Expert: No Way to Tell if Appellate Court Will Overturn Mask Ruling
The Fourth District Appellate Courthouse in Springfield.
A constitutional expert at the University of Illinois says the General Assembly should have clarified Governor JB Pritzker’s executive authority instead of leaving difficult decisions for the courts.
Professor Scott Szala, a retired Chicago attorney and Adjunct Professor with the University of Illinois College of Law, teaches a course on the Illinois Constitution, and says courts have repeatedly cited the Governor’s authority for mitigations under the Illinois Emergency Management Act.
Szala says Grischow’s ruling ignores the previous rulings.
“There’s no citation to the contrary that the argument that the Attorney General has made repeatedly that if the General Assembly doesn’t object to the Governor’s actions, basically, if the General Assembly’s not going to step in, someone has to step in and deal with this issue,” Szala said. “So this is something the Fourth District is going to have to deal with.”
Grischow’s ruling cited due process laid out under the state Public Health Act.
“[The judge] is saying, effectively, that, at some point, due process has to kick in,” Szala said. “After all this time, there hasn’t been a significant showing that these rights should be violated without due process. But, you’re talking about the difference between why weren’t the prior rulings followed in this case versus, at some point, could it be foreseen that the General Assembly should have enacted further powers for the Governor to make it clear?”
Szala says we’re seeing unprecedented rulings and case law being handled in challenges to the laws and state constitution. He said much of the confusion could have, and should have, been settled by the General Assembly sometime during the nearly two-year long pandemic.
“You could have passed legislation that the Governor has the power and all the General Assembly is doing is reaffirming that power,” he said. “Therefore, you wouldn’t have run into [these] objections.”
While previous Appellate Courts have already ruled on the Governor’s powers under the Emergency Management Act, he says the Fourth District isn’t bound by any of those previous rulings. He said that makes trying to predict a result impossible.
But, Szala says, it likely won’t be the end of the legal challenges against the Governor.
“Ultimately, the Illinois Supreme Court may be addressing this issue down the road,” he said.