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Why the governor has to appeal to the Illinois Supreme Court

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Illinois

* My weekly syndicated newspaper column…

This entire controversy over Sangamon County Judge Raylene Grischow’s odd ruling earlier this month that statewide mask/vaccine/testing mandates at schools are a “type of quarantine” and therefore fall under the state’s quarantine laws (which include individual due process protections) could’ve all been prevented with a simple bill last year.

Most who’ve watched this closely knew that Judge Grischow’s temporary restraining order against enforcing the state emergency rules containing the school mandate language was a possibility, however remote. Southern Illinois attorney Tom DeVore has been making this “mask mandates are quarantines” argument for a very long time, but he has, shall we say, a less than impressive win-loss record in his pandemic portfolio.

DeVore recently described himself as a “hayseed,” and he comes off as not credible to many. The governor has even referred to him as a “grifter,” for which DeVore is suing him (and the lawyer will probably lose because of executive immunity). DeVore is also using his recent infamy to possibly launch a statewide Republican bid for attorney general at the end of February.

But despite DeVore’s win-loss record and his many idiosyncrasies, all it takes is one judge who is fed up with following pandemic rules and an appeals court that clearly doesn’t want to touch a political hot potato and policy disaster can strike.

And, boy did it strike last week when an Illinois appellate court punted and ruled that Gov. JB Pritzker’s appeal of Grischow’s TRO was moot because the legislature’s Joint Committee on Administrative Rules had voted to suspend the emergency rule in question days earlier – even though both the governor’s office and DeVore had told the justices further action was needed.

The General Assembly hasn’t done much to hold up its end during the pandemic. Until this month, the courts have mostly sided with the governor’s executive orders, so there was no real perceived need to change that many laws. And the less they did, the better for everyone, was the prevailing mood. The governor didn’t have additional legislative distractions, and legislators could sit back and point fingers as needed.

Legislators did step in last year when some school staff started using the state’s Right of Conscience Act, which was designed to protect anti-abortion medical care providers, to claim they couldn’t be forced to take vaccines or be regularly tested for the coronavirus. As a result, that never became a thing.

If legislators at the time had also approved similar legislation to further clarify state law that the legislature never intended that mask mandates, etc. are a type of quarantine, then there’d be no case to discuss today. Such an argument would’ve had the added benefit of being absolutely true. As with the Right of Conscience Act, no such result could’ve possibly been envisioned at the time of passage. School mask mandates are quarantines? Are you nuts?

But the governor’s people say that legislative leaders wouldn’t consider the quarantine language change proposal. Members were already being inundated with angry, even threatening contacts from constituents and outsiders who’d been ginned up by disinformation outlets to what we thought at the time was the max over the Right of Conscience Act fix. Tossing more fuel on the fire wasn’t something that enough Democratic legislators wanted to do, even though doing both at once could’ve saved a whole lot of grief down the road.

What’s done is done. Or, in this case, what wasn’t done is now done.

The appellate court’s punt to Judge Grischow means her TRO stands, but Attorney General Kwame Raoul claims that the governor’s executive orders on school mask mandates is still in effect for school districts that are not part of the cases in front of Grischow.

Pritzker is appealing to the Illinois Supreme Court, which has been more reluctant than even the legislature to step into this pandemic topic. The state sometimes seems to be just chock full of finger-pointers and responsibility shirkers.

The unanswered question, of course, is what happens during the next covid variant wave (if any) or the next pandemic if a mask requirement is ultimately deemed a legally defined quarantine. The future will likely not look back with kindness and the governor should not allow such a result to be part of his legacy.

posted by Rich Miller
Tuesday, Feb 22, 22 @ 9:11 am

Comments

I enjoyed reading this in the local paper. Perhaps most ironic is that masking is the complete opposite of quarantine. Wearing a mask prevents people from being quarantined from social activities. Assuming the AG actually appeals, perhaps the Governor needs to make this argument more forcefully, and publicly. Courts used to have a preference for the most parsimonious interpretations, and if the Legislature erred when it suggested masking was a form of quarantine, perhaps the Supreme Court will actually listen to reason, and declare the legislative language flawed.

