Butler v. Shawnee Mission School District Board of Education

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 124,205
KRISTIN BUTLER and SCOTT BOZARTH,
Plaintiffs,
v.
SHAWNEE MISSION SCHOOL DISTRICT
BOARD OF EDUCATION,
Defendant/Appellee,
and
ATTORNEY GENERAL DEREK SCHMIDT,
Intervenor/Appellant.
SYLLABUS BY THE COURT
Constitutional avoidance is a long-standing doctrine of judicial procedure that
strongly counsels against a court deciding a case on a constitutional question if the case
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.
Appeal from Johnson District Court; DAVID W. HAUBER, judge. Opinion filed January 7, 2022.
Reversed.
Brant M. Laue, solicitor general, argued the cause, and Dwight R. Carswell, deputy solicitor
general, and Kurtis K. Wiard, assistant solicitor general, and Derek Schmidt, attorney general, were with
him on the briefs for intervenor/appellant.
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Gregory P. Goheen, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, argued the cause,
and Rachel B. England, general counsel, was with him on the briefs for defendant/appellee Shawnee
Mission School District Board of Education.
Scott Bozarth, plaintiff pro se, and Kristin Butler, plaintiff pro se, were on a supplemental brief.
Mark P. Johnson, Stephen R. McAllister, and Betsey L. Lasister, of Dentons US LLP, of Kansas
City, Missouri, and Clay Britton, chief counsel, were on the brief for amicus curiae Governor Laura
Kelly.
W. Joseph Hatley, Stephanie Lovett-Bowman, and Angus Dwyer, of Spencer Fane LLP, of Kansas
City, Missouri, and Melissa D. Hillman, chief legal counsel, were on the brief for amicus curiae Blue
Valley Unified School District No. 229.
Luke A. Sobba, of Topeka, was on the brief for amicus curiae Kansas Association of School
Boards Legal Assistance Fund.
Miriam E. C. Bailey, of Polsinelli PC, of Kansas City, Missouri, was on the brief for amicus
curiae The Kansas Chamber of Commerce.
Samuel G. MacRoberts, of Overland Park, was on the brief for amicus curiae Kansas Justice
Institute.
Linus L. Baker, of Stilwell, was on the brief for amicus curiae collectively referred to as the
Johnson County Plaintiffs in Case No. 21cv01942.
The opinion of the court was delivered by
BILES, J.: In this COVID-19 era case disputing public school policies mandating
face masks, we confront a threshold question about the district court's decision to dive
into constitutional waters to consider the validity of newly enacted legislation when none
of the litigants asked it to do so and the court itself acknowledged the legislation did not
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apply to the case. Given these circumstances, we hold it was error for the court to declare
2021 Senate Bill 40 invalid and unenforceable based on the infirmities it observed. We
reverse that portion of the court's judgment subject to this appeal and express no opinion
about S.B. 40's constitutionality.
We recognize this 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 avoidance. This rule 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. See Smith v. Kansas Dep't of Revenue, 291 Kan. 510, 519, 242 P.3d
1179 (2010) (declining to reach constitutional concerns over statute authorizing field
sobriety tests based on reasonable suspicion, when facts demonstrated probable cause).
Any expediency in having a more prompt resolution to the constitutional questions
surrounding this legislation does not justify departure from this doctrine and the
principles supporting it. Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 345-46, 56
S. Ct. 466, 80 L. Ed. 688 (1936) (Brandeis, J., concurring).
We caution, though, that our decision should not be seen as crafting some
inflexible new barrier to the exercise of judicial authority in an appropriate setting. A
court may very well need to fulfill its duties in our system of checks and balances by
engaging in—or even initiating—constitutional inquiry into legislative enactments
applicable to a controversy properly before it. But the justifications for sidestepping the
guardrails marking our well-settled avoidance doctrine's boundaries must be more
compelling and more closely linked to the affected litigation and its litigants than what
we have here. Blair v. United States, 250 U.S. 273, 279, 39 S. Ct. 468, 63 L. Ed. 979(1919) ("Considerations of propriety, as well as long-established practice, demand that
we refrain from passing upon the constitutionality of an act of Congress unless obliged to
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do so in the proper performance of our judicial function, when the question is raised by a
party whose interests entitle him to raise it.").
FACTUAL AND PROCEDURAL BACKGROUND
On March 12, 2020, Governor Laura Kelly proclaimed a state of disaster
emergency for the State of Kansas in response to the COVID-19 pandemic. About four
months later, the Governor issued executive order no. 20-59 before the 2020-2021 school
year, exercising her emergency powers under K.S.A. 2020 Supp. 48-925 during states of
disaster. This order provided that "K-12 public and private schools shall require all
students, faculty, staff, vendors and other visitors to public or private K-12 school
attendance centers to cover their mouth and nose with a mask or other face covering at all
times" unless a listed exception applied.
The Shawnee Mission School Board adopted a "District Operational Plan for
Reopening Schools" in a July 27, 2020, resolution. One aspect of the resolution provided:
"Masks
● Cloth face coverings/masks will be required for all students, staff, and
visitors 5 years and older.
● We will work on a case by case basis with those students/staff unable
to wear a mask.
● Masks will be provided to students/staff who soil/forget theirs.
● Educational information regarding the proper use of masks will be
provided to students, staff, and parents.
● Staff PD will include information related to proper use of masks."
About eight months later, the Legislature passed 2021 Senate Bill 40, which was
signed by the Governor and became effective on March 25, 2021. Section 1 of that
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legislation addressed COVID-19 mitigation measures affecting "the operation of any
school or attendance center" of Kansas school districts. It provided:
"(a)(1) During the state of disaster emergency related to the COVID-19 health
emergency described in K.S.A. 2020 Supp. 48-924b, and amendments thereto, only the
board of education responsible for the maintenance, development and operation of a
school district shall have the authority to take any action, issue any order or adopt any
policy made or taken in response to such disaster emergency that affects the operation of
any school or attendance center of such school district, including, but not limited to, any
action, order or policy that:
(A) Closes or has the effect of closing any school or attendance center of
such school district;
(B) authorizes or requires any form of attendance other than full-time, in-person
attendance at a school in the school district, including, but not limited to, hybrid or
remote learning; or
(C) mandates any action by any students or employees of a school district while
on school district property.
(2) An action taken, order issued or policy adopted by the board of education of a
school district pursuant to paragraph (1) shall only affect the operation of schools under
the jurisdiction of the board and shall not affect the operation of nonpublic schools.
(3) During any such disaster emergency, the state board of education, the
governor, the department of health and environment, a local health officer, a city health
officer or any other state or local unit of government may provide guidance, consultation
or other assistance to the board of education of a school district but shall not take any
action related to such disaster emergency that affects the operation of any school or
attendance center of such school district pursuant to paragraph (1).
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"(b) Any meeting of a board of education of a school district discussing an
action, order or policy described in this section, including any hearing by the board under
subsection (c), shall be open to the public in accordance with the open meetings act,
K.S.A. 75-4317 et seq., and amendments thereto, and may be conducted by electronic
audio-visual communication when necessary to secure the health and safety of the public,
the board and employees.
"(c)(1) An employee, a student or the parent or guardian of a student aggrieved
by an action taken, order issued or policy adopted by the board of education of a school
district pursuant to subsection (a)(1), or an action of any employee of a school district
violating any such action, order or policy, may request a hearing by such board of
education to contest such action, order or policy within 30 days after the action was
taken, order was issued or policy was adopted by the board of education. Any such
request shall not stay or enjoin such action, order or policy.
