In what may be the first decision of its kind in Cook County’s courts since the onset of the COVID-19 pandemic, a Cook County judge has struck down an effort by Cook County health officials to require a public school student to quarantine for 10 days, simply because the child may have been exposed to someone who later tested positive for COVID.
Last month, as reported first on Wirepoints, Cook County Judge Sanjay Tailor ruled in favor of a male seventh grade student, whose family had challenged the order of the Cook County Department of Public Health, directing the boy to stay out of school for a total of 10 days following alleged exposure to COVID.
According to the narrative in Tailor’s ruling, county health officials said the boy had been near another student who later tested positive for COVID. The judge noted the CCDPH’s complaint is not clear as to whether one or both students were unmasked at the time of the alleged exposure.
Under standing policy, the boy was ordered not to return to school for five days. Should he then test negative, he would be permitted to return, but only if he agreed to wear a mask for five additional days.
The boy eventually tested negative, but refused to wear a mask at the mask optional school. Neither the school nor the district was identified in Tailor’s decision.
The CCDPH then ordered the boy to remain away from school for an additional five days.
The boy’s family challenged that order in court on Feb. 17, arguing the county has no medical basis to require such an additional quarantine.
Ultimately, Judge Tailor agreed.
On Feb. 22, Tailor said the CCDPH’s arguments are “long on the law but short on factual allegations,” and include no medical evidence to back the demand for additional quarantine.
The judge noted a 1922 Illinois Supreme Court decision to back his reasoning. Shortly after the Spanish flu epidemic that had just swept the globe, killing millions, including thousands in Illinois, the state high court imposed limits on the ability of public health authorities to impose quarantine. The decision in People ex rel. Barmore v Robertson, particularly noted the need for government agencies to provide people, even during times of pandemic, with the right to challenge the orders in court and demand the government present evidence and actually prove the public health measures being implemented are effective and match the stated need.
“Health authorities cannot promulgate and enforce rules which merely have a tendency to prevent the spread of contagious and infectious diseases, which are not founded upon an existing condition or upon a well-founded belief that a condition is threatened which will endanger the public health,” the Illinois Supreme Court wrote in the Barmore decision.
“The health authorities cannot interfere with the liberties of a citizen until the emergency actually exists. Where one has been arrested and placed under quarantine on the ground that he is afflicted with a contagious disease he has the right to have the legality of his detention inquired into by habeas corpus,” the court said.
Similarly, Tailor said, in COVID cases, the CCDPH cannot simply set quarantine rules, without proving their effectiveness and need.
“It is not enough that CCDPH allege that quarantine is necessary to prevent community transmission of Covid-19,” Tailor wrote. “Rather, the CCDPH must also allege a ‘medical basis’ for the duration of the quarantine period that it imposed on the Respondent and then prove it by clear and convincing evidence.
“To be sure, the duration of an order of quarantine constitutes an infringement of a liberty interest as much as order of quarantine itself. By not providing any medical basis for a ten-day period of quarantine, the CCDPH, once again, fails to sufficiently allege facts to state a claim for the involuntary quarantine of the Respondent.”
Tailor further noted in his decision that such cases, challenging orders of quarantine, must be brought to trial swiftly, particularly when quarantine orders may be only days in duration. Simply because a quarantine may be relatively brief does not mean public health authorities can simply ignore constitutional rights and processes, the judge said.
“As this case aptly demonstrates, a quarantine order may be of such brief duration that by the time the matter is tried the quarantine order will have been lapsed and the case will have become moot,” the judge wrote. “Therefore, as a practical matter, the procedure that respects the due process and other constitutional and statutory rights of a respondent would necessitate that the (public health agency) be prepared to present evidence in the first instance (beyond simply a petition with a declaration appended) through witnesses and documents if the respondent, as appears to be the case here, is not prepared to stipulate to, or otherwise disputes, the salient facts alleged in the petition.
“The Court may not deprive one of their liberty interests without giving them the opportunity to confront the government’s witnesses and to present their own witnesses.”
That reasoning is very similar to legal arguments advanced by other lawyers, most notably Tom DeVore, of Silver Lake Legal, of downstate Greenville, in larger actions challenging compulsory student masks, testing and quarantines in schools across the state. DeVore's action remains pending in Sangamon County court in Springfield, but did result in a temporary restraining order against Gov. JB Pritzker and nearly 150 school districts, forbidding them from enforcing so-called "emergency orders" issued by agencies under Pritzker's control, putting in place the school COVID restrictions. The judge in that case determined Pritzker had illegally issued the rules, violating the due process rights of students, parents and educators.
The order, issued by Sangamon County Judge Raylene Grischow, was vacated as moot by the Illinois Supreme Court, because a committee of state lawmakers refused to allow Pritzker to renew the emergency rules after they expired in February. Grischow's legal reasoning has not been overruled by any appellate court, to this point, despite repeated demands from Pritzker and Illinois Attorney General Kwame Raoul to do so.
Following the Illinois Supreme Court's ruling, Pritzker announced he was going to lift the statewide school mask mandate, despite the legal questions over whether those rules even continued to actually exist.
In the Cook County case, the student was represented by attorney Lucas Fuksa, of the firm of Fuksa Khorshid, of Chicago.
Fuksa said the case was ultimately settled. He declined to discuss the terms of the settlement, but said "it did not benefit the CCDPH."
In response to the ruling, Fuksa applauded both the decision and the decision by the school district and the CCDPH to comply with the law, and seek a court order.
"More importantly the case signifies something extremely important: That a district actually complied with the law as it relates to quarantining individuals," Fuksa said, in an emailed statement to the Cook County Record.
"Remember, people such as myself opposed to what has happened in the past two years do not dispute a school district’s ability to subject certain students to quarantine, but rather, that they do so according to the law.
"This is the first case I know of in Cook County where the school district 1) obtained an order of quarantine from the CCDPH and 2) filed a petition within 48 hours to authorize such a quarantine. They complied with the law in doing so and I congratulate them for that. Unfortunately for them, they did not meet the burden to authorize the quarantine, but at least they followed the law, as opposed to mandating a quarantine without due process. This is huge."
Fuksa said he "cannot imagine" the school district at the center of this case "will go back to mandating quarantines," and he said he believed the decision would be "similarly applied to other districts."