Plaintiff Response To Appellate Court
Plaintiff Response To Appellate Court
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
Defendants-Petitioners.
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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-Petitioners.
Plaintiffs-Respondents
v. 2021 CH
500007
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
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
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
2) The emergency rule of IDPH provides that masking and exclusion requirements
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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
4) The Governor has authority under the Illinois Constitution to issue executive
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
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
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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
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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.
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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.
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fair question in regard to the Governor not having any authority under the Illinois
vaccination and testing of our citizens, without providing a shred of due process, to
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
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
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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.
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.