(2) Upon receipt of a request under paragraph (1), the board of education shall
conduct a hearing within 72 hours of receiving such request for the purposes of
reviewing, amending or revoking such action, order or policy. The board shall issue a
decision within seven days after the hearing is conducted.
(3) The board of education may adopt emergency rules of procedure to facilitate
the efficient adjudication of any hearing requested under this subsection, including, but
not limited to, rules for consolidation of similar hearings.
"(d)(1) An employee, a student or the parent or guardian of a student aggrieved
by a decision of the board of education under subsection (c)(2) may file a civil action in
the district court of the county in which such party resides or in the district court of
Shawnee county, Kansas, within 30 days after such decision is issued by the board.
Notwithstanding any order issued pursuant to K.S.A. 2020 Supp. 20-172(a), and
amendments thereto, the court shall conduct a hearing within 72 hours after receipt of a
petition in any such action. The court shall grant the request for relief unless the court
finds the action taken, order issued or policy adopted by the board of education is
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narrowly tailored to respond to the state of disaster emergency and uses the least
restrictive means to achieve such purpose. The court shall issue an order on such petition
within seven days after the hearing is conducted. If the court does not issue an order on
such petition within seven days, the relief requested in the petition shall be granted.
(2) Relief under this section shall not include a stay or injunction concerning the
contested action taken, order issued or policy adopted by the board of education that
applies beyond the county in which the petition was filed.
(3) The supreme court may adopt emergency rules of procedure to facilitate the
efficient adjudication of any hearing requested under this subsection, including, but not
limited to, rules for consolidation of similar hearings." L. 2021, ch. 7, § 1.
S.B. 40 contains 15 other sections. Several impose similar substantive limits on
COVID-19 mitigation measures adopted by other governmental entities. E.g., L. 2021,
ch. 7, §§ 2(d)(1) (challenges to community and technical college actions); 6(g)(1)
(challenges to executive orders); 8(e)(1) (challenges to actions taken by local government
units); 12(d)(1) (challenges to actions taken by board of county commissioners acting as
community health board). Remaining provisions deal with other facets of the Kansas
emergency management scheme. E.g., L. 2021, ch. 7, §§ 3(a) (altering makeup of
Legislative Coordinating Council); 5 (continuing then-ongoing statewide state of disaster
emergency); 6(a)-(f), (h) (defining Governor's emergency powers); 7 (limit on Governor's
powers in state of emergency related to COVID-19); 9 (penalties for violating executive
order imposing curfew or prohibiting entry into disaster-affected area); 10 (definitions
applicable to Kansas Intrastate Emergency Mutual Aid Act); 11 (powers of Secretary of
Health and Environment); 12(b)(2) (procedure for local health officers proposing certain
orders to boards of county commissioners); 13 (about division of powers between
Governor and State Finance Council).
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S.B. 40, section 5(a) also extended the state of disaster emergency declared by the
Governor's April 20, 2020, proclamation through May 28, 2021. L. 2021, ch. 7, § 5(a).
Simultaneously, S.B. 40, section 5(c) purported to revoke "all executive orders issued
during the state of disaster emergency," effective March 31, 2021. L. 2021, ch. 7, § 5(c).
The underlying litigation in this appeal: Round one
On May 28, 2021, Kristin Butler and Scott Bozarth sued the Shawnee Mission
School District and its individual board members challenging the district's mask policy
for the just-concluding 2020-2021 school year. They asserted S.B. 40 as the only legal
authority for their lawsuit. Butler is the mother of children who attended an elementary
school in SMSD during the 2020-2021 school year. Bozarth is the father of a child who
attended a middle school in the district during the same school year. Butler obtained an
exemption excusing her children from the district's mask policy. Bozarth did not. Both
plaintiffs represented themselves pro se.
To start their lawsuit, Butler and Bozarth used a form petition published by this
court. See Kansas Supreme Court Administrative Order 2021 RL 032, effective April 13,
2021. In response to the form's request for a description about how they were aggrieved,
they claimed:
"Butler's and Bozarth's children/child are mandated (syn commanded, directed,
instructed) to wear masks in order to attend school. This violates federal law, the ethics of
the Nuremberg code, and a parent[']s right to decide medical treatment for their child.
Furthermore, the district cannot and will not produce empirical scientific data justifying
their policy nor any analysis informing parents, students, and staff of risk and benefits of
the policy."
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They demanded as relief for their claim the return of the filing fee; compensation
for expenses "Butler incurred consulting doctors about health issues her children suffered
as a result of the district's policy"; production of "all records pertaining to the formulation
of the adopted COVID-19 policy"; and an order requiring the district to "remove
mandatory masks" and obtain informed consent. No one questions their good faith in
bringing this action despite disagreements over the substantive merits.
Their factual basis becomes clearer by looking at the documents attached to the
pleadings. On April 30, 2021, Bozarth received an e-mail announcement from the school
district advising that its COVID-19 mitigation measures implemented the previous
summer, including its mask requirement, remained in place. The announcement stated the
district decided to leave its existing policy in place after consultation with state and local
public health professionals.
On May 6, 2021, Butler and Bozarth each e-mailed the SMSD Board of Education
members to register grievances with the district's mask policy. Butler told the members
she was disappointed in the board's "decision to implement mask wearing and to keep the
mandate after the county decided it was optional." Bozarth likewise explained that he
took "grievance with your COVID response policy, particularly mandating masks." They
each requested hearings on their complaints. Bozarth specifically cited S.B. 40.
In identical "Notice[s] Concerning Requested S.B. 40 Hearing," each dated May 6,
SMSD Superintendent Dr. Michael Fulton denied Butler and Bozarth's hearing requests.
He explained,
"After review, we are hereby providing notice that your request has been denied. S.B. 40,
2021 Kansas Legislature, 2021 Regular Session (Kansas 2021) entitles individuals to a
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hearing within 72 hours of request, but only if the request meets legal requirements.
Please be advised that your request was denied for the following reason:
The action taken, order issued, or policy adopted by the board did not
happen within 30 days of the request. . . . The Board of Education's
Resolution on Affirming Reopening Plan was adopted more than 30 days
ago (adopted July 27, 2020). The Board has not made any changes to this
Resolution since it was adopted."
On May 28, the Friday before the Memorial Day weekend, Butler and Bozarth
sued. About two hours later, the district court set a hearing on the petition for
Wednesday, June 2.
On June 1, SMSD moved to dismiss the petition. It argued the district properly
denied the hearing requests because Butler and Bozarth did not challenge the mask policy
within 30 days; that S.B. 40 cannot be retroactively applied to an action taken before the
law took effect; and that the May 6 denials of their hearing requests were not subject to
judicial review under S.B. 40. SMSD also asserted the lawsuit was moot because the
school year ended on May 27, the statewide COVID-19 state of disaster emergency
ended on May 28, and S.B. 40, section 1 applied only from March 25, 2021, through the
end of the state of disaster emergency. Finally, it argued the individual board members
were not proper parties to the action. Notably, SMSD did not assert S.B. 40 was
unconstitutional in its motion to dismiss.
Five calendar days after this lawsuit's filing, the district court held a livestreamed
hearing via Zoom on Wednesday, June 2. Our appellate record does not have a recording
or official hearing transcript of this hearing, but a video of it can be found on the district
court's YouTube channel.
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On June 8, the district court dismissed the individual defendants based on the
parties' agreement during the June 2 hearing. It also entered a written order provisionally
denying relief to Butler and Bozarth on the grounds their claim was moot and untimely.
