The Illinois Supreme Court has decided not to intervene in the fight over the limits of Gov. JB Pritzker’s powers to order schools in Illinois to require students to wear masks, submit to COVID tests and possibly be excluded from school, without giving students and parents the opportunity to object.
On Feb. 25, the Illinois Supreme Court denied Pritzker’s petition to the court, asking to appeal lower court rulings that resulted in the removal of Pritzker’s “emergency rules,” issued under powers the governor had claimed under the state’s emergency management law.
However, the court’s majority also declared they believed the governor’s appeal was moot.
Within hours of the Illinois Supreme Court's decision, Pritzker announced he was ending his purported mask mandate for Illinois schools on March 1, despite the continuing legal questions surrounding his ability to impose the mandates. He said new guidance from the Centers for Disease Control dictated the change, and warned he may attempt to impose mask mandates in the future, if he believes they are needed.
The Supreme Court's orders noted that two of the court’s Republican justices, Michael J. Burke and David Overstreet, dissented from the decisions. The orders said written dissents from those justices would be published.
The majority did not explain its decisions.
However, a lower appellate court, the Fourth District Appellate Court, in Springfield, had also opted to declare Pritzker’s appeal moot. The Illinois General Assembly’s Joint Committee on Administrative Rules (JCAR) had refused to allow Pritzker, through the Illinois Department of Public Health, to reinstate the special rules requiring student masking, testing and school exclusion.
The JCAR is a special committee tasked with reviewing certain rules and regulations issued by state administrative agencies, like IDPH.
Without approval from JCAR, the appellate court reasoned the special rules at the heart of the matter no longer existed, and no longer needed to be restrained by the order of Sangamon County Judge Raylene Grischow.
The Fourth District court had left Grischow’s temporary restraining order intact.
As part of his appeal, Pritzker had asked the Illinois Supreme Court to vacate Grischow’s TRO, asserting the denial of the appeal as moot should have also done away with the necessity of keeping the TRO in place.
In denying the IDPH’s request for reapproval of the emergency rules, members of JCAR had expressed concern over attempting to reapply rules that were subject to a court’s TRO.
It is not known if Pritzker will attempt again to ask the JCAR to approve his emergency rules.
In response to the ruling, both sides said they were pleased with the decisions.
A spokesperson for Illinois Attorney General Kwame Raoul, who is representing Pritzker, said:
“We are pleased the court acted quickly to vacate the TRO, as the state had requested.”
In a prepared statement, Pritzker said he was "gratified that the Supreme Court vacated the lower court's restraining order, meaning that if a school mask mandate needs to go into effect in the future, we continue to have that authority."
And attorney Tom DeVore, who represents hundreds of parents, students and educators suing Pritzker and many Illinois school districts over the COVID mandates, said they welcomed the ruling.
“It’s not what he (Pritzker) wanted,” DeVore said. “This is a great ruling for us. It leaves us right where it needs to be.”
Pritzker and Raoul had petitioned the Illinois Supreme Court on Feb. 22, seeking to appeal both Judge Grischow’s order, and the decision by the Fourth District Appellate Court.
The state Supreme Court is not required to take appeals, and can choose not to hear cases.
In their petitions, asking the court for leave to appeal and for an order either staying or vacating Grischow’s TRO, Pritzker and Raoul continued to assert Grischow had badly misinterpreted the law, and had crippled the state’s ability to fight COVID-19 in Illinois schools, leaving schools and students in “chaos” and “crisis.”
In response, DeVore said the Pritzker administration was exaggerating the risks in an attempt to win a court order that would allow them to hold onto power that Judge Grischow ruled was illegally deployed.
Grischow had ruled Pritzker 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.
While Pritzker argued his actions were allowable under the Illinois Emergency Management Agency Act, Grischow said that law doesn’t supersede the quarantine due process provisions afforded under the Illinois Department of Public Health Act.
Pritzker and Raoul have argued the IDPH Act and its due process provisions should not apply during a time of declared pandemic, because requiring the state and school districts to comply with the due process requirements would be too “burdensome.”
Instead, they argued the governor’s powers during times of pandemic are broad and sweeping. They asserted Pritzker must be allowed to retain his powers, because the need may arise to reimpose the rules, or others, without first going to the Illinois General Assembly for permission.
Grischow specifically rejected the contention the governor’s powers should be considered “limitless,” simply because of a pandemic.
Following Grischow’s ruling, hundreds of school districts statewide dropped their masking requirements, a wave that was fueled further following the actions by JCAR and the appeals court.
The case remains pending before Grischow in Sangamon County, who will continue to hear arguments over the question of whether Pritzker violated the law in imposing the mandates last fall.