Kansas Supreme Court says law could allow people to sue over COVID restrictions

The Kansas Supreme Court said on Friday that a law allowing people to prosecute the state over COVID restrictions and receive expedited trial-court decisions could stand.

Seven judges were unanimous in ruling that a judge in the state’s Johnson County should not block the law in a case that involved a different legal question. The judges were divided 5-2 on their reasoning as to why the law should not have been repealed.

The state’s Supreme Court, however, decided not to consider the constitutionality of the law, which mandates trial-court judges to rule on such cases within 10 days.

The lack of a decision on the constitutionality of the law is seen by some conservative lawmakers in the state as a check on the authority of local officials, creating tension in hospitals and nursing homes amid a COVID surge. Democratic Governor Laura Kelly declared a state of emergency Thursday to ease licensing rules, allowing hospitals and nursing homes to more easily hire new workers or fill vacant positions.

Despite leaving the law in place, a majority of court judges indicated that the law is vulnerable to a future legal challenge, an opinion shared by state Attorney General Derek Schmidt.

In October, when lawyers’ arguments regarding the law were heard in court, three judges doubted whether the law was constitutional.

Justice Dan Biles, in the majority opinion, held that the case “forces” judges to follow the court’s general rule on questions of constitutionality when a case can be dealt with in another way.

“We recognize that this decision may be just a temporary retreat from a raging storm, but it reflects essential adherence to the long-standing principle of judicial restraint,” Biles wrote.

The Kansas Supreme Court decided not to consider whether the law mandated trial-court judges to rule on such lawsuits within 10 days is constitutional. In this photo, fans sit socially distanced with masks on during a game between the Kansas State Wildcats and the Kansas Jayhawks at Bill Snyder Family Football Stadium on October 24, 2020 in Manhattan, Kansas.
Peter Mr. Aiken / Getty Images

“The legislature may also wish to carefully review the concerns expressed by the district court in this matter,” Republican Schmidt, who defended the law, said in a statement. The lawmakers began their annual session on Monday.

In his ruling last summer, Johnson County District Judge David Hauber declared that the law deprived counties of their right to due legal process and interfered with the power of courts 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 in Johnson County.

School districts are not 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.

Schmidt, who argued that Hauber overstepped his authority, said Friday that the Supreme Court’s decision “provides welcome clarity.”

School district attorneys ask the Supreme Court to allow Hauber’s ruling stand because counties can enforce the mask mandate that applies to schools and counties still have to settle legal challenges to COVID-19 restrictions Facing an inexplicable deadline.

The district said in a statement that the case highlights the “highly problematic nature” of the law and anticipates that “any similar law in the future will be challenged and possibly struck down by the courts.”

Biles wrote that Hauber decided to “dive into constitutional waters” without either side in the case asking him to do so. Hauber ruled last year in a lawsuit brought by two parents upset over the Shawnee Mission’s mask mandate and denied their request to overturn it.

“Our decision here should not be seen as granting judicial timeliness,” Biles concluded.

The two dissidents were Chief Justice Marla Luckert and Justice Caleb Stegel. He said the court should have simply ruled that Hauber had no jurisdiction to rule on the law that applied to the counties and dismissed Schmidt’s appeal of Hauber’s decision.

Meanwhile, in some cases, COVID-19 has become less deadly in Kansas. Since December 1, deaths recorded by the state health department have represented 0.4 percent of new cases reported – less than half of the 0.9 percent in November.

According to state data, the percentage of hospitalization cases is also lower, which is 1.7 per cent since December 1, as compared to 2.6 per cent in November.

But the number of newly reported confirmed and probable COVID-19 cases has exploded. The state averaged 2,652 per day since December 1 – and this week the figure is up from 5,700 per day. The average in November was 1,021.

A spike could mean a higher number of deaths and hospitalizations. The state health department reported an average of 27 new hospitalizations a day in November, and an average of 44 a day since December 1. The average number of deaths in November was nine per day and the average is 11 per day since December 1.

“It’s really a viral blizzard right now because there are so many infections,” said Dr. Sam Antonios, chief clinical officer for Ascension Via Christi, which operates several Kansas hospitals.

The Associated Press contributed to this report.