Editor's note: This article has been revised from an initial edition, to include discussion of the brief filed by the state, which was obtained by The Cook County Record after the time of initial publication.
Even though a committee of Illinois lawmakers expressly refused to renew the so-called “emergency rules” Gov. JB Pritzker used to impose mask mandates and other COVID restrictions on Illinois schools , an Illinois appeals court still must consider the key legal question of whether a Springfield judge correctly concluded Gov. JB Pritzker exceeded his legal authority in issuing those rules in the first place, said attorneys both representing Pritzker and those representing the students, parents and educators who are suing him.
On Feb. 16, attorneys Tom DeVore, of Silver Lake Legal, of downstate Greenville, and Lance C. Ziebell, of Lavelle Law, of Schaumburg, filed arguments in the Illinois Fourth District Appellate Court on behalf of the plaintiffs. The Illinois Attorney General's office filed a brief on behalf of Pritzker.
The briefs come in response to an order from the appellate court, directing lawyers for both sides to each explain how a Feb. 15 decision from the Illinois Joint Committee on Administrative Rules might change the legal landscape surrounding the court fight over whether Pritzker violated the law in issuing mask mandates and other COVID mandates using the “emergency rules” last fall.
Both sides said they believe the Fourth DIstrict court needs to still weigh in on the legal weight of a Feb. 4 order from Sangamon County Judge Raylene Grischow. That order blocks the governor, state agencies and school districts across the state from using Pritzker’s orders to force students to wear masks while in school, and take other measures against students and school staff in the name of fighting COVID-19.
In the Feb. 4 order, Grischow had ruled Pritzker and two state agencies under his control, the Illinois Department of Public Health and Illinois State Board of Education, had violated state law and trampled on the due process rights of Illinois school students, parents and educators, alike, in the way Pritzker and the two state agencies imposed the mask mandates and other COVID restrictions.
Grischow ruled Pritzker’s executive power under Illinois’ emergency management law was not as limitless as the governor’s office had proclaimed since the onset of the COVID pandemic two years ago. She ruled matters of compulsory masking, testing and vaccination must either emanate from laws constitutionally enacted by the Illinois General Assembly, or must be subject to due process provisions contained in Illinois’ public health law. That law, known as the Illinois Department of Public Health Act, designates the IDPH as the “supreme authority” in matters relating to quarantine for infectious disease.
Grischow said past applications of that law have indicated compulsory masking and testing can be defined as a form of “modified quarantine.”
However, the IDPH law also gives those targeted for quarantine the opportunity to object, and force the IDPH and local health departments to obtain court orders requiring them to mask up and submit to testing.
Instead, Grischow said Pritzker tried to issue so-called “emergency rules,” to force school districts to require students to wear masks and submit to COVID testing, and to exclude from school students who may have been exposed to COVID.
Grischow said Pritzker illegally used those “emergency rules” to sidestep the due process provisions in the IDPH Act. She declared the rules null and void, and imposed a temporary restraining order on Pritzker and others attempting to enforce the rules.
Pritzker appealed that decision to the Fourth District, arguing Grischow had abused her discretion as a judge in imposing the TRO and had misapplied the law. Attorneys for Pritzker 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.
They also argued Pritzker acted within his constitutional “police power” to protect the health and safety of the people of Illinois.
While Pritzker asked the Fourth District court to suspend Grischow’s ruling, the appellate court has opted not to do so, to this point.
And in the absence of that ruling, hundreds of school districts across the state have tossed the mask requirements, switching to either a “mask optional” or “mask recommended” policy, as they await the results of the appeal.
Seeking to reimpose the mandates after the emergency rules expired, Pritzker turned on Tuesday to the General Assembly’s JCAR, which is a reviewing body for certain administrative rules to be imposed on the people of Illinois.
The bipartisan JCAR, however, voted 9-0, with two voting present, to refuse to allow Pritzker to reissue the “emergency rules.” Several of the JCAR members noted those rules are barred under Judge Grischow’s ruling.
That JCAR vote, in turn, prompted the Fourth District to ask attorneys for both sides to explain how that vote should affect the appeal.
In their filing, the plaintiffs said the JCAR action should end much of the legal dispute, and has eliminated "a significant part of the State Defendants (sic) argument.”
“… It was clear this legislative body was giving due respect and deference to Judge Grischow’s ruling, and in fact committee members scolded the IDPH representative for continuing to pursue re-issuance of a rule which Judge Grischow had found to be invalid,” they wrote. “This legislative committee showed the proper respect to our judiciary that the executive agency was not (sic.)”
While disposing of many of the underlying issues, the JCAR action does not address one key legal question, plaintiffs said: Whether Judge Grischow “abused her discretion when she found Plaintiffs have raised a likelihood of success in showing a fair question exists” that Pritzker exceeded his authority under the law and the state constitution in imposing mandates for masking, testing, vaccination and exclusion from school.
The Attorney General also said that key legal question remains.
They reiterated their position that the IEMA Act takes precedence, and the IDPH Act does not apply.
Allowing the TRO to remain they said, would limit the ability of Pritzker to again seek to reimpose such "emergency rules" now and in the future, the state argued.
"An authoritative determination of the IDPH Emergency Rule’s validity also will guide public officers, as it will clarify whether the Covid-19 pandemic constitutes an 'emergency' sufficient to justify emergency rulemaking, as well as the level of deference that courts should afford to an agency’s finding that a public health crisis constitutes an emergency," the Attorney General wrote. "And this question is likely to recur, as IDPH has the authority to promulgate multiple emergency rules and may reissue the Emergency Rule."