Judge Blocks School Mask Mandate, Voids COVID-19 Emergency Orders

SPRINGFIELD, IL — A Sangamon County judge issued a temporary restraining order Friday afternoon declaring that certain emergency rules adopted last year by the Illinois Department of Public Health and the Illinois State Board of Education are void.

The ruling means that students who do not want to wear a mask and unvaccinated school staff who do not want to be required to be vaccinated or take weekly COVID-19 tests must be afforded due process.

In response, Illinois Attorney General Kwame Raoul will seek expedited appeal of the order, which came in response to several lawsuits filed against nearly 170 school districts by parents and school staff.

Raoul criticized the ruling and said that he remained committed to defending Gov. J.B. Pritzker's executive orders and other actions aimed at slowing the spread of COVID-19.

“This decision sends the message that all students do not have the same right to safely access schools and classrooms in Illinois, particularly if they have disabilities or other health concerns," Raoul said, in a statement from Pritzker's office. "The court’s misguided decision is wrong on the law, demonstrates a misunderstanding of Illinois emergency injunction proceedings and has no relation to the record that was before the court."

Sangamon County Circuit Judge Raylene Grischow ruled that the Pritzker administration had, with emergency orders ISBE and IDPH issued on Sept. 17, 2021, improperly delegated authority that state lawmakers had granted to public health officials.

"One agency within the Executive Branch cannot delegate authority to another agency within the same Executive Branch absent legislative authority," Grischow said in the order.

By last September, Grischow pointed out in the 29-page ruling, state officials had been aware of COVID-19 for 550 days. And the delta variant of coronavirus, cited as one of the justifications for the executive orders at issue, had been around for more than nine months.

"The need to adopt emergency rules at this junction seems suspect at best and not in compliance with the law," the judge said.

"So, what emergency arose that had not already been present? By September 17, 2021, the State of Illinois had moved into phase 5 and was fully aware of the threat of COVID-19. Perhaps the threat was because the Courts were interpreting the law as written and the Executive Branch did not like the outcome," Grischow suggested.

"How is that a threat to public safety? It is not, it is a threat to the unilateral unchecked exercise of authority by the Executive Branch," she continued. "Stated differently, IDPH's delegation of its authority was an end-run whereby IDPH passed the buck to schools so as not to trigger the due process protections under the IDPH Act. Courts should not be fooled or misled by this egregious conduct."

According to the judge, requiring universal mask wearing and excluding students from schools after close contact with confirmed COVID-19 cases both count as "modified quarantine," as defined under Illinois public health law already on the books.

The question at issue in the case, Grischow said, was whether Pritzker's executive authority allows him to require his agencies to issue emergency rules that go beyond lawmakers' intent — without going back to the legislature.

"Furthermore, if the Governor did not want a certain statute to apply during a declared emergency, he certainly could have taken steps to suspend those provisions," the judge said.

Pritzker has suspended parts of various laws over the course of the dozens of executive orders he has issued in the two years since the emergence of COVID-19 in Illinois, according to the ruling, but not the Illinois Department of Public Health Act's requirement that mandatory quarantines require due process.

"Where the Governor seeks to suspend a regulation pursuant to his emergency powers, he must first show that the strict compliance with the statute would hinder his efforts to address the pandemic. This authority rests solely with the Governor, no other agencies within the Executive Branch," the judge said. "Thus, the only way the due process provisions as found in the IDPH Act would not apply is if the Governor suspended them during his emergency declarations and corresponding Executive Orders, which he did not."

According to Grischow, the Pritzker administration's attorneys did not present any facts showing how the public would be threatened if it weren't for the emergency rules.

"Based on the record before this Court, it is hard to see how the implementation of these Emergency Rules was necessary to counter the threat of the public interest safety or welfare. The Governor could have had the legislature address this while in session, but he did not. The Governor could have suspended statues, but he did not," Grischow said.

"No regulation was suspended because the reason for implementing the Emergency Rules was for administrative convenience and an attempt to circumvent the courts' involvement, not because of any stated emergency public threat," the judge added.

Pritzker issued a statement after the ruling Friday evening, declaring that his administration would continue working to make sure all residents of the state have "the tools needed" to stay safe.

“The grave consequence of this misguided decision is that schools in these districts no longer have sufficient tools to keep students and staff safe while COVID-19 continues to threaten our communities – and this may force schools to go remote,” Pritzker said. “This shows yet again that the mask mandate and school exclusion protocols are essential tools to keep schools open and everyone safe."

Grischow said the Pritzker administration had warned that ruling in favor of the plaintiffs in the cases would harm students and the public and provided sworn statements from medical professionals endorsing masking, vaccination and testing. The judge also noted that the plaintiffs have not asked her to order the total dismantlement of masking, vaccination and testing policies.

"Only that the due process under the law be afforded to them should they choose to object to be quarantined, which by definition includes masks, as well as being subjected to vaccination or testing," Grischow said. "These Plaintiffs are not asking for anything other than what the Legislature said they were entitled."

Related:
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Grischow declined to grant class certification to the plaintiffs, which could have extended the force of the ruling to other students beyond those who have signed onto the lawsuit.

The judge found the plaintiffs had failed to satisfy three out of the four elements required to allow a class action to proceed, including whether the class would be represented by a capable attorney.

The plaintiffs in the cases at issue were represented by attorney Tom Devore, a frequent critic of the governor —who has described him as a "grifter" —who has filed a series of suits against Pritzker and his administration.

Devore, a candidate in the Republican Party primary for an appellate court judgeship, said he hopes to eventually see the elimination of the public education system.

Raoul said voiding the emergency rules and restraining school districts from quarantine, testing and mask mandates was fundamentally unfair.

"It prioritizes a relatively small group of plaintiffs who refuse to follow widely-accepted science over the rights of other students, faculty and staff to enter schools without the fear of contracting a virus that has claimed the lives of more than 31,000 Illinois residents," Raoul said, "or taking that virus home to their loved ones.”

The circuit judge acknowledged the coronavirus pandemic has taken a tragic toll across the globe but said the job of the courts is to preserve the rule of law. While there is clearly a strong public interest in halting the spread of the COVID-19 virus, it does not allow the government to break the law — even in an emergency, Grischow said.

The Legislature understood that during times like these, liberty interests were at stake, and as such, provided due process under the law for citizens to rely upon should he or she choose to do so. If the certified local health departments utilize the law as it is written, the Legislature has concluded such measures are satisfactory to protect the publics' interests. It is not this Court's role to question the Legislature's balancing of the competing interests as being adequate or not. If the Legislature was of the opinion that the public health laws as written were not satisfactory to protect public health from COVID, it has had adequate opportunity to change the law since March 2020. Given the Legislature has changed the law and has chosen not to change these relevant provisions, this Court must conclude the laws which have long been in place to protect the competing interest of individual liberty and public health satisfactorily balance those interest in the eyes of the Legislative branch of government. While the Defendants would seemingly ask this Court to second guess the Legislature's adopted measures to prevent the spread of an infection disease, which measures include due process of law, it will not do so