Contrary to what Gov. JB Pritzker has asserted, Illinois is not facing a COVID-related public health emergency requiring the Illinois Supreme Court to swoop in and slap a hold on a Springfield judge’s order blocking Pritzker from reimposing a COVID school mask mandate and other rules the judge said had been illegally imposed, lawyers for hundreds of Illinois school students, parents and educators argued in a new filing with the state high court.
On Feb. 25, attorney Tom DeVore, of Silver Lake Legal, of downstate Greenville, filed his reply to Pritzker’s motion, after the governor asked the Illinois Supreme Court to restore the authority he has claimed under Illinois’ emergency management law to impose “emergency rules” on schools statewide.
Without such authority, the state risks slipping into “chaos,” as school systems throughout Illinois struggle to address the unchecked spread of COVID through their schools, Pritzker and Illinois Attorney General Kwame Raoul have claimed.
But those claims are nonsense, as reflected by actual public health data observed in the past few weeks, said DeVore, in his reply.
DeVore noted COVID cases have plunged 75% since the beginning of February, when Sangamon County Judge Raylene Grischow issued her temporary restraining order against Pritzker, two state agencies under his control, and nearly 150 school districts across the state.
Meanwhile, he noted, Pritzker will lift a statewide indoor mask mandate on March 1, along with the city of Chicago.
Should the Illinois Supreme Court issue the stay requested by Pritzker and Raoul, DeVore noted, it would mean the governor could plausibly reimpose a mask mandate for schools immediately, leaving schools as one of the only settings in which children would still be required to wear masks, allegedly for their health and safety.
“Children can head out to their club sports teams, play in tournaments, go to their friends parties, head to the mall, or anything else they like, but when they go to school they have no choice but to wear their mask as the ‘facts and science’ demands it to keep them safe,” DeVore wrote.
“… While Governor Pritzker continuously postures a public health crisis is just around the comer if masks aren't mandated in schools, if the Governor would be transparent with this Honorable Court, as well as to the people of Illinois, he would admit he finds himself facing a self-made political emergency, and he wrongfully seeks this Courts intervention to aid him with the same,” DeVore wrote.
He asked the Illinois Supreme Court to deny Pritzker the opportunity to point to an alleged public health crisis to regain authority that a judge has declared was illegally grasped, and which state lawmakers and an appellate court have both refused to reinstate.
DeVore’s filing came three days after Raoul, on behalf of Pritzker, filed petitions with the Illinois Supreme Court, seeking to appeal both Judge Grischow’s order, and a decision by the Illinois Fourth District Appellate Court to dismiss Pritzker’s initial appeal of Grischow’s order as moot.
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 urged 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.
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.
Pritzker and Raoul have claimed requiring schools to comply with those due process provisions would be too difficult, compared with a minimal burden on students from being required to wear a mask all day at school, and potentially miss days of classroom instruction, possibly multiple times every school year, should school officials determine they were exposed to COVID.
In his reply, DeVore rejected the argument that Grischow’s ruling had caused chaos. He noted the vast majority of school districts that opted to lift mask requirements did so without any real threat of legal action under the TRO.
Rather, he said, many did so because they “no longer operated in fear of the illusion of the repercussions which the Governor, and his agencies have threatened them with for months on end.”
Rather than attempting to address any real problems in the state allegedly caused by Grischow’s TRO, DeVore said Pritzker and Raoul are trying to persuade the Supreme Court to step in and use the governor’s emergency petition to “create the law of the case,” which would bind lower courts and tilt the playing field in Pritzker’s favor, as Grischow and potentially other judges consider the ongoing legal questions over whether Pritzker violated the law.
The Illinois Supreme Court has not yet ruled on Pritzker’s motion to stay.