The court concluded Butler and Bozarth were challenging the district's nearly year-old
mask policy. And based on that, it held the plaintiffs identified no district action that fell
within S.B. 40's 30-day timeframe. The court explained that in its view S.B. 40 was not
retroactive, applied only to policy changes after the legislation became law, and plaintiffs
had identified no other policy injuring them that was enacted within 30 days of their
district-level complaints. In other words, the court concluded they could not use S.B. 40
to attack the district's 2020 mask policy because that policy was adopted before S.B. 40's
effective date and long before their May 6 complaints to SMSD.
The court's provisional order then provided a blended discussion in which it
alternated between addressing the problems with the plaintiffs' claims under S.B. 40 and
the court's perceived difficulties with S.B. 40 itself. The court concluded:
"In this case, for example, the children of the plaintiff/petitioners are not
attending school or even compelled to be in school or wear masks. Ms. Butler's one child
will be in band camp which does not begin until June 14-18, and, presumably, is a
voluntary program where her child is not compelled to either attend much less wear a
mask. After carefully questioning the plaintiffs, it is apparent their SB 40 suit is not about
any policy that occurred with[in] the past 30 days.
"The apparent emergency features of SB 40 do not apply to this case. Plaintiffs'
children are not in school. Courts do not decide moot issues or render advisory opinions
unless a real controversy exists that requires determination. State v. Montgomery, 295
Kan. 837, 840, 286 P.3d 866 (2012). While the mootness doctrine is subject to
exceptions, including one where the harm is capable of repetition or involves a question
of public importance, State v. DuMars, 37 Kan. App. 2d 600, 605, 154 P.3d 1120, rev.
denied 284 Kan. 948 (2007), the nature of the pandemic and its now-shifting guidelines
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makes it highly doubtful that the pandemic policy that was enacted in the dark days of
uncertainty, will be the same policy, if any, in the months ahead before schools reopen in
the fall. [Nothing] has changed since July 2020. Accordingly, this action is subject to
dismissal as moot without a showing of specific and current harm to the plaintiffs that
meets the requirements of SB 40. Plaintiffs are ordered to demonstrate, within 10 days of
this order, any action, beyond an email, that the District has taken that constitutes some
current policy that impacts their children. If they cannot demonstrate the same, this suit
will be dismissed." (Emphases added.)
But the court went on. It observed that "[e]ven if plaintiffs conceivably could
show some harm, significant problems exist with SB 40." (Emphasis added.) It focused on
S.B. 40's short timelines and provisions throughout the Act that require judgment in the
plaintiffs' favor if courts fail to issue timely rulings. The court branded this as
"attempt[ing] to pressure courts to give preference to hear and then decide [S.B. 40] cases
within seven days of the hearing or otherwise 'the relief requested in the petition shall be
granted.'" And the court concluded this "tips the scales of justice toward the plaintiff[s]
as a judicial goad" and "disrupts due process upon pain of an insufficiently responsive
judiciary." The court declared itself "convinced that SB 40 presents significant
constitutional problems" that triggered intervention by the Attorney General under K.S.A.
75-764(b)(2) (requiring notice of the disputed validity of a statute to be served on the
Attorney General to be given an opportunity to appear and be heard) before it could go
further.
In a footnote, the court acknowledged it was introducing these constitutional
concerns without prompting or suggestion by the parties. It explained,
"The Court raises these serious issues sua sponte because it has been given no
choice but to adjudicate a case and controversy within a scheme that cannot be separated
from its impact on the judiciary. Tolen v. State, 285 Kan. 672, 675-76, 176 P.3d 170, 173
(2008) (citing State v. Adams, 283 Kan. 365, 367, 153 P.3d 512 (2007) (addressing a
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speedy trial issue sua sponte because consideration of the issue was necessary to serve
the ends of justice or prevent the denial of fundamental rights)."
The court invited the Attorney General to intervene and be heard on S.B. 40's
constitutionality and allowed Butler and Bozarth to supplement their allegations if they
desired.
The underlying litigation in this appeal: Round two
The Attorney General accepted this notice, and the district court directed the court
clerk to add the Attorney General as an intervenor in the case. The Attorney General filed
a brief defending S.B. 40. He contended any constitutional questions were moot because
SMSD's statutory authority to issue mask mandates under S.B. 40 had expired with the
termination of the state of disaster emergency. And based on that expiration, he argued
against applying mootness exceptions for issues capable of repetition and of public
importance. See State v. Roat, 311 Kan. 581, 466 P.3d 439 (2020) (reviewing our state's
mootness doctrine). As to SMSD's status as a litigant, the Attorney General claimed the
district lacked standing to challenge S.B. 40 on due process grounds because, in his view,
political subdivisions of the state have no due process rights. Finally, he argued S.B. 40
did not unconstitutionally encroach on judicial powers in violation of the separation of
powers doctrine.
Butler and Bozarth did not participate in this round of the proceedings, but the
school district did. It countered that the constitutional issues raised by the court were not
moot because S.B. 40, section 1's restrictions could be revived with a COVID-19
resurgence, so a decision now would prevent future violations of all school districts'
rights. The district also argued it had standing to raise a procedural due process challenge,
and that S.B. 40 infringed on those rights. In particular, it contended S.B. 40's procedures
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implicated its constitutionally protected interests in its school funds since there was a
potential for damage awards; and that S.B. 40 infringed on its authority under article 6,
section 5 of the Kansas Constitution to operate the local public school system. Finally,
SMSD noted the court should formally dismiss the plaintiffs' claims against it because
Butler and Bozarth did not submit new evidence within the 10-day window the court
allowed. The court's June 8 order also prompted the Kansas Association of School
Boards Legal Assistance Fund to file an amicus brief supporting SMSD on behalf of 280
public school districts and 31 education cooperatives.
In reply, the Attorney General reasserted his position that objections about the
law's validity were moot. He also advanced a new argument based on a recently decided
case, Baker v. Hayden, 313 Kan. 667, 672, 490 P.3d 1164 (2021), to assert that changed
circumstances deprived SMSD of standing to challenge S.B. 40's validity.
On July 15, the court entered its judgment. It finalized its initial decision
dismissing the plaintiffs' claims as moot and untimely, noting it had received no new
evidence from Butler and Bozarth to avoid that result. Then, it held S.B. 40's enforcement
provisions unconstitutional. It ruled the new legislation deprived "the relevant
governmental units of due process while also violating the constitutional separation of
powers between the judicial and legislative branches." And the court concluded the
Attorney General failed to meet his burden of proving that concerns about S.B. 40 were
moot, noting that even if S.B. 40, section 1 expired with the statewide COVID-19 state of
disaster emergency, other provisions could apply to future emergencies. It noted S.B. 40,
section 12, which applies to local health authorities and contains judicial enforcement
provisions like those applicable to school districts, did not expire with the statewide
COVID-19 state of disaster emergency. The court stated, "Arguably, if the
unconstitutional pandemic provisions in §§ 1 and 2 expire, this does not prevent this from
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happening again which is an exception to mootness." The court finished its mootness
analysis by reasoning:
"The Attorney General's invocation of the mootness doctrine cannot sidestep the
significant due process problems and judicial nullification posed by SB 40. Whether it is
this pandemic, a variant that may require another pandemic emergency, or any kind of
future emergency, this issue is too important and capable of repetition to be ignored. It
fits within the exceptions to mootness where the harms are capable of repetition or
involve questions of public importance, State v. DuMars, 37 Kan. App. 2d 600, 605, 154
P.3d 1120, rev. denied, 284 Kan. 948 (2007). Those clearly are at stake here. If, for
example, the plaintiffs had raised a constitutional issue or fundamental violation of their
rights, then, ordinarily, the Court would address the same to avoid repetition of the harm,
even if the events surrounding the same had receded at the time of a hearing."
