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“If that’s your best, your best won’t do”

Monday, Feb 28, 2022 - Posted by Rich Miller

* Background is here if you need it. My weekly syndicated newspaper column

For what seemed like an eternity, but probably just for the past year or so, infamous covid attorney Thomas DeVore has been citing the first paragraph of Section 2 of the Illinois Department of Public Health Act to claim that only the Illinois Department of Public Health has the power to quarantine or isolate Illinoisans.

And, indeed, the statute clearly states at the top of Section 2, that IDPH has “supreme authority in matters of quarantine and isolation.” Those powers come with some strong individual consent and due process checks and balances, including the right to judicial review.

Sangamon County Circuit Court Judge Raylene Grischow agreed with DeVore’s argument in early February when she issued her temporary restraining order on the grounds that the state’s school mandates for masks, testing and vaccination were a “type of quarantine” and that local school districts were not complying with “any due process under the IDPH Act.”

The appellate court did not subsequently address the merits of the case because, it ruled, the issue was moot after the legislature’s Joint Committee on Administrative Rules voted to suspend an emergency IDPH rule to enforce the governor’s executive order, which was issued under the broad and sweeping authority given to the governor during declared disasters by the Illinois Emergency Management Act.

The DeVore lawsuit claimed, and Judge Grischow concurred, that IDPH’s authority superseded the IEMA law.

However, the state’s recent appeal to the Illinois Supreme Court pointed out a huge flaw in the arguments made by Judge Grischow and newly minted attorney general candidate DeVore.

At the very end of that very same IDPH Act Section 2 cited above is this clear language: “Nothing in this Section shall supersede the current National Incident Management System and the Illinois Emergency Operation Plan or response plans and procedures established pursuant to IEMA statutes.”

The state’s appeal also brought up the trick box constructed by the appellate court’s ruling that the issue was moot without also lifting Grischow’s restraining order, which would’ve been logical because there is no longer an active emergency IDPH rule on the books. The state’s appeal asked that, at the very least, the Supreme Court toss the restraining order.

This legal battle has been more about the future than the present. The state’s mask mandate was already being phased out on Mar. 1. Before the Grischow ruling, the school mask mandate was expected to be lifted after spring break, when the weather warmed up. But there’s always the next variant and, even if this Omicron BA.2 subvariant turns out to be a dud, it’s an absolute certainty that another deadly pandemic will occur sometime or another.

The Illinois Supreme Court needed to finally step up after sidelining itself throughout the pandemic. Legislators needed to know whether they had to adjust the statutes going forward or if the ones on the books were adequate and merely misinterpreted by a circuit court judge.

I mean, if you want to see what life would be like if DeVore and his clients prevailed, just look at the lawsuit he filed on behalf of Rep. Blaine Wilhour, R-Beecher City, who was ejected from the House floor because he refused to comply with the chamber’s rules requiring mask-wearing during session.

“Wilhour has a right to insist he not be compelled to undergo quarantine, which includes masking, which is purported to limit the spread of an infectious disease, unless Wilhour is first afforded his procedural and substantive due process rights as provided under Illinois law,” the lawsuit declared.

If DeVore could win that argument, the Illinois House of Representatives would have to endure a court hearing for each and every objector before enforcing its simple facemask rule.

Now, imagine that procedure throughout the land, in every school and place of business when the next deadly pandemic strikes.

Late on Friday, Feb. 25, the Illinois Supreme Court finally weighed in. The justices vacated Judge Grischow’s restraining order. That means the weird logic of masks being a “type of quarantine” is no longer in effect, which further undercuts DeVore’s case against the House.

But rather than try to pick another fight, Gov. J.B. Pritzker cited CDC guidance about masks being needed only in areas of “high transmission,” and then lifted his statewide school mask mandate effective Feb. 28. The small handful of counties, all downstate, which are still high transmission areas will be merely asked to follow the CDC guidance.

So, the mask opponents score a victory and Pritzker extricates himself from this mess for now.

And, I would add, a belligerent parent could even demand a court hearing before their sick child was sent home from school.

* Meanwhile, this is for all those folks who’ve called their governors, mayors and school board members “tyrants” during the past several months…


Some people really need to get some perspective in life.

Headline explained here.

