Johnson County judge calls part of Kansas’ Senate Bill 40 unconstitutional

Kansas News

OLATHE, Kan. — A Johnson County judge suggests a pandemic-prompted Kansas law may be unconstitutional.

In a new ruling, Judge David Hauber of 10th Judicial District of Kansas called on Attorney General Derek Schmidt to weigh-in on the issue.

The law in question is Senate Bill 40. The recently passed law allows people to challenge local health orders, including mask rules at Kansas school districts, that don’t align with the state’s order.

The substance isn’t necessarily the issue Hauber is questioning. Instead, it’s the speedy timelines that the law demands.

“This is like a temporary restraining order on steroids,” Hauber said during a hearing about a lawsuit filed against the Shawnee Mission School District.

In his ruling on that case, Hauber wrote: “The court is convinced that S.B. 40 presents significant constitutional problems that require the intervention of the Kansas Attorney General.”

“One of the difficulties — this law, which came into effect — it’s kind of a ‘hurry up’ deal. It basically says ‘school districts…if one of these things happens…’ and they have a list of things — some order or action or something like that — ‘You’ve got to make a decision within 72 hours,'” Hauber said during the SMSD hearing.

The courts also have to hear ensuing cases within 72 hours. A judge is also required to issue a ruling within 7 days.

“Or the law just sort of defaults to say, ‘Well, just give the plaintiff whatever they want,'” Hauber said during the SMSD hearing.

Per his ruling: “In other words, S.B. 40 tips the scales of justice toward the plaintiff as a judicial goad.”

“If not decided within the short deadline imposed, the defendant suffers the stinger of a judgment without judicial determination. S.B. 40 eliminates the role of the judiciary, then, in deciding its cases,” Hauber wrote in his ruling.

Schmidt does plan to intervene in this case and has filed the paperwork to get involved within 21 days. Hauber requested his intervention within 10 days, according to his ruling.

Another issue that will be considered by the attorney general is that Hauber describes Senate Bill 40 as a “here-and-now” law. He said the problem is that a lot of the challenges are to rules that are no longer in effect at school districts.

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