Kansas Supreme Court reverses Johnson County judge’s ruling that pandemic law is unconstitutional

The Supreme Court cited a doctrine known as ‘constitutional avoidance,’ which counsels against ruling on the constitutionality of a law if there are other grounds to resolve a case.

by Dan Margolies, KCUR and Kansas News Service

The Kansas Supreme Court on Friday overturned a Johnson County judge’s decision that a 2021 Kansas law enacted to address COVID-19 emergency measures is unconstitutional.

The Supreme Court, though, made clear it was not expressing an opinion on the constitutionality of the law, Senate Bill 40. Instead, it said Johnson County District Judge David Hauber had overstepped his bounds by ruling on the law’s constitutionality when he’d already ruled that SB 40 was inapplicable.

The Supreme Court cited a doctrine known as “constitutional avoidance,” which counsels against ruling on the constitutionality of a law if there are other grounds to resolve a case.

The Kansas Legislature enacted SB 40 in late 2021 to limit actions taken by the governor, school boards and local health officials. It created systems for speedy legal challenges to health orders and gave state lawmakers more oversight.

Among other things, the law authorized aggrieved parents or students to challenge board of education decisions within 30 days after they are issued. It also imposed timelines on the state’s trial courts to process lawsuits under the law.

In May 2021, two parents of children in the Shawnee Mission School District, Kristin Butler and Scott Bozarth, challenged the district’s mask policy for the just concluding school year. Both represented themselves and both claimed the policy violated federal law, “the ethics of the Nuremberg code” and a parent’s right to decide medical treatment for their child.

Hauber dismissed their suit a few weeks later. He found that the district had enacted its mask policy before SB 40 took effect and therefore it was inapplicable. He also found that Butler’s and Bozarth’s lawsuits were not timely.

But Hauber also took it upon himself to rule on SB 40’s constitutionality. And he found that the law violated the separation of powers doctrine by imposing timelines on court operations and also violated the due process rights of the Shawnee Mission School District.

In reversing Hauber, the Supreme Court, in an opinion written by Justice Dan Biles, acknowledged that its “decision may be just a temporary retreat from a raging storm, but it reflects necessary adherence to a long-standing doctrine of judicial self-restraint known as constitutional self-avoidance.”

“This rule,” Biles wrote, “strongly counsels against courts deciding a case on a constitutional question if it can be resolved in some other fashion, especially when the question concerns the validity of a statute enacted by our coordinate branches of state government.”

Kansas Attorney General Derek Schmidt, who was invited to intervene in the case and defend SB 40, argued that Hauber’s ruling had created “unnecessary and disruptive confusion” over the state’s emergency powers and urged the Supreme Court to uphold the law.

The case generated an enormous amount of interest, with numerous friends-of-the-court briefs filed by interested parties, including Gov. Laura Kelly, the Kansas Chamber of Commerce, Blue Valley School District, Kansas Association of School Boards Legal Assistance Fund, Kansas Justice Institute and a group of parents challenging mask mandates issued by the Olathe and Blue Valley school districts.

The Kansas News Service is a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio focused on health, the social determinants of health and their connection to public policy.
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COVID-19 boosters available here for those 12 and older beginning today

Beginning today, Jan. 7, the Unified Government Health Department will begin offering COVID-19 boosters for eligible persons ages 12 and older.

This follows authorization from the FDA and recommendations by the CDC and Kansas Department of Health and Environment expanding booster eligibility to include those who are 12 to 15 years old.

Those ages 12 and older who previously received the Pfizer vaccine are eligible to receive a booster five months after their second dose, according to the Health Department. Those ages 12 to 17 may only receive the Pfizer booster at this time.

COVID-19 boosters for people 12 and older will be available at the Health Department’s vaccination locations during normal vaccination hours:

• Kmart site, 7836 State Ave.
COVID vaccines: Fridays, noon to 6 p.m.
COVID tests: Monday to Friday, 9 a.m. to 3 p.m.

