Gov. JB Pritzker’s attempt to appeal a judge’s order declaring he violated the law in the way he imposed mask mandates and other COVID restrictions on Illinois schools, is just part of the governor’s continued attempt to sidestep a series of rulings by judges declaring he overstepped the bounds of his authority, an attorney representing hundreds of Illinois students and parents asserted in a recent filing.
In the Feb. 4 order, Judge Grischow, presiding in Springfield, blocked enforcement of Pritzker’s COVID school mandates, declaring the “emergency rules” under which Pritzker had imposed the mandates to be unlawful and void.
Grischow also explicitly called out the Pritzker administration for using “emergency rules” last fall to redefine legal definitions of quarantine to allow schools to require masks and exclude students from school who may be suspected of being exposed to COVID. She said she believed the “emergency rules” were designed to avoid triggering due process requirements under the state’s public health law, which would otherwise give students and parents the chance to object and demand a court order requiring them to wear masks, submit to compulsory COVID testing, or be excluded from school.
Grischow’s ruling has set off a firestorm across the state, as parents and students demand their school districts drop the masking requirement immediately. Hundreds of school districts across the state have decided to go “mask optional.” In districts that have resisted Grischow’s findings, students and parents have organized “maskless protests” and have dominated school board meetings in an attempt to persuade school board members to drop the masking and student exclusion requirements.
Despite the groundswell rising across the state, Pritzker has been defiant, steadfastly maintaining he acted within his authority. In recent statements, he publicly singled Judge Grischow out for criticism, saying he believed Grischow was “out of step” with other courts’ “legal reasoning,” and blaming the judge’s ruling for the confusion.
After Grischow appeared to essentially ignore the state’s request for a stay of her ruling, pending immediate appeal, lawyers with the Illinois Attorney General’s office, representing Pritzker, turned to the Fourth District court. They similarly requested an immediate stay of Grischow’s order, citing emergency conditions.
In the appellate filings, Pritzker and Illinois Attorney General Kwame Raoul assert Grischow misapplied the law. They said in times of pandemic, the only law that should matter is the Illinois Emergency Management Agency Act, which otherwise grants the governor broad emergency powers to act in the name of protecting public health in times of declared disaster.
Amid his appeal, Pritzker announced he intends to lift the state’s indoor mask mandate, requiring face coverings in most public indoor settings, by Feb. 28. However, he said he intends to keep the mask mandate and other COVID restrictions in place in schools beyond that date.
Against that backdrop, the arguments before the Fourth District court continued over the extent of Pritzker’s power.
In response to Pritzker’s filings, attorney DeVore argued it was not Grischow who misrepresented the law.
DeVore noted Grischow is just the seventh judge in recent months to determine the governor’s emergency powers under the IEMA Act don’t run roughshod over the due process protections afforded to Illinois residents in the Illinois Department of Public Health Act.
He noted six other judges – including three judges in the Seventh Judicial Circuit, which includes Springfield in Sangamon County - had previously ruled in that way on that question, requiring school districts and local health departments to secure court orders against those who would object to forced masking, testing and exclusion, which the judges determined was a kind of quarantine subject to the due process provisions of the IDPH Act.
And it was those six rulings, DeVore said, that prompted Pritzker to issue the “emergency rules” last fall, that set the stage for Grischow’s TRO decision.
“This Court will not need to engage in any mental gymnastics when it reviews Judge Grischow’s order as she concluded which law applies just as the six judges before her,” DeVore wrote.
He said Pritzker and attorneys for dozens of school districts included in the lawsuit have twisted state laws “into unrecognizable pretzels” in a bid to escape the conclusions reached by Grischow and the six other judges.
“What makes their position even more untenable, is on the heals (sic) of the numerous trial court rulings, the State Defendants tried to change the definitions of isolation and quarantine in order to strip the judiciaries (sic) oversight and deny our citizen’s (sic) due process,” DeVore wrote. “As Judge Grischow pointed out, if the Governor was all powerful, then why engage in those actions.
“The merits of this case are clear and Judge Grischow lays it out on all fronts,” DeVore wrote.
DeVore further formally brought to the attention of the Fourth District justices of the hundreds of school districts who have opted to step back from the forced masking and exclusion policies demanded by Pritzker.
While the state argued the TRO was producing chaos, DeVore said the chaos would now only be worsened by blocking Grischow’s order and attempting to force everyone back into the former masking, testing and exclusion regime.
“… The status quo the State Defendants were so desperately seeking to maintain by this requested stay, which was really more about maintaining the appearance of control over school districts so to continue commanding their compliance, has long since been lost,” DeVore wrote. “The only purpose now that a stay by this Court would serve is to create chaos for those hundreds upon hundreds of districts which have chosen to relieve their communities of the State Defendant mandates.”
And DeVore again called out the Democrat-dominated Illinois General Assembly, noting they have continued to refuse to meet to discuss legislation that could settle the matter, and expressly give Pritzker the power he says is needed to urgently respond to a public health emergency.
"If these public health risks were even slightly what the State Defendants aver, hundreds of local governing bodies would not have moved away from these policies of the State Defendants at the first available opportunity, and assuredly the Illinois Legislature, given they are currently in session, would have met first thing this past Monday and crafted policy to stave off the looming public health disaster the State Defendants present to this Court," DeVore wrote.
In addition to the substance of Grischow's ruling, DeVore and the Attorney General also sparred in their briefs over whether the Fourth District should boot the governor’s appeal on technical grounds.
DeVore asserted Pritzker’s appellate filings violate court procedural rules. He particularly asserted Pritzker and Raoul jumped the gun, in asking the appellate court to stay the decision before Grischow formally ruled on Pritzker’s motion to stay her decision. He argued they were required to wait on Grischow before asking an appellate court to step in.
In a reply filed Feb. 10, Raoul instead said his office relied on an email from Judge Grischow indicating she was declining to rule on the stay request because she believed she “lacked jurisdiction” to consider that request.
Raoul said his office considered that email “the functional equivalent of an order with respect to stay motions,” teeing up Pritzker’s immediate appeal to the Fourth District court.
The Fourth District has not yet ruled on Pritzker’s emergency motions.
However, Raoul has indicated he believes the appeal could be completed by Feb. 17.