Amicus Brief Regarding Due Process Hearings Under SB 40, Kansas Justice InstituteCase Info & Legal Team

Kansas Justice Institute files amicus brief to ensure due process rights upheld

Kansas Justice Institute filed an amicus brief in the Kansas Supreme Court highlighting the importance of due process hearings during emergencies.  During the 2021 legislative session, the Kansas Legislature passed SB 40 which altered state and local emergency statutes to ensure Kansans’ due process rights remain in place during a pandemic. A Johnson County judge recently struck down SB 40, bringing the bill back into the spotlight.

Meaningful and timely hearings are particularly important during emergencies, regardless of the emergency. When a local health officer issues an order affecting a person’s livelihood— even with the best of intentions—that person should have the opportunity to be heard. – Litigation Director Sam MacRoberts.

The lawsuit that inspired legislative action

In 2020, in response to COVID-19, the Douglas County local health officer issued a bar curfew order that required restaurants and bars to stop serving alcohol at 11:00 p.m., regardless of the bars’ COVID-19 mitigation procedures and protocols; prohibited bars from utilizing outdoor seating after midnight but permitted indoor restaurants without a liquor license to remain open after midnight; permitted curbside food sales after 11:00 p.m., but not curbside alcohol sales.

KJI filed a federal lawsuit on behalf of Peach Madl and The Sandbar arguing, among other things, business owners were entitled to due process hearings.

The Legislature responded with SB 40. Now, under SB 40, a person “aggrieved” by a health order may file a “civil action” in state district court. The hearing must occur “within 72 hours.” At the hearing, the local health officer must establish their health order was “narrowly tailored” and used the “least restrictive means.” Otherwise, the aggrieved party is entitled to relief.

In the amicus brief, KJI argued SB 40 was an appropriate legislative response to Kansas’ outdated public health statutes. KJI also brought to the court’s attention some of the other local health orders such as bans on standing and dancing, mandatory disclosure of visitors to a medical office, and bans on car parades.


It is beyond question COVID-19 is serious and the government has a prominent and important role in public health matters. When the government wields those powers though, the people impacted should be afforded a prompt and meaningful hearing—a simple, yet effective remedy against potential government overreach. The Legislature created such a hearing process in SB 40. To paraphrase the United States Supreme Court, the greatest temptation to abandon constitutional guarantees is during an emergency. – Litigation Director Sam MacRoberts.

Brief Defending SB 40

Date Filed
August 27, 2021
Kanas Supreme Court
Case Status

Case Timeline

Amicus Brief
Press Release
SB 40 - SCOK Opinion