Gov. JB Pritzker has officially asked the Illinois Supreme Court to give him the authority to again issue orders forcing schoolchildren throughout the state to wear masks, submit to testing and potentially be excluded from classroom instruction.
On Feb. 22, Illinois Attorney General Kwame Raoul, representing Pritzker, filed petitions with the state high court, beginning the appeals process.
Raoul and Pritzker filed a petition asking the state Supreme Court for permission to appeal the decision of a state appeals panel, which rebuffed Pritzker’s attempt to toss out a temporary restraining order issued by a Springfield judge, blocking the state from requiring schools statewide to enforce so-called “emergency rules” issued by Pritzker and two state agencies under his control.
The state Supreme Court is not required to take Pritzker’s appeal, and could choose not to hear the case. Such a decision would leave the lower courts’ rulings intact and potentially all but end Pritzker’s attempt to claw back his powers.
However, as the court considers the petition for leave to appeal, Pritzker and Raoul have asked the justices of the Illinois Supreme Court to step in on an emergency basis and slap a hold on the temporary restraining order.
In his filing, Pritzker and Raoul continued to assert Sangamon County Judge Raylene Grischow badly misinterpreted the law, and her ruling places the children of Illinois in “crisis” by allegedly leaving them all but defenseless against COVID-19.
“The TRO has hamstrung State defendants’ ability to take effective measures to mitigate the Covid-19 crisis within Illinois schools,” Raoul wrote in Pritzker’s motion to stay the TRO.
The filing does not cite to any actual data backing the governor’s claims that Illinois children are in peril from COVID, or that schools would all but grind to a halt, but for Pritzker’s restrictions.
However, Raoul and Pritzker spend a great deal of space in the motion urging the state Supreme Court to undo Grischow’s TRO in the name of addressing “chaos” and “uncertainty” among school districts who find themselves without any state order to enforce, and are all but forced to abandon masking, testing and exclusion requirements.
Indeed, by some counts, more than 80% of all school districts in Illinois have shed the masking requirements in the weeks since Grischow’s Feb. 4 ruling, switching to “mask optional” or “mask recommended” policies.
Further, Raoul and Pritzker note that some school districts, who have continued to require masks, tests and exclusion policies, including the Chicago Public Schools, and its CEO Pedro Martinez, are scheduled to appear before Grischow beginning on Feb. 25 to explain why the judge should not hold them in contempt of court for defying Grischow’s order.
And they noted attorneys plan to add more than 700 more students, parents and educators to the roster of plaintiffs suing the governor and school districts over the COVID-related mandates.
“The chaos engendered by the TRO is thus already spreading beyond the current dispute—and is doing so quickly,” Pritzker and Raoul wrote. “Only this Court’s intervention can halt this mischief.”
They asked the Supreme Court to issue a stay on Grischow’s TRO, as the court considers Pritzker’s appeal.
Pritzker and Raoul had requested a similar stay from the Illinois Fourth District Appellate Court on Feb. 7. The stay was not granted.
Instead, 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.”
The findings were similar to the arguments presented by attorney Tom DeVore and others representing hundreds of students, parents and educators from across Illinois, who challenged Pritzker's COVID school rules.
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.
In their motion to stay, Pritzker and Raoul asserted it would be too burdensome to require Illinois state health and education authorities, and school districts, to comply with the due process protections embedded in the IDPH Act during a time of pandemic and disease outbreaks.
On the other hand, they argued the school COVID rules presented no similar burden on Illinois school students and others forced to comply as a condition of attending school.
In their emergency petition, they also asked the Illinois Supreme Court to address the decision by the appellate court to allow Grischow’s TRO to stand, even after declaring the governor’s appeal moot.
They urged the high court to, at least, vacate the TRO, while the appeal continues.
The JCAR, for instance, had cited the presence of the TRO in its decision to refuse to allow the IDPH to renew the “emergency rules.”
“The appellate court … let a TRO remain in place notwithstanding its view that the controversy underlying the order no longer existed,” Raoul and Pritzker said. “And its construction of Illinois law may affect the merits of this case as it proceeds to final judgment, as well as influence other challenges to the Governor’s Covid-19 mitigation efforts.”