Day In Court: TKR's Guide to Legal Case Against Gov. Pritzker

With case expected to be filed Tuesday, ruling could undo school mask mandate in Illinois

(Photo Credit: WHYY)

Since the onset of the coronavirus pandemic in March 2020, Illinois Governor J.B. Pritzker has ruled with an iron fist. Rather than collaborate with the legislature, Pritzker governs through executive orders.

But a massive legal challenge is mounting to challenge Pritzker’s autocratic methods.

Last Friday, The Kerr Report broke the story of a large scale legal action against Pritzker. This week, that action has grown to involved several dozen school districts in the Chicagoland area. What does it all mean? What are the legal ramifications?

The Kerr Report breaks it all down.

Q: What is the proper legal term for the court case?

A consolidated legal action of numerous school districts. As of last Wednesday’s deadline (Oct. 13) there were several dozen separate groups in the Chicagoland area whom have joined the consolidated action.

Q: What are the districts involved?

Too many to list in this article. The lawyer handling the case, Tom DeVore, is not publishing a database of the groups involved. That won’t officially be known until he files the case in a county court, expected to be Tuesday (Oct. 19). It’s safe to say just about every regional pocket of Chicagoland is represented in the action. Large scale is accurate as to the size and scope of action.

Q: So are school districts suing the Governor or regular citizens?

Regular citizens and teachers. School districts can be named defendants in the legal action, but are not plaintiffs.

Q: Where is the action being filed?

Macoupin County in Carlinville. Reasons for filing there are its proximity to the state capital in Springfield (less than an hour south) and that there is already an existing case being heard in that county. According to DeVore, “after conversations with the Attorney General’s office on behalf of the governor, we have tentatively come to an understanding that’s the court we would use.” 

Q: What could slow the timeline of the action?

Signature pages. Every plaintiff named in each group (as many as eight) must sign a verification page that they have reviewed the documents and they understand what they are doing, put their name on it and send it back to DeVore’s office. Compiling the hundreds and hundreds of signatures is laborious and time consuming. DeVore’s office confirmed Monday that the reason the filing is happening Tuesday, rather than Monday, is because of the delay in acquiring signature pages.

Q: What are the legal issues being argued?

There are two different sets of plaintiffs. One are teachers, the other are parents on behalf of their child. For teachers, the legal issue is forced masking, testing and vaccines. For students, its masking and quarantines, or “the exclusion of children from school” according to DeVore. Of the total number of plaintiffs, DeVore said its 10 to 1 in favor of parents as opposed to teachers.

Q: Could one victory by a plaintiff be applicable to all within a district?

Yes, but not guaranteed. DeVore will argue for “class certification” which means that there is a common legal issue for every student in that district. Forced masking and quarantines are a shared issue for each student so class certification is applicable in this case. Recent class certification arguments for cases involving students in Carlyle, Hillsboro and North Mac school districts have been favorable. DeVore will ask the judge to certify each of the districts involved so that a ruling would apply to all students within a school district. The argument will be made, but it will ultimately be up to a judge to decide its merits.

Q: What is legal precedent for this case?

An appellate court decision made earlier this month in Bond County, IL.

That case, made in the 5th District Appellate Court, vacated a temporary restraining order granted in September that schools could not enforce masking or quarantines without parental consent. The district appealed the ruling and on Oct. 1, a judge vacated the TRO because the plaintiffs in the case “failed to name the Governor, the Illinois State Board of Education (ISBE), and the Illinois Department of Public Health (IDPH) as party defendants,” according to the court ruling. The judge did not discredit the legal analysis in his ruling.

In effect, the upcoming legal action is an amended complaint to include Pritzker and state agencies as defendants.

Q: Expected timeline?

When the case is filed Monday (Oct. 18) or Tuesday (Oct. 19), DeVore will ask for a hearing for a temporary restraining order. When that hearing is granted is dependent on the court’s schedule but a date will likely be set for a week or two following the initial filing.

Q: What is optimal outcome for plaintiffs?

If the court certifies that the case is a class action and grants a restraining order, the ruling would essentially void the mask mandate.

Q: What is overarching legal argument in this case?

A look at the law on the books and what is required to put the types of health measures in place (forced masking, quarantines) for otherwise healthy people, which school-aged children are, those measures can’t be done by the executive branch of government and through administrative agencies. The law, under the Department of Public Health Act, says that in order to put mitigations in place like masking, those impacted must be shown to be a health risk. If masking healthy people is something that authorities deem necessary, then the state legislature needs to put those laws in place. The law as it’s written now does not allow for Pritzker, using his executive power, to do what he’s done. Thus far, four courts in Illinois - Clinton, Bond, Montgomery, Effingham - have agreed with the legal analysis and ruled in favor of the argument.

In a few weeks, another court will rule again. Only this time, there will much more interest around Chicagoland in what a judge decides.

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