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* Back in August, the Illinois Supreme Court consolidated two Clay County cases and handed them to Sangamon County Judge Raylene Grischow. Attorney Tom DeVore was an attorney of record in both - defense in Pritzker, et al. v. Board of Education of Hutsonville (a school district which refused to abide by masking and other state rules) and for the plaintiffs in Mainer, et al. v. Illinois Department of Public Health (tanning salon owner challenging the legitimacy of the executive orders).
Judge Grischow issued an order yesterday and it’s a doozy. The state’s most esteemed COVID attorney got his head handed to him on procedural and legal grounds. Let’s start with this…
Despite the Court’s order that a written response to the motion be filed, the defendants in Hutsonville - the Board of Education of Hutsonville CUSD No. 1, Christian Child Development Corporation, and Parkview Christian Academy, Inc. (the “‘Hutsonville Defendants”)- and the plaintiffs in Mainer - James and Kali Mainer (together with the Hutsonville Defendants, the “School Parties”) - elected to forego a written response. Instead, they orally opposed the State Parties’ motion at a hearing held on November 16, 2020.
* This whole thing was a procedural mess…
First, the Illinois Code of Civil Procedure requires that when a complaint is verified, “every subsequent pleading must also be verified, unless verification is excused by the court.” 735 ILCS 5/2-605. Here, the Hutsonville complaint is verified; the defendants’ answer is not. The Court did not excuse verification, and the Hutsonville Defendants did not seek leave to amend their answer in order to comply with the verification requirement. Section 2-605 requires that once a pleading is verified in accordance with the act, “every subsequent pleading must also be verified unless verification is excused by the court.” 735 ILCS 5/2-605. When a subsequently field pleading is not properly verified in accordance with the act, “it is as if the unverified pleading was never filed; it must be disregarded.” … The Hutsonville Defendants are thus deemed to have admitted all well-pleaded facts alleged in the State Parties’ complaint.
And…
Second, in paragraphs 1-2, 9-10, 16-26, 32, 35-37, 39, 43–44, and 49 of their unverified answer, the Hutsonville Defendants state that they are without sufficient information to either admit or deny the State Parties’ allegations. When defendants are without sufficient information to admit or deny an allegation in a pleading, they must “attach[] an affidavit of the truth of the statement of want of knowledge ….”735 ILCS 5/2-610(a). The Hutsonville Defendants did not attach the required affidavit to their unverified answer. Therefore, even if the answer were verified, these particular allegations of the complaint would be deemed admitted.
And…
Third, in paragraphs 27-31, 34, 38, 40–42, 45–48, and 50-54 of their unverified answer the Hutsonville Defendants state that the allegation “speaks for itself.” But ‘”[t]he failure of a defendant to explicitly deny a specific allegation in the complaint will be considered a judicial admission and will dispense with the need of submitting proof on the issue.”‘
The judge said she could’ve dismissed the whole thing right there, but couldn’t resist the fun of chasing DeVore just once around the parking lot and proceeded to deal with the substantive issues.
* For example…
The School Parties do not identify any disputed material facts relating to the pleadings in either Hutsonville or Mainer. The parties thus agree that there is no genuine issue of material fact relating to the State Parties’ motion for judgment on the pleadings. As a result, the only question here is a legal one: whether the Governor’s executive orders requiring schools to comply with certain public health measures associated with in-person instruction, and the Guidance issued jointly by the Illinois State Board of Education (”ISBE”) and the Illinois Department of Public Health (”IDPH”) detailing those measures (see Hutsonville Complaint, Exhibit 1), were lawfully issued and enforceable. The Court previously answered that question in the affirmative, and sees no reason to change its view. See August 18, 2020 Hutsonville Order Granting Temporary Restraining Order (”TRO Order”).
Oops.
* More from a footnote…
Counsel for the School Parties conceded at the November 16, 2020 Hearing that the existence of a disaster under Section 4 is not disputed.
Um. Nice move, dude.
* Statutory authority…
A comprehensive reading of the IEMAA supports the conclusion that the legislature did not intend to limit the Governor’s authority [to only one 30-day executive order per disaster].
And she referenced the bills passed by the General Assembly in May…
The legislature recognized the Governor’s authority to issue successive disaster proclamations when they amended the Unemployment Insurance Act, the Sexual Assault Provider Emergency Treatment Act, the Township Code, and the Election Code.
