Kansas Supreme Court Says Law Allowing People to Sue Over COVID Restrictions Can Stand

The Kansas Supreme Court said Friday a law allowing people in the state to sue over COVID restrictions and receive speedy trial-court decisions can stand.

The seven justices were unanimous in deciding that a judge in the state's Johnson County should not have struck down the law in a case that involved a different legal question. The justices were split 5-2 on their reasoning for why the law should not have been struck down.

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

The lack of a ruling on the constitutionality of the law upholds what some conservative lawmakers in the state see as a check on local officials' authority amid a COVID surge that is straining hospitals and nursing homes. Democratic Governor Laura Kelly declared a state of emergency Thursday in order to ease licensing regulations, allowing hospitals and nursing homes to more easily hire new employees or fill empty positions.

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

In October, when attorneys' arguments regarding the law were heard in court, three justices appeared skeptical about whether the law was constitutional.

Justice Dan Biles in the majority opinion said the case "compels" the justices to adhere to the courts' general rule on questions of constitutionality when a case can be dealt with in another way.

"We recognize this decision may be just a temporary retreat from a raging storm, but it reflects necessary adherence to a long-standing doctrine of judicial restraint," Biles wrote.

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

"The Legislature may also wish to thoughtfully review the concerns expressed, though improperly in this case, by the district court," Schmidt, a Republican who had defended the law, said in a statement. Lawmakers open their annual session on Monday.

In his ruling last summer, Johnson County District Judge David Hauber declared that the law denied counties their right to due legal process and interfered with the courts' power 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 aren't 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 decision "provides welcome clarity."

The school district's attorneys asked the Supreme Court to let Hauber's ruling stand because counties can impose mask mandates that apply to schools and that counties still face an unworkable deadline for settling legal challenges to COVID-19 restrictions.

The district said in a statement that the case highlighted "the highly problematic nature" of the law and it anticipates that "any future similar legislation will be challenged and likely struck down by the courts."

Biles wrote that Hauber decided "to dive into constitutional waters" without any of the parties in the case asking him to do so. Hauber ruled in a lawsuit brought by two parents upset with the Shawnee Mission's mask mandate last year and denied their request to overturn it.

"Our decision here should not be seen as sanctioning judicial timidity," Biles concluded.

The two dissenters were Chief Justice Marla Luckert and Justice Caleb Stegall. They said the court simply should have ruled that Hauber didn't have any jurisdiction to rule on the law applying to counties and dismissed Schmidt's appeal of Hauber's decision.

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

The percentage of cases resulting in hospitalizations is also lower, according to the state's data, 1.7 percent since December 1, compared with 2.6 percent in November.

But the number of new reported confirmed and probable COVID-19 cases has exploded. The state has averaged 2,652 per day since December 1—and the figure this week topped 5,700 per day. In November, the average was 1,021.

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

"It really is right now a viral blizzard because there is a lot of infections," said Dr. Sam Antonios, chief clinical officer at Ascension Via Christi, which operates multiple Kansas hospitals.

The Associated Press contributed to this report.

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