* Related…

* Niles West students stage walkout after being called racial slurs: Students of color at Niles West High School staged a walk-out after they say they were attacked with racial slurs by student anti-mask protesters

       

44 Comments
  1. - Flyin' Elvis'-Utah Chapter - Monday, Feb 28, 22 @ 8:45 am:

    Dee Snider, personifying not judging books by their covers.


  2. - Anonymous - Monday, Feb 28, 22 @ 8:50 am:

    == a belligerent parent could even demand a court hearing before their sick child was sent home from school. ==

    There’s no ‘could’ about it. This will absolutely happen, and the odds are very high it’s specifically going to happen within the next year in regards to mumps or measles.


  3. - Three Dimensional Checkers - Monday, Feb 28, 22 @ 8:52 am:

    The Supreme Court vacated the restraining order. They didnt offer any legal analysis about the law the restraining order was based on. JCAR needed to uphold the emergency rules if they wanted the Supreme Court to settle the issue finally.


  4. - Bruce( no not him) - Monday, Feb 28, 22 @ 8:54 am:

    Now that the pandemic is “over”, maybe the legislators should prepare for the next one.
    Nah, that’ll never happen.


  5. - TheInvisibleMan - Monday, Feb 28, 22 @ 8:57 am:

    8:50am was me.

    Adding, if the anti-maskers are going to keep playing dirty with minutiae, so be it.

    Going forward, masks should be addressed in the dress code outside of any ‘medical claims’.

    Do it for schools, and do it for the House.

    End of complaints. No due process needed for your choice of tie, Blaine.


  6. - Rich Miller - Monday, Feb 28, 22 @ 9:01 am:

    ===They didnt offer any legal analysis about the law the restraining order was based on===

    That legal analysis was vacated along with the restraining order because it was an integral part of the TRO. Argument over.


  7. - H-W - Monday, Feb 28, 22 @ 9:03 am:

    Thanks for the follow-up late Friday and today. It is helpful information.

    As to the Niles West story, perhaps a good civics lesson would be an expulsion akin to what was levied against 7 students (including one who was the victim) in Decatur back in 1999. I was there when that happened. Six kids attack another kid, and all seven were expelled for 2-years. That is why Rev. Jackson became involved. Two year expulsions are unjust. Jackson fought for our community, and the expulsions were reduced in length.

    Perhaps is some Niles West students were expelled for 2-years for this unjust and immoral harassment of students of color (actual hate crimes), perhaps the civics lesson would be worthwhile.


  8. - Arsenal - Monday, Feb 28, 22 @ 9:07 am:

    ==That legal analysis was vacated along with the restraining order because it was an integral part of the TRO.==

    Correct. That argument is not binding legal precedent- whether or not it’s persuasive precedent will depend on the judge.

    However, it’s also not binding legal precedent that that argument has been rejected and can’t be raised again. Basically, SCOIL set everyone back at zero, so we’ll have to argue this again in the next public health emergency.

    But that’s undoubtedly better than leaving it in place.


  9. - TheInvisibleMan - Monday, Feb 28, 22 @ 9:07 am:

    == Headline explained here. ==

    Headline also explained here;

    https://www.youtube.com/watch?v=S0Vyr1TylTE

    (Dee Snider’s 30 minute PMRC Senate Hearing Speech - September 19th, 1985)


  10. - West Side the Best Side - Monday, Feb 28, 22 @ 9:07 am:

    In the last post on Friday Terrible Tommy was quoted as saying the restraining order’s legal analysis is still the law of the State because neither the Appellate not Supreme Courts overruled the trial court’s that analysis. Aside from the fact that it was a ruling by a Circuit Court level judge dealing with certain named parties, both of the appellate level courts found it moot. In other words it would have all the legal effect of a judge’s off the record musings of whether MLB will get a full season in this year. Maybe it’s a good thing he’s not running for the Appellate Court, don’t think they have marriage court to assign him to on that level.


  11. - Nick Name - Monday, Feb 28, 22 @ 9:10 am:

    Anti-maskers are the absolute worst.


  12. - Bigtwich - Monday, Feb 28, 22 @ 9:16 am:

    Mask should be mandatory on March 1. I mean “Laissez Les Bons Temps Rouler.”


  13. - Arsenal - Monday, Feb 28, 22 @ 9:19 am:

    ==In the last post on Friday Terrible Tommy was quoted as saying the restraining order’s legal analysis is still the law of the State because neither the Appellate not Supreme Courts overruled the trial court’s that analysis.==

    There’s probably a straight faced argument in there somewhere- that since the case was mooted because of subsequent events, the legal reasoning needn’t fall just because the TRO is dissolved.

