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For now, Kansas can enforce COVID-inspired limits on officials’ power, court rules

By John Hanna, Heather Hollingsworth - | Aug 25, 2021

? 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. It also could cause school boards to hesitate as well, though most of them are not directly affected.

The 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.”

Dennis Kriesel, executive director of the Kansas Association of Local Health Department, 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 state’s COVID-19 cases have been surging at levels not seen since late January, when vaccines still weren’t widely available, with 1,208 new cases per day for the seven-day period that ended Monday. Hospitals also have been stressed for weeks because of the surge.

Only a handful of mask mandates are in effect in Kansas. In Johnson County, the state’s most populous county, children are required to wear them indoors, and the county commission directed the county’s six school districts to require masks in their elementary schools.

Several counties cited the law in ditching their mandates and COVID-19 restrictions in the spring. Commissioners in Sedgwick County, home to the state’s largest city of Wichita, considered a mask mandate again Friday, but the measure failed after a heated debate in which an anti-mask activist promised that opponents would show up outside commissioners’ homes with megaphones if the requirement were imposed.

The law allows people to sue specifically over mask mandates, limits on public gatherings and restrictions on business operations or religious gatherings. It 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 when Kansas ended its state of emergency for the pandemic in June. Republican legislative leaders ended it over Kelly’s objections just days before new COVID-19 cases began rising because of the delta variant.

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.”

The law also allowed legislative leaders to end the state of emergency for COVID-19, and any future states of emergency imposed by a governor. It also gave top lawmakers the power to revoke a governor’s executive orders during an emergency.