• UG Health Department building, 619 Ann Ave.
COVID vaccines: Monday to Thursday, 9 a.m. to 4 p.m.
By appointment only. Call 913-573-8855.
COVID vaccinations are free. Insurance is not required.

The latest hours and more information is online at WycoVaccines.org. Additional vaccine sites are at vaccines.gov or at vacunas.gov.

Other changes to booster and vaccine guidance

• The waiting period for boosters was shortened to five months for people who received the Pfizer vaccine. Anyone age 12 or older who was fully vaccinated with the Pfizer vaccine is eligible for a booster five months after the second dose (shortened from the previous six-month guidance).

• Moderately or severely immunocompromised children ages 5-11 can now receive an additional primary dose of COVID-19 vaccine 28 days after their second shot. This change follows a Jan. 4 announcement by the CDC.

Current COVID-19 booster eligibility

For more information, see WycoVaccines.org or call 3-1-1.

New COVID cases spiking at over 300 a day in Wyandotte County

Hospitals here also seeing surge of COVID cases

The seven-day rolling average of positive COVID tests in Wyandotte County shot up to 266 recently. On Thursday, there were 306 positive COVID tests in Wyandotte County, according to the Health Department. (UG Health Department graphic)

Positive COVID-19 tests totaled 306 on Thursday in Wyandotte County, leading to a “very serious” situation, according to Health Department officials.

The seven-day rolling average for positive COVID cases is 266, according to Elizabeth Groenweghe, chief epidemiologist at the Unified Government Health Department. The number was even higher on Thursday.

Those are numbers they have never seen before, Groenweghe told the Unified Government Commission during the 5 p.m. Thursday meeting.

However, the UG Commission did not even take a vote on reinstating the mask mandate here on Thursday, as recommended by the Health Department. Mayor Tyrone Garner said the UG Commission may have another review on COVID at its next meeting.

Groenweghe said the 62 percent positivity rate of tests is the highest it has ever been in Wyandotte County.

Hospitalizations from COVID-19 also are increasing quite a bit here, she said.

“Hospitalizations are truly at a crisis level now,” she said. Wyandotte County hospitals have experienced a sharp increase in COVID cases, she added.

With the increase in case numbers this week, more increases in the hospitalization rate are expected in about two weeks, according to health officials.

Groenweghe said Wyandotte County had 19 COVID deaths in December and had two deaths so far in January. Since the start of the pandemic, there have been 415 COVID deaths of Wyandotte County residents, she said.

She also said Wyandotte County is seeing more COVID cases among young adults and youths. With school starting again this week, she anticipates see a huge increase in the number of cases in schools, she said.

Currently, about 58 percent of Wyandotte County residents have received at least one dose of the COVID vaccine, while 48 percent are fully vaccinated, she said. Only 13.3 percent of Wyandotte County residents have received a booster dose of the COVID vaccine currently, leaving the community very vulnerable, she said.

About 38 percent of Wyandotte County children ages 5 to 17 have received one vaccine dose, while 28 percent of that age group here are fully vaccinated, she said.

Dr. Allen Greiner, chief medical officer for Wyandotte County, said COVID inpatients at local hospitals are increasing. Even if the Omicron variant is less severe, the amount of hospitalizations is around the same amount because the disease is more transmissible.

“We’re seeing so many staff get infected that we really have a major problem,” Dr. Greiner said.

Nurses are taking care of twice or three times as many patients as usual, he said, and the mortality rate in the emergency room is three to five times higher than it normally would be, he said.

Cases also are rising at the state level in Kansas, he said, which is why the governor re-enacted a 15-day state of emergency on Thursday afternoon.

Gov. Laura Kelly issued the state of disaster emergency and signed two executive orders that temporarily suspend some statutes for adult care homes and health care providers. The action was aimed at helping hospitals and health care workers that have been overwhelmed with COVID cases. The governor said after the Legislature returns to its session, she would work with legislators on passing legislation.

