Two Republican justices on the Illinois Supreme Court say their colleagues on the Democrat-majority court erred in punting on the question of whether Gov. JB Pritzker violated the law in how he imposed mask mandates and other COVID restrictions on Illinois schools.
On Feb. 28, state high court justices Michael J. Burke and David K. Overstreet published a written dissent to the decision three days earlier by the Illinois Supreme Court, in which the court dismissed Pritzker’s appeal as moot, and vacated a Springfield judge’s ruling declaring Pritzker’s COVID school rules null and void.
The majority on the state Supreme Court did not explain their decision in the court’s order. However, the majority, which included four Democrats, appeared to have followed the reasoning of an appeals court in Springfield.
That court determined Pritzker’s “emergency rules” no longer existed, after a committee of state lawmakers refused to allow the Pritzker administration to reissue the rules when they expired earlier in February.
Therefore, the court determined Pritzker had nothing to appeal, because there were no longer emergency rules for the courts to restrain.
In their dissent, Burke and Overstreet said they disagreed that the action by the Illinois General Assembly’s Joint Committee on Administrative Rules ended the legal dispute entirely.
They said key questions remained over “the validity and enforceability of the Governor’s executive orders themselves.”
“… This is an important issue that should be resolved by this court,” Burke wrote, as the author of the dissent, with Overstreet concurring.
The dissenting justices said they would have granted Pritzker’s petition to appeal, to allow the state high court to at last weigh in on the question of the limits of Pritzker’s claims to virtually unlimited pandemic emergency powers. To this point, the state Supreme Court has done little to address claims of executive overreach against Pritzker in the past two years, as the governor has issued new executive orders every month, citing emergency powers granted him under the state’s emergency management law.
Michael Burke and Overstreet also said they would have denied Pritzker’s request to toss the restraining order issued by Sangamon County Judge Raylene Grischow.
On Feb. 25, the Illinois Supreme Court denied Pritzker’s petition, in which the governor asked for permission to appeal lower court rulings that resulted in the removal of Pritzker’s “emergency rules” forcing Illinois schools to require students to wear masks, submit to COVID testing, and potentially to be excluded from classroom instruction for days, should school officials believe they were exposed to COVID.
In the decision issued Feb. 4, Judge Grischow ruled Pritzker had violated the due process rights of students, parents and educators in the way he imposed the rules.
Grischow ruled Pritzker broke the law by using executive orders to order the IDPH and Illinois State Board of Education to issue the “emergency rules.” She said the on-the-fly rulemaking process resulted in an illegal revision of Illinois’ public health quarantine rules, and violation of due process rights spelled out in the quarantine provisions of the Illinois Department of Public Health Act.
Pritzker and Illinois Attorney General Kwame Raoul have argued the IDPH Act and its due process provisions should not apply during a time of pandemic, because requiring the state and school districts to comply with the due process requirements would be too “burdensome.”
They argued only one state law should apply during times of pandemic, the Illinois Emergency Management Agency Act. They have persistently argued the governor’s powers under that law are broad and sweeping, and not constrained by due process rights spelled out in other laws.
In her ruling, Grischow specifically rejected the contention that Pritzker’s pandemic powers should be considered “limitless.”
Grischow ruled Pritzker cannot simply use executive orders under the IEMA Act to direct state agencies to issue rules they are not authorized by law to issue, as an end-run around due process rights otherwise ensconced in law.
Pritzker appealed Grischow’s temporary restraining order to the Illinois Fourth District Appellate Court.
However, in the meantime, Pritzker’s “emergency rules” expired. When he sought to reissue the rules, he was blocked by the bipartisan JCAR, which voted 9-0 to deny the attempt by IDPH to reimpose the mandates. In casting those votes, some JCAR members said they were reluctant to support issuing rules that a judge had declared illegal.
The majority on the Illinois Supreme Court followed suit.
Within hours of the Illinois Supreme Court's decision, Pritzker announced he was ending his purported mask mandate for Illinois schools on Feb. 28.
However, Pritzker and his allies claimed the Illinois Supreme Court’s actions mean he is free to reimpose his school mask mandates whenever he believes they may be needed to address renewed COVID transmission.
That interpretation is disputed by attorney Tom DeVore, who is leading the legal action brought by hundreds of Illinois students, parents and educators against Pritzker and his school rules.
While the governor claims to have lifted the mandates, DeVore noted both appellate courts essentially determined those mandates no longer exist.
Should Pritzker attempt to use executive orders to reimpose school mask, testing and exclusion mandates, DeVore has said he would quickly return to court, asking Judge Grischow to again restrain Pritzker and Illinois school districts from enforcing the mandates, using the same reasoning that has not yet been addressed by the appellate courts.
That uncertainty is what led Supreme Court justices Michael Burke and Overstreet to join with Fourth District Appellate Justice Lisa Holder White in dissenting from the majorities’ decision to essentially punt on the key legal question of whether Pritzker violated the law.
“…I disagree with my colleagues that the appeal has been ‘rendered moot by happenstance,’” Burke wrote in his dissent.
The lawsuit, led by DeVore, remains pending before Grischow, where the two sides are expected to present arguments on the underlying legal claims against Pritzker.
Thousands of other parents, students and educators from across Illinois have also filed motions asking Grischow for permission to join their names to the lawsuit, and bring specific claims against their school districts, as well.