What Pritzker Wants: Denial Of Due Process
Other than "broader" definition of powers, Supreme Court appeal is about a rejection of core legal tenant and pursuit of personal vendetta for governor
Anyone with an interest in removing public health mitigations in schools has had to take a crash course in law these past months.
As soon as the first large scale consolidated legal action was filed in a Sangamon County courtroom last October, it set up the inevitable.
How the lawfulness of the use of executive orders by Governor J.B. Pritzker (a.k.a Gov. Moot) would be settled in court.
So far, the courts have ruled. But not all.
The first legal challenges to Pritzker’s use of executive authority began in 2020. In the fall of 2021, attorney Tom DeVore racked up a series of favorable lower court rulings, most notably in Bond County in September. The vacating of that TRO, on the grounds plaintiffs failed to name Pritzker, the Illinois State Board of Education (ISBE), and the Illinois Department of Public Health (IDPH) as party defendants, became the catalyst to the large scale consolidated action filing in Sangamon County. That case, first submitted in October, involved well over 100 Chicagoland districts and hundreds of plaintiffs.
Other attorneys, such as Geneva-based Patrick Walsh and his firm, Griffin, Williams, McMahon and Walsh, also represented families seeking an injunction against forced masking and exclusions.
The February 4th Temporary Restraining Order ruling in Sangamon County and favorable 4th Appellate Court victory from last week leaves Pritzker with one more hand to play.
That’s the Illinois Supreme Court, the highest court in the Land of Lincoln.
Wednesday, Attorney General Kwame Raoul officially petitioned the ISC to hear the appeal. The motion does not guarantee the case will move forward, as the court has to determine if the appeal merits a hearing. Legal sources tell The Kerr Report the case is likely to be heard due to the public interest in the decision.
There are a couple of comments made this week around the ISC appeal that informs Pritzker’s motivation for exhausting all legal possibilities. Another motivation, possibly the main driving force, has nothing to do with his powers as governor of the state.
In Raoul’s filing with the ISC, he wrote:
Today, parents, teachers, school staff, and members of their communities are faced with impossible choices. Some schools have eliminated mitigation measures on the threat of legal liability, some parents have been forced to withdraw students from school, and uncertainty regarding the applicable legal regime reigns. This court should stay the circuit court’s (temporary restraining order) during the pendency of these proceedings and restore the status quo.
A comment from Pritzker at a Wednesday media briefing (from the Belleville-News Democrat):
“This really is about what do we do in the next emergency, as much as anything, what happens when there is another omicron wave or, God forbid, at some future date, another pandemic or some other major emergency that affects everybody in the state. We want to be able to do the right thing for the people across the state and so we hope that the Supreme Court will see that and rule on that despite the decision by the appellate court
Raoul asks the court to ‘restore the status quo’ and Pritzker pleads for power for ‘the next emergency’ and how ‘we want to do the right thing.’
The ‘status quo,’ Mr. Raoul, isn’t lawful, according to several lower courts, and the body of work over 24 months shows Pritzker’s reckless lack of judgment in determining what is an emergency and in doing the right thing.
And again, the law is the law.
The Department of Public Health Act, written by the state legislature, states how when it comes to devices like masks to stop the transmission of a communicable disease and on quarantines that include masking and exclusion from school, the supreme authority on these matters is the Department of Public Health.
This DPHA provides authority to one administrative agency – IDPH. What court rulings are rejecting are the actions being taken by the defendants (Pritzker/IDPH/ISBE) and how one agency (IDPH), empowered by Pritzker, can turn around and transfer its powers to another agency, say, for instance, a school district board of education or administrative office and how those other ‘agencies’ (school boards/administrators) can then in turn, use their authority to order students to wear a mask or be excluded from school. That’s not legal. That’s denial of due process.
The only time it is due process is when IDPH issues an order of quarantine, as written in the DPHA and affirmed in the Feb. 4 TRO ruling:
School districts are restrained from requiring masks except during the terms of lawful order of quarantine issued from their respective health department, in accordance with the IDPH Act
So when school officials force masking, send students home and exclude them from in-person learning, that’s a denial of due process.
Judge Grischow said so in the TRO approval:
the arbitrary method as to contact tracing and masking in general continue to raise fair questions as to the legality of the Executive Orders in light of violations of healthy children’s substantive due process rights
That’s really the core legal issue at play here, according to attorney Patrick Walsh.
“The governor’s order and the districts enforcing this, they have removed due process that is guaranteed under the IDPH act,” he said.
School districts leaders, who for months refused to acknowledge the idea of “due process” until the courts forced them to, are now publicly saying to what amounts to a mea culpa.
This from District 300 (Wheaton) Superintendent Jeff Schuler at a Wednesday BOE meeting:
Local control is fine. But only if used lawfully and allowing for the exercise of due process.
Walsh’s firm is representing thousands of plaintiffs in a joinder lawsuit to the original legal action. Friday, the judge who ruled on the TRO, Judge Grischow, will determine whether that request can move forward.
Walsh said it’s hard to say what the Supreme Court will do if they agree to hear Pritzker’s appeal, which if granted, could hold opening remarks as soon as March.
“The Supreme Court has a lot of power obviously but I don’t know how far they’ll go beyond what the Appellate Court decided because the only thing the (court) decided is, it was moot,” Walsh said. “I guess they could determine what the governor’s authority is under executive orders on the broader side and on the narrower side just say we’re not going to hear it now as this is only a TRO and not a decision on the merits.”
As of Friday, almost 90 percent of Illinois school districts have flipped to a “mask recommended” or “mask not required” policy. Clearly, the appeal impacted schools’ decision to allow for the removal of masking. But there are still some suburban districts, including Oak Park and Evanston, that are claiming masks must be worn.
Although Judge Grischow’s TRO did give freedom to defendants not named in the case “to proceed as they see fit,” for districts that proceed with masking/exclusions, they are doing so living dangerously.
“I think she was saying ‘you are not in this order and I may not have a specific jurisdiction over you however I rule that these orders are void and you are acting at your own peril if you enforce them,’” Walsh said. “It would be ill-advised for these districts to enforce these orders in light of that ruling.”
Other than Pritzker’s desire to have legal record defining the expansiveness of his emergency powers, Walsh agrees with what I’ve written and tweeted about how this case, and all its resources and expense, is also about pursing a personal vendetta.
Months ago, Pritzker called Tom DeVore, the lead attorney on the TRO case, a “grifter.” As a result, DeVore filed a defamation suit against Pritzker. He won’t let himself be seen as backing down from legal foil DeVore.
“He doesn’t want to look like he’s running from a fight with Tom DeVore,” Walsh said.
All of this activity is underscored by November elections and a soon-to-be ramped up campaign season.
Earlier this week, DeVore announced his candidacy for Attorney General.
In a video announcing his candidacy, DeVore said:
We happen to have Gov. Pritzker right now who I thought failed miserably in governing over the last two years, because he didn’t govern. He ruled. How do we stop that from happening again? And what can I do to help that to not happen? I made the decision that there’s only one way that I can help and that’s making myself available to the people of this state as attorney general
Expect plenty of verbal fireworks on the campaign trail in the coming months.
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