Gov. JB Pritzker will again return to court to defend unilateral actions executed in the name of fighting COVID-19 in Illinois, this time to combat a new lawsuit filed over his decision to impose a mask mandate on all schools, statewide.
On Aug. 9, plaintiff Jeremy Pate, through his attorneys Thomas DeVore and Erik Hyam, filed suit in downstate Clinton County, asking the court to declare Pritzker overstepped the bounds of his authority in ordering all schools throughout the state to force children to wear masks while at school.
Pritzker issued the mask order on Aug. 4, requiring all Illinois school districts to comply with health guidance believed to be forthcoming from the Illinois Department of Public Health and the Illinois Board of Education, requiring all school children to wear masks in an effort to mitigate the spread of the virus that causes COVID-19.
Thomas DeVore
Pritzker said the new order was needed as the state seeks to address a sharp increase in incidences of the new so-called delta variant of the COVID-19 virus in recent weeks. The virus has already affected states elsewhere in the country, predominantly in Florida and elsewhere in the southern states.
According to public health agencies, severe cases of COVID-19 have predominantly occurred among those who have not yet received full doses of a COVID vaccine. Children under the age of 12 are not yet eligible to receive the COVID vaccine, according to federal health authorities.
Pritzker said his orders were in line with new guidance from the Centers for Disease Control, which recommended all people, whether vaccinated or not, return to wearing masks indoors to mitigate the spread of the COVID virus, particularly to children or others who have not yet been cleared to receive the vaccine.
In the new lawsuit, however, the plaintiffs assert Pritzker lacks the authority under Illinois law to issue such a mandate, overriding the will of elected local school boards.
“In this state the rule is firmly established that school directors and boards of education have authority, in cases of emergency, to institute temporary measures to prevent the spread of an infectious disease,” Pate’s lawsuit asserted.
According to the complaint, Pate is a taxpayer and father of one child who attends school in Breese School District 12 in Clinton County, about 45 miles east of St. Louis.
Pate further noted legislation is now pending in Springfield which would expressly amend Illinois’ School Code to allow the governor to suspend that local authority, and force school districts to abide by such orders from the governor.
However, that law has not yet been enacted, the lawsuit noted.
While DeVore has failed on numerous occasions in the past 15 months to persuade Illinois courts to pare back Pritzker’s broad exercise of emergency powers in the name of fighting COVID, Pate and DeVore said this case is different. They said it marks the first time anyone has challenged the governor’s authority to simply override the state’s laws governing public schools, and impose regulations by executive fiat, with no regard for the decisions or will of the local school board.
A review of Illinois law will find that the state legislature has never granted such authority to the governor, Pate’s lawsuit argued.
“Any such delegation would be tantamount to vesting the executive branch with the full power of the legislature during times of a declared emergency, which proposition would be fraught with all sorts of legal and constitutional issues,” Pate argued in his complaint.
“… One can only presume Pritzker is dissatisfied the legislature chose not to empower IDPH and ISBE with this authority, so he took it upon himself to pilfer the power of the legislature and for all intents and purposes made (the new legislation) a law on its own.”
If the legislature “already believed” the governor had such power, the new proposed legislation “would be an exercise in futility,” Pate and DeVore wrote.
The complaint seeks a court order specifically declaring neither Pritzker nor any state agency has the authority under existing law to force local elected school boards to follow any state public health mandates, including the new mask mandate.