How downstate judge's mask ruling sowed confusion in schools across suburbs, state

  • About 150 people gathered for a rally ahead of the Algonquin-based Community School District 300 board meeting Tuesday. Protesters both in support and against required masking in schools have marched in the last week, after a downstate judge's ruling striking down the state's school mitigation measures.

      About 150 people gathered for a rally ahead of the Algonquin-based Community School District 300 board meeting Tuesday. Protesters both in support and against required masking in schools have marched in the last week, after a downstate judge's ruling striking down the state's school mitigation measures. john starks | Staff Photographer

 
and Tom collins
jgriffin@dailyherald.com
tcollins@shawmedia.com
 
Updated 2/12/2022 4:34 PM

When Sangamon County Circuit Court Judge Raylene Grischow issued a temporary restraining order against a statewide masking requirement inside schools Feb. 4, it left hundreds of school districts scrambling to figure out how the ruling affected students and staff.

Most legal experts believe the ruling covered only the more than 140 school districts listed as defendants and applied to just the students listed as plaintiffs.

 

But many school districts not named in the suit dropped the mask requirements for all students after the restraining order was issued, while some districts named in the suit defied the order. Still other districts fell somewhere in between, sparking outrage and protests from both sides of the debate.

Gov. J.B. Pritzker asked Illinois Attorney General Kwame Raoul to immediately appeal Grischow's ruling; Raoul filed paperwork Monday. A decision from the appellate court is expected in the coming week.

"A temporary restraining order is intended to be short-lived," said Don Craven, a Springfield attorney and president of the Illinois Press Association. "And the appellate court must hear the case; they don't get discretion to reject it like the Supreme Court."

While Grischow presides in Sangamon County, the temporary restraining order affects the entire state because there were likely no challenges to her jurisdiction in the case, legal experts said.

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In some cases, parties to a temporary restraining order don't even have to be notified.

"And then this ruling reverts to the status quo prior to the governor's mask requirement," said Pat Bond, a local government attorney who represents dozens of suburban agencies. "In order for it to become permanent, there's a different pleading."

The plaintiffs would need to seek a temporary injunction and then argue for a permanent one as well, Bond said.

After Raoul appealed Grischow's ruling, Pritzker said he plans to end the state's indoor masking requirement at most public places, but not schools, at the end of this month.

"In the coming weeks, it's my hope and expectation that we will continue making progress to a place where we can remove school masking requirements and keep kids in school," Pritzker said Wednesday.

It's unknown how that decision might affect the three-judge appellate panel's decision.

Grischow is a relatively new judge, having been appointed in 2018 and then running unopposed for circuit judge in 2020.

                                                                                                                                                                                                                       
 

Craven said he has appeared before her numerous times and described her as "a very good judge."

"It's been my experience in her courtroom that she is very accommodating and lets everyone talk until they're out of breath," he said.

Grischow received a little more than 80,000 votes in the Nov. 3, 2020, election when she ran unopposed as a Republican for a 6-year term.

Before her judicial appointment, Grischow was a partner in the Springfield office of Hinshaw & Culbertson LLP.

After first being seated on Jan. 7, 2019, Grischow assembled a modest war chest of about $10,000 for her 2020 election. Most of her donors were law firms, according to state campaign records.

The Illinois State Bar Association recommended Grischow for the seat based on a bar poll in which 125 responding attorneys scored her abilities on a 100-point scale. She earned a composite score of 87 with scores of 90 or higher in integrity, impartiality, temperament and court management.

In December 2020, Grischow was the judge who shot down a Clay County judge's order earlier that year, in a case brought by Rep. Darren Bailey of Xenia, to void Pritzker's executive orders implementing statewide COVID-19 mitigation strategies at the start of the pandemic. She said Pritzker did have the power to issue more than one 30-day disaster proclamation.

Grischow cited a 2nd District Appellate Court ruling saying the same thing in the case of FoxFire Tavern in Geneva, which unsuccessfully challenged Pritzker's indoor dining ban in 2020.

Grischow also rejected assertions by the Clay County judge that the Illinois Department of Public Health, not the governor, is responsible for closing businesses or restricting individuals' activities during a public health emergency. She cited the Illinois Constitution as providing the governor with "supreme executive authority."

A month earlier, Grischow ruled in a separate case that Pritzker's administration had the power under state law and the state constitution to issue executive orders that mandate public health measures at schools, including masks, capping the size of gatherings and temperature screenings. Parents had argued that the state Legislature had to approve those rules.

But in her Feb. 4 ruling this year, Grischow said new emergency mitigation rules for schools created last August amounted to a kind of "quarantine" and that the Pritzker administration overstepped its bounds by issuing them.

She said the Department of Public Health at that time had known about COVID-19 for well over a year and a half and that vaccines had been around for more than nine months, suggesting the rules could have been developed under the normal process with public comment and legislative review.

The temporary restraining order she issued against the mask mandate will be appealed to the 4th District Appellate Court in Springfield. One of the justices who might hear the appeal is her predecessor, Justice Peter Cavanagh, also a Republican, who ran unopposed for the appellate seat in 2019.

• Capitol News Illinois contributed to this report.

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