* Concessions have consequences…
In addition to this statutory authority, the Governor has constitutional authority under Article V, § 8 of the Illinois Constitution to take action to protect the public health. The United States Supreme Court more than a century ago in Jacobson v. Massachusetts, 197 U.S. 11 (1905), developed a framework by which to evaluate a State’s exercise of emergency powers during a public health crisis. The Court may take judicial notice of the fact-not disputed by the School Parties-that Illinois is in the middle of a public health crisis as outlined in Jacobson.
Accordingly, unless the action taken by the State Parties bears “no real or substantial relation” to the protection of public health, or is “beyond all question, a plain, palpable invasion of rights secured by the fundamental law,” neither this Court, nor any vocal citizen or school district has the authority to second guess the policy decisions made by the executive in responding to the emergency. . The Governor’s Executive Orders, as well as the Guidance, have a real or substantial relation to the protection of the public health and the public safety by attempting to minimize the spread of this deadly virus.
* And then comes the real beat-down…
The State Parties’ Motion for Judgment on the Pleadings is granted in its entirety as to both Mainer, et al. v. Illinois Department of Public Health, et al. (No. 20-CH-13) and Pritzker, et al. v. Board of Education of Hutsonville CUSD No. 1, et al. (No. 20-MR-557).
A judgment on the pleadings is similar to summary judgment. It’s explained in the ruling.
* And for good measure…
The Hutsonville Defendants are ordered to comply with the Governor’s Executive Orders and Guidance which applies to all public and nonpublic schools in Illinois serving prekindergarten through 12th grade students. This Guidance includes, but is not limited to:
a. Requiring the use of appropriate personal protective equipment (PPE), including face coverings;
b. Prohibiting more than 50 individuals from gathering in one space;
c. Requiring social distancing be observed, as much as possible;
d. Requiring schools to conduct symptom screening and temperature checks or require that individuals self-certify that they are free of symptoms before entering school buildings;
e. Requiring an increase in schoolwide cleaning and disinfection; and
f. Following any requirements as outlined in the Guidance as well as any changes that occur as a result of changing public health conditions.
This is a final judgment pursuant to Illinois Supreme Court Rule 304(a) and there is no just reason for delaying either enforcement or appeal or both of this Judgment Order.
[Link has been fixed. Sorry about that.]
posted by Rich Miller
Wednesday, Dec 2, 20 @ 9:53 am
Sorry, comments are closed at this time.
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I really hope no one is paying DeVore for his “services.”
Comment by Former Downstater Wednesday, Dec 2, 20 @ 9:57 am
Little Tommy D forgot to turn in his homework? Shocker.
Comment by Sensitive Nancy Wednesday, Dec 2, 20 @ 9:57 am
DeVore is losing so much he’s like an Illinois version of Rudy Giuliani.
Comment by 47th Ward Wednesday, Dec 2, 20 @ 9:59 am
Any first-year law student would do better. A paralegal would do better.
This is astonishingly incompetent.
Comment by JoanP Wednesday, Dec 2, 20 @ 10:00 am
My guess is that this ruling won’t change things much. The downstate refusal to follow the law or acknowledge the authority of the governor will remain the same. Things have gone really nutty down there.
Comment by Friendly Bob Adams Wednesday, Dec 2, 20 @ 10:03 am
So when will the Sheriffs and State’s Attorneys start enforcement. Seems clear engough. Maybe Mr DeVore should go back to chasing ambulances.
Comment by Publius Wednesday, Dec 2, 20 @ 10:03 am
DeVore and Rudy starting their own firm, “We Lose and We Lose A Lot”.
Comment by Give Me A Break Wednesday, Dec 2, 20 @ 10:05 am
Throughout all of this, two things have been true:
1) there have been legitimate questions about authority, separation of powers, etc., that could have been legitimately, respectfully, and thoughtfully discussed and argued. The outcome may have (probably likely would have) been the same, but the process and precedent was probably necessary and important for the future.
2) DeVore and his circus was the absolute worst possible vehicle to move those arguments, especially for those wishing to make those arguments. He’s not just been a joke, he’s been an embarrassment to the legal profession. And he’s led to the worst possible outcome in terms of precedent that his side could’ve asked for. Well done, Tom.
Comment by fs Wednesday, Dec 2, 20 @ 10:07 am
I don’t think DeVore could land a gig at Dewey, Cheatem, and Howe.
Comment by Flyin' Elvis'-Utah Chapter Wednesday, Dec 2, 20 @ 10:07 am
“I wonder if anybody’d think I’d flipped
If I went from Clay county to Springfield via Omaha!”
Comment by Skeptic Wednesday, Dec 2, 20 @ 10:09 am
Oops, Anon @ 10:10am was me.
