By Stephanie Malench
UPDATED FEBRUARY 18, 9:20 p.m.
Late on February 17, Justice John W. Turner delivered the judgment of the Fourth District Appellate Court dismissed as moot the appeal filed by Attorney General Kwame Raoul at the request of Governor JB Pritzker on February 4 in response to the temporary restraining order on behalf of the plaintiffs in two class-action lawsuits regarding mask and vaccine/test mandates in schools.
The appeal was put before three judges in the 4th district: Turner, Justice Thomas M. Harris, and Justice Lisa Holder White.
As a result of the dismissal, each school district is on their own as to what mask mandates and other COVID-19 mitigation strategies they wish to enforce, but the emergency rules issued by the Illinois Department of Public Health are no longer active.
The action comes just two days after the state’s Joint Committee on Administrative Rules (JCAR) suspended the renewal of the emergency mask mandate. Because “ the existence of an actual controversy is a prerequisite for appellate jurisdiction, and a reviewing court will generally not decide matters that are abstract, hypothetical, or moot” and “an actual controversy no longer exists between the parties” “we dismiss defendant’s [Pritzker, ISBE Superintendent Dr. Carmen I. Ayala, the Illinois Department of Public Health, and IDPH Director Dr. Ngozi Ezike] appeal because the expiration of the emergency rules renders this appeal moot”.
The order goes on to say “while the public is rightfully interested in the propriety of the circuit court’s determination that the emergency rules are ‘null and void,’ such circumstances do not automatically make the issue one of a public nature as defined by the public-interest exception. Further, given the changing nature of the COVID-19 pandemic- which affects the State defendants’ response to the pandemic- and JCAR’s decision on February 15, 2022, it is not clear these same rules would likely be reinstated. As a result, we do not find the public-interest exception applies in this case”.
Justice Holder White was the only justice to not concur in full, also dissenting in part. Holder White defended her decision: “I agree with the majority’s conclusion that because JCAR declined to extend the emergency rules at issue in this appeal, that issue is moot. I also agree that the public interest exception does not apply. As to whether the circuit court properly enjoined enforcement of the Governor’s executive orders, I find that issues is not moot where defendants asserted the Governor implemented masking, exclusion, and testing through the executive orders pursuant to his authority under the Illinois Emergency Management Act (20 ILCS 3305/7 (West 2020)), and plaintiffs challenge that authority. This, I would find this issue is not moot. As it stands, the majority’s decision leaves open the question of whether the circuit court property enjoined the enforcement of the executive orders”.
Illinois Federation of Teachers President Dan Montgomery announced in a statement on Friday, February 18, “The Illinois 4th District Appellate Court’s decision released late last night makes one thing clear: school districts are free to implement their own safety measures around COVID-19. And they should. Since the beginning of this pandemic, we have insisted that proper mitigations are in place to protect students, teachers and staff, and their families. This was to reduce sickness and death and to keep schools open for in-person learning as much as possible. Today’s appellate court ruling does nothing to change that calculus”.
The Illinois Education Association’s statement equally encouraged schools to continue effective COVID-19 mitigation strategies. President Kathi Griffin replied “A bright spot in the decision clarifies for which parties the TRO applies. The appellate court affirmatively stated that ‘the language of the TRO in no way restrains school districts from acting independently from the executive orders or the IDPH in creating provisions addressing COVID-19.’”
Griffin went on to explain what members have had to endure since February 4. “These past few weeks have been tumultuous in schools around the state. They have been described by some as the worst time in our teachers’ and education employees’ careers. They’re getting angry emails, having to comfort scared students and are working to help calm other students who are dealing with the trauma that this pandemic has caused. Schools are supposed to be students’ safe haven. That’s not what we’ve been seeing at many of our schools recently. We know school board meetings have been canceled and schools have shut down because of threats and protests. This has to stop.”
Local districts involved in the TRO included Collinsville, Triad, Highland and Edwardsville. Triad and Collinsville went mask optional before the return to school on February 6. Collinsville followed suit on February 14 and Edwardsville on February 15 after the JCAR ruling.
The Governor’s office has asked for an expedited review by the Illinois Supreme Court.