MISSION, Kansas (AP) — A judge has asked the Kansas attorney general to weigh in on “significant constitutional problems” raised by a state law that gives those who object to pandemic restrictions such as mask requirements the right to trigger a 72-hour review.
David Hauber, a Johnson County judge, said Tuesday that the law — which places the burden of proof on officials to demonstrate that rules protect public health in the least restrictive way possible — “tips the scales of justice toward the plaintiff."
Hauber was ruling in a lawsuit filed by parents Kristin Butler and Scott Bozarth who challenged the Shawnee Mission School District’s mask requirement for students. Hauber said their challenge was moot since classes had already ended for the year. The case is among several the Johnson County court has handled since the law took effect in March.
“The nature of the pandemic and its now-shifting guidelines makes it highly doubtful that the pandemic policy that was enacted in the darks days of uncertainty, will be the same policy, if any, in the months ahead before schools reopen in the fall,” Hauber said.
Most of Hauber’s ruling was devoted to expressing concerns about the law itself.
“It provides short deadlines and an immediacy that appears intended to short-circuit other court cases which often have emergent issues, such as domestic violence or business restraining orders,” Hauber said.
It was passed by a GOP-controlled Legislature that has criticized Democratic Gov. Laura Kelly throughout the pandemic, suggesting she overreacted by closing schools and imposing a statewide stay-at-home order for five weeks last spring.
“The court is convinced that SB-40 presents significant constitutional problems that require the intervention of the Kansas attorney general.” He sent a notice to the attorney general Thursday.
The office of Attorney General Derek Schmidt said in a court filing that Schmidt would file a memorandum addressing the issue soon.
“The current state of disaster emergency related to the COVID-19 health emergency will expire on June 15, 2021, unless further extended," according to the filing. “The Attorney General’s submissions will address any factual developments in this regard, as well as the potential mootness issue if the disaster declaration expires without any extension."
Officials in several counties, including Sedgwick County in the Wichita area, have cited the law and the threat of litigation in voting to do away with COVID-19 restrictions earlier this spring.
According to the lawsuit, Butler’s 7- and 10-year-old children received exemptions from wearing masks but were distanced from other masked children. Butler said they “suffered psychological harm and ended up wearing masks so that they would fit in.”
Bozarth chose not to obtain an exemption for his 14-year-old “because he objects to the policy itself,” Hauber said.
One of the youngsters is attending a district-run band camp, but Hauber notes that the camp is not required like school and that it is unclear what the coming months will bring.
The Shawnee Mission district said in a statement that it was pleased with the ruling, writing that Hauber “recognized that the legislature improperly denied due process to school districts that are doing their best to navigate through a difficult and unprecedented public health emergency.”