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* As we’ve already discussed, the 4th District Appellate Court asked both sides to explain how the appeal of the school mask/vax/test mandates decision is impacted by yesterday’s JCAR action. I’ll post the plaintiffs’ response when I get it. Here’s some of the state’s argument for why the appeals court should continue to hear the case…
JCAR’s action on February 15 does not substantially affect the pending appeals. Plaintiffs primarily challenge the legality and enforceability of the EOs issued by the Governor. The EOs require masking in school buildings, temporary exclusion of students and staff exposed to Covid-19, and the submission of weekly Covid-19 tests by unvaccinated staff working on school premises. The EOs were temporarily enjoined as to certain students and teachers through the circuit court’s TRO. Because JCAR’s action related only to the IDPH renewed Emergency Rule, it does not affect the EOs. The validity, legality, and enforceability of the EOs continues to present a live case or controversy. […]
Thus, regardless of the validity or invalidity of the IDPH Emergency Rule and regardless of JCAR’s action on February 15, this court should decide the consolidated appeals from the TRO and determine the enforceability of the EOs. And for the reasons stated in State defendants’ memoranda — the circuit court’s departure from the status quo, plaintiffs’ unlikelihood of success on the merits, their failure to establish irreparable harm, and the circuit court’s abuse of discretion in balancing the harms — this court should reverse and vacate the TRO. […]
Separately, the appeal in Allen remains unaffected by JCAR’s action for two additional reasons. First, a school district party seeks to vacate the TRO in Allen because the circuit court improperly denied that party’s motion for substitution of judge as a matter of right. Because any order entered after the wrongful denial of an SOJ is void, this court should vacate the TRO in Allen, and remand Allen to the circuit court with instructions to grant the SOJ. Second, the appeal in Allen is unaffected by JCAR’s action because Allen is brought by school employees challenging their conditions of employment. As such, the Allen plaintiffs have an adequate remedy at law in the form of money damages and back pay, precluding entry of the TRO.
For all of these reasons, the validity, legality, and enforceability of the EOs continues to present a live case or controversy between the parties, regardless of JCAR’s action.
One portion of the TRO, however, is impacted by JCAR’s action — the portion of the circuit court’s TRO opinion declaring the IDPH Emergency Rule null and void. Because of JCAR’s action, IDPH’s Emergency Rule is no longer in effect. As a result, the portion of the TRO enjoining enforcement of that Emergency Rule is moot. But this court should address the merits of that portion of the TRO under the public interest exception to mootness. That exception applies when three criteria are met: “(1) the question presented is of a public nature; (2) an authoritative determination of the question is desirable for the future guidance of public officers; and (3) the question is likely to recur.” Each of these criteria is met here.
The question presented by the circuit court’s declaration that IDPH’s Emergency Rule is null and void is undoubtedly of a public nature, as that declaration affects State defendants’ ability to combat Covid-19 in schools and risks spreading Covid-19 among students, school personnel, and their communities. It also disrupts in-person learning in the middle of the school year, forcing parents and schools to make difficult choices about continuing in- person learning or risking the health of their children, students, personnel, and other community members. n authoritative determination of the IDPH Emergency Rule’s validity also will guide public officers, as it will clarify whether the Covid-19 pandemic constitutes an “emergency” sufficient to justify emergency rulemaking, as well as the level of deference that courts should afford to an agency’s finding that a public health crisis constitutes an emergency. And this question is likely to recur, as IDPH has the authority to promulgate multiple emergency rules and may reissue the Emergency Rule. See 5 ILCS 5-45(c)(iii) (stating that the “limitation on the number of emergency rules that may be adopted in a 24-month period does not apply to” IDPH rules “when necessary to protect the public’s health”).
*** UPDATE *** From the plaintiffs’ argument…
Now that JCAR has refused to extend the IDPH emergency rule, which the State Defendants were relying upon as a crux argument in this appeal, the legislature has rendered it unnecessary for this Court to determine at this stage whether Judge Grischow abused her discretion in finding the Plaintiffs had raised a fair question that the IDPH rule was invalid. While the question of the legality of the actions by IDPH overall may in fact return to this Court on a final ruling in the future, that is a separate issue, but as it relates to this interlocutory appeal, the State Defendants can no longer rely upon the authority of an emergency rule that JCAR unanimously chose to suspend. The State Defendants are left with only one argument at this interlocutory stage, and that is did Judge Grischow abuse her discretion in finding the Plaintiffs have raised a fair question in regard to the Governor not having any authority under the Illinois Constitution, or the IEMAA, to independently promulgate and enforce quarantine, vaccination and testing of our citizens, without providing a shred of due process, to allegedly prevent the spread of an infectious disease. […]
As the parties all concur, this Court should review the trial court’s granting of the temporary restraining order at issue here for an abuse of discretion. An abuse of discretion will be found only where the court’s ruling is arbitrary, fanciful, unreasonable, or where or where no reasonable person would take the view adopted by the trial court. Abuse of discretion means clearly against logic; the question is not whether the appellate court agrees with the trial court, but whether the trial court acted arbitrarily, without employing conscientious judgment or whether, considering all the circumstances, the court acted unreasonably and ignored recognized principles of law, which resulted in substantial prejudice.