Then, returning to the constitutional issues, the court addressed the Attorney
General's standing argument. The court appears to have concluded that once the school
district became a litigant in court, it obtained procedural due process rights and standing
to assert those rights. The court rejected the contention that changed circumstances had
destroyed standing. It distinguished Baker because "SB 40 has not disappeared and
neither have the alleged constitutional violations posed by it. The Court holds that this
case is dismissed because SB 40 is unenforceable and not only because the plaintiffs
failed their burden of proof." The court also concluded the school district had standing to
challenge S.B. 40 on constitutional grounds because it was foreseeable the perceived due
process violations would recur if another emergency arose. And the court noted the
Attorney General had not discussed "the Court's separate standing to raise issues
implicating the integrity of the judicial system. . . . The reason it is not addressed is that
there is no basis to restrict the Court's standing to do so."
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The court ultimately ruled S.B. 40 was unenforceable because it violated both due
process and separation of powers. It also touched briefly on severability, noting that
"SB 40 does contain a severability clause in § 14 to prevent the invalidity of
other portions of the act if any portion of the same is declared unconstitutional or invalid.
But here, the enforcement provisions are the Act. They are integral to the entire
legislative scheme. Although given a chance to address this . . . the Attorney General did
not respond."
In closing, the district court stated:
"The Court determined at the hearing of this matter that neither of the plaintiffs'
children were required to wear masks. In Ms. Butler's case, her children had an
exemption. In Mr. Bozarth's case, he chose not to obtain an exemption, preferring to
attack the mask policy directly. They have not offered any new evidence to alter the
Court's previous determination but even if they had, the act is unenforceable. The Court
is not critical of any parent who feels strongly that government action might be regarded
as arbitrary or even harmful to one's child. But there are existing legal procedures to
address such potential violations without depending on the violation of other equally
important rights.
"This matter is, therefore, dismissed with prejudice in favor of the defendant,
and SB 40 is declared to be unenforceable for the reasons outlined in this order."
(Emphases added.)
But the court did not expressly enjoin S.B. 40's operation, although it seems to
have thought its ruling extended statewide by declaring: "Actions filed pursuant to [S.B.
40], including the instant one, are hereby determined to be unenforceable, regardless of
the merits." Shortly after entering this ruling, it denied the Attorney General's motion to
stay judgment pending appeal.
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The Attorney General then appealed directly to this court under K.S.A. 60-
2101(b). We granted the Attorney General's motion to hear this appeal on an expedited
basis. We also granted his motion to stay the district court's judgment pending the
appeal's outcome. Butler and Bozarth did not appeal, so any adverse rulings against them
are final. Satterfield v. Satterfield, 221 Kan. 15, 16, 558 P.2d 108 (1976) (judgment
became final and binding on parties when appeal was not taken within time provided by
statute).
We also permitted several entities and individuals to file amici briefs given their
asserted interest in the subject matter: Governor Laura Kelly, Blue Valley Unified
School District No. 229, the Kansas Association of School Boards Legal Assistance
Fund, the Kansas Chamber of Commerce, the Kansas Justice Institute, and a group of
plaintiffs in a Johnson County lawsuit asserting S.B. 40 challenges against the Olathe and
Blue Valley school districts. For the most part, they advance conflicting views about the
propriety of the court's action in a pandemic, the legislation's constitutionality, its wisdom
as public policy, and their thoughts on S.B. 40's amenability for severance if a
constitutional infirmity were found. We appreciate their input and the quality of their
submissions.
Before oral argument, the court asked the parties to brief whether a timely district-
level grievance to its policy was a jurisdictional prerequisite to a civil action under S.B.
40, section 1(d). Responsive briefing was filed by the Attorney General, SMSD, and the
plaintiffs Butler and Bozarth. No one claimed this timing issue created a jurisdictional
prerequisite.
We conclude jurisdiction was proper in the district court, and is proper here. The
parties agree. But the dissent argues the district court lost case-or-controversy jurisdiction
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to resolve the constitutional questions midway through its disposition of this case once it
decided SMSD's mask policy was not subject to attack under S.B. 40. Slip op. at 32, 35.
And the dissent goes on to suggest the Attorney General lost his ability to seek reversal of
the declaration that S.B. 40 was unconstitutional after Butler and Bozarth failed to cross-
appeal on whether S.B. 40 applied to their claim against SMSD. We disagree with the
dissent, which seems to present these two concepts as a single argument, when they are
distinct anti-jurisdiction claims.
The dissent's first claim that the district court lost jurisdiction seemingly treats the
court's disposition as a temporal order—inapplicability first and constitutionality second.
But the record does not support this perspective. The district court's first June 8 order
gave Butler and Bozarth additional time to demonstrate S.B. 40 governed their claims, so
it did not finally resolve the applicability issue. See K.S.A. 60-254 (providing generally
"any order or other decision, however designated, that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties does not end the action as
to any of the claims or parties and may be revised at any time before the entry of a
judgment adjudicating all the claims and all the parties' rights and liabilities").
The district court's July 15 ruling is the final disposition, and it addressed both
S.B. 40's applicability and its constitutionality in the same journal entry. And the court
expressly said it was dismissing the case "because SB 40 is unenforceable and not only
because the plaintiffs failed their burden of proof." Without question, those are separate,
alternative rulings supporting the same judgment of dismissal. See, e.g., Ellie v. State,
312 Kan. 835, 838, 481 P.3d 1208 (2021) (affirming district court decision granting
collateral relief from convictions on alternative grounds, when State failed to preserve
appellate challenges to each). The journal entry simultaneously finalized both rulings
when the document was signed and filed in the clerk's office. See K.S.A. 60-258 ("No
judgment is effective unless and until a journal entry or judgment form is signed by the
18
judge and filed with the clerk."). The district court's decision on S.B. 40's
constitutionality, though improper as we discuss below, was not advisory when it was
made. There is no legal support for a contention that the district court could somehow
lose case-or-controversy jurisdiction in mid-ruling when entering judgment based on
alternative theories. Said differently, if a district court supports its final ruling with
multiple reasons, how can one of those reasons become mere dictum?
The dissent's second claim suggests Butler and Bozarth's failure to cross-appeal
means we have no jurisdiction to hear the Attorney General's concerns because he was
not a party to the proceedings; or even if he was, his intervenor status precludes any
appeal that "does not affect the core dispute that underlies the case." But the record here
is crystal clear that the Attorney General became a party to this case when he intervened
in it. See K.S.A. 2020 Supp. 60-224(b)(2)(C) ("When notice to the attorney general is
required by K.S.A. 75-764, and amendments thereto, the court must permit intervention
by the attorney general on proper application."); Black's Law Dictionary 983 (11th ed.
2019) (defining "intervention" to include the legal procedure by which a third party "is
allowed to become a party to the litigation"). And the district court's judgment both
dismissed the case and broadly declared S.B. 40 "unenforceable through its enforcement
provisions." See K.S.A. 60-1701 (describing courts' "power to declare the rights, status,
and other legal relations" and providing that "declarations shall have the force and effect
of a final judgment"). Even more boldly, the district court's judgment suggests the ruling
stretches beyond the confines of this particular case by announcing: "Actions filed
pursuant to [S.B. 40], including the instant one, are hereby determined to be
unenforceable, regardless of the merits."
