Sangamon Judge Issues TRO on Pritzker Executive Orders On School Covid Mitigations

By Benjamin Cox on February 4, 2022 at 9:06pm

A Sangamon County judge issued a temporary restraining order on Governor J.B. Pritzker’s executive orders for public school mitigations late this evening.

In a 30-page ruling tonight, Sangamon County Judge Raylene Grischow says students attending 170 school districts named in a lawsuit brought by Southern Illinois Attorney Thomas DeVore won’t have to wear a mask if they don’t want to, unless they’re given due process. The same goes for certain school staff who don’t want to take weekly COVID-19 tests for not being vaccinated. They must also have due process.

Pritzker’s mandates for masks and exclusion policies in schools and vaccines or testing for teachers have been in place since last fall.

Grischow wrote in her ruling: “The Illinois General Assembly had foresight when it created certain provisions limiting the authority of administrative agencies. When the Legislature created our laws, they did so knowing individuals have a fundamental right to due process when one’s liberty and freedom is taken away by forcing them to do something not otherwise required of all other citizens. Illinois law prohibits [the Illinois State Board of Education] from making policies affecting school districts which have the effect of rules without following the procedures of the [Illinois Administrative Procedures Act]. Absent this statutory provision, ISBE would be able to on impulse, and depending on who held the Executive Branch, mandate whatever it felt necessary in the most arbitrary and capricious manner without having to follow any due process under the IAPA. As for the matters at hand, it is clear [the Illinois Department of Public Health]/ISBE were attempting to force local school districts to comply with this guidance without any compliance with rulemaking. This type of evil is exactly what the law was intended to constrain.”

Grischow also went on to quote sections of IDPH’s definitions of quarantine that were modified in 2014 when the Ebola epidemic was circulating the globe. Grischow says that the Governor’s executive orders and IDPH broke their own rules: “Since 2014 and prior to the recent 2021 Emergency Rules, tests and vaccines were also considered a form of “modified quarantine” because they were a procedures “intended to limit disease transmission.” Under the IDPH Act, individuals had the right to object to these procedures. If they objected, they were afforded due process of law. Likewise, “exclusion from school” was also a form of “modified quarantine” because it was considered a partial limitation on freedom of movement for those who may have been exposed to a contagious disease. At no time did the 2014 emergency amendments take away a person’s due process rights.

“On September 17, 2021, under the guise of an emergency, the Emergency Rules deleted or modified these terms and definitions. Subsection (d) was added pertaining to schools and added a new provision which delegated authority to the local school districts to require vaccination, masking, and testing of school personnel, in addition to masking for all students regardless of vaccine status, exclusion from school, and testing for unvaccinated, healthy students who were deemed “close contacts” by the school. The question before this Court is whether the Governor, under his executive authority, can require his agencies to promulgate emergency rules that go beyond what the Legislature intended or without utilizing the legislative branch of government.”

Attorney Thomas DeVore

Grischow says that DeVore’s seeking of relief does not “seek any order of the Court dismantling masking, vaccintation or testing policies in their totality” but only due process be afforded to those who object to being quarantined. Grischow also noted in her ruling in the Illinois General Assembly’s failure to act upon any change to the law: “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.”

The full ruling can be found at this link provided by The Center Square.

Grischow, earlier in the day, had denied class status to the suit, thus limiting the ruling to just the districts mentioned in the suit. Grischow noted this in her ruling this evening: “Although this Court denied Plaintiffs’ request for Class Certification in [the case], this Court has declared IDPH’s Emergency Rules void. Any non-named Plaintiffs and School Districts throughout this State may govern themselves accordingly.” Grischow did give leave for DeVore to file certification of class at a later time. DeVore told the State Journal Register that a mass joinder of people from across the state may soon sign on to the suits to remedy the issue of class.

According to The Center Square, the Illinois Attorney General’s office didn’t immediately respond to the order when asked for comment. Governor Pritzker was asked about when he might lift the statewide mask mandate earlier today in a press conference held at a Jewel-Osco in Chicago promoting his suspension of the state’s 1% grocery tax. Pritzker said, “I believe that we should remove masks as soon as we possibly can. I’m constantly listening to the doctors and scientists and encouraging them, ‘when can we do this, what’s the right time, what’s the right way to do it.’ And so, very hopeful we can make an announcement about that.” Despite being pressed further, he would not give a timeline.

The TRO will remain in place until there is a definitive ruling on the lawsuits at a later time.

A message left with Jacksonville School District 117 Superintendent Steve Ptacek at this time has not been returned.

The lawsuit names Carrollton, Jersey, Pikeland, PORTA, Camp Point Central #3, Jacksonville, Ball Chatham, Quincy, Schuyler-Industry, Pleasant Hill, North Mac school districts among others.

UPDATE 9:15PM Feb. 4: Governor J.B. Pritzker’s Office is asking for an immediate appeal of Judge Grischow’s ruling. In a press release tonight, Pritzker has asked the Illinois Attorney General’s office for an immediate appeal of Judge Grischow’s decision to restrain the State from enforcing his executive order’s Covid mitigations in schools. The Attorney General is seeking an expedited appeal from the Fourth District Illinois Appellate Court.

Pritzker says in the press release: “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. This shows yet again that the mask mandate and school exclusion protocols are essential tools to keep schools open and everyone safe. As we have from the beginning of the pandemic, the administration will keep working to ensure every Illinoisan has the tools needed to keep themselves and their loved ones safe.”

Illinois Attorney General Kwame Raoul responded in kind: “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. 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. 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 – or taking that virus home to their loved ones.”

UPDATE 2/4/2022 9:35PM: Jacksonville School District 117 Superintendent Steve Ptacek sent an email communication to parents tonight saying the district was in a “wait and see” mode this weekend in regards to the TRO being issued by Judge Raylene Grischow.

Ptacek says he will be meeting with the district’s legal counsel on Sunday to clearly understand what the TRO means for the district’s day-to-day operation. Ptacek says that he had been receiving updates throughout the evening that a stay of Grischow’s TRO could be heard as early as Saturday morning or sometime this weekend: “As the Board and I have stated since the beginning, we will ‘stay in our lane’. Our role is not to develop safety guidelines. We are educators, not medical experts. Our role is to develop local plans on how to implement guidelines. I will send out another communication Sunday following the meeting detailing if and how the rulings alter practices. Currently, we have no idea how this impacts Monday. This is not about personal opinions; this is about the application of the law.”

Illinois Federation of Teachers President Dan Montgomery issued this statement following the release of the TRO late Friday evening: “The Illinois Federation of Teachers is greatly distressed at the judge’s temporary restraining order (TRO) in this case. Hundreds of thousands of students, teachers, and staff across Illinois are doing their best to remain healthy and keep schools open. We believe what the judge ordered today is legally faulty and a threat to public health and, most importantly, a threat to keeping Illinois schools open for in-person learning. Our children and their families need certainty and some normalcy at school, not legal wrangling managed by a small minority of citizens.

“We urge the judge to stay her ruling and the state to appeal it as soon as possible. In the meantime, we will continue to advise our members on how to remain safe and healthy at work. We insist that school districts statewide abide by existing agreements on health and safety. In fact, the safety mitigations encompassed by the State’s guidance, as well as vaccinations for children and adults, are the best ways to keep schools open and everyone healthy. And we will stand with our local unions to protect our members and the students they serve.”