Kansas, local health officials have more power in COVID-19 response after judge won't pause ruling

Andrew Bahl
Topeka Capital-Journal

A Johnson County judge declined to pause his decision to strike down a sweeping set of changes to the state's emergency management law, meaning local and state officials have more flexibility to respond to COVID-19 — at least while the appeals process continues.

Judge David Hauber ruled earlier this month that Senate Bill 40, which was signed into law earlier this year, was unconstitutional.

The move invalidated the Kansas Legislature's efforts to increase oversight on local governments and Gov. Laura Kelly in their handling of the pandemic. 

Hauber's decision will temporarily restore the ability of local health officers to issue orders, such as mask mandates or capacity limits, to combat the spread of COVID-19, something SB 40 previously limited.

It also will allow Kelly more flexibility in issuing another statewide emergency declaration, something which could prove relevant given the ongoing spike of COVID-19 cases related to the delta variant.

More:How does the new CDC mask guidance on COVID-19 affect Kansas counties? For 80% of us, it's time to mask up.

Attorney General Derek Schmidt's office quickly moved to appeal the July 15 decision and argued Hauber should halt his ruling during that process, saying it would create confusion among residents and government officials alike.

Solicitor General Brent Laue, representing Schmidt's office, argued Tuesday the decision would create "unnecessary" legal issues for the state if it weren't stayed.

“What fills the gap to having SB 40 being declared unconstitutional? Laue said in a hearing on the matter. 

Under the law, individuals can demand a hearing or file a civil suit challenging COVID-19-related orders from a local governmental body, school board or public health officer, with strict time limits on when a hearing must be held and a verdict rendered.

And the measure also gives a panel of primarily Republican legislators more control over any executive orders issued by Kelly to respond to the pandemic.

More:How does the new CDC mask guidance on COVID-19 affect Kansas counties? For 80% of us, it's time to mask up.

The case initially began with a parent in the Shawnee Mission school district challenging the district's virus mitigation protocols but quickly morphed into a debate on the constitutionality of SB 40 as a whole.

Hauber's ruling from July 15 assailed the law, calling it "unenforceable" and argued it created an undue burden on the judiciary, as the strict deadlines cause the court to pre-empt other business to hear the challenges under SB 40.

Delta variant fueling rise of cases in Kansas

A Johnson County judge declined to halt his ruling striking down a major COVID-19 management law passed this year. Under the ruling, local health officers can issue mask mandates and other orders while the matter is taken up on appeal.

The ruling comes as the delta variant of COVID-19 are fueling a rise in cases and hospitalizations across the state, with Kansas seeing a rise of 1,400 cases of the virus over the weekend.

In his ruling Tuesday denying the request for a stay, Hauber said districts and local officials should be able to respond to the pandemic situation without the risk of SB 40 being reinstated.

He pointed to the "daunting and high pressure task" school districts are facing in creating mitigation guidelines for the upcoming year. Shawnee Mission school district recently announced they would require masks for some students when classes begin next month.

"At this stage, however, the request for stay outlined by the Attorney General cites speculative harm and is not justified," Hauber wrote.

More:Is a new COVID-19 surge primarily hurting Kansas counties with low vaccination rates? Here’s what the data says.

John Milburn, a spokesperson for Schmidt's office, said they were "disappointed, but not surprised, by the judge’s ruling" and vowed to press on with their appeal to the Kansas Supreme Court. The high court will likely take up the case, but it is unclear when that might occur.

It is uncertain if any state or local health officials will take advantage of the powers that have been returned to them. Many county health directors indicated last week they weren't looking to issue orders, which could still be reversed by their county commission under previous state law.

And Kelly, speaking with reporters last week, underscored her focus was on getting Kansans vaccinated rather than issuing a new statewide emergency order. Her previous disaster declaration was ended by GOP legislators last month.

"There is no red line," Kelly said when asked if there was a point where she would consider reissuing a disaster order. "We're focused on doing what we can to get people vaccinated and make the delta variant irrelevant to them."