Comment by Skeptic Wednesday, Dec 2, 20 @ 10:10 am
If I were JB, I wouldn’t count on seeing that $1000 anytime soon.
Comment by Jocko Wednesday, Dec 2, 20 @ 10:10 am
And this guy went to SLU Law School? It’s obvious he’s more interested in publicity than actual legal results.
Comment by Steve Rogers Wednesday, Dec 2, 20 @ 10:13 am
It appears that the links are all to the letter from the Supreme Court Clerk. Could you link to the order?
Comment by Facts Matter Wednesday, Dec 2, 20 @ 10:15 am
Skeptic-
Did you vote for McGovern for President?
Comment by Flyin' Elvis'-Utah Chapter Wednesday, Dec 2, 20 @ 10:16 am
We should not be so hard on Attorney DeVore. Keep in mind that in addition to his umpteenth defeat in court, he still owes Rich $1000.
Comment by Back to the Future Wednesday, Dec 2, 20 @ 10:18 am
=== A comprehensive reading of the IEMAA supports the conclusion that the legislature did not intend to limit the Governor’s authority [to only one 30-day executive order per disaster]. ===
Comprehensive reading isn’t DeVore’s strong suit.
Comment by PublicServant Wednesday, Dec 2, 20 @ 10:20 am
Maybe a Mancow-DeVore ticket?
Comment by PublicServant Wednesday, Dec 2, 20 @ 10:22 am
Good day for the facts and the law.
Comment by Tommydanger Wednesday, Dec 2, 20 @ 10:35 am
“Did you vote for McGovern for President?” Let’s just say that if my hair were long enough that I’d have to tuck it into my hat, I wouldn’t be unhappy.
Comment by Skeptic Wednesday, Dec 2, 20 @ 10:40 am
Thanks for catching the problem with the link. I think it’s fixed now.
Also, thanks for catching the Uneasy Rider reference. He may very well be an undercover agent for the governor. /s
Comment by Rich Miller Wednesday, Dec 2, 20 @ 10:44 am
The new law firm of Devore and Giuliani. “We even got thrown out of food court.” Hello ARDC, goodbye license.
Comment by Nitemayor Wednesday, Dec 2, 20 @ 10:45 am
Mario Andretti would have sure been proud
Of the way I was moving when I passed that crowd
Coming out the door and headed toward me in a trot
And I guess I should’ve gone ahead and run
But somehow I just couldn’t resist the fun
Of chasing them all just once around the parking lot
Comment by Rich Miller Wednesday, Dec 2, 20 @ 10:56 am
Easter eggs at Christmas, good stuff.
Not good “lawyering”, but it’s about the grift not the results.
Comment by Oswego Willy Wednesday, Dec 2, 20 @ 11:02 am
Not filing a response on a dispositive motion? But for the fact that the suit was frivolous, that would be malpractice. Lucky for him, a malpractice claim requires the party to prove damages and given the merits that would be impossible.
Comment by Crash Wednesday, Dec 2, 20 @ 11:04 am
Rich, as a buddy of mine always like to joke, CDB invented rap.
Proof-Every Time I See Him
Comment by Flyin' Elvis'-Utah Chapter Wednesday, Dec 2, 20 @ 11:06 am
Now that’s a beating Ajax won’t take off. Nonetheless, he will continue to collect gobs of legal fees from fools.
Comment by Eastern Bloc Mitigation Wednesday, Dec 2, 20 @ 11:09 am
Details, details. A hard charger like DeVore can’t be bothered with this legal-beagle stuff. He’s got to maintain his reputation as a man of action. Fighting the good fight. Protecting the little guy.
Ar
T least that’s how it reads in his mind.
Comment by Sir Reel Wednesday, Dec 2, 20 @ 11:11 am
On the bright side there’s a young new struggling attorney who was mediocre in law school and hasn’t won his or her first case. Is now looking at Tom DeVore’s case record thinking, I’ve got a chance out there in this world.
Comment by Club J Wednesday, Dec 2, 20 @ 11:18 am
Skeptic -
Apparently Tom DeVore is “… a faithful follower of Brother John Birch.” /s ?!?
Comment by Anyone Remember Wednesday, Dec 2, 20 @ 11:22 am
DeVorre’s trial record:
“Other than that, how was the play, Mrs. Lincoln?”
Comment by Morty Wednesday, Dec 2, 20 @ 11:53 am
All this guy does is get smacked down and somehow people outside the courthouses still treat his arguments as gospel justification for being knuckleheads
Comment by In 630 Wednesday, Dec 2, 20 @ 12:07 pm
That’s gonna leave a mark.