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. See
K.S.A. 75-702 ("The attorney general shall appear for the state, and prosecute and defend
19
any and all actions and proceedings, civil or criminal, in the Kansas supreme court, the
Kansas court of appeals and in all federal courts, in which the state shall be interested or a
party, and shall, when so appearing, control the state's prosecution or defense.");
Memorial Hosp. Ass'n Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986). And
unlike the intervenor the dissent refers to from Ternes v. Galichia, 297 Kan. 918, 305
P.3d 617 (2013), who was a private litigant seeking to assert third party rights, state law
imbues the Attorney General with a special status when litigation involves the public
interest and a statute's constitutionality. See K.S.A. 2020 Supp. 60-224(b)(2)(C); K.S.A.
75-702; and K.S.A. 75-764.
Similarly, the dissent's perception that this appeal as currently constituted lacks
any concrete adversity between the Attorney General and SMSD or plaintiffs, and that
the State has no interest in the parties' initial action, fades to the background for case-or-
controversy purposes under these circumstances. The Attorney General undertakes 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. And SMSD, in fact, did aggressively challenge S.B. 40's
validity before the district court once prompted to do so and continues those same
arguments before this court. Moreover, despite the dissent's suggestion that the Attorney
General does not argue for this court's jurisdiction, he has aggressively sought relief in
this court from the district court's judgment invalidating the law, including his request for
a stay pending appeal and at oral argument when pressed about jurisdictional concerns.
Granted, and as with any other litigant, the Attorney General may not obtain an
advisory opinion from the courts. But we have also said, for example, in the context of
original actions in mandamus:
20
"When actions are brought on relation of the attorney general or another
government officer . . . there is no requirement of actual injury. In such a case, it must be
shown: (1) there is a question relating to a specified duty imposed by law and not
involving discretion; (2) the question must be of great public importance and concern
sufficient to warrant the court exercising its discretionary jurisdiction; and (3) the
question must arise from an actual controversy, meaning a situation must have arisen
which implicates the official's duty. [Citations omitted.]" State ex rel. Morrison v.
Sebelius, 285 Kan. 875, 909, 179 P.3d 366 (2008).
See also State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 53, 687
P.2d 622 (1984) ("[A]n actual controversy is presented where it is alleged by the attorney
general, on behalf of the people of this state, that the legislature has exceeded its power
and usurped the authority of the executive branch. 'The state is a proper party—indeed
the proper party—to bring this action. The state is always interested where the integrity
of its constitution or statutes is involved.'").
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. And as the briefing demonstrates, the
Attorney General has a concrete adversary in the form of various public bodies, such as
SMSD, seeking relief from S.B. 40's obligations.
For these reasons, we reject the dissent's insistence that we should simply dismiss
this appeal for lack of jurisdiction.
21
DISCUSSION
To better explain why we must consider the constitutional avoidance doctrine, it
helps to recap this litigation's posture as it ended in the district court and now stands in
this court. First, it must be accepted that S.B. 40 never had anything to do with the
grievances advanced by Butler and Bozarth, even though they mistakenly believed it did.
S.B. 40 is simply irrelevant to their claims because they challenged an SMSD policy
adopted in 2020. Second, the district court's ruling acknowledging S.B. 40 was
inapplicable raises a most obvious concern as to why the court did not stop there and
embarked instead on its own analysis of that legislation's constitutionality.
We begin by briefly discussing the first point about applicability, even though it is
not an issue on appeal, because it sharpens our focus on the second point, which is
dispositive.
S.B. 40's inapplicability to this case
The only basis for remedy Butler and Bozarth sought was through S.B. 40, section
1. Its subsection (d)(1) specifies section 1's applicability in these terms:
"An employee, a student or the parent or guardian of a student aggrieved by a
decision of the board of education under subsection (c)(2) may file a civil action in the
district court of the county in which such party resides or in the district court of Shawnee
county, Kansas, within 30 days after such decision is issued by the board." (Emphases
added.) L. 2021, ch. 7, § 1(d)(1).
No one disputes Butler and Bozarth are parents of SMSD students or that they
challenged a school district policy, but that is not enough. For them to successfully
invoke S.B. 40, section 1 in a district court, their challenge must follow strict timelines
22
and procedural steps. District court action must be initiated within 30 days of the district's
issuance of its decision after conducting a requested hearing. L. 2021, ch. 7, § 1(d)(1).
And the district-level challenge must itself be mounted within 30 days of the complained-
of policy adopted by the district. See L. 2021, ch. 7, § 1(c)(1). The district court
recognized Butler and Bozarth's suit likely did not meet these requirements in its June 8
preliminary written order, concluding that both of them appeared concerned only with the
school board's original 2020 mask policy. And based on that, the court decided S.B. 40
"has no application to the plaintiffs who complain about past injuries under a policy
enacted in July of 2020." (Emphasis added.) In other words, the court understood Butler
and Bozarth could not use S.B. 40 to attack the district because the school board adopted
the mask policy well before S.B. 40 even became law, so the court could have entered
judgment in the district's favor at that point.
But the court very reasonably provided Butler and Bozarth with another 10 days to
supplement their claims since they were self-represented and not law trained. In doing
this, the court said it was affording them one last opportunity to show any action "the
District has taken that constitutes some current policy that impacts their children." It also
warned, "If they cannot demonstrate the same, this suit will be dismissed." (Emphasis
added.) And since neither supplemented their claims within the allotted time, the court
made good on its June 8 warning and dismissed their lawsuit with prejudice in its July 15
order. The court held, "They have not offered any new evidence to alter the Court's
previous determinations but even if they had, the act is unenforceable." (Emphasis
added.)
To recap, the court's ruling on S.B. 40's inapplicability to the complaints by Butler
and Bozarth was not appealed, so it is now final for purposes of this appeal. See
Satterfield, 221 Kan. at 16; see also K.S.A. 2020 Supp. 60-2103(h) (providing appellee
who desires review of "rulings and decisions of which such appellee complains" must
23
give notice of cross-appeal within 21 days after notice of appeal has been served); Lumry
v. State, 305 Kan. 545, 554, 385 P.3d 479 (2016) (holding Supreme Court lacked
jurisdiction to review issue decided adversely to appellee by district court when appellee
did not cross-appeal). Said another way, and with an eye toward the avoidance doctrine,
this litigation could have been over based only on this if the court had stood down.
The district court's pivot to S.B. 40's unconstitutionality
But the district court's June 8 order self-initiated a deeper examination into S.B.
40's constitutionality. It explained in a footnote: "The Court raises these serious issues
sua sponte because it has been given no choice but to adjudicate a case and controversy
within a scheme that cannot be separated from its impact on the judiciary." (Emphasis
added.) To support what it was doing, the court cited two cases: Tolen v. State, 285 Kan.
672, 176 P.3d 170 (2008), and State v. Adams, 283 Kan. 365, 153 P.3d 512 (2007).
Neither helps the district court.
Tolen merely stands for the proposition that an appellate court may address a new
issue not properly preserved below when circumstances allow it. There, the Tolen court
sua sponte raised a new issue during oral argument. In response, a criminal defendant
argued for the first time on appeal that a statute must be unconstitutional. In its written
decision, the Tolen court decided to address the new issue because it had raised it sua
sponte. Tolen only deals with an issue's preservation and a reviewing court's limited
power to consider a new issue. Tolen, 285 Kan. at 675-76. We fail to see how Tolen
supports the district court's course of action concerning S.B. 40. And Adams is not on
point either. There, a criminal defendant's speedy trial claim was properly preserved in
the district court but not raised on appeal. The Adams court decided to address the
nonconstitutional speedy trial issue because its resolution "serves the ends of justice by
reversing [the defendant's] convictions and vacating his sentences." Adams, 283 Kan. at
24
367-68. The Adams court noted "this case presents the exceptional circumstances
necessary for raising the statutory speedy trial issue sua sponte." 283 Kan. at 368. Here,
unlike Adams, there was no necessity to bring up the new issue. In short, neither case
supports the district court's analytical diversion into S.B. 40's constitutionality.