Comment by H-W Tuesday, Feb 22, 22 @ 9:20 am
The GA, as far as I can tell, has been more than happy to let the GO take all the brunt of any criticism for covid policies from day 1. This isn’t unique to Illinois, we’ve seen it playing out across other states and at the federal level for a few years.

Elected legislators are so afraid of having to answer for their actual votes, they prefer the executives to just act for them, presumably to give them an out at reelection.

Comment by Homebody Tuesday, Feb 22, 22 @ 9:21 am
It’s ok to call them cowards, it’s the only way to tell the truth, even. Legislators are hiding, terrified of getting yelled at for doing the right thing, sitting on the sidelines wringing their hands. As it ever was. But boy, as soon as the governor or an agency messes up, then they descend like a swarm of piranhas. Cowards, all of them.

Comment by Perrid Tuesday, Feb 22, 22 @ 9:28 am
General Assembly hasn’t done much to hold up its end…
I’m afraid “much” might be an overstatement.

Comment by Bruce( no not him) Tuesday, Feb 22, 22 @ 9:29 am
First, a good perspective by Rich in the overall, it’s needed context here by Rich changes what others want their own narratives to be.

To that, “this”;

=== The General Assembly hasn’t done much to hold up its end during the pandemic. Until this month, the courts have mostly sided with the governor’s executive orders, so there was no real perceived need to change that many laws. And the less they did, the better for everyone, was the prevailing mood. The governor didn’t have additional legislative distractions, and legislators could sit back and point fingers as needed.===

1) Governors own. They always do. Why get in the middle of that if you’re a legislator?

2) Unintended consequences to abdicating needed legislative action (as a tool) allows for judges and judicial oversight to loom larger and be more “absolute” in changing policies

3) Cowardly inaction and later… cowardly inaction… allowed the governor this absolute need to go to an end for clarification and conveniently continue to absolve the GA from any harm, no matter any judicial ruling.

Rich’s work here, even the DeVore thoughts, allows a look at things where…

Process

… was used, or should I type “unused” to reinforce governors own, without contemplating what it all meant to fighting a global pandemic.

Comment by Oswego Willy Tuesday, Feb 22, 22 @ 9:30 am
One of the odd things about the appellate decision is that usually when a matter becomes moot the appellate court both dismisses the appeal and vacates the underlying order. Because if the appellate court is correct that the emergency rules no longer exist (and if the majority is correct in its apparent belief that the EOs are intertwined with the emergency rules and thus no longer have any effect) why would it allow a TRO that has no practical effect to just sort of exist with no purpose? I don’t think the appellate court thinks the TRO “stands,” I think it either overlooked that it should have vacated it or deliberately did so for purposes only it could explain.

Comment by Big Dipper Tuesday, Feb 22, 22 @ 9:33 am
===Members were already being inundated with angry, even threatening contacts from constituents and outsiders who’d been ginned up by disinformation outlets to what we thought at the time was the max over the Right of Conscience Act fix. ===

I get that this was really hard for the legislators — I’ve read the disgusting and threatening e-mails. But by refusing to act because they were afraid of the backlash, they have focused that backlash on children. Yes, my state legislator did not have to stand up to lunatics threatening them over their votes. But that decision meant that today, my kindergartener got threatened by those people.

I’m angry, disappointed, and let down. Nobody wants to deal with crazy people. But by refusing to clarify the law, the legislature has protected themselves from threats, at the expense of 5-year-olds, who now get to be routinely threatened every day when entering school.

Where are the adults responsible for protecting my kids? Why is it okay for kindergarteners to be threatened? Is your re-election more important than my child’s right to a safe learning environment, where she isn’t harassed walking into her school building?

Again, she’s FIVE, and the GA is forcing her to stand up to bullies they were too terrified to confront. It’s shameful, and I’m angry.