The JCAR ruling has vitiated a significant part of the State Defendants argument. Should this Court listen to the JCAR audio, it was clear this legislative body was giving due respect and deference to Judge Grischow’s ruling, and in fact committee members scolded the IDPH representative for continuing to pursue re-issuance of a rule which Judge Grischow had found to be invalid. This legislative committee showed the proper respect to our judiciary that the executive agency was not. As for this Court, the question for today is what is left for it to decide given the actions by JCAR. It is the position of the Plaintiffs that the only matter left to review is whether Judge Grischow abused her discretion when she found Plaintiffs have raised a likelihood of success in showing a fair question exists that the IDPHA applies in regard to matters of quarantine, vaccination or testing, and exclusion from school, and that neither the Governor under some inherent Constitutional authority, or under some delegated authority under the IEMAA can authorize quarantine, vaccination or testing, and exclusion from school and disregard the due process protections of Plaintiffs. Also, this Court is left to decide those same questions as it relates to any inherent authority of the school districts. As to both of these questions, the Plaintiffs argue Judge Grischow has not abused her discretion, her restraining order should be affirmed, and the matter sent back to proceed to a final ruling on the merits off all of the pending matters.
…Adding… Another plaintiffs attorney, William Gerber, was also invited to file. Click here.
posted by Rich Miller
Wednesday, Feb 16, 22 @ 3:01 pm
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Probably a good time to remind everyone that hundreds school age children have died from COVID-19. That might just be a drop in the bucket compared to the hundreds of thousands that have died from COVID-19 in other age ranges, but it’s something worth remembering as this is discussed.
Children do die from COVID-19. So do parents, teachers, and grand parents, but children themselves are also at risk from the illness. Though if we’re pushing towards normalizing the deaths of these children, it’s not uncommon for hundreds of children to also die from the flu in a given year.
I’m sure glad Judge Grischow has definitively determined what is evil in the world so that her superstitions can guide public health policy in our state. Her knowledge of evil absolutely surpasses her clinical experience or public health expertise.
People will die because of what Judge Grischow has done the only issue is it will be hard to determine which people and perhaps that ambiguity is all she needs to separate herself from the evil doers she perceives around her.
Comment by Candy Dogood Wednesday, Feb 16, 22 @ 3:36 pm
I think they’ll dismiss it if they reasonably can. They’re desperate to avoid it.
Comment by New Englander Wednesday, Feb 16, 22 @ 3:42 pm
I’ve seen speculation that they may have a decision tomorrow. Any chance of that happening or will it take longer?
Comment by The Velvet Frog Wednesday, Feb 16, 22 @ 3:47 pm
===Any chance of that happening or will it take longer?===
Empty speculation is just that. We’re in uncharted territory here.
Comment by Rich Miller Wednesday, Feb 16, 22 @ 3:50 pm
-Velvet - Speculation on timing of a ruling is premised on the deadlines in Illinois’ court rules. The appellate court is supposed to rule on a TRO within 5 days of the response brief. This JCAR issue will delay a ruling by an unknown number of days however.
Comment by Original Anon Wednesday, Feb 16, 22 @ 3:54 pm
It will not be dismissed. The State makes some very good arguments but even ignoring those the Plaintiffs admit that there are matter left to review.
Comment by Bigtwich Wednesday, Feb 16, 22 @ 3:57 pm
If I were AAG Griffis I would have a Notice of Appeal, Petition to Vacate TRO and for Stay, and a Proposed Order written and prepared to be filed in the ISC immediately. Something smells off.
Comment by DEE Wednesday, Feb 16, 22 @ 4:00 pm
Thanks. NBC had reported they expected a ruling by tomorrow but that was before this other thing happened. Honestly at this point I’d rather see it come after our local school board meeting.
Comment by The Velvet Frog Wednesday, Feb 16, 22 @ 4:00 pm
Where can you find a list of the 145 school districs directly impacted by Judge Grischow’s Temporary Restraining Order?
Comment by Remarkable Wednesday, Feb 16, 22 @ 4:10 pm
-They’re desperate to avoid it.-
Normally courts do not decide issues if they don’t have to. It’s one of the first things they determine - is there a case or controversy? Here since both sides addressed that issue and are asking them to decide, it is unlikely they won’t.
Comment by Ron Burgundy Wednesday, Feb 16, 22 @ 4:32 pm
As I read this, the Appellate Courts asks both sides if they wanted to have a last say, and both sides said they want a ruling on Grischow decision. That bodes well for avoiding a declaration of this to be a moot case. Ironically, it also sets DeVore up for a loss at his insistence. Had he said, just drop it, he could have continued to insist he is winning (in the absence of an appeals decision). But by insisting they Appellate Court rule on Grischow, he could end up losing bigly (or winning I suppose).
