Legal battle over masks more about future than present

The Illinois Supreme Court must finally step in. Legislators need to know whether they have to adjust the statutes going forward or if laws on the books are adequate and merely misinterpreted by a circuit court judge.

SHARE Legal battle over masks more about future than present

For what seemed like an eternity, but probably just for the past year or so, infamous covid attorney Thomas DeVore has been citing the first paragraph of Section 2 of the Illinois Department of Public Health Act to claim that only the Illinois Department of Public Health has the power to quarantine or isolate Illinoisans.

And, indeed, the statute clearly states at the top of Section 2, that IDPH has “supreme authority in matters of quarantine and isolation.” Those powers come with some strong individual consent and due process checks and balances, including the right to judicial review.

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Sangamon County Circuit Court Judge Raylene Grischow agreed with DeVore’s argument in early February when she issued her temporary restraining order on the grounds that the state’s school mandates for masks, testing and vaccination were a “type of quarantine” and that local school districts were not complying with “any due process under the IDPH Act.”

The appellate court did not subsequently address the merits of the case because, it ruled, the issue was moot after the legislature’s Joint Committee on Administrative Rules voted to suspend an emergency IDPH rule to enforce the governor’s executive order, which was issued under the broad and sweeping authority given to the governor during declared disasters by the Illinois Emergency Management Act.

The DeVore lawsuit claimed, and Judge Grischow concurred, that IDPH’s authority superseded the IEMA law.

However, the state’s recent appeal to the Illinois Supreme Court pointed out a huge flaw in the arguments made by Judge Grischow and newly minted attorney general candidate DeVore.

At the very end of that very same IDPH Act Section 2 cited above is this clear language: “Nothing in this Section shall supersede the current National Incident Management System and the Illinois Emergency Operation Plan or response plans and procedures established pursuant to IEMA statutes.”

The state’s appeal also brought up the trick box constructed by the appellate court’s ruling that the issue was moot without also lifting Grischow’s restraining order, which would’ve been logical because there is no longer an active emergency IDPH rule on the books. The state’s appeal asked that, at the very least, the Supreme Court toss the restraining order.

This legal battle has been more about the future than the present. The state’s mask mandate was already being phased out on Mar. 1. Before the Grischow ruling, the school mask mandate was expected to be lifted after spring break, when the weather warmed up. But there’s always the next variant and, even if this Omicron BA.2 subvariant turns out to be a dud, it’s an absolute certainty that another deadly pandemic will occur sometime or another.

The Illinois Supreme Court needed to finally step up after sidelining itself throughout the pandemic. Legislators needed to know whether they had to adjust the statutes going forward or if the ones on the books were adequate and merely misinterpreted by a circuit court judge.

I mean, if you want to see what life would be like if DeVore and his clients prevailed, just look at the lawsuit he filed on behalf of Rep. Blaine Wilhour, R-Beecher City, who was ejected from the House floor because he refused to comply with the chamber’s rules requiring mask-wearing during session.

“Wilhour has a right to insist he not be compelled to undergo quarantine, which includes masking, which is purported to limit the spread of an infectious disease, unless Wilhour is first afforded his procedural and substantive due process rights as provided under Illinois law,” the lawsuit declared.

If DeVore could win that argument, the Illinois House of Representatives would have to endure a court hearing for each and every objector before enforcing its simple facemask rule.

Now, imagine that procedure throughout the land, in every school and place of business when the next deadly pandemic strikes.

Late on Friday, Feb. 25, the Illinois Supreme Court finally weighed in. The justices vacated Judge Grischow’s restraining order. That means the weird logic of masks being a “type of quarantine” is no longer in effect, which further undercuts DeVore’s case against the House.

But rather than try to pick another fight, Gov. J.B. Pritzker cited CDC guidance about masks being needed only in areas of “high transmission,” and then lifted his statewide school mask mandate effective Mar. 1. The small handful of counties, all downstate, which are still high transmission areas will be merely asked to follow the CDC guidance.

So, the mask opponents score a victory and Pritzker extricates himself from this mess for now.

Rich Miller also publishes Capitol Fax, a daily political newsletter, and

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