502 P.3d 89
Kan.2022Background
- Governor declared COVID-19 disaster emergency (Mar–May 2020+) and Shawnee Mission School District (SMSD) adopted a July 27, 2020 mask policy. Plaintiffs Kristin Butler and Scott Bozarth (parents) sued asserting S.B. 40 as their legal authority to challenge SMSD's mask policy.
- 2021 S.B. 40 (effective Mar. 25, 2021) gave school boards sole authority during the COVID-19 state of disaster to adopt or rescind school-operation measures and created expedited procedures (30-day administrative challenge, 72-hour hearing timelines, 7-day judicial decision deadline with remedy if court fails to act).
- SMSD denied the parents’ S.B. 40 hearing requests as untimely (policy adopted in July 2020), the parents sued, and the district court initially found the statute likely inapplicable and gave the self-represented plaintiffs 10 days to supplement; they did not.
- The district court sua sponte raised constitutional objections to S.B. 40, notified and permitted intervention by the Attorney General (AG), and then (July 15) dismissed the plaintiffs’ suit and declared S.B. 40 unenforceable as violating due process and separation of powers.
- The AG appealed directly to the Kansas Supreme Court. The Supreme Court held the district court erred by deciding S.B. 40’s constitutionality sua sponte when the statute did not apply to the underlying grievance, reversed the portion invalidating S.B. 40, and expressed no opinion on the statute’s constitutionality.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability/Timeliness of S.B. 40 to plaintiffs' challenge | Butler/Bozarth relied on S.B. 40 to challenge the district mask policy | SMSD: plaintiffs failed statutory timing (30-day) and S.B. 40 is not retroactive; moot because school year and state emergency ended | District court found S.B. 40 inapplicable to the July 2020 policy; that disposition was not appealed and is final |
| District court’s authority to raise S.B. 40 constitutionality sua sponte | Plaintiffs relied on S.B. 40 (but did not press constitutional claim) | AG: constitutional questions were moot; SMSD later defended constitutionality challenge and asserted standing | Kansas Supreme Court held the district court erred under the doctrine of constitutional avoidance in deciding constitutionality when a nonconstitutional ground disposed of the case; reversed the invalidation of S.B. 40 |
| Mootness and standing to litigate S.B. 40 | Plaintiffs: sought relief under S.B. 40; did not supplement when given time | AG: S.B. 40 enforcement was moot (state emergency ended); SMSD: not moot and had standing to assert procedural due process and state constitutional interests | Supreme Court did not decide the mootness/standing merits because reversal on avoidance made constitutional ruling unnecessary; it rejected the dissent’s point that the AG lacked appellate standing as intervenor |
| Merits: whether S.B. 40 violates due process/separation of powers | Plaintiffs/district court: S.B. 40’s expedited timelines and penalty (auto-relief for courts’ delay) violate due process and separation of powers | AG: statute constitutional; any constitutional question moot or improper here | Supreme Court expressed no opinion on the merits and reversed the district court’s declaration that S.B. 40 was unconstitutional |
Key Cases Cited
- Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (foundational authority for judicial review and caution in declaring statutes unconstitutional)
- Ashwander v. Tennessee Valley Auth., 297 U.S. 288 (1936) (Brandeis concurrence articulating constitutional avoidance doctrine)
- Rescue Army v. Municipal Court of City of Los Angeles, 331 U.S. 549 (1947) (policy reasons supporting avoidance and judicial restraint)
- Smith v. Kansas Dep't of Revenue, 291 Kan. 510 (2010) (Kansas application of avoiding constitutional questions when statutory grounds suffice)
- Tolen v. State, 285 Kan. 672 (2008) (illustrative of appellate consideration of issues raised sua sponte; distinguished by court)
- State v. Adams, 283 Kan. 365 (2007) (example of limited sua sponte consideration when necessary; distinguished by court)
- State ex rel. Morrison v. Sebelius, 285 Kan. 875 (2008) (limitations on advisory opinions and requirement of actual controversy)
- Ternes v. Galichia, 297 Kan. 918 (2013) (limits on an intervenor’s appellate standing where original plaintiff declines to appeal)
- Baker v. Hayden, 313 Kan. 667 (2021) (recent standing/mootness authority referenced in district court briefing)