Attorney general seeks pause after judge ruled statute unconstitutional

TOPEKA — The chief of the Kansas Supreme Court issued a stay Tuesday of a district court ruling that declared unconstitutional portions of an emergency management law adopted to recalibrate government authority during the COVID-19 pandemic.

Chief Justice Marla Luckert released the one-page order in response to a request from Attorney General Derek Schmidt, who planned to appeal the July 15 ruling by a Johnson County District Court judge that Senate Bill 40 was unenforceable. The emergency management law was approved this year by the Republican-led Legislature and signed by Democratic Gov. Laura Kelly.

Kansas Senate President Ty Masterson, a Republican from Andover, said he welcomed the Supreme Court’s willingness to grant the stay and preserve “certainty to our current legal framework.”

“Now, more than ever, it is important that the checks and balances we enacted remain in place, and that due process rights continue for Kansas citizens,” Masterson said.

District Court Judge David Hauber rejected Schmidt’s request to suspend the district court decision finding the Kansas Emergency Management Act , or KEMA, in violation of the Kansas Constitution. The attorney general argued rejection of the stay would create “legal anarchy.” The judge, however, said the attorney general raised “fantastical” arguments.

The judge found the new version of KEMA conflicted with principles of separation of power among branches of government. In part, the statute moved authority to issue or extend disaster declarations from the governor to a council of state legislators.

Hauber waded into the controversy after parents in the Shawnee Mission School District filed a lawsuit in opposition to a policy requiring students to wear a face covering as a shield against COVID-19. In the original lawsuit, parents Scott Bozarth and Kristin Butler asserted implementation of a mask mandate could cause “psychological harm.”

Issues raised by the lawsuit and the judge’s decision have taken on new relevance as the delta variant of COVID-19 spread throughout communities in Kansas at the same time K-12 classes resumed.

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