* Back in August, the Illinois Supreme Court consolidated two Clay County cases and handed them to Sangamon County Judge Raylene Grischow. Attorney Tom DeVore was an attorney of record in both - defense in Pritzker, et al. v. Board of Education of Hutsonville (a school district which refused to abide by masking and other state rules) and for the plaintiffs in Mainer, et al. v. Illinois Department of Public Health (tanning salon owner challenging the legitimacy of the executive orders).

Judge Grischow issued an order yesterday and it’s a doozy. The state’s most esteemed COVID attorney got his head handed to him on procedural and legal grounds. Let’s start with this…

Despite the Court’s order that a written response to the motion be filed, the defendants in Hutsonville - the Board of Education of Hutsonville CUSD No. 1, Christian Child Development Corporation, and Parkview Christian Academy, Inc. (the “‘Hutsonville Defendants”)- and the plaintiffs in Mainer - James and Kali Mainer (together with the Hutsonville Defendants, the “School Parties”) - elected to forego a written response. Instead, they orally opposed the State Parties’ motion at a hearing held on November 16, 2020.

* This whole thing was a procedural mess…

First, the Illinois Code of Civil Procedure requires that when a complaint is verified, “every subsequent pleading must also be verified, unless verification is excused by the court.” 735 ILCS 5/2-605. Here, the Hutsonville complaint is verified; the defendants’ answer is not. The Court did not excuse verification, and the Hutsonville Defendants did not seek leave to amend their answer in order to comply with the verification requirement. Section 2-605 requires that once a pleading is verified in accordance with the act, “every subsequent pleading must also be verified unless verification is excused by the court.” 735 ILCS 5/2-605. When a subsequently field pleading is not properly verified in accordance with the act, “it is as if the unverified pleading was never filed; it must be disregarded.” … The Hutsonville Defendants are thus deemed to have admitted all well-pleaded facts alleged in the State Parties’ complaint.

And…

Second, in paragraphs 1-2, 9-10, 16-26, 32, 35-37, 39, 43–44, and 49 of their unverified answer, the Hutsonville Defendants state that they are without sufficient information to either admit or deny the State Parties’ allegations. When defendants are without sufficient information to admit or deny an allegation in a pleading, they must “attach[] an affidavit of the truth of the statement of want of knowledge ….”735 ILCS 5/2-610(a). The Hutsonville Defendants did not attach the required affidavit to their unverified answer. Therefore, even if the answer were verified, these particular allegations of the complaint would be deemed admitted.

And…

Third, in paragraphs 27-31, 34, 38, 40–42, 45–48, and 50-54 of their unverified answer the Hutsonville Defendants state that the allegation “speaks for itself.” But ‘”[t]he failure of a defendant to explicitly deny a specific allegation in the complaint will be considered a judicial admission and will dispense with the need of submitting proof on the issue.”‘

The judge said she could’ve dismissed the whole thing right there, but couldn’t resist the fun of chasing DeVore just once around the parking lot and proceeded to deal with the substantive issues.

* For example…

The School Parties do not identify any disputed material facts relating to the pleadings in either Hutsonville or Mainer. The parties thus agree that there is no genuine issue of material fact relating to the State Parties’ motion for judgment on the pleadings. As a result, the only question here is a legal one: whether the Governor’s executive orders requiring schools to comply with certain public health measures associated with in-person instruction, and the Guidance issued jointly by the Illinois State Board of Education (”ISBE”) and the Illinois Department of Public Health (”IDPH”) detailing those measures (see Hutsonville Complaint, Exhibit 1), were lawfully issued and enforceable. The Court previously answered that question in the affirmative, and sees no reason to change its view. See August 18, 2020 Hutsonville Order Granting Temporary Restraining Order (”TRO Order”).

Oops.

* More from a footnote…

Counsel for the School Parties conceded at the November 16, 2020 Hearing that the existence of a disaster under Section 4 is not disputed.

Um. Nice move, dude.

* Statutory authority…

A comprehensive reading of the IEMAA supports the conclusion that the legislature did not intend to limit the Governor’s authority [to only one 30-day executive order per disaster].

And she referenced the bills passed by the General Assembly in May…

The legislature recognized the Governor’s authority to issue successive disaster proclamations when they amended the Unemployment Insurance Act, the Sexual Assault Provider Emergency Treatment Act, the Township Code, and the Election Code.

* Concessions have consequences…

In addition to this statutory authority, the Governor has constitutional authority under Article V, § 8 of the Illinois Constitution to take action to protect the public health. The United States Supreme Court more than a century ago in Jacobson v. Massachusetts, 197 U.S. 11 (1905), developed a framework by which to evaluate a State’s exercise of emergency powers during a public health crisis. The Court may take judicial notice of the fact-not disputed by the School Parties-that Illinois is in the middle of a public health crisis as outlined in Jacobson.

Accordingly, unless the action taken by the State Parties bears “no real or substantial relation” to the protection of public health, or is “beyond all question, a plain, palpable invasion of rights secured by the fundamental law,” neither this Court, nor any vocal citizen or school district has the authority to second guess the policy decisions made by the executive in responding to the emergency. . The Governor’s Executive Orders, as well as the Guidance, have a real or substantial relation to the protection of the public health and the public safety by attempting to minimize the spread of this deadly virus.

* And then comes the real beat-down…

The State Parties’ Motion for Judgment on the Pleadings is granted in its entirety as to both Mainer, et al. v. Illinois Department of Public Health, et al. (No. 20-CH-13) and Pritzker, et al. v. Board of Education of Hutsonville CUSD No. 1, et al. (No. 20-MR-557).

A judgment on the pleadings is similar to summary judgment. It’s explained in the ruling.

* And for good measure…

The Hutsonville Defendants are ordered to comply with the Governor’s Executive Orders and Guidance which applies to all public and nonpublic schools in Illinois serving prekindergarten through 12th grade students. This Guidance includes, but is not limited to:

a. Requiring the use of appropriate personal protective equipment (PPE), including face coverings;

b. Prohibiting more than 50 individuals from gathering in one space;

c. Requiring social distancing be observed, as much as possible;

d. Requiring schools to conduct symptom screening and temperature checks or require that individuals self-certify that they are free of symptoms before entering school buildings;

e. Requiring an increase in schoolwide cleaning and disinfection; and

f. Following any requirements as outlined in the Guidance as well as any changes that occur as a result of changing public health conditions.

This is a final judgment pursuant to Illinois Supreme Court Rule 304(a) and there is no just reason for delaying either enforcement or appeal or both of this Judgment Order.

[Link has been fixed. Sorry about that.]