On February 17th, the Fourth District Appellate Court issued a Rule 23 Order, dismissing the State Defendants’ appeal as moot.  As a Rule 23 Order, this decision is limited and does not establish any legal precedent for any further legal disputes on this issue.   As all of you are aware, back in September, a large number of plaintiffs filed a lawsuit against Governor Pritzker, ISBE, IDPH (the “State Defendants”) and approximately 144 school districts challenging mask mandates in schools, exclusion of close contacts and mandatory testing in lieu of vaccination of personnel. On February 4, 2022, the judge hearing that case, Judge Grischow, issued a temporary restraining order which, in part, nullified certain Executive Orders and the Emergency Rules the ISBE and IDPH passed pursuant to Executive Order 21-024 and ordered that those Emergency Rules and Executive Orders could not be enforced and that the State Defendants could not require school districts to enforce them. The Order prohibited certain actions by the State and did not order or prohibit any actions by the defendant school districts. The State Defendants and certain school districts filed an immediate appeal to the Fourth District Appellate Court, which was heard on an expedited basis.

One unique aspect of this case is that the Illinois Department of Public Health (“IDPH”) Emergency Rules in question were issued on September 17, 2021 and are only effective for 150 days. Earlier this week, the IDPH re-filed those Emergency Rules, as they were set to expire, and the Joint Committee on Administrative Rules (“JCAR”) voted to object to the renewal of emergency rule, citing the TRO and deferring to the pending Appellate Court appeal.

In its ruling the Fourth District Appellate Court found that because JCAR did not act to renew the emergency rules and therefore they are no longer in effect, a controversy about those rules no longer exists and therefore, the appeal of the Judge Grischow’s TRO was rendered irrelevant and moot. Less clear is the effect of the Governor’s Executive Orders, but the Appellate Court appears to rule that they are no longer in effect. Specifically, the Court stated that “none of the rules found by the circuit court to be null and void are currently in effect” and also did an analysis of Executive Order 2021-024 and found that the Emergency Rules were necessary to make the new definition of “exclude” and to remove “modified quarantine” effective. We must note that Executive Order 2021-003 (which limits the mandatory exclusion to 5 days) was not discussed by the Appellate Court’s ruling or by the TRO, however, since Executive Order 2022-003 relies on the same definition of “exclude” as Executive Order 2021-024, it is likely that a court would find it to be no longer in effect.

The only clear aspect of the Fourth District Appellate Court’s ruling is that it explicitly held that Judge Grischow’s TRO “in no way restrains school districts from acting independently from the executive orders or the IDPH in creating provisions addressing COVID-19.” Thus, it is clear by this order that school districts retain their independent authority to establish COVID-19 mitigation measures. Based on the Appellate Court decision, it appears that both party and non-party defendants are not restrained in any way from acting under their own independent authority to impose COVID-19 mitigation measures. That being said, doing so comes at some risk for both categories of districts. Since the Emergency Rules are expired, the current IDPH rules include the definition of “modified quarantine” which states that it includes “the exclusion of children from school, the prohibition or restriction from engaging in a particular occupation or using public or mass transportation, or requirements for the use of devices or procedures intended to limit disease transmission.” 77 Ill. Adm. Code 690.10 (2019). Districts will have to deal with the argument that this “modified quarantine” requires the due process procedures under the Illinois Public Health Act. Those who are defendants in the current lawsuit have a higher risk, as Judge Grischow stated in her TRO, that she would expect any district policy to have due process procedures in place. The scope of this language in comparison to the Appellate Court’s decision will be tested on February 25, 2022, as there will be a hearing the Chicago Public Schools as to whether they have violated the current TRO order by requiring masks in schools. Additionally, the underlying litigation is still in its early stages. Please talk to your school district attorney about your individual risks and establishing your own COVID-19 mitigation measures.

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