate in Shawnee Mission school district.
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.
Previously, individuals could demand a hearing or file a civil suit challenging COVID-19-related orders from a school board, with strict time limits on when a hearing must be held and a verdict rendered.
That provision expired when Republican legislators elected not to renew the state’s pandemic emergency declaration in July.
Under SB 40, Kelly can only issue an emergency declaration lasting 15 days, with the Legislative Coordinating Council, a panel of top legislative leaders tasked with reviewing any extensions of the order, as well as executive orders issued by the govern.
The governor did just that Thursday, issuing an emergency declaration to aid hospitals coping with a rising number of COVID-19 cases in the state.
More:COVID disaster spurs Gov. Laura Kelly to declare emergency as Kansas hospitals struggle
The law also gives county commissioners the authority to override any orders issued by a local health officer, including mask mandates or restrictions on gathering sizes. Residents who believe they have been aggrieved by any local health orders can challenge them in court, with a ruling required on the matter within 10 days.
Biles’ opinion ultimately held Hauber’s ruling to be improper, as the citizen challenge lacked standing under SB 40 and should have been dismissed on those grounds.
Because of that, the justices ruled Hauber erred by not applying a judicial doctrine known as constitutional avoidance, or a principal that judges should rule on the constitutionality of an issue only as a last resort.
“Necessity is the watchword when invoking the judiciary’s solemn power to declare a legislative act invalid,” Biles wrote. “That necessity was lacking here.”
Biles acknowledged the ruling may not be a satisfactory one, as it doesn’t adjudicate larger questions on the law’s constitutionality.
And he acknowledged those questions may ultimately be raised, saying Friday’s ruling “may be just a temporary retreat from a raging storm.”
“Since statehood, this court has recognized repeatedly the judiciary’s duty to declare an act of the Legislature, or portion of it, unconstitutional when properly called on to do so,” Biles wrote. “And in a different case, one or more of the arguments made against S.B. 40 might very well carry the day.”
In a statement, Attorney General Derek Schmidt cheered the decision, though he noted legislators may want to “review the concerns expressed, though improperly in this case, by the district court” when they return to Topeka next week.
“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,” Schmidt said. “I appreciate the Kansas Supreme Court eliminating the uncertainty hanging over Kansas emergency management law since the district court’s decision.”
Andrew Bahl is a senior statehouse reporter for the Topeka Capital-Journal. He can be reached at abahl@gannett.com or by phone at 443-979-6100.
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