Kansas Supreme Court Declines to Answer Senate Bill 40 Question

OVERLAND PARK, Kansas – Senate Bill 40 is back on the menu following a Kansas Supreme Court ruling and a new declaration of disaster.

The law, challenged in mid-2021, allowed parents to challenge mask warrants in school districts, legally demanding swift decisions.

But the question of the effectiveness of these challenges is still completely unknown. Past challenges have yielded no results for parents having issues with masking policies.

But it’s still a very fluid situation. Kansas Governor Laura Kelly’s declaration of disaster announced on Thursday is currently only expected to last 15 days. It’s not much of a window for the challenges of the mask warrant, which by law can only occur during one of these statements.

The Kansas Supreme Court case was no less complex. Arguing over Zoom, Kansas Solicitor General Brant Laue laid out the complex legal issues surrounding the ruling by Johnson County District Judge David Hauber.

Hauber ruled Senate Bill 40 unconstitutional, citing the tight deadlines required by the legislature, tipping the scales in favor of challengers over school districts.

The majority of Kansas Supreme Court justices wrote that the constitutional question was not raised in the original trial.

Quoting the ruling: “We recognize that this ruling may be only a temporary withdrawal from a raging storm, but it reflects the necessary adherence to a long-held doctrine of judicial self-control known as the name of constitutional avoidance. “

Richard Levy, professor of constitutional law at the University of Kansas Law School, explains the concept.

“The idea behind the doctrine of constitutional avoidance is that invalidating the actions of the legislature or a governor or the combined actions or political departments of government is very strong medicine. It is an important exercise of judicial power, ”said Levy.

“And if the matter can be resolved in a way that would avoid having to decide the constitutional question, that’s what you should do,” Levy said.

But even with the Supreme Court ruling, Senate Bill 40 remains confusing for those who wish to invoke or possibly defend against it.

Mike Kuckelman, chairman of the Kansas Republican Party, said Senate Bill 40 was created from scratch and adjustments could be made for clarification.

“There can always be changes, improvements, refinements. The Kansas legislature is back in session now. Some of those issues could be addressed and cleaned up during this legislative session, ”Kuckelman said.

The question of the constitutionality of Senate Bill 40 has still not been answered. The Kansas Supreme Court has issued no opinion on this matter.

The outlook might not be good if another direct case is brought, as in the past the court has struck down laws where the legislature imposes time limits within the justice system.

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Norman D. Briggs