By HEATHER HOLLINGSWORTH, Associated Press
MISSION, Kansas (AP) – A judge has asked the Kansas Attorney General to comment on “significant constitutional issues” posed by state law enabling those who oppose pandemic restrictions such as masking requirements to Trigger 72 hour review.
David Hauber, a Johnson County judge, said Tuesday that the law – which puts the burden of proof on officials to show that the rules protect public health in the most restrictive way possible – “tipped the scales of justice against the plaintiff” .
Hauber ruled in a lawsuit brought by parents Kristin Butler and Scott Bozarth, who questioned the Shawnee Mission School District’s mask requirement for students. Hauber said her challenge was moot since classes for the year had already ended. The case is one of several Johnson County Court has held since the law went into effect in March.
“The nature of the pandemic and its now changing policies make it very doubtful that the pandemic policy enacted in the dark days of uncertainty will be the same, if at all, in the months ahead before schools reopen in the fall. “Said Hauber.
Most of Hauber’s judgments were devoted to expressing concerns about the law itself.
“It offers short deadlines and an immediacy that is apparently intended to short-circuit other legal proceedings that often involve problems such as domestic violence or corporate injunctions,” said Hauber.
It was passed by a GOP controlled legislature that has criticized Democratic Governor Laura Kelly throughout the pandemic, suggesting that she overreacted last spring by closing schools and issuing a statewide stay at home order for has imposed five weeks.
“The court believes that SB-40 raises significant constitutional problems that require the Kansas Attorney General to intervene.” He sent a notice to the prosecutor on Thursday.
Attorney General Derek Schmidt’s office said in a judicial file that Schmidt would soon file a memorandum addressing the issue.
“The current disaster emergency in connection with the COVID-19 health emergency expires on June 15, 2021, unless it is extended further,” says the submission. “The Attorney General’s petitions will address all factual developments in this regard, as well as the potential problem of insignificance if the disaster declaration expires without renewal.”
Officials in several counties, including Sedgwick County in the Wichita area, have cited the law and the threat of litigation in the vote to lift COVID-19 restrictions earlier this spring.
According to the lawsuit, Butler’s 7- and 10-year-old children were given exemptions from wearing masks, but were distanced from other masked children. Butler said they “suffered psychological damage and ended up wearing masks to fit in.”
Bozarth decided not to get an exemption for his 14-year-old, “because he is protesting against the directive himself,” said Hauber.
One of the youth is attending a district-run band camp, but Hauber notes that the camp is not prescribed like a school and that it is unclear what the coming months will bring.
The Shawnee Mission district said in a statement that it was satisfied with the verdict, saying that Hauber “has recognized that lawmakers have encouraged school districts to do their best to deal with a difficult and unprecedented public health emergency to navigate, wrongly refused due process ”.
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