Gov. JB Pritzker is not giving up his fight to preserve his power to reimpose mask mandates and other COVID restrictions on Illinois schools, as he and Illinois Attorney General Kwame Raoul have both announced they will ask the Illinois Supreme Court to decide if lower courts properly blocked Pritzker’s ability to use emergency powers to impose the rules, despite due process rights otherwise promised under Illinois’ public health law.
The announcements from both Pritzker and Raoul came hours after a state appeals panel in Springfield dismissed Pritzker’s appeal as moot, essentially declaring Pritzker’s mask mandate and other school COVID rules are not in effect, and so are not enforceable at this time.
In announcing their intent to appeal, Raoul said he believes the Illinois Fourth District Appellate Court ruled incorrectly, in not affirming Pritzker’s emergency powers to do what he believes is necessary to limit the spread of COVID-19.
In a prepared statement, Raoul said the appellate court’s ruling incorrectly focused on “a single technical rule” issued by the Illinois Department of Public Health, rather than the governor’s alleged broader powers under the state’s emergency management law to use executive orders to set statewide policies require compulsory masking and COVID testing of students and school staff, and mandate the exclusion from school of students who may have been exposed to COVID.
“While the Appellate Court’s ruling does not affect the enforceability of the governor’s executive orders, the decision does fundamentally misapply important principles of Illinois law related to the issuance of temporary restraining orders, such as the order issued by the trial court,” Raoul said in the prepared statement. “Attorney General Raoul intends to immediately ask the Illinois Supreme Court to address these significant legal errors and preserve the integrity of the rule of law in Illinois.”
In a statement issued Friday morning, Pritzker also expressed “disappointment” in the appellate court’s refusal to consider his appeal of the temporary restraining order issued by Sangamon County Judge Raylene Grischow. Pritzker said he and Raoul would seek an “expedited appeal” to the Supreme Court.
The Illinois Supreme Court is not required to take the appeal. Rather, Pritzker and Raoul can only file a "petition for leave to appeal," in which they must make their case for why the court should accept the case. The high court is then within its power to deny the appeal, and allow the lower court rulings to stand.
Just before midnight on Feb. 17, a three-justice panel of the Fourth District court dismissed Pritzker’s appeal as “moot.” The appellate court based its determination on the refusal of Illinois state lawmakers on the Joint Committee on Administrative Rules to allow Pritzker and the IDPH to renew so-called “emergency rules” that Pritzker used to impose mask mandates and other COVID restrictions on schools.
The appellate panel essentially determined Pritzker’s emergency rules had expired, so there was no longer any need to consider the appeal.
That refusal to hear the appeal left intact, for now, a temporary restraining order entered by Judge Grischow blocking the state from attempting to enforce such rules.
In her order, Grischow had ruled Pritzker had violated the law by using executive orders to order the IDPH and Illinois State Board of Education to issue the “emergency rules.” She said that on-the-fly rulemaking process resulted in an illegal revision of Illinois’ public health quarantine rules, and violation of the due process rights that she said should be afforded under Illinois law to students, parents and educators before requiring them to wear masks, get tested for COVID, or be excluded from school on the suspicion they may have been exposed to COVID.
Both Grischow and the appellate court determined Pritzker had used an executive order to redefine the state’s quarantine rules to evade a series of decisions from county circuit court judges, who had determined the due process requirements under the Illinois Department of Public Health Act should apply to school masking and other forms of “modified quarantine.”
Pritzker and Raoul have argued the IDPH Act and its due process provisions should not apply during a time of declared pandemic. They said the only law that should apply amid a time of declared statewide disaster is the Illinois Emergency Management Agency Act, which they claim gives the governor broad, sweeping powers to act unilaterally in the name of protecting the people of Illinois.
They argued Grischow misapprehended the law, and they chided the appellate court for passing on the opportunity to address the key legal question concerning the limits of Pritzker’s authority. They asserted Pritzker must retain the authority to use those powers, and sidestep the due process rights that would otherwise be afforded to Illinoisans under the law, because the need may arise for the governor to reimpose such rules, or others he believes are needed, without first going to the Illinois General Assembly for permission.
The rulings from Grischow and the appellate court have resulted in a patchwork of school mask rules and other school COVID restrictions across the state. More than 500 school districts have shifted to “mask optional” or “mask recommended” policies since Grischow’s ruling on Feb. 4, After the appellate court refused Pritzker’s appeal and determined no state mask, testing and exclusion mandate now exists, other large suburban districts also decided to make the switch, as well.
Meanwhile, however, other school districts, including the Chicago Public Schools, followed the lead of teachers unions, who seized on language in the appellate court’s order, which they claimed gives local school districts the authority to impose the COVID mandates on students, if they so choose.
Attorney Tom DeVore, who has led the lawsuit against Pritzker and a number of school districts, including CPS, said in a video posted to Facebook, that interpretation of the ruling is incorrect.
He pledged to continue to bring more lawsuits against districts who attempt to defy Grischow’s TRO, and to press for contempt of court sanctions against CPS and other districts who were already named as defendants in the case, and yet chose to essentially ignore the TRO and continue to enforce COVID mandates.
Chicago Public Schools and its CEO Pedro Martinez, for instance, are due in court on Feb. 25 to explain to Judge Grischow why they should not be held in contempt for continuing to require students who were plaintiffs in the action to wear masks, even after the issuance of the TRO.
DeVore did not respond Friday afternoon to a request from the Cook County Record for comment regarding Pritzker’s decision to petition the Illinois Supreme Court for leave to appeal.
However, Pritzker's decision to continue the legal fight over the bounds of his powers drew derision from political opponents, including State Sen. Darren Bailey, who is seeking the Republican nomination to challenge Pritzker this fall.
Bailey had partnered with DeVore in 2020 on some of the first lawsuits to challenge Pritzker's use of emergency powers.
In a prepared statement, Bailey said the appellate court's ruling was "another victory for freedom that confirms what we already knew and have been fighting for since the beginning. Pritzker is a failure and I will continue fighting against his tyrannical mandates and empty threats while standing up for the rights of parents, students, small businesses, and every Illinoisan who has suffered under his unconstitutional and unilateral mandates.
“After losing his appeal to take our freedoms, JB acts like the spoiled, trust-fund billionaire brat he is by taking his quest to force masks on kids to the Supreme Court. Let's hope Pritzker handles November's loss better than this one to parents, students, and teachers.”
He was joined by Republican rival, Aurora Mayor Richard Irvin who said: ”The court’s decision is a win for parents and schools across our state who have been victims of Pritzker’s unilateral control over the last two years. This is just the first step in restoring parents’ rights and getting local communities back to the table when it comes to the decision-making process.”
And Republican candidate Jesse Sullivan: “This governor will stop at nothing to ensure he alone controls the lives of our schoolchildren. More than 500 Illinois school districts were already ignoring his hollow threats. Now, the appellate court has sided with parents in striking down Pritzker’s mandate. The governor has proven he only cares to listen to the most extreme ideologues within the Chicago Teachers Union and Washington D.C. As governor, I promise to put parents’ voices first.”