* 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.