Late Thursday night, the Fourth District Appellate Court issued its expected ruling on Governor JB Pritzker’s appeal of the Temporary Restraining Order that put his school mask mandate on hold.

Short answer: he lost.

The decision, written by Justice John Turner, who is the husband of Sen. Sally Turner (R-Beason), called Pritzker’s appeal “moot” because the school mask mandate had already been put on hold by the legislative Joint Committee on Administrative Rules this week.

From the decision:

Thus, none of the rules found by the circuit court to be null and void are currently in effect. Accordingly, for the following reasons, we dismiss defendant’s appeal because the expiration of the emergency rules renders this appeal moot.

JCAR chose not to move forward with rules because members, specifically House Democrats, wanted the court to rule before moving forward with the emergency rules. But the court is saying because the rules are no longer in effect, there’s nothing to rule on.

The justices ruled the ever-changing nature of pandemic response and the fact that the original issue was narrow does not allow the issue to be considered as a “public interest” rule. I would assume because it impacts all 800-some-odd school districts across the state, that may be an opening for appeal.

More context from the Chicago Tribune:

It wasn’t immediately clear what impact the ruling would have in districts including Chicago Public Schools, which has kept its mask rule in place, as is set forth in its safety agreement with the Chicago Teachers Union.

But in a Friday statement, CPS officials said the district “stands by our proven COVID-19 safety mitigation measures and is pleased the Appellate Court has confirmed that the Temporary Restraining Order does not prohibit school districts from independently requiring masks, vaccinations for staff, and requiring individuals who have tested positive or have been exposed to COVID-19 to learn/work from home.”

“Our schools will continue to enforce these policies, including mandated universal masking. These safety measures are what have allowed us to provide our students with the in-person learning environment they need throughout this school year. We will continue to follow these protocols until such time as our public health partners advise us that restrictions can be safely lifted,” officials said, adding: “We are encouraged to see COVID-19 cases dropping, and we remain optimistic about what this will mean for our school communities in the future.”

The ruling states the language of the temporary restraining order issued by the lower court “in no way restrains school districts from acting independently from the executive orders or the IDPH in creating provisions addressing COVID-19.”

In the short term, the ruling might add to the confusion that surrounded the issue in recent weeks, with some districts abandoning mask mandates all together and going mask optional, and others keeping masking rules in effect.

For example, Palatine-based Community Consolidated School District 15, which enrolls about 11,500 students at 19 schools, this week joined the soaring number of Illinois school districts that were still recommending masks be worn in schools, but shifting to a mask optional position — a trend unfolding nationwide amid plummeting virus rates, and a public that has grown increasingly weary of the pandemic.

“Due to the (legislative panel’s) decision not to renew the IDPH’s emergency rules, our local positivity rates and District-based metrics, and after thoughtful discussion and planning, we have decided to move to a Mask Recommended not Required teaching and learning environment as of Friday,” District 15 Superintendent Laurie Heinz said in a Thursday parent letter.

We’ve asked the Attorney General’s office for a statement and if they’re considering an appeal with the Illinois Supreme Court.

UPDATE (11:30 A.M.):

From Senate Republican Leader Dan McConchie (R-Hawthorn Woods):

“The Governor’s quest for total control over our schools appears to be continuing as he once again is doubling down on his mask mandate on students. Pritzker is failing to accept defeat as his ego and desire for power continue to lead him through his decision-making process. It’s clear that the Governor can’t stand the thought of loosening his grip on ruling unilaterally through the pandemic, thus he is willing to go to every extent possible to maintain that power. The fact that he is easing the mask mandate on nearly everyone but students just proves his true intentions.”

—

UPDATE (12:01 P.M.):

Statement from Attorney General Kwame Raoul:

“Late last night the Appellate Court declined to issue a substantive decision in the appeal, and we are disappointed by the court’s ruling. The Appellate Court’s failure to address the important legal issues in question has added to the confusion resulting from the circuit court’s decision prioritizing a relatively small group of plaintiffs who refuse to acknowledge science or the need for public health measures to protect vulnerable Illinois residents.

“The Appellate Court’s ruling focuses exclusively on the emergency rulemaking process used by the Illinois Department of Public Health with respect to a single technical rule. That rule does not affect the executive orders issued by the governor under the Illinois Emergency Management Agency Act, including the governor’s executive order requiring the use of masks in school, the exclusion from school of persons exposed to COVID-19, and testing of unvaccinated school employees working on school premises. That order continues to apply to all persons not specifically named as plaintiffs in the Allen, Austin, Graves and Hughes matters.

“While the Appellate Court’s ruling does not affect the enforceability of the governor’s executive orders, the decision does fundamentally misapply important principles of Illinois law related to the issuance of temporary restraining orders, such as the order issued by the trial court. Attorney General Raoul intends to immediately ask the Illinois Supreme Court to address these significant legal errors and preserve the integrity of the rule of law in Illinois. The COVID-19 pandemic is not over, and the Attorney General is committed to defending the governor’s actions to mitigate the spread of a virus that has resulted in more than 32,000 deaths in Illinois alone, and to protecting the health and safety of all Illinois residents.”

So this appears that it will head to the Supreme Court. We’ve asked the Governor’s office for comment.

Patrick Pfingsten

@pfingsten1

patrick@theillinoize.com