What you need to know about Pritzker’s legal fight to keep students masked

Gov. J.B. Pritzker is asking the Illinois Supreme Court to let him keep his authority to force Illinoisans to mask. But his effort to keep his COVID-19 mandate power is ignoring relevant data.

After almost two years of dealing with COVID-19, three of Gov. J.B. Pritzker’s executive orders, along with Illinois Department of Public Health and Illinois State Board of Education emergency rules, have been challenged in lawsuits filed by parents and teachers in school districts across Illinois.

Those mandates created layers of litigation and arguments that can be confusing. But here is what you need to know about what has happened so far, what the state is arguing before the Illinois Supreme Court, what the state fails to acknowledge in its arguments and what could happen next.

What has happened in the litigation so far?

Four cases filed by parents and teachers across the state were consolidated and are now making their way through Illinois state courts:

Circuit court

On Feb. 4, Sangamon County Circuit Court Judge Raylene Grischow issued a temporary restraining order on the mandates requiring masks in schools, weekly testing of unvaccinated school employees and the quarantining of students and teachers who are “close contacts” of confirmed or probable COVID-19 cases. The court also declared the IDPH and ISBE rules “null and void.” The state appealed the order to the Fourth District Appellate Court.

State lawmakers

On Feb. 15, the Joint Committee on Administrative Rules of the Illinois General Assembly voted 9-0-2 against extending IDPH’s emergency rules to enforce state mask, vaccine and testing mandates.

Appellate court

On Feb. 17, the Fourth District Appellate Court ruled the legislative committee’s action made the appeal moot, as a rule at the heart of the case is no longer in effect. It did not decide whether Grischow’s order was proper in the first place.

Illinois Supreme Court

The state is now asking the Illinois Supreme Court to hear an appeal of the appellate court’s decision.

What is the state arguing before the Illinois Supreme Court?

The state has filed multiple written documents with the Illinois Supreme Court. The most pertinent are the following:

A petition for leave to appeal

The Illinois Supreme Court does not have to hear a party’s appeal of a lower court decision. Litigants wanting to appeal to the state’s highest court must file a “petition for leave,” asking the court to hear the appeal. The court then grants or denies leave, or permission, to appeal.

Along with its petition asking the court to consider its appeal, the state is asking the court to vacate, or reverse, the temporary restraining order. It claims in its petition that the plaintiffs “have no right in need of protection.”

In short, the state is arguing: 1) the appellate court was wrong in ruling the lawmaker committee’s action made the initial appeal moot; 2) the circuit court was wrong in issuing the temporary restraining order; and 3) the order should be vacated.

A motion for expedited appeal

The state is arguing the Illinois Supreme Court’s decision on whether it will accept the appeal should be expedited, as should any subsequent proceedings.

The state wants the following timeline:

• March 4 – due date for plaintiffs’ written answer
• March 11 – due date for the state’s written reply
• Week of March 20 – oral argument before the Illinois Supreme Court.

If that specific timeline is not granted, the state is requesting any timeline that would permit oral argument the week of March 20.

The state admits relevant law, before being amended by IDPH without legislative action, requires “a circuit court hearing within 48 hours” if there is an order for quarantine or isolation. In other words, what the state wants is the ability to unilaterally amend inconvenient statutes previously passed by the elected General Assembly under the guise of “public health.” It seeks that power regardless of being two years into a pandemic, in pursuit of “unlimited authority to do whatever is necessary.”

A motion to stay Grischow’s order while the appeal proceeds

Finally, the state is arguing that the temporary restraining order should be stayed while the Illinois Supreme Court considers the appeal. The request includes many of the same claims the state argues in its other filings.

If granted, the order essentially would be reversed while the appeal is pending.

What did the state leave out of its arguments?

The filings above never refer to the current rate of COVID-19 cases, hospitalizations or any other current metrics. The closest the state comes to acknowledging the current status of the COVID-19 pandemic is to claim while “Illinois saw a relative decline in cases in the summer of 2021, cases throughout the state increased in September 2021 and again in December 2021 and January 2022.”

The state ignores altogether the falling case rates in February 2022, including in the two weeks since the temporary restraining order was entered. Yet the state disingenuously claims the TRO has “exacerbated the public-health effects of the COVID-19 crisis” without providing any recent metrics or relevant facts.

The state also omits that Pritzker is lifting the indoor mask mandate Feb. 28 – except in schools. Instead, the state argues the TRO “impairs all defendants’ ability to respond to the COVID-19 pandemic and thus exacerbates the effects of that pandemic for all Illinois residents.” It then argues children are at risk of spreading COVID-19 to community members. Yet the state ignores it has dropped mask mandates for those same community members.

The state’s skirting of these relevant issues reveals a lack of sincerity in its arguments, particularly for any need for an expedited appeal.

What could happen next?

That depends on the Illinois Supreme Court. The court likely will first decide the state’s request for expedited appeal and determine the timeline of the appeal moving forward.

From there, the plaintiffs will have a chance to respond to the state’s petition for appeal and its request that lower court decisions be overturned. Then the state will have another chance to reply to the plaintiffs. As of Feb. 24, the plaintiffs had not yet filed a response to the state’s petition and motions.

Once all of the parties’ written arguments are filed, the Illinois Supreme Court will rule on whether it will take the state’s appeal at all. If it decides to hear the appeal, that decision may also include its ultimate decision on the mootness of the case and the validity of the TRO.

For more information on the circuit court’s TRO, click here. For more information on the appellate court’s decision, click here.