Judge strikes down Kansas COVID-19 emergency powers law, rejects challenge to school mask rule

by Kyle Palmer, Shawnee Mission Post and Kansas News Service

If the ruling stands, local governments would have more power to enact rules in response to a pandemic.

A Johnson County judge has ruled that a law passed this spring to curtail local governments’ emergency powers during the COVID-19 pandemic is unconstitutional.

In the same ruling, Judge David Hauber sided with the Shawnee Mission School District in dismissing two parents’ complaints over not being given public hearings under the law to challenge the district’s mask rules last school year.

Hauber ruled that the law’s accelerated process for allowing citizens to raise grievances against COVID-19 policies deprives local governments — including school districts — of due process and violates the separation of powers between the legislative and judicial branches.

A spokesperson for Attorney General Derek Schmidt said his office plans to appeal the decision.

The ruling comes as COVID-19 case numbers are again rising in Kansas, the Kansas City area and beyond, driven by a surge caused by the more contagious Delta variant.

Local school districts are deciding what, if any, pandemic protocols will be in place when students return to in-person classes next month, including mask rules.

While other Johnson County public school districts have already said they plan to make masks optional, SMSD has yet to finalize its policy for next school year.

In responding to the judge’s request for a brief in the case, Schmidt contended that SB 40 is now moot, following the expiration of the statewide disaster emergency on June 15, and a ruling on its constitutionality was not needed.

But Hauber rejected that reasoning, in part, because he said some of the law’s provisions could be used again if another disaster emergency, whether pandemic-related or not, is issued in the future.

Hauber explicitly mentioned the Delta variant in his decision, suggesting a sudden increase in case numbers could lead to a new state of emergency, in which some of SB 40’s provisions could be in play again.

For these reasons, Hauber said SB 40 still raised “significant due process issues.”

Most critically, Hauber said SB 40’s truncated process for allowing citizen grievances violated local governments’ due process rights.

“Under the guise of giving local governments the authority to address specific pandemic issues, SB 40 actually hobbled local pandemic measures by ensuring that lawsuits would be filed, aided by swift court action. Many local units of government simply capitulated under the pressure, Hauber wrote.

He noted that SB 40 required local governmental bodies, like school boards, to take up citizens’ challenges within 72 hours and then gave them seven days to reach a decision.

Similarly short timeframes governed how quickly local courts had to hear appeals to local governments’ decisions to such challenges.

Hauber said this “hurry up and decide” method essentially gave the advantage to complaining citizens and “dangles default (judgment) as the ultimate stick.”

Schmidt admitted as much in his brief defending SB 40, contending that if a school board was not able to justify its COVID-19 restrictions within the timeframe laid out by SB 40, then “judgment should be entered in favor of school children.”

But Hauber sided with local governments in dismissing that notion, citing SMSD’s own brief, which argued that SB 40 never addressed the “best interests of students” but solely focused on “adult, political concerns.”

Ultimately, Hauber said SB 40 is “unenforceable” because of the quick timeframe laid out in its provisions.

Hauber also sided with SMSD against two parents who had brought suit against the district for not giving them a public hearing under SB 40 in order to challenge the rule that masks be worn inside school buildings at all times last school year.

The judge noted that neither parent was harmed by the district’s mask policy.

One parent received a medical exemption for her child. And the second parent chose not to obtain an exemption, Hauber said, “preferring to attack the mask policy” instead.

“The Court is not critical of any parent who feels strongly that government action might be regarded as arbitrary or even harmful to one’s child,” Hauber wrote. “But there are existing legal procedures to address such potential violations.”

What happens next: Schmidt’s office says it plans to appeal Hauber’s ruling.

In a statement Thursday, Clint Blaes, the director of communications for the attorney general’s office, said:

“On its own volition, the district court created a controversy about the statute where none exists now that the state of emergency has ended. Attorney General Schmidt strongly disagrees with the ruling in this case. We plan to appeal to defend the validity of the statute as it was enacted by the Legislature and signed into law by Governor Kelly.”

SMSD also did not immediately return a request for comment on how the ruling could impact the school board’s upcoming deliberations on COVID-19 protocols going into the new school year.

Read the judge’s full ruling:
https://npr.brightspotcdn.com/05/f4/b4d4bb7c4cadb19b6fc2dbb9e82d/haubersb40ruling.pdf
This story was originally published on the Shawnee Mission Post.

The Kansas News Service is a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio focused on health, the social determinants of health and their connection to public policy. Kansas News Service stories and photos may be republished by news media at no cost with proper attribution and a link to ksnewsservice.org.