Comment by Suburban Mom Tuesday, Feb 22, 22 @ 9:34 am
Without a doubt, members of the GA have failed to support the Gov that has consistently took the heat and made decisions in an effort to protect us throughout the pandemic. In an evolving crisis, he has displayed leadership and a willingness to face the challenge without hesitation. Could not be more disappointed in the democrats on JCAR and in the Senate and House leadership who have not demonstrated courage and strength in the face of adversity. As a dem - this weakness and ignorance does make a difference to me. As usual, they’ve taken the most loyal for granted. This one left a mark.

Comment by Lincoln Lad Tuesday, Feb 22, 22 @ 9:35 am
With a host of other misinformation Tom DeVore has told his puppets that Governor Pritzker hasn’t appealed to the Supreme Court. He leads them to believe it’s all just for show.

Comment by Club J Tuesday, Feb 22, 22 @ 9:35 am
“Tossing more fuel on the fire wasn’t something that enough Democratic legislators wanted to do”

If the majority party is kowtowing on sound public health policies for no other reason than to avoid threats from the crazies who don’t mind spreading disease, the game is over. Disease has won.

It’s not even going to take a pandemic for this to be a problem. The drop in vaccination rates in general almost assures we are going to start seeing mumps and measles outbreaks in schools within the next year. We already had an outbreak in my district two weeks prior to covid closing schools in 2020 - and vaccination rates haven’t exactly *improved* since then.

Comment by TheInvisibleMan Tuesday, Feb 22, 22 @ 10:00 am
Suburban Mom, could you email me please? capitolfax@gmail.com

Comment by Rich Miller Tuesday, Feb 22, 22 @ 10:01 am
@ Suburban Mom — To go one step further; when Legislators are afraid of the people who elect them, we have only elected cowards who are willing to sell us out to the worst among us.

Comment by H-W Tuesday, Feb 22, 22 @ 10:05 am
==Where are the adults responsible for protecting my kids?==

Exactly this. Most responsible parents are keeping their immune-compromised children at home…flying in the face of the promise of a free, appropriate public education…but who gets sued when they get seriously ill from Covid?

Comment by Jocko Tuesday, Feb 22, 22 @ 10:10 am
The Covid pandemic is done get over it.

Comment by Anon Tuesday, Feb 22, 22 @ 10:29 am
Big Dipper’s comments are definitely correct for the Federal Courts. (I even “won” a case under that rationale) However, so far I have been unable to find an Illinois case that comes to the same conclusion. (Granted since I’m retired I no longer have ready access to all the usual resources) Nevertheless, the rationale set forth above is “right on” and I would hope that the AG points that out in his appeal to the Illinois Supreme Court.

Comment by Retired SURS Employee Tuesday, Feb 22, 22 @ 10:31 am
===The Covid pandemic is done get over it.===

Personally, I beg to differ.

We are heading towards a new normal February 28th, and hopefully closer to an old normal with more vaccinations.

Comment by Oswego Willy Tuesday, Feb 22, 22 @ 10:33 am
The GA has dodged the fire just to see it directed at school boards. Some people think the school boards have more authority than they do and are demanding mask optional policies. I get the frustration all around but there is no clarity from IL AG, Gov, IDPH, or courts.

Comment by Tequila Mockingbird Tuesday, Feb 22, 22 @ 10:40 am
==We are heading towards a new normal February 28th, and hopefully closer to an old normal with more vaccinations.==

Agreed, but I refuse to return to any semblance of normal even if COVID magically disappears. Still sticking with my pledge to permanently avoid large scale events and immense crowds the rest of my life (even things like ballgames and the State Fair, the latter of which I avoided anyway for the last 6 years and hasn’t been my cup of tea anyway). And preferring to limit shopping and being at large stores, plus not wanting to do much activities involving being around a whole lot of people. I also hope conferences, meetings, and workshops on Zoom remain an option even if on a limited basis. All of this despite being vaccinated and boosted and hoping that approval on the 4th vaccination (or a hybrid COVID/flu shot annually) comes soon.

Comment by NonAFSCMEStateEmployeeFromChatham Tuesday, Feb 22, 22 @ 10:44 am
Would this have played out the way it has if MJM and John Cullerton were in place? Hate to admit it, but I think for the first time I miss them. On this one issue anyway.

