No.

04-22-0092
No. 04-22-0093
No. 04-022-0094
Consolidated with
04-22-0090

IN THE
APPELLATE COURT OF ILLINOIS
FOURTH JUDICIAL DISTRICT

JULIEANNE AUSTIN, as the parent or legal

guardian of T.L. and L.A., et al.

Plaintiffs-Respondents, Appeal from the Circuit Court of

Sangamon County, Illinois
v.

THE BOARD OF EDUCATION OF Case No. 2021-CH-500002

COMMUNITY UNIT SCHOOL DISTRICT
#300 et al.,

Defendants, The Honorable Raylene Grischow,

Judge Presiding
And

ILLINOIS DEPARTMENT OF PUBLIC

HEALTH; DR. NGOZI EZIKE, in her official
capacity as Director of the Illinois Department of
Public Health; ILLINOIS STATE BOARD OF
EDUCATION; DR. CARMEN I. AYALA, in her
official capacity as Director of the Illinois State
Board of Education; and GOVERNOR JAY
ROBERT PRITZKER, in his official capacity,

Defendants-Petitioners.

MARK and EMILY HUGHES, as the parents and

guardians of students G.H. and L.H., as well as
on behalf of all parents and guardians of students
similarly situated

Plaintiffs-Respondents Appeal from the Circuit Court of

Sangamon County, Illinois
v.

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HILLSBORO COMMUNITY SCHOOL
DISTRICT #3, a body politic and corporate,
DAVID POWELL, as Superintendent of Case No. 2021 CH 500005
HILLSBORO COMMUNITY SCHOOL
DISTRICT #3

Defendants, The Honorable Raylene Grischow

Judge Presiding
ILLINOIS DEPARTMENT OF PUBLIC
HEALTH and DR. NGOZI EZIKE, in her
official capacity as Director of the Illinois
Department of Public Health, ILLINOIS
STATE
BOARD OF EDUCATION and DR.
CARMEN I. AYALA, in her official
capacity as Director of the Illinois State
Board of Education, and GOVERNOR JAY
ROBERT PRITZKER, in
his official capacity,

Defendants-Petitioners.

MATTHEW ALLEN, as well as all

Other educators similarly situated, et al.

Plaintiffs-Respondents

v. 2021 CH
500007

ILLINOIS DEPARTMENT OF PUBLIC The

Honorable
HEALTH, et al. Raylene Grischow
Judge Presiding
And

THE BOARD OF EDUCATION OF

NORTH MAC COMMUNITY
UNIT SCHOOL DISTRICT #34,
A body politic and corporate, et al.

Defendants.

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 PLAINTIFFS-RESPONDENTS SUPPLEMENTAL BRIEF
PURSUANT TO APPELLATE COURT ORDER

Discussion

This Court has asked the Attorney General on behalf of the State Defendants, as well

Mr. William Gerber and Mr. Thomas DeVore as counsel for the Plaintiffs in all the

consolidated matters, to advise the Court how the actions of the Joint Committee of

Administrative Rulemaking (“JCAR”) might have impacted this Court’s interlocutory

review of the Honorable Judge Grischow’s grant of temporary restraining order.

The Plaintiffs in this cause have so far successfully argued that when it comes to

quarantine, vaccination or testing of citizens in this state, in order to prevent the spread of an

infectious disease, that the legislature has delegated this authority to the Illinois Department

of Health (“IDPH”), who then delegated it to the certified local health departments, via the

Illinois Department of Public Health Act (“IDPHA”). They have further successfully argued

the IDPHA provides due process of law for any citizen who the certified local health

department desires to subject to quarantine, vaccination or testing.

The State Defendants have made several arguments as to why the Plaintiffs

arguments have no likelihood of success on the merits, and based upon their arguments, for

this Court to find Judge Grischow abused her discretion.

1) The Governor’s executive orders, presuming he has ever been delegated

authority to issue executive orders regarding sweeping matters of public health

under the Illinois Emergency Management Agency Act (“IEMAA”), supersede

the IDPHA under Section (m) of the IDPHA.

2) The emergency rule of IDPH provides that masking and exclusion requirements

do not constitute quarantine and as such it doesn’t apply. In addition, the

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 emergency rule was cloaking school districts with authority to force masks and

exclusion.

3) The Illinois State Board of Education (“ISBE”) emergency rule provides that

school personnel must submit to vaccination or testing.

4) The Governor has authority under the Illinois Constitution to issue executive

orders on all of these matters.

