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:
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.

Convicted killer of three at Jewish Community Center dies in prison

The convicted killer of three people at the Jewish Community Center in Overland Park has died in prison, according to a statement from the Kansas Department of Corrections.

Frazier Glenn Cross Jr., who was convicted of the murder of three people at the Jewish Community Center, died on Monday, May 3, at the El Dorado Correctional Facility, according to a statement from KDOC.

He was serving a sentence for capital murder, attempted murder and firearms convictions.

Frazier Glenn Cross Jr. was an alias for Frazier Glenn Miller Jr.

Miller, an anti-Semite, shot and killed three persons in the parking lot of the Jewish Community Center on April 13, 2014, including a 14-year-old boy, Reat Underwood; his grandfather, William Corporon; and a woman visiting her mother at an assisted living center, Teresa LaManno. None of the persons he killed was Jewish.

Miller reportedly shouted “Heil Hitler” while in the back seat of a police car at the Jewish Community Center, following the shooting.

A preliminary assessment indicated that the cause of Miller’s death Monday was from natural causes, according to KDOC. The cause of death is pending an autopsy.

Miller was appealing his death sentence in a case heard before the Kansas Supreme Court on March 29 and 30. The decision was pending. Miller had represented himself at the district court trial.

According to information online from the Southern Poverty Law Center, Miller was the founder and former leader of the Carolina Knights of the Ku Klux Klan and the White Patriot Party, paramilitary organizations in the 1980s. He was a member of a neo-Nazi group in North Carolina. The group attacked and killed Communist marchers in Greensboro, North Carolina.

He later turned up in Missouri after serving a prison term. In 1987, he was in the Springfield, Missouri, area. He went to prison for another three years on a weapons charge, and as part of a plea deal he testified against other white supremacists, according to SPLC information.

He later ran for Congress in Missouri in 2006. He ran for the Senate in Missouri in 2010. While running for office he made anti-Semitic statements, according to the SPLC website.

KDOT to provide U.S. 69 expansion project updates at virtual public meeting tonight

The Kansas Department of Transportation, along with the Kansas Turnpike Authority and the city of Overland Park, will hold a virtual public meeting from 5 to 7 p.m. Tuesday, April 20, to update the public on the U.S. 69 expansion project.

Initiated last fall, the project is studying how best to reduce congestion along U.S. 69 between 103rd and 179th streets, according to officials. This project is in Johnson County.

At the virtual public meeting, project team members will discuss the alternatives considered so far including improving transit, increasing technology and using other strategies.

They also will explain why adding capacity – either non-tolled, general-purpose lanes or express toll lanes – best meet the project’s purpose and need based on the study team’s analysis. After the presentation, attendees may submit comments and questions.

To join the live virtual meeting, members of the public may visit the project website, www.69express.org, and follow links at the time of the event.

In addition to the virtual public meeting, a virtual open house will be available on www.69express.org from April 16 to 30.

A link on the home page – www.69express.org/public-information-meetings/ – will direct people to the virtual open house, where they can view project materials. Participants also can ask questions and provide comments through an online form that goes directly to the project team. The open house will provide the same information covered in the live public meeting.

Results from a survey and focus groups conducted in early 2021, as well as a comparison of the impacts of the tolled and non-tolled alternatives and next steps in the project schedule, will be available.

Anyone who requires special assistance or accommodations to attend the meeting or open house, would like printed copies of the meeting materials or needs more information, contact Kelsey Heavin at (816) 527-2468 or info@69express.org.

The U.S. 69 corridor is the busiest four-lane highway in Kansas, with heavy congestion during rush hours and at other times. Previous studies indicate that U.S. 69 congestion will increase significantly in the future as Overland Park grows to the south, with peak travel times projected to triple by 2040.

Project updates by clicking the News link on the website home page, following the project’s Facebook and Twitter pages and subscribing to the Project’s electronic newsletter. The Feedback section of the website also provides a link to a comment form.