Comment by Lincoln Lad Tuesday, Feb 22, 22 @ 10:47 am
==We are heading towards a new normal February 28th, and hopefully closer to an old normal with more vaccinations.==

The new normal, I fear is going to be like our prior new normals - enacted too soon, allowing a new variant to take hold, followed by fewer mitigations than the last time around while the Facebook-poisoned scream “tyranny” the entire time.

Comment by Roadrager Tuesday, Feb 22, 22 @ 10:50 am
“The Covid pandemic is done get over it.”

We get it. You’re done with the virus. But the virus is most definitely not “done” with us. Why are you so afraid of just dealing with this pandemic (yep, still is a pandemic) like an adult?

Comment by New Day Tuesday, Feb 22, 22 @ 10:50 am
= The Covid pandemic is done =

Patterns of behavior aren’t limited to a single disease.

I simply do not understand this insistence to ignore disease as a personality trait.

Comment by TheInvisibleMan Tuesday, Feb 22, 22 @ 10:51 am
==However, so far I have been unable to find an Illinois case that comes to the same conclusion.==

There are many, but here is the Illinois Supreme Court in In re Adoption of Walgreen:

Having concluded that the case is moot and that it does not fall within the public interest exception to mootness, we must still address how this litigation should be resolved. Normally when an issue presented on appeal becomes moot, the appeal will be dismissed. To dismiss the appeal here would be inappropriate, however, because it would leave standing the circuit court’s unreviewed judgment that sections 1(D)(k) and 1(D)(p) of the Adoption Act are unconstitutional. First National Bank, 98 Ill. 2d at 236. Because we do not determine the correctness of that judgment, the proper course is to vacate the judgment and remand the cause to the circuit court with directions to dismiss the complaint. In re Special Prosecutor, 126 Ill. 2d 208 (1988); Bluthardt, 74 Ill. 2d at 251.

Comment by Big Dipper Tuesday, Feb 22, 22 @ 10:51 am
“Paper Terrorism”… I’ll bet some of these “brave” citizens are some of the same ones who are perfectly fine with terrorizing young children as they go to school.

“The parents and activists have organized through a new group called Bonds for the Win, which is named for a financial instrument at the heart of the pseudo-legal effort. The group’s members have spent the past two months bombarding school administrators with meritless claims over Covid policies and diversity initiatives. These claims allege that districts have broken the law and therefore owe parents money through what are called surety bonds, which government agencies often carry as liability insurance.

Bonds for the Win’s claims are not legitimate, according to education officials, insurance companies and the FBI. But even though the group has won no legal battles, it has already celebrated some successes in overwhelming districts with paperwork, intimidating local officials and disrupting school board meetings.”

https://www.nbcnews.com/news/us-news/parents-mask-schools-surety-bonds-rcna16872

Comment by Anon221 Tuesday, Feb 22, 22 @ 10:55 am
===Still sticking with my pledge to permanently avoid large scale events and immense crowds the rest of my life (even things like ballgames and the State Fair, the latter of which I avoided anyway for the last 6 years and hasn’t been my cup of tea anyway).===

Welp, the thing is about life, it moves pretty fast.

My best to this plan… keep in mind asymptomatic folks, those close to you that may not test regularly that may infect you, and not in any of the places you are avoiding.

Vaccines are our best defense.

Comment by Oswego Willy Tuesday, Feb 22, 22 @ 11:04 am
It seems to me that if the appellate court properly dismissed the appeal for mootness, then the underlying TRO ought to also be dismissed or vacated as moot. In other words, I don’t think the TRO still stands (or at least, it shouldn’t).

Comment by New Englander Tuesday, Feb 22, 22 @ 11:08 am
“through what are called surety bonds”

You heard it here first.

Comment by TheInvisibleMan Tuesday, Feb 22, 22 @ 11:10 am
==asymptomatic folks==

Of which I consider myself one of (and/or immunocompromised), even though I have never been officially diagnosed as such. I can easily get sinus infections, headaches, stomach aches (basically after eating anything), etc.

