The Illinois Department of Public Health emergency rules included among other requirements that all students, employees and visitors wear face coverings while indoors on school property.

UPDATE:  This story was updated Wednesday, Feb. 16.

Pritzker says executive order on masks remains in place despite legislative suspension

SPRINGFIELD – The question of whether K-12 schools in Illinois can continue to enforce mask mandates and other COVID-19 mitigations remained unclear Wednesday as all three branches of state government tried to grapple with it.

Gov. J.B. Pritzker said Wednesday, Feb. 16 that his executive order requiring those measures remains in place, at least in districts not named in a pending lawsuit even though a legislative panel voted Tuesday not to renew a set of emergency rules that were meant to implement that executive order.

Meanwhile, the 4^th District Court of Appeals in Springfield asked attorneys in the lawsuit to explain how the vote by the Joint Committee on Administrative Rules affects that lawsuit and whether the court still needs to review a temporary restraining order pertaining to the mandates.

That order was issued by a Sangamon County judge earlier in the month, blocking enforcement of the mandates in the roughly 170 school districts involved in the case.

“As I’ve said, the ruling by the Sangamon County judge created an enormous amount of confusion, which is why we’ve asked the appellate court to move quickly to respond,” Pritzker said at a news conference Wednesday. “The executive order requiring masks is still in place. School districts that aren’t part of the lawsuit should follow the executive order.”

At the center of the confusion are a set of lawsuits filed by parents and students in about 170 school districts across the state challenging the mitigation mandates.

Beginning last fall, Pritzker issued a series of executive orders requiring face masks to be worn in school buildings, that school staff be fully vaccinated or submit to regular testing, and that schools exclude from their buildings any student or employee who had a confirmed or probable case of COVID-19 or who had been in close contact with someone else with a confirmed or probable case.

In addition, the Illinois Department of Public Health issued a set of emergency rules to implement that executive order.

The cases were eventually consolidated and assigned to the Sangamon County Circuit Court where, on Feb. 4, Judge Raylene Grischow granted the plaintiffs’ request for a temporary restraining order blocking enforcement of the mandates until the case is decided on its merits. That decision is now on appeal before the 4^th District Court of Appeals.

Currently, the restraining order applies only to the districts named in the lawsuits.

The emergency rules that IDPH issued last fall expired on Sunday, Feb. 13. As a result, the agency reissued those rules on Monday. But the General Assembly’s Joint Committee on Administrative Rules voted Tuesday to object and suspend those rules, citing the temporary restraining order and the confusion over which school systems the rules would apply to.

Later Tuesday, the 4^th District Court of Appeals issued an order directing attorneys in the cases to explain how the JCAR vote affected the appeal.

On Wednesday, attorneys on both sides indicated that the appeal should go forward.

“Because JCAR’s action related only to the IDPH renewed Emergency Rule, it does not affect the (executive orders),” Attorney General Kwame Raoul’s office wrote in its brief. “The validity, legality, and enforceability of the EOs continues to present a live case or controversy.”

William Gerber, an attorney for the plaintiffs, made a similar argument, that JCAR’s decision only affected the emergency rules, not the underlying executive orders, which schools continue to rely on to enforce the mitigation mandates.

“The JCAR ruling was only directed at the IDPH and did not appear to be directed specifically at local schools,” he wrote. “As such, under an abuse of discretion analysis, the appellate court may still answer the question of whether plaintiffs had shown a likelihood of success that local school districts lacked authority to mandate masking, testing, and vaccinations because the (Illinois Department of Public Health Act), rather than the Illinois School Code, applied to the issues at hand.”

Rep. Keith Wheeler, R-Oswego, co-chair of the Joint Committee on Administrative Rules, speaks with reporters after the panel voted to suspend COVID-19 mitigations in public schools. (Capitol News Illinois photo by Peter Hancock)

JCAR is a 12-member committee divided evenly between the House and Senate, and between Democrats and Republicans. It is authorized to review agency rulemakings to determine whether they are consistent with state law and legislative intent. At least eight votes are required to block an agency rule from taking effect.

Sen. Sue Rezin, R-Morris, offered the motion to block the latest rules, which stated in part that IDPH “has not taken steps to make this rule known to the parties directly affected by it,” and that it was unclear whether the rules would apply statewide or only to those districts that are not parties in the lawsuit.

“We’re currently in a situation where the TRO says this rule is not enforceable,” Rep. Michael Halpin, D-Rock Island, said in voting for the motion to suspend the rule. “It’s possible, if not probable, that this might change on appeal, but as we now sit here, for that reason, I’ll vote yes.”

During discussion on the rules, Rep. Keith Wheeler, R-Oswego, a co-chair of the committee, asked IDPH whether it would have been better, given the pending court case, for the agency to have issued “guidance” rather than formal rules.

“I’ve appeared before this body numerous times and heard a lot of lectures about departments issuing guidance that looks like rulemaking,” IDPH chief of staff Justin DeWitt said. “That’s really the effort here, is to not be creating rules by issuing guidance or something else.”

The vote by JCAR means that, for the time being, there is no state mandate on mitigation measures for public or private K-12 schools.

Gov. J.B. Pritzker’s administration, however, continues to encourage masking in schools.

“The administration understands that members of the Joint Committee on Administrative Rules are awaiting a ruling from the appellate court on this issue,” Pritzker’s press secretary Jordan Abudayyeh said in an email statement.

phancock@capitolnewsillinois.com