Dr. Greiner said monoclonal treatments are very effective against Omicron, but are very hard to get now, with the local supply used up almost immediately when it arrives each week. Regular procedures are being delayed, and rural hospitals are having difficulties in getting patients transferred, he said.

Dr. Greiner said the increases in COVID cases can be avoided if more people get vaccinated and do more things to mitigate the spread of the virus. Boosters are more important now, he said.

Currently, 60 percent of new infections in Wyandotte County are the Omicron variant, he said. That leaves the other 40 percent, which includes a lot of Delta infections, he said.

The curves of new COVID cases are going up very fast because Omicron is two to three times more transmissible, meaning that one person who has it can transmit it to seven to nine other people.

Dr. Greiner said multiple measures were needed to reduce the spread of COVID here, including vaccinations, wearing a mask, distancing, washing hands, used at the same time to make it harder for the virus to get through.

Besides the governor declaring a state of emergency, Dr. Greiner said Johnson County has reinstated its mask mandate recently for ages 5 to 11 years old; Kansas City, Missouri, approved a new mask mandate for kindergarten through 12th grade students in school buildings on Thursday; St. Louis, Missouri, reinstated a mask mandate this week; and Douglas County, Kansas, has reinstated a mask mandate.

Dr. Greiner said masks work, as shown by a study last year of Kansas counties.

He said health officials are worried about “long COVID,” shortages of staff and resources at hospitals, and no protection for children under 5.

“Children’s Mercy has more children now (with COVID) than at any point in the pandemic,” Dr. Greiner said.

Commissioner Christian Ramirez, who voted for against lifting the mask mandate at the Dec. 16 meeting, said, “We have opened Pandora’s box and now we can’t close it.”

It bothers him that the commission allowed the mask mandate to expire, he said.

“We are seeing our health care professionals every day sacrificing themselves to where their mental, physical and psychological well-being is just not good. They’re tired, yet we just allowed it to go away. I know we’re doing what we can, but that mask requirement was something extra that we can help them with,” he said.

But it was unlikely that they would have enough votes at this time to pass another mask mandate.

Commissioner Andrew Davis, who voted in favor of ending the mask mandate Dec. 16, asked if hospitals could deny care to people who were not vaccinated, but Dr. Greiner said they are not allowed to do that. However, there are now crisis methodologies in place that allow them to triage their patients.

The commission also heard from the Rev. Tony Carter and the Rev. Glenn Brady, with the Wyandotte County Health Equity Task Force, about how churches and the local community and nonprofits worked together to reach people who were traditionally underserved in receiving medical care.

The University of Kansas Health System on Thursday morning reported 134 total COVID patients, including 96 with active infections, 19 in the intensive care unit, and 11 on ventilators. Of the COVID patients, eight were fully vaccinated. There were four patient deaths in the last 24 hours.

Vaccine sites

Currently, according to Health Department officials, the Health Department’s Kmart vaccine site at 7836 State Ave. is open from noon to 6 p.m. on Fridays for free COVID vaccines, with no appointment necessary.

The Kmart site also is open for free COVID testing from 9 a.m. to 3 p.m. Monday through Friday, with no appointment necessary.

The Health Department building at 6th and Ann is open for appointments to get COVID vaccines from 9 a.m. to 4 p.m. Mondays through Thursdays. Appointments can be made to 913-573-8855.

There is also free COVID testing offered at the Kansas National Guard Armory, 18th and Ridge, in a clinic sponsored by the Kansas Department of Health and Environment. That testing is available from 11:30 a.m. to 8 p.m. Mondays through Fridays, and from 9 a.m. to 3 p.m. Saturdays and Sundays.

There are other testing and vaccine sites and pop-up clinics that are listed at wycovaccines.org.

Other vaccines opportunities are shown at the website, www.vaccines.gov/.