    But realistically, with that messy procedural history, few litigators are going to want to touch it, and TROs are so fact intensive that the precedential value of one is limited in even the best of circumstances.


  14. - Grandson of Man - Monday, Feb 28, 22 @ 9:20 am:

    If there is one circle of anti-maskers/vax who yell that COVID mandates are government tyranny, and another of the law and order back the blue types demanding to lock certain people up, how much overlap would there be?


  15. - From DaZoo - Monday, Feb 28, 22 @ 9:22 am:

    So will we have the County level versus IDPH Region level metrics discussion again? Masking indoors still required for 21 counties or just Region 5 with Regions 3 and 6 on the bubble? There’s going to be a lot to unpack this week.

    Thanks, Rich, for keeping us up to date.


  16. - Norseman - Monday, Feb 28, 22 @ 9:22 am:

    Snider is so right, ridiculously, the foot stomping infants claim they’re being oppressed. Sadly, they’re probably also the ones who don’t watch the news about what real oppression looks like.


  17. - West Side the Best Sid - Monday, Feb 28, 22 @ 9:23 am:

    Lack of proofreading for a “that” between “court’s” and “analysis.” Sorry about that “that.” ?


  18. - Three Dimensional Checkers - Monday, Feb 28, 22 @ 9:25 am:

    ===That legal analysis was vacated along with the restraining order because it was an integral part of the TRO. Argument over.===

    Don’t think so. The Supreme Court said “In the exercise of this Court’s supervisory authority, the February 4, 2022, temporary restraining order is vacated. (See, e.g., Felzak v. Hruby, 226 ll.2d 382, 394 (2007) (when an appeal is rendered moot through happenstance, the judgments of the courts below are vacated). The TRO was rendered moot through happenstance (i.e. JCAR not reaffirming the rules). The Supreme Court did not say no in fact masks are not a quarantine under Illinois law. Pains me to defend DeVore, but details matter.


  19. - That Time When - Monday, Feb 28, 22 @ 9:26 am:

    Always wore a mask and vaccinated myself right away. Never understood forcing or shaming either on others, no matter the reason. To me, that is a sure-fire way to guarantee resistance, especially in a free country like the United States.

    The political impetus from the beginning torpedoed it all. Everyone remembers the 2020 democrats saying they would never take the Trump vaccine. Resist. And the usual other baiting. Then the election came and it all magically flipped. Politicians made it political from the beginning. Exceedingly dumb.


  20. - Jocko - Monday, Feb 28, 22 @ 9:26 am:

    ==the mask opponents score a victory==

    Tyranny of the petty. I suspect Tom and his defenders are going to notch this victory right up there with Brown v. Board of Ed.


  21. - Oswego Willy - Monday, Feb 28, 22 @ 9:29 am:

    ===Everyone remembers the 2020 democrats saying they would never take the Trump vaccine. Resist. And the usual other baiting. Then the election came and it all magically flipped.===

    (Sigh)

    The anti-vaxxers as a movement were, and are, consistently “Republicans”, in so far even Trump, himself, is booed when recommending to be vaccinated or touting the vaccines.

    “Everyone knows” this, but…


  22. - Rich Miller - Monday, Feb 28, 22 @ 9:31 am:

    ===The Supreme Court did not say no in fact masks are not a quarantine under Illinois law===

    The only ruling which claims that bizarre twisting of legal reasoning was within the TRO, which no longer exists. It’s like it never happened.


  23. - Big Dipper - Monday, Feb 28, 22 @ 9:32 am:

    == That argument is not binding legal precedent==

    A circuit court order is never binding legal precedent; it is not precedent. It may bind the parties (until vacated as here) but never binds other courts or non-parties.


  24. - Three Dimensional Checkers - Monday, Feb 28, 22 @ 9:38 am:

    ===The only ruling which claims that bizarre twisting of legal reasoning was within the TRO, which no longer exists. It’s like it never happened.===

    If the Supreme Court could’ve just settled the issue legally, then it could be unethical for Devore to keep brining claims that he knows are against clear precedent. But that didn’t happen because of JCAR, and Devore can keep raking in money from folks.