We also cannot accept that the district court was forced to address the statute's
constitutionality, even if it believed it had "no choice but to adjudicate a case and
controversy within a scheme that cannot be separated from its impact on the judiciary."
Admittedly, the court was speaking about how S.B. 40 obligates courts to conduct
hearings "within 72 hours after receipt of a petition" and requires issuing an order "on
such petition within seven days after the hearing is conducted" that is backed up with a
direction to grant "the relief requested" if the court fails to issue such order. And we can
accept that those statutory directives undeniably burden the orderly adjudication of cases
in our Kansas courts as shown here. After all, and despite the court's exceptionally
prompt disposition, it appears to have been outside S.B. 40's 72-hour requirement—had it
applied—when it conducted its hearing about 117 hours after the petition's filing. See
K.S.A. 2020 Supp. 60-206(a)(2) (statutory time period specified in hours includes hours
during intermediate weekends and legal holidays, and if the period ends on a weekend or
legal holiday it runs until the next day that is not a weekend or holiday). And one might
even quibble whether the court's June 8 order complied with a strict interpretation of S.B.
40's seven-day deadline since it was not a final disposition.
But by this juncture the court had determined in its June 8 order that: (1) the
petition challenging the school board policy from July 27, 2020, was far beyond the 30-
day window S.B. 40 permits; (2) other court decisions within the same judicial district
had already held under similar circumstances that S.B. 40 did not apply to district policies
adopted before it became law; (3) Section 1 of S.B. 40 by that time had expired with the
end of the COVID-19 state of disaster emergency; and (4) no one had asked the court to
25
undertake a constitutional analysis. So it seems fairly apparent the time quandary the
court perceived as its justification to divert this case onto a constitutional battlefield was
illusory because it did have a "choice" to adjudicate this case outside the S.B. 40
framework.
Said differently, before it gave notice to the Attorney General the court knew it
very likely had a nonconstitutional path for disposing of this case on undisputed grounds.
The court should have considered the constitutional avoidance doctrine's application to its
concerns under these obvious circumstances and restrained itself from going further. We
explain next why its failure to do so requires us to reverse that portion of the ruling
addressing S.B. 40's constitutionality.
The doctrine of constitutional avoidance
Judicial recognition of constitutional avoidance flows from Marbury v. Madison, 5
U.S. (1 Cranch) 137, 170, 2 L. Ed. 60 (1803), when the United States Supreme Court
articulated its authority to review acts of Congress and determine whether those acts were
unconstitutional. Marbury's author, Chief Justice John Marshall, sternly advised in 1883
against unneeded judicial consideration of constitutional questions involving enactments
of a co-equal branch of government. He explained:
"No questions can be brought before a judicial tribunal of greater delicacy than
those which involve the constitutionality of a legislative act. If they become
indispensably necessary to the case, the court must meet and decide them; but if the case
may be determined on other points, a just respect for the legislature requires, that the
obligation of its laws should not be unnecessarily and wantonly assailed." Ex parte
Randolph, 20 F. Cas. 242, 254 (C.C.D. Va. 1833).
26
Fast forward 100 years, and the doctrine received plainer articulation in a
concurring opinion written by Justice Brandeis in Ashwander v. Tennessee Valley Auth.,
297 U.S. 288, 56 S. Ct. 466, 80 L. Ed. 688 (1936). That concurrence, joined by Justices
Cardozo, Roberts, and Stone, has stood the test of time, and gained admirable notoriety.
See Delaware v. Van Arsdall, 475 U.S. 673, 693, 106 S. Ct. 1431, 89 L. Ed. 2d 674(1986) (Stevens, J., dissenting) (calling Brandeis' Ashwander concurrence "one of the
most respected opinions ever written by a Member of this Court"). Justice Brandeis laid
out seven components to constitutional avoidance, and the most relevant here he
described as: "The Court will not pass upon a constitutional question although properly
presented by the record, if there is also present some other ground upon which the case
may be disposed of." (Emphasis added.) Ashwander, 297 U.S. at 346-48.
In Kansas, the avoidance doctrine usually takes one of two forms. The first is as a
canon of statutory construction expressing a preference for construing a statute to avoid
constitutional doubts if there is another reasonable way to do so. E.g., Johnson v. U.S.
Food Serv., 312 Kan. 597, 602, 478 P.3d 776 (2021) (applying constitutional avoidance
to adopt construction of ambiguous workers compensation statute that avoided
constitutional question).
The second form applicable here is a policy about how to adjudicate controversies.
Under it, a court refrains from deciding constitutional questions unless it is necessary to
do so. And this doctrine has an early Kansas pedigree as well. E.g., Chicago, K. & W. R.
Co. v. Abilene Town-Site Co., 42 Kan. 104, 111, 21 P. 1112 (1889) (quoting Cooley, A
Treatise on the Constitutional Limitations 159 [1868]) ("'It must be evident to any one
that the power to declare a legislative enactment void is one which the judge, conscious
of the fallibility of the human judgment, will shrink from exercising in any case where he
can conscientiously, and with due regard to duty and official oath, decline the
responsibility.'"); State ex rel. Fatzer v. Barnes, 171 Kan. 491, 494, 233 P.2d 724 (1951)
27
("Courts are reluctant to hold acts of the legislature invalid, and uniformly decline to do
so when there is one or more other grounds upon which the decision can be based.");
State ex rel. Anderson v. Fadely, 180 Kan. 652, Syl. ¶ 3, 308 P.2d 537 (1957) ("While
courts will not refuse to pass on the constitutionality of statutes in any proceeding in
which such determination is necessarily involved, unnecessary consideration of attacks
on their validity will be avoided and courts will not assume to pass upon constitutional
questions not duly raised and insisted upon since they are not properly before it.").
In more recent years, this court has often adhered to it. E.g., In re Bowman, 309
Kan. 941, 950, 441 P.3d 451 (2019) ("[W]e need not decide today whether a second trial
would violate the federal or state constitutions if we can resolve Bowman's case based on
statutory interpretation. . . . 'Appellate courts generally avoid making unnecessary
constitutional decisions.'"); State v. Wetrich, 307 Kan. 552, 558, 412 P.3d 984 (2018);
State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 658, 367 P.3d 282 (2016); Smith v.
Kansas Dep't of Revenue, 291 Kan. 510, 519, 242 P.3d 1179 (2010); Wilson v. Sebelius,
276 Kan. 87, 96, 72 P.3d 553 (2003). Regardless, this doctrine has been an important
feature in how courts approach legislative enactments.
Admittedly this doctrine is prudential, so our court has bypassed it on occasion
after conceding the necessity for doing so and despite the rule's strictures. E.g., Felten
Truck Line, Inc. v. State Bd. of Tax Appeals, 183 Kan. 287, 292-93, 327 P.2d 836 (1958)
(holding court would consider statute's constitutionality in an original action in
mandamus, even though "there is merit" to defendants' claim that plaintiffs had an
adequate remedy of law). But even then, the Felten court justified this departure by
noting defendants had not previously objected to two related alternative writs of
mandamus issued by the court, and because the statutes directly impacted all litigants.
