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As delta surges, Kansas health officials retain power; challenge heads to Supreme Court

As COVID-19 cases resurge across the Midwest, Gov. Laura Kelly and local health officials will retain emergency powers curtailed by the Kansas Legislature this spring, after a Johnson County District judge declined Tuesday to set aside his ruling that the changes made by lawmakers were unconstitutional.

Judge David Hauber rejected a request by Attorney General Derek Schmidt to stay enforcement of the July 15 ruling while the state pursues an appeal. It could be months before the Kansas Supreme Court issues a final ruling on the matter.

In the meantime, Hauber’s ruling opens the way for Kelly to issue a new COVID-19 state of emergency. It also empowers local health officials to once again issue unilateral orders on business closures, capacity limits and masks. An appeals process allowing residents to challenge local health measures will be placed on hold.

“We are disappointed, but not surprised, by the judge’s ruling. We will proceed with our appeal and stay application to the Kansas Supreme Court,” John Milburn, a spokesman for Schmidt, said in an email.

Senate Bill 40, which lawmakers passed in April, made many of Kelly’s emergency powers subject to legislative review. It also required public health officers to gain approval from local governing bodies before issuing orders, and established a process for residents to challenge public health measures in court.

Kelly has not yet said whether she will issue a new emergency order. But the restored powers come as hospital officials warn that the region is at a “tipping point” in the pandemic and urge reimposition of mask mandates to slow a new surge in COVID-19 cases powered by the delta variant.

Her office announced Wednesday morning that she would hold a late afternoon press briefing on the new CDC guidance.

In a statement issued Tuesday, Kelly said Kansas is at a “crossroads” as some communities have become hot spots.

“While we are still reviewing the new guidance and what it means for Kansas, this administration has consistently followed the recommendations from the experts at the CDC – and we don’t intend to stop,” Kelly said.

“The new Delta variant has caused COVID-19 to surge in our communities and some of our hospitals are moving towards capacity.”

On July 15, Hauber ruled that time limits imposed on courts in Senate Bill 40 violated due process for the government entities and separation of powers between the Legislative and Judicial branches of government.

Because the Legislature ignored the role and procedures of the court when drafting the law, Hauber ruled, the entire statute was unenforceable.

Shortly after the ruling, the attorney general’s office requested a stay of the order until the Kansas Supreme Court had weighed in. The office argued that Hauber caused confusion by striking down several laws unrelated to the complaint that led to his ruling — brought by parents against the Shawnee Mission School District’s mask mandate.

The elimination of changes to the emergency management law, such as the range of Kelly’s powers, left open the question of what state law will apply to future emergencies, Kansas Solicitor General Brant Laue said in a hearing Tuesday.

“What fills the gap to SB40 having been declared unconstitutional,” Laue asked. “Would the state of Kansas have a full toolbox to respond to that kind of emergency?”

In his ruling, however, Hauber said he did not have the power to issue a stay. He called the attorney general’s arguments “speculative” and said they ignored the “baseline constitutional concerns” for the Shawnee Mission School District.

“Any future concerns about the impact of the Court’s order and SB 40, lie with SB 40’s architects, the Legislature, and, ultimately, the supreme court,” Hauber wrote.

The Shawnee Mission School District, which decided Monday it would require masks for some students in August, applauded Hauber’s ruling in a statement late Tuesday.

“As the Delta variant of COVID -19 continues to spread rapidly, the Shawnee Mission School District and all other Kansas school districts and local governmental entities need to be able to develop response plans, without the pressure of an unconstitutional law infringing on their ability to responsibly respond to the emergency,” David Smith, a spokesman for the district said.

The Star’s Sarah Ritter contributed to this story.