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Judge strikes down limits on Kansas officials’ COVID powers

July 15, 2021 GMT
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FILE - In this March 31, 2021, file photo, students wear masks as they wait in line for lunch at Wyandotte County High School in Kansas City, Kan. Johnson County District Judge David Hauber, in Kansas' most populous county, has struck down as unconstitutional a state law requiring unusually speedy legal hearings for people challenging mask requirements and other COVID restrictions. (AP Photo/Charlie Riedel)
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FILE - In this March 31, 2021, file photo, students wear masks as they wait in line for lunch at Wyandotte County High School in Kansas City, Kan. Johnson County District Judge David Hauber, in Kansas' most populous county, has struck down as unconstitutional a state law requiring unusually speedy legal hearings for people challenging mask requirements and other COVID restrictions. (AP Photo/Charlie Riedel)

TOPEKA, Kan. (AP) — A judge in Kansas’ most populous county on Thursday struck down as unconstitutional a state law requiring unusually speedy legal hearings and decisions for people challenging mask requirements and other COVID-19 restrictions.

Johnson County District Judge David Hauber’s ruling also struck down limits on state and local officials’ power to impose restrictions on businesses, schools and public gatherings and greater oversight for the Republican-controlled Legislature over Democratic Gov. Laura Kelly’s actions. Top Republican legislators on June 15 ended a state of emergency in Kansas for the pandemic, canceling many of the law’s provisions, but Hauber said some could apply in future pandemics or disasters.

The law allowed people to file grievances with cities, counties and local school boards if they objected to mask mandates or other restrictions. The law required a hearing within three days and a decision within 10 days. If someone then filed a lawsuit, courts had three days in which to hold a hearing and 10 to issue a ruling. Some local officials said the law set legal standards favoring people who challenged restrictions.

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Hauber declared that the law ran afoul of the Kansas Constitution by violating local officials’ right to a fair legal process in settling complaints over their actions. He also said the Legislature overstepped its authority and infringed upon the judicial branch’s by passing the law.

“One can imagine the reaction from legislators if courts routinely demanded that a given legislative committee or chamber enact a law or report a bill out of committee within a certain time frame,” Hauber wrote in his opinion.

Kansas Attorney General Derek Schmidt’s office quickly said that he would appeal the decision. Schmidt, a Republican running for governor in 2022, has been critical of Kelly’s handling of the pandemic, particularly in how quickly she shut down businesses and school buildings last spring.

Schmidt argued that the end of state of emergency for the pandemic made the question of the law’s constitutionality moot.

“On its own volition, the district court created a controversy about the statute where none exists now that the state of emergency has ended,” Schmidt spokesperson Clint Blaes said in an email to The Associated Press.

Kelly and Republican lawmakers have been frequently at odds over the response to the pandemic since its outset, with GOP legislators generally favoring looser restrictions. The Legislature forced her to accept increasing limits on her power in exchange for extending the state of emergency. One provision of the law gave top legislative leaders the final say on how long it would last.

Hauber’s ruling came in a lawsuit filed by Kristin Butler and Scott Bozarth, two parents in the Shawnee Mission school district in Johnson County who pushed the district to end a mask mandate just after the end of the most recent school year. The Sunflower State Journal first reported the decision and posted a copy.

Senate President Ty Masterson, an Andover Republican, decried the ruling as “judicial activism” that struck down enhanced legal protections for people “in the face of restrictions imposed by bureaucrats.”

The judge wrote that the provisions dealing with the handling of complaints over coronavirus restrictions represented “enforcement” and were “integral” to the entire law so that none of it could stand. He added that the law assumes that any grievance triggers a right to an “immediate decision” without any requirement that a person identify “any fundamental right” at stake.

“It assumes everything related to a complaint about pandemic mitigation effort qualifies,” Hauber wrote. “The burden then shifts to the defendant to show otherwise.”

The judge said the law also gives someone suing government officials “unchallenged relief” and strikes down “carefully calibrated” policies “if the judge does not act quickly enough.”

“The legislative scheme then dangles a default as the ultimate stick,” he wrote.

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