KS Supreme Court reverses JoCo judge’s decision ruling COVID-19 powers law unconstitutional

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By Tim Carpenter

The Kansas Supreme Court reversed a district court decision Friday that threw out a lawsuit filed against the Shawnee Mission School District’s use of COVID-19 pandemic prevention measures and declared the underlying state law a violation of the state and federal constitutions.

Justices of the state’s highest court faulted the lower court’s decision to weigh in on the constitutionality of Senate Bill 40 adopted last year by the Legislature.

The Supreme Court agreed the Johnson County judge properly tossed out two parents’ lawsuits against SMSD because they weren’t filed soon enough, but the justices concluded the judge procedurally went too far by unnecessarily wading into constitutional considerations.

Justice Dan Biles, appointed by Democratic Gov. Kathleen Sebelius, wrote the “decision may be just a temporary retreat from a raging storm” of political and legal intrigue as the state worked through government boundaries on emergency management.

“It reflects necessary adherence to a long-standing doctrine of judicial self-restraint known as constitutional avoidance,” Biles’ opinion said. “This rule strongly counsels against courts deciding a case on a constitutional question if it can be resolved in some other fashion, especially when the question concerns the validity of a statute enacted by our coordinate branches of state government.”

Case background

Johnson County District Court Judge David Hauber had dismissed a lawsuit filed by two parents against SMSD because the plaintiffs didn’t challenge the district’s face-covering policy within the mandatory 30 days.

Hauber also ruled the pandemic law approved by the Legislature unconstitutionally deprived school districts of due process and interfered with the judicial system by mandating a verdict within 10 days.

Hauber’s opinion said: “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.”

Attorney General Derek Schmidt, a Republican who is running for governor in 2022, intervened in the case before the district court and appealed the lower court ruling that SB 40 was unconstitutional.

Separate opinion

Supreme Court Chief Justice Marla Luckert, appointed by Republican Gov. Bill Graves, offered a separate opinion.

She argued the appeal by the attorney general’s office should have been dismissed for lack of jurisdiction. Luckert said the district court didn’t have authority to reach Senate Bill 40’s constitutionality once it decided the lawsuits were untimely.

Justice Caleb Stegall, placed on the court by Republican Gov. Sam Brownback, joined Luckert’s dissent.

Provisions of COVID-19 state law applicable to school districts expired last summer, but the statute aimed at restraining county governments was left in place by the Supreme Court.

SMSD’s response sent to the Post: 

David Smith, Shawnee Mission’s chief communications officer, sent the Post the following statement:


“The district is disappointed that the Court declined to strike down legislation that so clearly contradicts the Kansas constitution. However, we believe this case brought to light the highly problematic nature of SB 40, and anticipate that any future similar legislation will be challenged and likely struck down by the courts.”

Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and Twitter.

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