Kansas High Court Ruling Keeps Law Allowing COVID Lawsuits Alive

January 10, 2022

Kansas’ highest court on Jan. 7 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.

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 that the law might fall in a different case, but the one 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.

Attorney General Derek Schmidt, a Republican who defended the law and argued that Hauber overstepped his authority, said the Supreme Court decision “provides welcome clarity.” But he added that state lawmakers, who convene their annual session on Monday, might want to review the issues raised by Hauber.

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.