Comment by NonAFSCMEStateEmployeeFromChatham Tuesday, Feb 22, 22 @ 11:14 am
==Would this have played out the way it has if MJM and John Cullerton were in place? ==

Maybe even Emil too? (Hard for me to believe I’m saying this).

Comment by NonAFSCMEStateEmployeeFromChatham Tuesday, Feb 22, 22 @ 11:18 am
=== Of which I consider myself one of (and/or immunocompromised), even though I have never been officially diagnosed as such.===

Define asymptomatic. How is that like immune compromised?

Comment by Oswego Willy Tuesday, Feb 22, 22 @ 11:20 am
=I simply do not understand this insistence to ignore disease as a personality trait=

It is not about personality traits, rather as leaders like JB have said it is about science and hospitalizations. IDPH data - 7% of all hospitalization are COVID related- a drastic reduction from a month ago. So please let this group know when it reaches a point where mask optional in schools is acceptable as public policy

Comment by Donnie Elgin Tuesday, Feb 22, 22 @ 11:21 am
==There are many, but here is the Illinois Supreme Court in In re Adoption of Walgreen:==

Thanks, Big Dipper. I just knew that there had to be prior caselaw.

Comment by Retired SURS Employee Tuesday, Feb 22, 22 @ 11:22 am
More on the surety bond tactic- https://www.edweek.org/leadership/mask-mandate-opponents-are-bombarding-districts-with-insurance-requests-heres-why/2022/02

Comment by Anon221 Tuesday, Feb 22, 22 @ 11:22 am
==Define asymptomatic. How is that like immune compromised?==

Nowhere close between asymptomatic and immune compromised, my brain is apparently still on holiday weekend so far today.

All the more reason I refuse to ever return to any sense of normalcy. Plus for extreme introverts like me, social distancing and limited interaction and events is like a dream come true that I don’t want to ever see end.

Comment by NonAFSCMEStateEmployeeFromChatham Tuesday, Feb 22, 22 @ 11:33 am
The personality trait is insisting “it’s done”. No question it’s greatly improving but it’s not done.

Comment by The Velvet Frog Tuesday, Feb 22, 22 @ 11:59 am
- Suburban Mom -

Feel for you, that’s awful and disgusting.

OW

Comment by Oswego Willy Tuesday, Feb 22, 22 @ 12:01 pm
==I can easily get sinus infections, headaches, stomach aches==

You define that as being immunocompromised? You’re insulting those that truly are immunocompromised when you place yourself in that category because you get sinus infections and headaches sometimes. If that’s the definition then we are all immunocompromised. I really do think you have a legitimate case of PTSD from the past couple of years. I truly do feel bad for you.

Comment by Demoralized Tuesday, Feb 22, 22 @ 12:04 pm
I guess next he’ll take it to the U-nited Nations.

Comment by Lonesome Rhodes Tuesday, Feb 22, 22 @ 12:15 pm
Whatever position one might have on masking, its a personal decision. Any jerk that ridicules another for wearing a mask, is more than jerk. Mind your own business folks. We have more to worry about than this.

Comment by Blue Dog Tuesday, Feb 22, 22 @ 2:02 pm
What is the point of life without living? To each their own entirely, but I can’t imagine spending the rest of my life with little if any social interaction and doing everything “remotely”.

Comment by Deputy Sheriff Tuesday, Feb 22, 22 @ 3:36 pm
- Deputy Sheriff -

You never answered.

Do you wear a mask on the job?

Why or why not.

Comment by Oswego Willy Tuesday, Feb 22, 22 @ 3:42 pm
I do not. If I go into someone’s home I do out of respect for them unless they tell me they don’t care. Other than ISP (which is still few and far between — and who are directly employed by the governor) — I haven’t seen any law enforcement wearing them

Comment by Deputy Sheriff Tuesday, Feb 22, 22 @ 3:52 pm
=== I haven’t seen any law enforcement wearing them===

Google, lots of pictures.

===I do not.===

Aren’t you breaking policy? That’s not very thoughtful to others in the workplace, and it’s quite selfish, but that’s who you’ve been in your comments, no surprise.