Comment by SAP Wednesday, Dec 2, 20 @ 12:10 pm
2022 “We Don’t Know What We’re Doing” Ticket
Gov - Darren Bailey
Lt Gov - Grant Wehrli
AG - Tom DeVore
Comment by Osborne Smith III Wednesday, Dec 2, 20 @ 12:15 pm
Thank you your Honor. We needed that.
Comment by Lt Guv Wednesday, Dec 2, 20 @ 12:16 pm
Hmm, I wonder why the school district didn’t use their regular legal counsel to represent them? Maybe they didn’t get the answer they wanted from them?
Instead they spent their money on DeVore because, in the superintendent’s own words:
“The Board of Education unanimously agreed to hire Thomas DeVore to represent the district in any potential legal matters related to this decision. Mr. DeVore is the most experienced attorney in the state on legal issues related to the pandemic, and we feel he can best represent the interests of our community.”
I guess you get what you pay for.
Comment by JS Mill Wednesday, Dec 2, 20 @ 12:23 pm
Can a judge order remedial professional development education to an attorney such as debore?
Comment by Huh? Wednesday, Dec 2, 20 @ 12:25 pm
Why does Attorney Tom DeVore keep filing lawsuits against the governor’s on healthcare crisis orders? Surely he cannot be that dense! Is he planning to run for a public office?
Comment by Mama Wednesday, Dec 2, 20 @ 12:27 pm
Most lawyers, you like to see or hear how successful they’ve been before you hire them. This guy gets more and more clients the more he loses.
Comment by low level Wednesday, Dec 2, 20 @ 12:31 pm
“The downstate refusal to follow the law or acknowledge the authority of the governor will remain the same.”
Seems unlikely anyone’s liability insurance will cover them for jack squat under these circumstances.
– MrJM
Comment by @misterjayem Wednesday, Dec 2, 20 @ 12:36 pm
“I guess you get what you pay for.” Most schools are far from being rich so… NO! - They did not get what they paid for. Someone needs to inform that District Superintendent and his board members, they got taken because their lawyer is not “the most experienced attorney in the state on legal issues related to the pandemic.”
Comment by Mama Wednesday, Dec 2, 20 @ 12:40 pm
DeVore augered right in on those cases; see how long it takes him to show up at a Covidiot rally still proclaiming “rights” arguments totally demolished in Illinois and Federal courts. I’ve shot my bolt in 2020 with ARDC complaints; can someone pick up the idea and file one please?
Comment by thisjustinagain Wednesday, Dec 2, 20 @ 12:56 pm
=Mr. DeVore is the most experienced attorney in the state on legal issues related to the pandemic=
Experienced at losing, maybe.
If I were paying taxes in that school district, I’d be extremely unhappy.
Comment by JoanP Wednesday, Dec 2, 20 @ 12:56 pm
The ruling makes clear where the clients lost the case by adopting policies contrary to legal authority and where counsel lost the case by failing to follow standard procedures.
DeVore stumped all over the state for clients and and many of the parties to his lawsuits have multiple elected officials or business partners.
Will any of them start to push back from the inside?
They were looney enough to sign on but it’s a big pool and some may start to see the light, especially when the bills start showing up.
Comment by Socially DIstant Watcher Wednesday, Dec 2, 20 @ 1:05 pm
Just another reason why Devore needs to stay out of bars.
Comment by The Way I See It Wednesday, Dec 2, 20 @ 1:10 pm
The school district did vote 4-3 on 8/14/2020 to follow the mask mandate and other IDPH guidelines. This was reportedly on advice of legal counsel who advised of the potential loss of tort immunity if IDPH guidelines were not followed.
The news report does not identify the legal counsel who gave that advice.
Comment by BCOSEC Wednesday, Dec 2, 20 @ 1:57 pm
=The news report does not identify the legal counsel who gave that advice.=
It would have been their regular counsel. DeVore would have denied the existence of tort immunity or something like that.
Comment by JS Mill Wednesday, Dec 2, 20 @ 2:15 pm
You know, if you base experience on the number of lawsuits filed DeVore is the most experienced pandemic attorney. Of course that’s like saying the Washington Generals are the most experienced Harlem Globetrotters opponent.
Comment by MyTwoCents Wednesday, Dec 2, 20 @ 4:50 pm
Clearly, DeVore is no litigator or he’s a very bad one.
His procedural mistakes are something I’d expect from someone a year or two out of law school. If an associate working for me made these mistakes, he/she would be fired.
Comment by God's Country Wednesday, Dec 2, 20 @ 5:45 pm