The court concluded "we would hardly be justified in disposing of the matter on such
28
technical grounds and therefore feel obligated to consider the case on its merits on the
constitutional question involved." 183 Kan. at 293.
So why do courts follow this rule? We answered that question in 1889 by quoting
from Justice Cooley's work on Constitutional Limitations and noting the judiciary's
adherence to this tenet is not only to be "more proper and more respectful to a coordinate
department," but also to give judicial decisions greater weight when there is no
alternative but to consider the constitutional question. Chicago, K. & W. R. Co., 42 Kan.
at 111. Similarly, Justice Brandeis touted the doctrine's worth in Ashwander, 297 U.S. at
355, by acknowledging the reciprocal nature of our country's governmental structure and
quoting the following passage from Union Pac. R. Co. v. United States, 99 U.S. 700, 718,
25 L. Ed. 496 (1878): "'One branch of the government cannot encroach on the domain of
another without danger. The safety of our institutions depends in no small degree on a
strict observance of this salutary rule.'"
The Supreme Court later described the justifications in more general terms:
"The policy's ultimate foundations, some if not all of which also sustain the
jurisdictional limitation, lie in all that goes to make up the unique place and character, in
our scheme, of judicial review of governmental action for constitutionality. They are
found in the delicacy of that function, particularly in view of possible consequences for
others stemming also from constitutional roots; the comparative finality of those
consequences; the consideration due to the judgment of other repositories of
constitutional power concerning the scope of their authority; the necessity, if government
is to function constitutionally, for each to keep within its power, including the courts; the
inherent limitations of the judicial process, arising especially from its largely negative
character and limited resources of enforcement; withal in the paramount importance of
constitutional adjudication in our system.
29
"All these considerations and perhaps others, transcending specific procedures,
have united to form and sustain the policy. Its execution has involved a continuous choice
between the obvious advantages it produces for the functioning of government in all its
coordinate parts and the very real disadvantages, for the assurance of rights, which
deferring decision very often entails. On the other hand it is not altogether speculative
that a contrary policy, of accelerated decision, might do equal or greater harm for the
security of private rights, without attaining any of the benefits of tolerance and harmony
for the functioning of the various authorities in our scheme. For premature and relatively
abstract decision, which such a policy would be most likely to promote, have their part
too in rendering rights uncertain and insecure." Rescue Army v. Municipal Court of City
of Los Angeles, 331 U.S. 549, 572, 67 S. Ct. 1409, 91 L. Ed. 1666 (1947).
The district court's avoidance doctrine error
Justifications for adherence to the avoidance doctrine are on display here. By
invoking K.S.A. 75-764(b)(2) to notify the Attorney General that S.B. 40 was likely
invalid, the court cast immediate doubt on statewide legislation enacted to address a state
of emergency, prompting an amicus filing on behalf of 280 unified school districts and 31
education cooperatives. And the court seems to have attempted to extend its remedial
reach beyond the case at hand by holding in the July 15 order that "[a]ctions filed
pursuant to [S.B. 40], including the instant one, are hereby determined to be
unenforceable, regardless of the merits." This caused the Attorney General to argue the
district court's rulings "have combined to create unnecessary and disruptive confusion
about the state of the Kansas Emergency Management Act, K.S.A. 48-920, et seq." See
K.S.A. 2020 Supp. 60-1712 ("When declaratory relief is sought . . . no declaration shall
be binding against persons not . . . joined as parties to the proceeding."); cf. Cross v.
Kansas Dep't of Revenue, 279 Kan. 501, 508, 110 P.3d 438 (2005); State v. Smiley, 65
Kan. 240, Syl. ¶ 2, 69 P. 199 (1902). And from the uncharacteristically high volume of
amicus briefing filed in this court, and the concerns expressed in those briefs in a time of
pandemic, the Attorney General's concern seems prescient.
30
Judicial responsibility "does not amount to an unlimited power to survey the
statute books and pass judgment on laws before the courts are called upon to enforce
them." Younger v. Harris, 401 U.S. 37, 52, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971).
Necessity is the watchword when invoking the judiciary's solemn power to declare a
legislative act invalid. That necessity was lacking here.
It cannot be emphasized enough that by the time Butler and Bozarth had failed to
come forward with additional evidence, the district court had already acknowledged S.B.
40 was inapplicable to the case without that evidence. And the court understood that both
the statewide state of disaster emergency and the school year had ended. The district
court erred by ignoring the constitutional avoidance doctrine and failing to abide by it.
CONCLUSION
Our decision here should not be seen as sanctioning judicial timidity. Since
statehood, this court has recognized repeatedly the judiciary's duty to declare an act of the
Legislature, or portion of it, unconstitutional when properly called on to do so. And in a
different case, one or more of the arguments made against S.B. 40 might very well carry
the day. But this case compels adherence to the avoidance doctrine.
We reverse that portion of the district court's judgment subject to this appeal and
express no opinion about 2021 S.B. 40's constitutionality. Given this disposition, it is
unnecessary to consider the parties' remaining arguments.
31
***
LUCKERT, C.J., dissenting: I dissent because this court should dismiss the
Attorney General's appeal without saying any more than the district court lacked
jurisdiction to consider the constitutionality of 2021 Kansas Senate Bill 40, L. 2021, ch.
7, § 1 (S.B. 40), codified at K.S.A. 2021 Supp. 48-925c. The district court acted without
jurisdiction when it issued an advisory opinion about S.B. 40, and we should make that
point and dismiss this appeal for lack of jurisdiction.
Once the district court determined S.B. 40 did not apply to the lawsuit brought by
Kristin Butler and Scott Bozarth against the Shawnee Mission School District (SMSD), it
lacked authority to discuss S.B. 40's unconstitutionality. At that point the question of S.B.
40's constitutionality was merely advisory—a hypothetical discussion applicable only if
S.B. 40 had applied. But Kansas courts "do not have jurisdiction over purely hypothetical
questions." State ex rel. Morrison v. Sebelius, 285 Kan. 875, 908, 179 P.3d 366 (2008).
That is because "[t]he judicial power granted by Article 3 of the Kansas Constitution does
not include the power to give advisory opinions." 285 Kan. at 898; see In re Estate of
Lentz, 312 Kan. 490, 505, 476 P.3d 1151 (2020) (Luckert, C.J., concurring) (discussing
error in deciding hypothetical jurisdiction rationales and jurisprudential and constitutional
implications).
The advisory nature of the district court's opinion does not change simply because
the Attorney General became involved at the district court level. Nor does the Attorney
General's involvement provide an avenue for jurisdiction to decide the constitutionality of
S.B. 40. A brief procedural history helps explain the limited nature of the Attorney
General's role.
32
The Attorney General's involvement arose under K.S.A. 75-764. Under its
provisions, if a party or the district court questions the constitutionality of a controlling
statute, the district court must ensure that the Attorney General has "notice of the
disputed validity" and "has been given an opportunity to appear and be heard on the
question of the validity of the statute." K.S.A. 75-764(b)(2). When Butler and Bozarth
sued the SMSD under S.B. 40, the court raised questions of S.B. 40's constitutionality
and sought to assure the Attorney General had notice.
Once notice was given, the parties and the court treated the Attorney General as an
intervenor. For example, the district court titled its final order as a "Judgment and Final
Order After Intervention of the Kansas Attorney General." And the text of the order reads
that "the Court asked the Kansas Attorney General to intervene in this matter because of
identifiable constitutional issues in SB 40." K.S.A. 2020 Supp. 60-224(b)(2)(C)
(requiring court to "permit intervention by the attorney general on proper application" if
"notice to the attorney general is required by K.S.A. 75-764").
