OVERLAND PARK, Kan. — Senate Bill 40 is back on the menu following a Kansas Supreme Court decision and a new disaster declaration to boot.
The law, challenged in mid-2021, allowed parents to challenge mask mandates at school districts, legally demanding quick decisions.
But the question of how effective those challenges would be is still completely unknown. Past challenges have yielded no results for parents with issues on masking policies.
But it’s still a very fluid situation. Kansas Gov. Laura Kelly’s disaster declaration, announced Thursday, is currently set to last just 15 days. That’s not much of a window for mask mandate challenges, which according to statute, can only happen during one of those declarations.
The case decided by the Kansas Supreme Court was no less complex. Arguing over Zoom, Kansas Solicitor General Brant Laue laid out the complicated legal issues Johnson County District Judge David Hauber’s decision.
Hauber deemed Senate Bill 40 unconstitutional, citing tight timelines 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 issue was not raised in the original lawsuit.
Quoting the decision: “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 self-restraint known as constitutional avoidance.”
Richard Levy, constitutional law professor at the University of Kansas School of Law, explains the concept.
“The idea behind the doctrine of constitutional avoidance is that invalidating the actions of the legislature or of a governor or the combined actions or the political departments of government, that’s very strong medicine. That’s a significant exercise of judicial power,” Levy said.
“And if the case can be resolved in a way that would avoid the need to decide the constitutional question, that’s what you should do,” Levy said.
But even with the supreme court decision, Senate Bill 40 remains confusing for those who wish to invoke it or possibly defend against it.
Mike Kuckelman, chair of the Kansas Republican Party, said Senate Bill 40 was created from scratch and adjustments may be made for clarification.
“There can always be changes, improvement, 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 issued no opinion on that.
The outlook might not look good if another direct case is brought because in the past the court has struck down laws where the legislature imposes deadlines within the court system.
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