Appellate court rules school mask mandate expired; Pritzker plans state Supreme Court appeal

A downstate appellate court has ruled the state's indoor mask requirement in schools has expired and therefore an appeal of a temporary restraining order barring schools from enforcing it is "moot."

In the appellate court order issued early Friday morning, justices wrote school district officials can decide for themselves how to address any indoor masking requirements.

A spokeswoman for Gov. J.B. Pritzker said he plans to appeal the order to the Illinois Supreme Court.

"The governor is disappointed in the appellate court's decision and concerned for the health of those in schools - particularly vulnerable children and adults - and the ability to continue in-person learning," spokeswoman Jordan Abudayyeh said via email. "The administration is working with the attorney general to request an expedited review of this decision from the Supreme Court."

Illinois Attorney General Kwame Raoul said he plans to "immediately" file an appeal with the state's highest court.

The three-judge appellate court panel wrote in an order issued Friday there is no longer a required "actual controversy" needed for the court to rule on the state's appeal of the restraining order.

That's because the legislature's Joint Committee on Administrative Rules had allowed the Illinois Department of Public Health's emergency rule regarding indoor masking at schools to expire, according to the order.

"We dismiss defendant's appeal because the expiration of the emergency rules renders this appeal moot," the order reads.

Justice John Turner wrote the order on behalf of himself and colleagues Justice Thomas Harris and Justice Lisa Holder White.

"The existence of an actual controversy is a prerequisite for appellate jurisdiction," the justices wrote. "We note the language of the (restraining order) in no way restrains school districts from acting independently from the executive orders or the IDPH in creating provisions addressing COVID-19."

Holder White wrote a partial dissension that questions whether the judge issuing the temporary restraining order did so properly.

The appellate court's order comes nearly two weeks after a Sangamon County judge issued a temporary restraining order against the mask requirement that many legal experts said affected only roughly 140 districts and the students named as plaintiffs in the lawsuit.

But many districts that were not named in the suit made masks optional inside schools in the wake of the court decision, while some other districts defied the order.

The confusion about the Feb. 4 order and subsequent decisions by school leaders resulted in protests, both supporting and opposing the mask mandate, at many schools.

Pritzker asked Raoul to appeal the restraining order; he did on Feb. 7.

The legislature's joint committee voted against extending IDPH emergency rules Tuesday, adding to the confusion. Both Raoul and the plaintiff's attorneys said the committee's vote should have no effect on the appellate court's decision.

"We disagree," the order reads. "On Feb. 14, 2022, IDPH renewed the aforementioned Sept. 17, 2021, emergency rules. However, on Feb. 15, 2022, (JCAR) objected to and suspended IDPH's renewal. Thus, none of the rules found by the circuit court to be null and void are currently in effect."

Raoul blasted the plaintiffs, the initial circuit court decision and the appellate court's actions.

"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," he said Friday morning. "The (appellate court's) 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."

Illinois Education Association President Kathi Griffin said the appellate court's order brought "clarity" to the circuit court judge's earlier ruling that "sent schools into chaos." She praised the order's acknowledgment giving district leaders the right to decide on masking.

"We need to come together to find thoughtful solutions to bring some calm back to our schools," Griffin said, "which will provide a better environment for our teachers and staff to provide students the important learning and emotional support that they need."

Illinois Federation of Teachers President Dan Montgomery said school districts that negotiated mitigation details with teachers unions should continue abiding by those agreements.

"As cases continue to decline, discussions about removing these mitigations must be based on good public health decisions," Montgomery said in a statement.

Carpentersville-based Community Unit District 300 parent Sharon Fetting emailed administrators at Jacobs High School in Algonquin to let them know her twin sons would not be wearing masks at school Friday.

"My children will be going to school with no mask today," Fetting wrote. "Please show empathy for the children who wish to breathe."

The state issued the indoor mask mandate before the start of the school year in an effort to stem the growing number of COVID-19 cases.

Pritzker said he plans to lift the indoor mask requirement at many public locations, except schools and health care settings, as early as Feb. 28 if statewide COVID-19 health metrics are met.

State Sen. Donald DeWitte of St. Charles, a member of the Joint Committee on Administrative Rules, was among a chorus of suburban Republicans who supported Friday's outcome.

"This appellate court decision is a clear indication that Gov. Pritzker's unilateral decision-making relative to COVID-19 must end," he said. "... The three branches should be working together to create clarity, not chaos."

• Daily Herald staff writer Alicia Fabbre contributed to this report.