After the Attorney General appeared and argued, the district court dismissed the
action. In doing so, it listed three reasons Butler and Bozarth's action failed. First, it ruled
Butler and Bozarth did not identify a policy subject to a challenge under S.B. 40. Second,
it ruled the lawsuit was moot. Finally, it declared S.B. 40 "unenforceable" because it
violated various constitutional provisions.
Butler and Bozarth did not appeal, but the Attorney General did. He challenges
only the district court's constitutional rulings. Thus, no one appealed the first basis for the
district court's ruling—that S.B. 40 did not apply. That ruling is final. The finality of that
decision would not change even if this court disagreed with the district court's third
holding that S.B. 40 was unconstitutional, and it is only that holding before us on appeal.
Yet, at this point, no action exists between the original parties of this suit—Butler,
33
Bozarth, and SMSD—and our decision in this appeal would be an empty exercise. In
other words, this appeal asks us to resolve a purely advisory issue—one that does not
affect the outcome of the original dispute.
The district court's and this court's lack of jurisdiction arises because Kansas
courts have the power to adjudicate only actual cases and controversies. Sebelius, 285
Kan. at 896, 910. The presence of the Attorney General and the collateral issues with
which he was involved did not themselves create a case or controversy. Our caselaw
recognizes that under such circumstances, an appellate court lacks jurisdiction to decide
an intervenor's appeal. Ternes v. Galichia, 297 Kan. 918, 305 P.3d 617 (2013), is one
such case.
In Ternes, an attorney who allegedly failed to timely file a medical malpractice
action tried to intervene in a case brought to prosecute the medical malpractice claim.
The district court dismissed the medical malpractice case. The attorney appealed but the
medical malpractice plaintiff did not. We dismissed the attorney's appeal. We explained
that if "the original plaintiff declines to take an appeal and the only party seeking
appellate review is an intervenor, the intervenor must be able to demonstrate independent
standing to prosecute the action." Ternes, 297 Kan. at 924 (citing Diamond v. Charles,
476 U.S. 54, 68, 106 S. Ct. 1697, 90 L. Ed. 2d 48 [1986]). The attorney lacked standing
to make a medical malpractice claim against his former client's physician. Given that and
addressing the right to appeal from an unfavorable ruling, we noted the "'basic
proposition' that 'a plaintiff who lacks standing to bring suit cannot require an appellate
court to decide on the merits.'" 297 Kan. at 924 (quoting 15A Wright, Miller & Cooper,
Federal Practice and Procedure § 3902, p. 61 [2d ed. 1992]). This court concluded, "This
rule is sensible in that it prevents the creation of an 'empty' lawsuit, in which an
intervenor-plaintiff could prevail on appeal but could not pursue any claim on remand."
297 Kan. at 924. Applying these principles, we dismissed the attorney's appeal, noting he
34
lacked "an ongoing interest in the [underlying] dispute sufficient to establish concrete
adverseness. See Bond v. United States, 564 U.S. 211, 217, 131 S. Ct. 2355, 180 L. Ed.
2d 269 (2011)." Ternes, 297 Kan. at 921-22.
Likewise, here, even if the Attorney General prevailed before us, that would not
affect the finality of the judgment for SMSD. It would not matter whether S.B. 40 was
constitutional because it does not apply in this case. Butler and Bozarth were the only
parties with a stake to bring this lawsuit. Without their presence, there is no actual
controversy, and the district court's ruling on the constitutionality of S.B. 40 stands
merely as dictum issued by the district court. That dictum neither binds the parties in the
suit brought by Butler and Bozarth against SMSD nor anyone else. See Graham v.
Herring, 297 Kan. 847, 861, 305 P.3d 585 (2013) ("[A]n unpublished memorandum
opinion is not binding precedent, except as may occur through the doctrines of law of the
case, res judicata, or collateral estoppel."); Law v. Law Co. Bldg. Assocs., 295 Kan. 551,
564, 289 P.3d 1066 (2012) (dicta is not binding); see also Am. Elec. Power Co., Inc. v.
Connecticut, 564 U.S. 410, 428, 131 S. Ct. 2527, 180 L. Ed. 2d 435 (2011) ("[F]ederal
district judges, sitting as sole adjudicators, lack authority to render precedential decisions
binding other judges, even members of the same court.").
I would thus dismiss this appeal after finding the district court lacked jurisdiction
to issue the advisory opinion that underlies this appeal.
In response to my position about the lack of jurisdiction, the majority attempts to
distinguish Ternes based on the Attorney General's role under K.S.A. 75-702. Under that
statute, "The attorney general shall appear for the state, and prosecute and defend any and
all actions and proceedings, . . . [and] control the state's prosecution or defense." Here,
however, the Attorney General did not prosecute or defend an "action." And allowing the
Attorney General to keep alive an issue irrelevant to the action condones the type of
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"empty" lawsuit we cautioned against in Ternes. Cf. Sebelius, 285 Kan. at 891. I discern
nothing in the words of K.S.A. 75-702 or K.S.A. 75-764 that displaces the case or
controversy requirements of the Kansas Constitution and that would allow this appeal.
See State v. Queen, 313 Kan. 12, 17, 482 P.3d 1117 (2021) (courts determine legislative
intent by examining the statute's wording). Instead, K.S.A. 75-702 requires an underlying
interest in the action, which tracks with Ternes' holding that would allow an intervenor to
continue to pursue a collateral issue only if that intervenor had standing to sue or defend
the action.
Finally, the majority defends jurisdiction by citing declaratory and mandamus
actions. But the Attorney General never petitioned seeking either declaratory or
mandamus relief. The only procedural mechanism for the Attorney General's presence is
K.S.A. 75-764.
Ironically, the majority argues for this court's jurisdiction when the Attorney
General does not. Rather, the Attorney General has consistently argued the district court
could not consider the constitutionality of S.B. 40 because it did not apply to this case
and any controversy was moot. In his brief, the Attorney General notes that Article 3 of
the Kansas Constitution limits the courts' power to deciding actual controversies. He cites
Baker v. Hayden, 313 Kan. 667, 490 P.3d 1164 (2021), and Sebelius, 285 Kan. 875, for
support. After reviewing the requirements for a case or controversy, he concludes "the
district court . . . offered an impermissible advisory opinion on the constitutionality of SB
40." The majority thus champions a power the Attorney General does not want to assume
as it stakes a position on jurisdiction that contradicts that of the Attorney General. I agree
with the Attorney General's position. The Attorney General has no role to prosecute or
defend here, is not a party, and has only an interest defined by K.S.A. 75-764.
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Finally, I disagree with the majority that the Attorney General needed to appeal
because of the broad dicta in the district court's opinion that purported to bind all courts.
As I have discussed, district courts lack the authority to bind other courts. The district
court's opinion is only binding on the parties if certain claim preclusion principles apply.
Law, 295 Kan. at 564. The Attorney General would not be limited by principles of claim
or issue preclusion if this issue were to be raised in another case because the holding here
was dicta. See Graham, 297 Kan. at 861; Law, 295 Kan. at 564. The district court's
opinion thus does not foreclose future arguments addressing the constitutionality of S.B.
40.
In summary, all we are left with is a request for an advisory opinion. We lack
jurisdiction to provide that. Sebelius, 285 Kan. at 898. This appeal should be dismissed.
For these reasons, I dissent.
STEGALL, J., joins the foregoing dissent.
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