USD 373 to render SB 40 decision Monday

Titus Wu
Topeka Capitol-Journal

The Kansas Supreme Court earlier this week issued administrative rules for Kansans who want to sue over a COVID-19 order under newly passed law Senate Bill 40.

Masking rules in Newton USD373 have come under fire, with a SB40 hearing this week and a decision coming April 19.

Those rules were issued one day after an SB40 hearing hosted by the Newton USD 373 Board of Education in response to a grievance filing by the parent of a high school student seeking to remove mask rules. The Newton USD 373 board has scheduled a meeting to reach a decision about the filing at 5 p.m. April 19, a meeting that superintendent Fred Van Ranken said will available online, live, at the district Facebook page, www.facebook.com/NewtonSchoolsKS.

In addition to Newton, such hearings with school boards over face covering requirements have started or been requested  multiple Johnson County schools and at least one Sedgwick County school.

What is this new law?   

The new emergency rules took into account that some may not be represented by an attorney, a news release said. But those who fail to follow the rules in requesting a court hearing shouldn't be rejected and be given opportunity to comply.

SB 40 lets any person who is aggrieved by a COVID-19 order or restriction to bring to court a request to get relief from the order. Such a hearing would have to be held within 72 hours and a decision be made within a week after that. 

In cases like this, the government would have to prove the high standard that the order was narrowly tailored and was the least restrictive means; otherwise, relief is granted.

In the grievance filed in Newton USD 373, the Board of Education held a hearing April 12 at the request of Danica Dickson, the parent of a high school student. She filed the grievance on behalf of her son, requesting that testimony be performed in a session open to the public. That hearing was performed within the 72 hour window. 

The board will deliberate on what action to take in response to the filing on April 19, exactly one week after the hearing. 

Such a speedy timeframe for SB 40 hearings have brought concerns that it could overwhelm a court system already backlogged with jury trial cases paused due to the pandemic. It's even prompted some counties to roll back virus restrictions.

"To keep a court's caseload moving, and to make full use of a judge’s time, some cases are scheduled weeks ahead. For jury trials, the schedule can be made months ahead," said Lisa Taylor, spokeswoman for the judicial branch. "Court filings that require immediate processing, or processing on a short timeline, can slow work on other cases and can certainly disrupt hearings already scheduled."

As a result, such administrative rules are needed to ensure the process is as smooth as possible.

What to include in a request

When filing a petition to have a court hearing under SB 40, one must clearly state it is filed under "2021 Senate Bill 40" to ensure it gets prioritized. 

One must state his or her address, e-mail address, telephone number and fax number if available. One will have to list the county he or she resides in, the county where the order was issued or the county where the challenged action is taken.

One must identify the governmental entity that issued the order or action. The bill expressly exempted school districts from county actions, meaning SB40 filings about school policies will be at the school level — county or state health department actions are not involved. 

Of note: Cities that issue mask mandates under their constitutionally protected home-rule authority can't be challenged under SB 40, which applies to governmental powers under the Kansas Emergency Management Act, say legal experts.

Currently, virtually all citywide mask orders are under that home rule authority and not KEMA, said Amanda Stanley, of the League of Kansas Municipalities.

The petitioner will also have to identify the date the order was issued, describe the order and state the relief he or she is requesting. According to SB 40, filing must take place within 30 days after the restriction was issued.

One must also list any other court cases he or she has filed before relating to the same order.

Beyond those basics, a person has to file a certificate of service listing the date and time that the petition was served. If one drops a petition in a drop box, it must contain a signed statement of when the document was deposited in the drop box.

Forms to assist in answering all those questions and requirements can be found on the Kanas Judicial Branch website, https://tinyurl.com/hfh7w5jr.

What else to know

If a petition one files is similar to another person's petition in the same jurisdiction, the administrative order specifies those cases can be consolidated.

Kansans wanting to file a request should also keep in mind that there could be potentially other rules to follow, such as those from the local district court. The rules from the state Supreme Court prevail if the two conflict. 

While the aforementioned requirements are relatively easy to follow, they show that filing a suit under SB 40 isn't as simple as it may seem and might have some hurdles. It's possible (though a bit unlikely) district courts could ask for more difficult prerequisites before taking up a SB 40 request.

— Chad Frey, Newton Kansan, contributed to this report