Before addressing the JCAR ruling, it is worth noting the precarious part of the

Governor’s independent authority argument, which he has never been called upon by the

people of the state to answer, is that irrespective of his ability, or lack thereof, to promulgate

an executive order, what is the lawful method of enforceability. A lawful method of

enforceability is a separate question as to the executive’s ability to instill fear as a tool of

compliance. Would it be enforced against the school districts? Would it be enforced against

the citizens directly? None of these questions have ever been answered by any branch of

government as up until recent either fear, or the otherwise kind nature of people to follow

“rules”, has never required this question to be addressed. One of the Plaintiff’s averments to

the trial court in regard to the Governor’s clear lack of authority to issue executive orders

regarding such matters of public health is evidenced by the fact that no enforcement

mechanism exists for him. If the legislature ever intended the Governor to have such broad

sweeping power over matters of public health, he would have been provided a remedy. The

point being made is that knowing that no such remedy exists, is why the Governor in his

executive order directed IPDH and ISBE to issue emergency rules consistent with his policy

directives outlined in the executive orders. These administrative agencies do have some

enforcement mechanisms which can be used to seek compliance if in fact a lawful rule is

4
being violated. 1Without any such rule, these executive orders over sweeping matters of

public health against are citizens are merely hollow policy directives.

Much of the 18-page appeal submitted by the Attorney General is grounded upon the

argument that the emergency rule promulgated by IDPH provided that masks were not a

type of quarantine. It also provided that exclusion from school was not a type of quarantine.

This Court is presently being asked to decide if Judge Grischow abused her discretion in

finding the Plaintiffs had in fact raised a likelihood of success on the merits that the

emergency rule was procedurally and substantively invalid. Given she found the emergency

rule to be invalid, the long-standing provisions of the administrative code clearly lay out

how masks, as a type of device intended to prevent the spread of a disease, as well as

exclusion from school, are types of quarantines. 2Now that JCAR has refused to extend the

IDPH emergency rule, which the State Defendants were relying upon as a crux argument in

this appeal, the legislature has rendered it unnecessary for this Court to determine at this

stage whether Judge Grischow abused her discretion in finding the Plaintiffs had raised a

fair question that the IDPH rule was invalid. While the question of the legality of the

actions by IDPH overall may in fact return to this Court on a final ruling in the future, that is

a separate issue, but as it relates to this interlocutory appeal, the State Defendants can no

longer rely upon the authority of an emergency rule that JCAR unanimously chose to

suspend. The State Defendants are left with only one argument at this interlocutory stage,

and that is did Judge Grischow abuse her discretion in finding the Plaintiffs have raised a

1
The question being is the rule lawful. The Governor cannot grant new power to an administrative agency,
for he can only direct them to utilize the power they have been given by the legislature.
2
Given JCAR has suspended the rule, regardless of Judge Grischow’s ruling, our courts now find themselves in
the same posture as those judges who ruled in favor of students in Adams, Macoupin, Bond, Montgomery,
Clinton and Effingham Counties. Masks and exclusion are clearly types of quarantine and the emergency rule,
which Judge Grischow called evil, has been completely eliminated by our legislature.

5
fair question in regard to the Governor not having any authority under the Illinois

Constitution, or the IEMAA, to independently promulgate and enforce quarantine,

vaccination and testing of our citizens, without providing a shred of due process, to

allegedly prevent the spread of an infectious disease.

It is also necessary to point out to this Court that the emergency rule of the Illinois

State Board of Education (“ISBE”) which was also promulgated on September 17, 2021 has

been allowed to expire and was not even attempted to be renewed by ISBE As it relates to

the educators in the 500007 case, the same arguments made herein as to the IDPH

emergency rule apply there as well. In regard to vaccination or testing of our educators, the

emergency rule of ISBE is no longer an argument the State Defendants can utilize.

Also, this Court is still left to consider the argument made by a couple of the school

districts that they have inherent authority under the Illinois School Code to adopt masking

polices, exclusion policies, as well as vaccination or testing policies. The JCAR decision

does not directly vitiate those arguments.

CONCLUSION

As the parties all concur, this Court should review the trial court’s granting of the

temporary restraining order at issue here for an abuse of discretion. An abuse of discretion

will be found only where the court’s ruling is arbitrary, fanciful, unreasonable, or where or

where no reasonable person would take the view adopted by the trial court. Abuse of

discretion means clearly against logic; the question is not whether the appellate court agrees

with the trial court, but whether the trial court acted arbitrarily, without employing

conscientious judgment or whether, considering all the circumstances, the court acted

unreasonably and ignored recognized principles of law, which resulted in substantial

6
prejudice.