Comment by Oswego Willy Tuesday, Feb 22, 22 @ 3:57 pm
@oswego — no, there is no policy on it. Can you enlighten me to what potential policy you’re referencing? Every county employee must be breaking this non-existent policy then…. Because I don’t see a single county employee wearing one.

Comment by Deputy Sheriff Tuesday, Feb 22, 22 @ 3:59 pm
=== — no, there is no policy on it.===

So, as a member of law enforcement, there’s no policy?

Wonder what jurisdiction you are…

===Every county employee must be breaking this non-existent policy then===

Which county?

Comment by Oswego Willy Tuesday, Feb 22, 22 @ 4:01 pm
@Oswego — I’d venture to bet the majority of counties
south of I-80 would all fit the bill

Comment by Deputy Sheriff Tuesday, Feb 22, 22 @ 4:05 pm
===I’d venture===

So you don’t know.

You don’t actually know.

Also, your refusal to out the county where you are is likely that there are rules, but others are choosing to ignore them?

I’d venture that, lol

Comment by Oswego Willy Tuesday, Feb 22, 22 @ 4:07 pm
I can assure you there’s no rules. But I also am not going to give you the satisfaction of harassing my county

Comment by Deputy Sheriff Tuesday, Feb 22, 22 @ 4:09 pm
=== I can assure you there’s no rules===

“Sure, Jan”

Like you said, *you* choose your own times to be thoughtful to others… it’s not a thing you do, look out for the public.

Comment by Oswego Willy Tuesday, Feb 22, 22 @ 4:12 pm
===give you the satisfaction of harassing my county===

Why?

Because you know already it’s the wrong thing to do?

Freedom and ‘Merica, amirite?

You should be proud to exclaim where this utopia is…

Comment by Oswego Willy Tuesday, Feb 22, 22 @ 4:13 pm
I don’t for one second believe it’s the wrong thing to do. I however will not submit my fellow employees to attacks from the left that you’re so eager to give. We are all getting along just fine — with one of the lowest, if not the lowest death rates by county in the state

Comment by Deputy Sheriff Tuesday, Feb 22, 22 @ 4:25 pm
===attacks from the left===

So it’s a political choice to this virus. Got it. You keep tattling on yourself, you know that, lol

===with one of the lowest, if not the lowest death rates by county in the state==

I don’t believe you, it’s in your little mind.

Comment by Oswego Willy Tuesday, Feb 22, 22 @ 4:45 pm
Really appreciated reading this column in my local paper. And this line fits more widely: “The state sometimes seems to be just chock full of finger-pointers and responsibility shirkers.”

Not a surprise that the Adam-Eve story–which for Christians expresses the nature of original sin–involves finger-pointing and responsibility-shirking.

Comment by Yooper in Diaspora Tuesday, Feb 22, 22 @ 10:30 pm
Thing is. The Governor should never be able to abuse executive power like this ever again. To have a state of emergency perpetually for 2 years is absurd. It is good that the Governor got slapped by the courts. Additionally, masks and school closures should never be a part of a pandemic response ever again. We should have learned that lesson from the last 100 years, but alas we needed to learn it anew again.

Comment by big strides Wednesday, Feb 23, 22 @ 8:46 am
=== The Governor should never be able to abuse executive power like this ever again. To have a state of emergency perpetually for 2 years is absurd.===

Tell that to the 900,000 whom lost their lives…

===Additionally, masks and school closures should never be a part of a pandemic response ever again.===

Your lack of medical knowledge is noted.

Whew.

Comment by Oswego Willy Wednesday, Feb 23, 22 @ 8:55 am
Suburban Mom and Rich, I agree with Mom. This also applies to state workers who are immunocompromised and the governor’s office has directed state agencies to deny to allow us to continue to work from home full time although we have done so since March 2020 successfully. They would rather make us go to the office where there have been numerous COVID closings and where they are currently considering dropping the indoor mask requirements. With open cubicles where they don’t have to currently be masked. They are endangering your children and those of us with no immune system or who care for senior relatives or others who cant protect themselves..

Comment by Peanut Wednesday, Feb 23, 22 @ 3:02 pm