After a Springfield judge declined to slap a pause on her ruling barring enforcement of the state’s school COVID mandates, Gov. JB Pritzker has turned to a state appeals court, asking the appellate judges to step in to allow him to reimpose mandates requiring masking, exclusion of students exposed to COVID and other rules.
In motions and memorandums filed Feb. 7, Illinois Attorney General Kwame Raoul, representing Pritzker, argued the temporary restraining order issued by Sangamon County Judge Raylene Grischow had incorrectly voided so-called “emergency rules” issued by two state agencies under Pritzker’s control, in the name of slowing the spread of COVID-19.
Further, Raoul argued allowing Grischow’s order to remain in effect will interfere with school operations and produce “unsafe conditions” in schools, leading to COVID outbreaks or prompting parents to pull their children from school from fear of an increased risk of COVID infection.
In an emergency motion for stay, Raoul and Pritzker asked the Illinois Fourth District Appellate Court in Springfield to move immediately to slap a hold on Grischow’s ruling, while their appeal was heard.
The emergency motions come as school districts statewide struggle to respond to Grischow's ruling. And the appellate filings come even as published reports indicate Pritzker is poised to begin moving to lift the indoor mask mandates in many settings, though perhaps not in schools, as he continues his appeal of Grischow's ruling.
Pritzker and Raoul had first asked Grischow to stay her ruling, pending appeal. Grischow, however, did not respond to that request, prompting Pritzker and Raoul to turn to the appellate court.
However, as of the evening of Feb. 8, more than a day after that filing, the justices of the Fourth District also had not yet responded to Pritzker’s request for immediate action, leaving Grischow’s order in place for another day, if not longer.
She said requiring masks, and setting rules to exclude students from school over possible COVID exposure, is a form of modified quarantine, and was considered to be so under Illinois public health law and guidelines, until Pritzker and the IDPH used “emergency rules” to redefine the legal definitions of quarantine last September, when the state reimposed a school mask mandate.
Grischow said quarantine powers are given under state law only to the IDPH and local health departments.
She said, in her opinion, Pritzker and IDPH had decided to take that route to undermine the due process rights that would have otherwise been afforded to students and parents under the Illinois Department of Public Health Act.
Grischow declared Pritzker’s emergency rules to be null and void, because they violated state law.
Grischow’s order came as the result of a massive lawsuit filed on behalf of hundreds of students and parents statewide who asserted Pritzker had illegally imposed the school masking and student exclusion rules.
The students and other plaintiffs have been represented by attorney Tom DeVore, of downstate Greenville.
In their new appellate filings, Raoul and Pritzker assert Grischow had misapplied the law. They said in times of pandemic, the only law that should matter is the Illinois Emergency Management Agency Act.
That law gives the governor broad emergency powers to act, ostensibly to protect the health and safety of Illinois residents in times of declared disaster. While the law states such emergency powers are valid for only 30 days following the declaration of a disaster, Pritzker has used those powers for nearly two years, by essentially redeclaring a statewide disaster every 30 days.
Courts have rejected challenges to Pritzker’s use of the IEMA Act in this way, declaring he is within his authority to use his emergency powers in that manner.
In his filing, Raoul argues the IDPH Act also takes a back seat to the IEMA law, noting the IDPH Act includes a clause specifically indicating the provisions of the IDPH Act don’t supersede orders issued under the governor’s emergency powers.
Raoul argued the governor was within his power under the IEMA Act to direct IDPH and ISBE to create the emergency rules concerning masks and other COVID restrictions and mandates in schools.
Further, Raoul again asserted, as Pritzker’s lawyers have repeatedly, that requiring the state and school districts to follow the procedures laid out in the IDPH Act would be “impracticable,” because it would require school districts and state and local public health agencies to obtain court orders before they could require masks and testing, or exclude students who had been exposed to COVID from school.
“A Covid-19 outbreak in just one school district thus could require public health authorities to initiate and pursue hundreds or even thousands of hearings,” the Attorney General wrote.
And Raoul and Pritzker continued to assert that forced masking of students and school staff has made schools safer, allowing in-person learning to take place, despite the threat posed by COVID outbreaks.
Without the mask and exclusion mandates, and other rules barred by Grischow’s order, students and staff would be at greater risk of both a return to “remote learning” and “an increase in sickness, and possibly death.”
That assertion comes even as COVID cases continue to rapidly fall from their January peaks in Illinois, as well as in neighboring states which do not require masks in schools or any other indoor settings.
Raoul and Pritzker said the “balance of hardships … weighs heavily in favor of preserving important mitigation measures.”
In their filing, the attorney general and governor urged the court to act immediately, even to the point of denying DeVore the opportunity to respond on behalf of the students and other plaintiffs.
DeVore, however, said he has filed a reply, addressing what he called “serious procedural defects that are going to be problematic for” the governor and attorney general.
DeVore said he did not anticipate the appellate court will act to stay Grischow’s order, as it hears Pritzker’s appeal.
An order on Pritzker’s emergency appeal is expected within a week.