Comment by H-W Wednesday, Feb 16, 22 @ 4:34 pm
I think DeVore wins in the end even if he loses the case because the genie is out of the bottle. All of these hundreds of school districts aren’t voluntarily going to go back to masks, and JB isn’t going to make them to. So the clients will be happy and DeVore will have all the money he collected.
Comment by Anonymous Wednesday, Feb 16, 22 @ 4:45 pm
== All of these hundreds of school districts aren’t voluntarily going to go back to masks, and JB isn’t going to make them to.==
Nice spin, but I wouldn’t be so sure on either count. They are citing the ruling as their sole reason.
Comment by Big Dipper Wednesday, Feb 16, 22 @ 4:51 pm
-Where can you find a list of the 145 school districts directly impacted by Judge Grischow’s Temporary Restraining Order?-
Certainly in the original complaint in the case, which is posted in numerous places online. Perhaps a news outlet or other site has created a list as well.
Comment by Ron Burgundy Wednesday, Feb 16, 22 @ 4:56 pm
==They are citing the ruling as their sole reason==
Districts are voluntarily going mask optional based on local COVID conditions, not the ruling …
Lake Park District 108 notice:
On Wednesday, the State of Illinois announced a shift to remove the indoor mask requirement throughout the state for most indoor spaces on Monday, February 28. Schools were specifically not included in this change. However, based on the COVID-19 data, which was used to support this shift, the Lake Park High School District #108 administration has made the decision to transition to a mask-optional rule on this same date, Monday, February 28
Comment by Donnie Elgin Wednesday, Feb 16, 22 @ 5:06 pm
Our local district has already said that if it is reversed they will bring back the mask mandate. We’ll see what happens with the suit and with the various districts.
Comment by The Velvet Frog Wednesday, Feb 16, 22 @ 5:07 pm
Wonder how many districts in the northern part of the state are going to take advantage of the weather tomorrow to have a snow day/remote day (some already have done so) and then have a policy change for Friday.
Comment by OneMan Wednesday, Feb 16, 22 @ 6:43 pm
=== All of these hundreds of school districts aren’t voluntarily going to go back to masks, and JB isn’t going to make them to.===
It will be harder to go back to masks than it ever has been. Numerous large districts, including the states largest, stayed masked so the numbers still are majority masked. Rural Illinois continues its self destructive path. The fact remains that although loud and aggressive (emboldened by misinformation and downright ignorance) the anti people are still in the minority and I for one will not stand for tyranny by the minority.
Comment by JS Mill Wednesday, Feb 16, 22 @ 6:46 pm
OneMan, I’m wondering about that, but more in relation to schools by me. (I.e Peoria/Tazewell county based, using JCAR’s decision as their grounds.)
Then again, I haven’t been watching much news, lately. [my doctor recently told me to start mitigating personal stressors, due to my have pre-hypertension, and obscenely extensive family history of heart conditions.]
Comment by Tynie Wednesday, Feb 16, 22 @ 7:07 pm
~600/852 school districts are mask optional in IL. The genie is out of the bottle, time to move on.
Comment by Citizen Kane Wednesday, Feb 16, 22 @ 9:53 pm
===time to move on.===
The virus is is still in control. The foolish and the selfish continue to let it spread.
=== I am not stating that their deaths are not valued or are in vein, but that is approximately one person a day since this pandemic started. More children are dying in Chicago from gun violence than covid in Illinois.===
That is *exactly* what you are saying, and since it’s not your child, you are callous and quite morbid to a child’s death from a deadly virus as long as it seems ok to you and your eyes in another way… car crash, violence… not a virus that can be slowed or have people safe. You don’t care.
===If the concern is about the parents, grandparents, teachers, supplemental staff, etc…they have had plenty of time to receive a vaccine if they have desired. If there is a medical condition that doesn’t allow them to receive the vaccine, they need to take the responsibility taking preventative measures to protect themselves===
“Promote the general welfare” also means looking out for each other, not throwing people to a “Hunger Games” mentality when it’s others deciding to put “ parents, grandparents, teachers, supplemental staff” at risk by refusing to be vaccinated or wear a mask.
You are cheering for a failed America and a society abandoning why public health was created.
===The choice of wearing a mask should be determined by the person, and in the case of a child, their parent(s).===
Your rationale is flawed by selfishness and blindness to what first world societies do…
You are willing to sacrifice children, you see no need for a general welfare of the citizenry, and you are not one that understands public health means we look to save all of us, not allow the dangerous choices of others dictate the continuing of a deadly pandemic.
You should make sure the families that lost children understand your appreciation, or have your family go first.
Comment by Oswego Willy Thursday, Feb 17, 22 @ 1:23 am
I agree Oswego. You are on point, on each point. thank you
Comment by Peanut Thursday, Feb 17, 22 @ 1:59 pm