Ruling could tie hands of those wanting to enforce mandates

The Kansas Supreme Court is temporarily allowing a state law to remain that says courts must address protests against face mask mandates within 10 days.


State News

August 25, 2021 - 8:13 AM

Kansas Judicial Center

TOPEKA, Kan. (AP) — People who oppose mask requirements or restrictions on public gatherings imposed by Kansas counties can challenge them in court and obtain a ruling within 10 days — at least for now — because of a decision Tuesday by the state’s highest court. 

The Kansas Supreme Court’s ruling could discourage counties from imposing mask mandates to deal with the two-month surge in COVID-19 cases tied to the more contagious delta variant. Most local school boards aren’t directly affected but could hesitate to act as well. 

The court’s ruling also came the morning after Wichita’s school board voted to require anyone age 3 or older to wear a mask inside its buildings, starting Monday. While only a few counties have imposed mask mandates, at least 15 school districts that serve about a third of the state’s students have a requirement for at least some students or staff. 

The Supreme Court granted a stay allowing enforcement of the pandemic-inspired law until it can rule on Republican state Attorney General Derek Schmidt’s appeal of a lower court’s ruling that declared the law unconstitutional. The Republican-led Legislature passed the law in March to restrict the power of Democratic Gov. Laura Kelly and county officials during emergencies.

The Supreme Court’s order, signed by Chief Justice Marla Luckert, didn’t explain why it granted the stay, though it could indicate that the justices feel Schmidt’s appeal has merit.

Kelly declined to comment immediately after the ruling, telling The Associated Press, “I haven’t seen it.”

But Schmidt called the ruling “welcome news,” saying in a statement that the lower court ruling created unnecessary confusion “at a time when the rise in COVID cases makes certainty and stability in the law even more critical.” Top Republican lawmakers had a similar reaction.

Dennis Kriesel, executive director of the Kansas Association of Local Health Departments, said his group had advised local health officials outside Johnson County to continue to comply with the law until the state Supreme Court rules on the appeal. He said attorneys he knew were skeptical that the high court would strike down the law.

The surge in COVID-19 cases from the delta variant is stressing hospitals. Topeka’s largest, Stormont Vail, accepted only 15 of the requested 46 transfers from other hospitals from Friday through Sunday, its CEO said in an online update Tuesday. Its emergency department had 10 patients Tuesday morning who had been waiting for rooms for more than six hours.

In Johnson County, the state’s most populous county, children are required to wear masks indoors, and the county commission directed the county’s six school districts to require masks in their elementary schools.

Neighboring Douglas County also is requiring children to wear masks. County Commission Chair Shannon Portillo said that in an uncertain legal environment, the county attempted to comply with the state law but it “does make it much harder for local governments to react to this pandemic.”

Several counties cited the law in ditching their mandates and COVID-19 restrictions in the spring. It allows people to sue specifically over mask mandates, limits on public gatherings and restrictions on business operations or religious gatherings. It also requires a hearing within three days and a ruling seven days later. 

The law does not apply to school board decisions. A previous version of the law did apply to schools, but those provisions expired in June when top Republican lawmakers ended a state of emergency for the pandemic over Kelly’s objections.

However, the Shawnee Mission school district in Johnson County argued that it would be affected if the law were not blocked because it was directed by the county commission to require masks in elementary schools. With 26,000 students, it is the third-largest district in Kansas. 

The district said in a filing with the Supreme Court this month that if the state could enforce the law, the district would be forced “to spend time and resources” defending measures it took on COVID-19, “instead of providing safe educational opportunities for its students.”

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