The Kansas supreme court recently issued a decision on mask mandates which addressed the attorney general’s right to appeal after having intervened in the case. Butler v. Shawnee Mission Sch. Dist. Bd. of Educ., 2022 Kan. LEXIS 4 (Kan. Jan. 7, 2022). The school board of Shawnee Mission, Kansas adopted a mask mandate to address COVID-19. After the board had adopted the mandate, the Kansas legislature enacted S.B. 40, which, among other things, provided that only a local board of education, not state officials, could make policies for COVID-19 mitigation in their school districts, and established a process for parents, children, or employees affected by the policies to challenge them. Under that process, plaintiffs first filed a complaint with the board, seeking rescission of the mask mandate and, when that relief was denied, filed suit in state district court.

The district court dismissed plaintiffs’ case, concluding that plaintiffs could not use S.B. 40 to challenge the mask policy because the policy was adopted before S.B. 40’s effective date, and far more than 30 days before their complaint to the school board (which was the period prescribed in S.B. 40 for filing such actions). The court then expressed concern about the constitutionality of S.B. 40 and invited the attorney general to intervene, as required under Kansas law in cases where the constitutionality of statutes is challenged. After a ful briefing on the issue, the district court issued its final ruling, dismissing plaintiffs’ claims on the grounds described above, as well as due process and separation of powers grounds.

The attorney general appealed directly to the Kansas supreme court, which accepted the case. The plaintiffs did not appeal. The supreme court held that the district court had not applied the doctrine of “constitutional avoidance” and had inappropriately addressed the constitutionality of S.B. 40 when the case could be dismissed on other grounds. In the course of its decision, the supreme court considered whether the attorney general would be unable to seek reversal of the court’s decision on S.B. 40’s constitutionality after the original plaintiffs declined to appeal. The court held that the attorney general became a party to the case when he intervened, and “state law imbues the Attorney General with a special status when litigation involves the public interest and a statute’s constitutionality. . . . As both a party to this litigation and the state’s chief law enforcement officer, the Attorney General was entitled to appeal from this aspect of the trial court’s judgment.” The supreme court described the attorney general as undertaking to “vindicate the public interest, faced with a district court ruling nullifying sweeping legislation designed to address various governmental duties and obligations during a public health emergency.”

Citing past Kansas decisions, the supreme court concluded “The Attorney General is charged with enforcing our state’s laws, one of which the district court here sweepingly adjudged to be unenforceable. That judgment implicates not only the Attorney General’s own duty to defend the laws, but also the ability and duty of a host of other government entities and officials charged with following S.B. 40 during both statewide and local disaster emergencies.”