A state appeals court has dismissed Gov. JB Pritzker’s appeal of a Springfield judge’s order blocking the state and at least some Illinois school districts from enforcing mask mandates and other COVID restrictions, as justices ruled the appeal is moot because the refusal by the state’s administrative rule review committee to allow the Pritzker administration to renew the COVID school rules means the rules covered by the restraining order do not exist, at this point.
Just before midnight on Feb. 17, a three-justice panel of the Illinois Fourth District Appellate Court handed down their widely anticipated decision on the fate of Pritzker’s appeal.
In the decision, the justices say the court has no “actual controversy” to decide, and the court would decline to take up the matter simply to answer the legal questions that brought the appeal in the first place.
From left: Attorney Tom Devore; Gov. JB Pritzker
“Because the emergency rules voided by the TRO are no longer in effect, a controversy regarding the application of those rules no longer exists,” the justices wrote. “Thus, the matter is moot.”
Justices also noted they believed neither the TRO, nor their decision, addresses the ability of school districts to impose COVID restrictions on their own.
The decision centers on the refusal earlier this week by state lawmakers who serve on the Joint Committee on Administrative Rules (JCAR) to grant the request from Pritzker, through the Illinois Department of Public Health, to renew so-called “emergency rules” requiring Illinois schools to force students and everyone who enters schools in the state to wear masks; to require students to submit to COVID testing; and to require schools to exclude students from school if they are believed to have been exposed to COVID, among other measures.
In denying Pritzker’s request, members of JCAR had pointed to a Feb. 4 temporary restraining order issued by Sangamon County Judge Raylene Grischow, declaring Pritzker’s “emergency rules” null and void, and an illegal attempt to sidestep the law, trampling the due process rights of students, parents and educators alike, in the way the rules were imposed.
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 executive orders and those “emergency rules” to rewrite the state’s quarantine rules, and sidestep the due process provisions in the IDPH Act. She declared the rules null and void, and imposed a TRO on Pritzker and others attempting to enforce the rules.
Grischow’s ruling largely mirrored the legal claims made by attorney Tom DeVore, of Silver Lake Legal, of downstate Greenville, and others representing hundreds of students, parents and educators from across Illinois, who sued Pritzker, the state agencies and dozens of school districts over the implementation of the COVID 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.
However, while the appeal was pending, the expiration date of the “emergency rules” arrived. Seeking to reimpose the rules, Pritzker turned to JCAR, a reviewing body for certain administrative rules state agencies seek to impose on Illinois residents.
The bipartisan JCAR, however, voted 9-0 to refuse to allow Pritzker to reissue the rules.
But the Fourth District justices declined that invitation to weigh in on the merits of Grischow’s ruling.
Instead, they essentially punted on the question, declaring the expiration of the rules, and JCAR’s decision to block Pritzker from reimposing the rules, means the governor’s appeal is legally pointless. The state, they said, no longer has any rules to enforce, and Grischow’s TRO no longer has any rules to restrain.
However, in mooting the appeal, the justices also explicitly rejected Pritzker’s contention that the TRO does not block enforcement of his emergency executive order redefining quarantine. They noted the governor issued that quarantine-redefining order in the wake of multiple rulings from judges declaring the state was violating due process rights afforded to those the state may seek to quarantine.
Because that executive order required the IDPH to “promulgate emergency rules” to implement the executive order, the justices said, the expiration of the “emergency rules” also makes that executive order moot.
The justices, however, noted that they believed “the language of the TRO in no way restrains school districts from acting independently” from Pritzker’s orders “or the IDPH in creating provisions addressing COVID-19.”
That aspect of the ruling may only continue to feed the uncertainty faced by the more than 800 public school districts in Illinois facing disputes over student masking, testing and exclusion policies. In the wake of Grischow’s ruling, more than 500 school districts have opted to switch to “mask optional” or “mask recommended” policies.
It remains to be seen what the appellate ruling will mean for those districts, and for others who have refused to reconsider compulsory masking, testing and exclusion, even in the face of Grischow’s order.
Justice John W. Turner authored the court’s decision. Justices Thomas M. Harris and Lisa Holder White concurred with the decision.
However, Holder White also dissented, in part, saying she believed the court should have address the question of whether Pritzker legally exercised his authority in issuing his mask mandate and other COVID school rules through executive orders, under the IEMA Act.
“As it stands, the decision leaves open the question of whether the circuit court (Judge Grischow) properly enjoined the enforcement of the executive orders,” Holder White wrote.