Kansas Supreme Court upholds murder conviction

The Kansas Supreme Court today affirmed MonDale Le’on Douglas’ convictions on three counts of first-degree premeditated murder.

A Wyandotte County District Court jury in 2020 found Douglas, age 31, guilty of the deaths of Edward Rawlins, David Rawlins and Addrin Coats. The three were killed at an apartment on April 2, 2018, in the 1100 block of Tenny Avenue in Kansas City, Kansas.

According to court documents, one of the victims was shot four times, with two shots to the head and two of the shots within five feet; another victim was shot four times, including once in the back of the head; and a third victim was shot six times, including three shots to the head.

Douglas was shown on surveillance video entering and leaving the apartment building at night around the time of the murders, court documents stated. A neighbor testified she heard what sounded like an argument, loud voices and screaming about five minutes before the gunshots.

Douglas also was seen on a video buying a rare type of ammunition that was used in the murder. The ammunition sale took place at Cabelas at 3:45 p.m. on the day of the murder, according to court documents. Police recovered the shell casings at the scene.

According to today’s Supreme Court opinion written by Justice Dan Biles, the court rejected Douglas’ trial error claims, including an argument that Wyandotte County District Court committed reversible error by failing to instruct the jury on both second-degree intentional murder and voluntary manslaughter as a lesser included offense, and his argument that the prosecutor committed reversible error when he used the rhetorical phrase “we know” during the closing argument.

On the instructional claim, the court stated that given the overwhelming evidence presented at trial, Douglas failed to convince the court that the lower court’s failure was not reversible error.

With regard to the prosecutorial error claim, the Supreme Court found the prosecutor erred when he used “we know” in conveying his personal opinion about who killed the victims, but ultimately concluded that error was harmless as the strong evidence supported his convictions.

Former KUMC employee sentenced to prison for embezzlement

Michael Tae Kim Ahlers, 50, of Lenexa, Kansas, was sentenced to two years in prison after stealing more than $556,000 from his former employer, the University of Kansas Medical Center (KUMC), as well as from KUMC Research Institute and from KU Endowment, according to a news release from the U.S. attorney’s office.

In February, Ahlers pleaded guilty to charges of bank fraud and filing a false tax return. The prison sentence will be followed by three years of supervised release, and Ahlers was ordered to pay more than $680,000 in restitution.

According to court documents, from 2009 to August 2015, Ahlers embezzled funds while he was the administrative officer of the KUMC Occupational Therapy Education Department. While embezzling $526,000 from KUMC, he spent hundreds of thousands of dollars on personal expenditures, according to documents. Some of those expenditures include:

• approximately $87,000 on gambling;
• approximately $81,000 on travel to locations such as Las Vegas, New Orleans, New York, Myrtle Beach and Caribbean cruises;
• approximately $81,000 in cash withdrawals;
• approximately $36,000 on golf memberships and fees; and
• approximately $36,000 on sports tickets and on license or donor fees.

To conceal the fraud, Ahlers used a KUMC Credit Union bank account over which he had exclusive control. He created fraudulent invoices to prevent the discovery that he was using the account for his personal gain, according to documents.

Ahlers stole approximately $30,000 from KUMC Research Institute and KU Endowment by submitting falsified invoices for which he was paid. He then willfully failed to include the stolen funds on his federal tax returns which resulted in a tax loss of more than $104,000 from 2009 to 2015.

“It’s disappointing anytime someone in a position of trust misuses that authority for personal financial gain. As federal prosecutors, we work tirelessly to see perpetrators of fraud brought to justice and convicted,” acting U.S. Attorney Duston Slinkard said in a news release. “It’s also our responsibility to advocate before the courts on behalf of victims so that they might recover as much of their losses as possible as restitution.”

The Kansas Bureau of Investigation, the Internal Revenue Service Criminal Investigation, and the U.S. Secret Service investigated the case.

“After multiple years of embezzling from the University of Kansas Medical Center and spending hundreds of thousands of dollars on himself, Mr. Ahlers is now going to federal prison,” said Amanda Prestegard, acting special agent in charge of the IRS Criminal Investigation division in the St. Louis Field Office. “Mr. Ahlers’ sentence further exhibits that IRS CI, along with our law enforcement partners and the U.S. Attorney’s Office, will continue to identify, investigate and prosecute individuals that participate in abusive criminal activity, and are duty bound to protect the integrity of the U.S. tax administration.”

Assistant U.S. Attorney Ryan J. Huschka and former Assistant U.S. Attorney Leon Patton prosecuted the case.