Kansas Supreme Court rejects challenge to Senate Bill 40

TOPEKA – (January 7, 2022) – Kansas Attorney General Derek Schmidt issued the following statement on today’s Kansas Supreme Court decision reversing a Johnson County District Court decision that had found Senate Bill 40, which relates to emergency powers, to be “unenforceable”:

“Today’s decision provides welcome clarity that the district court erred by going out of its way to ask and then answer questions not before it about the constitutionality of SB 40. I appreciate the Kansas Supreme Court eliminating the uncertainty hanging over Kansas emergency management law since the district court’s decision. The Legislature may also wish to thoughtfully review the concerns expressed, though improperly in this case, by the district court.”

In the Supreme Court’s decision, all seven justices agreed that the lower court’s decision was in error, after the district court judge raised constitutional questions about the law that were never raised by the parties in the underlying case and after the emergency declaration that formed the basis for the lawsuit had expired.

The Court’s majority opinion found that the district court erred in raising constitutional issues regarding SB 40, as the case could be resolved without reaching constitutional claims. A dissenting opinion would also have rejected this challenge to SB 40, but believed the district court “lacked authority to discuss S.B. 40’s unconstitutionality” and would have dismissed the appeal for lack of jurisdiction.

The Supreme Court expressly stated it was not deciding today whether or not any provision of SB 40 was constitutional, but only that any constitutional questions were not properly addressed in this case.

The case is Butler and Bozarth v. Shawnee Mission School District. A copy of the opinion is available at https://bit.ly/3t4YMst.

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