The JCAR ruling has vitiated a significant part of the State Defendants argument.

Should this Court listen to the JCAR audio, it was clear this legislative body was giving due

respect and deference to Judge Grischow’s ruling, and in fact committee members scolded

the IDPH representative for continuing to pursue re-issuance of a rule which Judge

Grischow had found to be invalid. This legislative committee showed the proper respect to

our judiciary that the executive agency was not. As for this Court, the question for today is

what is left for it to decide given the actions by JCAR. It is the position of the Plaintiffs that

the only matter left to review is whether Judge Grischow abused her discretion when she

found Plaintiffs have raised a likelihood of success in showing a fair question exists that the

IDPHA applies in regard to matters of quarantine, vaccination or testing, and exclusion from

school, and that neither the Governor under some inherent Constitutional authority, or under

some delegated authority under the IEMAA can authorize quarantine, vaccination or testing,

and exclusion from school and disregard the due process protections of Plaintiffs. Also, this

Court is left to decide those same questions as it relates to any inherent authority of the

school districts. As to both of these questions, the Plaintiffs argue Judge Grischow has not

abused her discretion, her restraining order should be affirmed, and the matter sent back to

proceed to a final ruling on the merits off all of the pending matters.

Plaintiffs-Appellees,
/s/ Lance C. Ziebell
/s/ Thomas G. DeVore
By: Their Attorneys
Lance C. Ziebell Thomas G. DeVore
Lavelle Law, Ltd. IL Bar Reg. No. 06305737
1933 North Meacham Road 118 N. 2nd St.
Schaumburg, Illinois 60173 Greenville, IL 62246
ARDC No.: 6298037 [email protected]
[email protected]

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 CERTIFICATE OF SERVICE

I certify that on February 16, 2022, I electronically filed the foregoing Notice of
Interlocutory Appeal with the Clerk of the Circuit Court for the Seventh Judicial Circuit,
Sangamon County, by using the Odyssey eFileIL system.

I further certify that the other participants in this case, named below, are registered
service contacts on the Odyssey eFileIL system, and thus will be served via the Odyssey
eFileIL system. As a courtesy, the other participants also will be served via e-mail.

Counsel of Record for School District

Defendants, Intervenors, And Amici

Merry C. Rhoades Robert E. Swain

Christine L. Self Stephanie E. Jones
[email protected] [email protected]
[email protected] [email protected]

James A. Petrungaro Caitlin Frazier Satterly

Paulette A. Petretti Jason T. Manning
Adam Dauksas [email protected]
[email protected] [email protected]
[email protected]
[email protected]

Charles A. LeMoine H. Allen Yow

[email protected] [email protected]

Vincent D. Resse David J. Braun

Melanie Renken S. Jeff Funk Luke
[email protected] M. Feeney
[email protected] Brandon K. Wright
[email protected]
[email protected]
[email protected]
[email protected]
Lisa R. Callaway Loretta K. Haggard
Dawn M. Hinkle Natalie J. Teague
Abigail C. Rogers [email protected]
[email protected] [email protected]
[email protected]
[email protected]
John Shapiro Jay E. Greening
Richard Self Robert B McCoy
Dylan Smith Jeffrey J. Gaster
[email protected] [email protected]
[email protected] [email protected]
[email protected] [email protected]

Nikoleta Lamprinakos William R. Pokorny

Susan E. Nicholas Shelli L. Anderson
Dennis L. Weedman Jennifer A. Smith Dana
Hailey M. Golds Fattore Crumley
[email protected] Nicki Bazer
[email protected] Scott Metcalf
[email protected] Melisa Sabota
[email protected] Koga Ndikum-Moffor
Caroline K. Kane
David J. Braun, [email protected]
[email protected] [email protected]
S. Jeff Funk [email protected]
[email protected] [email protected]
Luke M. Feeney, [email protected]
[email protected] [email protected]
Brandon K. Wright, [email protected]
[email protected] [email protected]
[email protected]
 Mallory A. Milluzzi
[email protected]

Under penalties as provided by law pursuant to section 1-109 of the Illinois Code of Civil
Procedure, I certify that the statements set forth in this instrument are true and correct to the best of
my knowledge, information, and belief.

/s/ Lance C. Ziebell

Lance C. Ziebell
ARDC No. 6298037
Lavelle Law, Ltd.
Suite 600
1933 North Meacham Road
Schaumburg, Illinois 60173
Phone: (847) 705-7555
Email: [email protected]