Lawyer representing parents says he plans to appeal
By SARAH MANSUR
Capitol News Illinois
SPRINGFIELD – A Sangamon County judge on Monday ruled Gov. JB Pritzker’s administration has power under state law and the state constitution to issue executive orders that mandate public health measures at schools amid the COVID-19 pandemic.
The decision, issued by Sangamon County Judge Raylene Grischow after a roughly two-hour hearing, relates to two lawsuits — Mainer v. Illinois Department of Public Health and Pritzker v. Board of Education of Hutsonville — that arose from Pritzker’s June executive orders regarding schools.
The governor’s executive orders apply to all public and nonpublic schools from pre-kindergarten through 12th grade, and they allow schools to reopen as long as they follow IDPH public health requirements, which include capping the number of people in gatherings, mandatory face coverings and temperature screenings.
In explaining her decision, Grischow cited her Aug. 18 order in Pritzker v. Board of Education of Hutsonville in which she issued a temporary restraining order requiring the schools to follow the state’s public health guidelines set forth in Pritzker’s executive orders.
“This court’s opinion that was issued on August 18 has not changed,” Grischow said in court Monday. “The court is still of the opinion that the governor has the authority to issue executive orders, successive executive orders, along with guidance to the agency to help promulgate those executive orders.”
Her decision, issued verbally from the bench, finds that the governor’s executive orders regarding schools were issued lawfully, and the state agencies lawfully issued the guidance contained in those orders.
She also cited a 2nd District Appellate Court decision issued earlier this month that ruled Pritzker has the power under state law to issue successive disaster proclamations.
That decision stemmed from a case involving a Kane County restaurant that sued the state over the indoor dining ban, which was imposed last month to curb the spread of COVID-19 amid rising cases and hospitalizations. A Kane County judge ordered the restaurant could stay open, and the state appealed his order to the 2nd District Appellate Court, which reversed the judge’s order.
The 2nd District Appellate Court’s decision, in FoxFire Tavern v. Jay Robert Pritzker et al., was initially issued as a ruling that could not be cited as precedent.
The Attorney General’s Office, however, asked the court to publish the opinion in order for it to be used as precedent in similar cases.
Unlike Grischow’s decision on the temporary restraining order, the ruling on Monday addressed the substance of each side’s legal arguments.
In both lawsuits, parents of schoolchildren affected by the orders argued that the Illinois Department of Public Health and Illinois State Board of Education cannot impose mandatory health guidance in schools without the approval of the Illinois General Assembly.
Specifically, they argued against the authority of Pritzker and his agencies to broadly impose a limit on gatherings, a mask mandate and temperature screening requirements at schools. Rather, those restrictions should be enacted by the Legislature, according to the parents’ attorney Thomas DeVore.
At Monday’s hearing, DeVore argued that the Legislature could have explicitly delegated to the governor these powers to impose required health guidance in schools but it did not.
“The (state) Legislature could have added that. If they would have added that we wouldn’t be having this conversation today,” DeVore said.
Assistant Chief Deputy Attorney General Thomas J. Verticchio, one of Prtizker’s attorneys, argued that the governor has the authority under the Illinois Emergency Management Agency Act to issue executive orders that mandate health guidance in schools during a global pandemic.
He pointed to Grischow’s earlier decision as support.
“The court has already written an opinion on the legal issue,” Verticchio said during Monday’s hearing.
After Grischow issued her temporary restraining order, DeVore appealed her order to the 4th District Appellate Court, which upheld her ruling.
DeVore also represents several businesses across the state in lawsuits challenging Pritzker’s disaster declaration, among other issues, that are consolidated before Grischow, including a case that involves Rep. Darren Bailey, R-Xenia.
Those cases were not included in the scope of Grischow’s order Monday.
DeVore said he plans to appeal Grischow’s latest ruling, again to the 4th District Appellate Court.
He also downplayed the significance of her decision, saying it only applies to the schools named in the lawsuits.
“As for the majority of the people in the state of Illinois, it means nothing,” DeVore said.
Verticchio declined to comment on the impact of the decision.
A spokesperson for the Attorney General’s Office did not respond to a request for comment on the decision’s impact.
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