  25. - Candy Dogood - Monday, Feb 28, 22 @ 9:38 am:

    ===The small handful of counties===

    The Governor is the Governor of the whole State of Illinois. The executive branch has employees that work in every county of the state. This isn’t something that they can cleanly walk away from because if the instruction is to follow CDC guidance, and the CDC says there are high transmission counties in the State of Illinois, then employees of the executive branch in those counties need to continue masking at work and those facilities need to continue to require masks and the masks need to reappear if the metrics determine that the transmission is high again the masks have to come back.

    If state employees are not required to wear masks at work in counties of high transmission then the Administration is not following CDC Guidance. So the question remains, what is the Governor telling his agencies to do? Or what are they doing? Are they ignoring CDC guidance or are they following it?

    The Governor can punt it to local governments, local communities, and individuals that have completely refused to follow public health safety measures for the last year or more, but he can’t punt on employees of the executive branch. So what are they doing?

    If he’s not making sure his agencies are have mask policies in place in high transmission counties, what kind of leadership does that show to school districts in those areas who should likewise require masks if they’re following CDC guidance?

    This approach makes it significantly harder for school districts to do the right thing by their students and teachers because now the excuse and the leadership has left the conversation.


  26. - Ducky LaMoore - Monday, Feb 28, 22 @ 9:43 am:

    “Some people really need to get some perspective in life.”

    Amen.


  27. - Langhorne - Monday, Feb 28, 22 @ 9:43 am:

    The State Journal register posted a story about the court order February 25, with this lead: “The Illinois Supreme Court has denied an appeal from Gov. JB Pritzker in the legal fight over COVID-19 restrictions in schools. “

    Later in the story they explained how Pritzker was successful.

    Three days, no comments or corrections.


  28. - Demoralized - Monday, Feb 28, 22 @ 9:43 am:

    ==So the question remains, what is the Governor telling his agencies to do?==

    Masks are coming off statewide with the exception of those offices that regularly deal with the public and in congregate settings.


  29. - Arsenal - Monday, Feb 28, 22 @ 9:46 am:

    ==Everyone remembers the 2020 democrats saying they would never take the Trump vaccine.==

    Can’t remember something that didn’t happen. Harris said she wouldn’t take Trump’s word on a vaccine. She said she’d take it if the science backed it up. It did, and she took it even though Trump was still President, even though he was actively fighting the results of the election. Nothing magically flipped. She did exactly what she said she’d do.

    ==Never understood forcing or shaming either on others, no matter the reason.==

    The problem is, vaccines and mandates were never solely a personal choice. Every step of mitigation that you refuse to take increases the odds that you infect someone else. This is, of course, a sliding scale, and we simply have to accept some risk in life. But just as we can’t pretend that Kamala Harris did something she didn’t, we can’t pretend that the broader implications of these decisions don’t exist.


  30. - Big Dipper - Monday, Feb 28, 22 @ 9:56 am:

    ==If the Supreme Court could’ve just settled the issue legally, then it could be unethical for Devore to keep brining claims that he knows are against clear precedent. But that didn’t happen because of JCAR, and Devore can keep raking in money from folks.==

    The Supreme Court does not have to refute every goofy ruling made in a case. If the emeegency rules are readopted at some point, and another case is brought challenging them, the odds are that another judge with greater legal ability than Grischow will hear the matter and reject the arguments. Even if the case ends up before her, after reading all the criticisms she would hopefully have evolved her position. There were basic things about a TRO she got wrong that even a first-year law student would know. You maintain the status quo, not change it. And you don’t decide the ultimate issue in the case (such as whether the rules are invalid); you just decide whether the plaintiffs have a likelihood of success on the merits. She was just clueless.


  31. - Back to the Future - Monday, Feb 28, 22 @ 9:58 am:

    Solid information in this article.
    It seems that when JCAR did not support the Governor and the Illinois Health experts this mask issue got derailed.
    Thanks for the insight into what happened and where we are on this problem.
    Hope the JCAR members will tell Covid that the pandemic it is not a problem anymore and the virus will just go away. While I am waiting on JCAR, I think I will keep wearing my mask.


  32. - Club J - Monday, Feb 28, 22 @ 10:01 am:

    So the Judge issued a TRO ruling that all she issued. The Supreme Court ruled to VACATE that complete TRO. Not just the parts Tom DeVore doesn’t like, but all of it.
    Now he is still telling people he can join them to that TRO and they believe him. I’m not sure how you can join a VACATED TRO but people want to believe they can and are willing to pay good money for it. Just like people paid Jim Jones to lead them to the “Promise Land”.


  33. - Oswego Willy - Monday, Feb 28, 22 @ 10:25 am:

    An important thing to realize when discussing “masking” or even testing;

    Those “fighting” for freedom and ‘Merica, they do not grasp, or frankly don’t care if I’m being really honest, that testing, masks, even vaccinations, they are for the safety of others, as not to be one to continue the spread of a global deadly pandemic, a deadly virus.

    I wear a mask so I won’t infect others, I test because any time I may be with others whom also may not wear a mask (eating, tested negative, small group) and if I test I can endure not only that I know my status but to ensure at that snapshot I can be safe for others.

    I’m vaccinated and boostered so I’m one less person that may face worse case possibles if and when I do get infected.

    Once I realized whom exactly is pushing the dangers on others, then I can look at the challenges I face and those around me face too.

    The ethics to what this case is/was, to bring it back to the post, is not value signaling or virtue shaming, but it is an Executive being able to promote the general welfare in the face if the selfish. That’s how I see this framing, and if one is angered by an Executive seeing those putting into danger the most vulnerable and using the levers of the office for a greater good, I always appreciate those telling me who they are, and I’m glad for the ILSC action.


  34. - Arsenal - Monday, Feb 28, 22 @ 10:50 am:

    ==We now know it didn’t.==

    We “know” no such thing. Masks effectively mitigated transmission of a deadly disease, and when you bleat on about “statistically safe”, all that means is that you found the death toll acceptable.


  35. - Big Dipper - Monday, Feb 28, 22 @ 10:52 am:

    Respected medical professionals lol. What this pandemic shows is that some doctors needs their licenses revoked.


  36. - Oswego Willy - Monday, Feb 28, 22 @ 10:55 am:

    ===We actively harmed our children in the misguided notion that it would keep adults safe. We now know it didn’t.===

    A perfect, straight out of central casting, take of a person who has no grasp of how infections happen, why getting the vaccine and folks vaccinated makes a big difference… and why so many should fear, yes fear, the anti-vaxx families willing to infect others for “freedom and ‘Merica” and are far too selfish for a string first world society.

    You can’t un-die, you can’t bring back those who do die because the person infected and spreading is “likely not dying, so… “

    Becoming weary of these folks.


  37. - Demoralized - Monday, Feb 28, 22 @ 10:58 am:

    ==We now know it didn’t.==

    We do? I don’t think your simple declaration makes it so. I think we know that mask wearing, while not a perfect protection, did offer some protection and did, in fact, prevent some spread.


  38. - Norseman - Monday, Feb 28, 22 @ 11:13 am:

    Absolutely ridiculous. There have been no peer reviewed studies indicating speech delays due to masking. And your poor understanding of the purpose has been adequately addressed by OW. Speech learning begins at home and is fostered by parental attention. If you expect schools to teach speech, you’re doing it wrong. I’m enjoying really great conversations with my two-year-old grandson because his parents and grandparents have focused on his skills.

    If there was a study of problems children are having with masks, I suspect the link would be a parental environment where they are exposed to self-centered behavior.


  39. - Lt Guv - Monday, Feb 28, 22 @ 11:15 am:

    Absolutely, time to stop day drinking & watch anti propaganda.


  40. - Bruce( no not him) - Monday, Feb 28, 22 @ 11:24 am:

    ==stop day drinking==
    Never (banned exclamation point)


  41. - Club J - Monday, Feb 28, 22 @ 11:37 am:

    I’ve heard of some very good speech therapists. My Brother actually went one that help correct an issue he was having. The only death therapist I know about is the one I went to after my parents died and they didn’t bring them back nor did they stop me from missing them.

    So protecting my children from even the slightest chance of getting a deadly virus is worth it. Living in a DeVore or Greg Bishop world where a school can’t even send a sick child home because of so called “due process” in not how life should be.


  42. - Southern - Monday, Feb 28, 22 @ 12:22 pm:

    I am totally shocked that anti-maskers would harbor racist thoughts. Totally shocked.


  43. - H-W - Monday, Feb 28, 22 @ 12:22 pm:

    I am saddened that no one has taken up the other lead here - Niles West students of color being called the N-word for wearing masks.


  44. - Dotnonymous - Monday, Feb 28, 22 @ 1:00 pm:

    As the pandemic subsides, so will Devore.


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