Judge dismisses school mask lawsuit, but GOP attorney general candidate Thomas DeVore still claims victory

Republican attorney general candidate Thomas DeVore is claiming victory after a Springfield judge last week dismissed his lawsuit challenging a state mask mandate and other coronavirus restrictions for schools that were rescinded months ago.

In fact, Sangamon County Circuit Judge Raylene Grischow ruled Friday that DeVore’s lawsuit against the state and more than 100 school districts was moot because the policies have not been in place for many months.

The latest COVID-19 guidance from the Illinois Department of Public Health and the State Board of Education, which “supersedes all prior COVID-19 guidance, is exactly that — guidance,” Grischow wrote. “School districts are encouraged to follow the joint guidance; but there is no mandate.”

In addition, Grischow wrote, the school districts named as defendants in the lawsuit “do not have any policies that mandate masks or exclusion from school due to being a close contact.” In arguing for the case to be dismissed, the state said the changing nature of the pandemic makes it unlikely such policies would be reinstated.

Nevertheless, in a fundraising email Monday, DeVore took credit for the end of school COVID-19 mandates. “Thanks to your refusal to let the state walk all over you and Tom’s dedication, the majority of your kids cannot be required to comply with mask and exclusion mandates as they go back to school!” his campaign wrote in an fundraising email.

The email, with the subject line “The GOOD news …” also claims that the attorney general’s office “admitted to the judge the state’s (COVID-19) guidance has always been nothing but recommendations.”

In court last week, the attorney general’s office argued only that the current state guidance is voluntary, not that previous mandates were never enforceable.

During the hearing, Darren Kinkead of the attorney general’s office referred specifically to “the question of the new guidance” and said: “Operative word: ‘guidance.’ Just recommendations and suggestions from the state that may or may not be implemented by the school districts going forward. … I think it’s clear if you read that guidance that it’s not binding on anyone at all.”

Kinkead added, “There’s no case or controversy with respect to the state, pertaining to the new guidance or to the old guidance.”

At an event in Springfield on Tuesday, DeVore stood by his assertion, pointing to the phrase “old guidance” as evidence of the state’s admission.

But the state’s written motion to dismiss makes several references to Pritzker’s previous orders, saying they were “based on his constitutional and statutory authority” and “obligated school districts” to comply. The state argued that the lawsuit should be dismissed because there are no longer mandates in place.

In granting the state’s request, Grischow wrote that she didn’t have grounds to rule on the merits of mandates that are no longer in effect.

“Illinois courts, as a general rule, do not decide moot questions or render advisory opinions,” she wrote.

An attorney general’s spokeswoman said the office was “pleased with Judge Grischow’s order” that puts a stop to litigation with the state over mandates that ended months ago.

Despite those mandates being long over, “Mr. DeVore has spent the summer continuing to push his baseless lawsuit at the expense of Illinois taxpayers,” spokeswoman Annie Thompson said in a statement.

A spokeswoman for the campaign of Democratic Attorney General Kwame Raoul, who’s running against DeVore in November for a second term, called DeVore “an over-litigious lawyer who is allergic to the truth.”

“Tom DeVore argued against the state’s motion to dismiss for over two hours in court and now claims victory when his lawsuits were dismissed with prejudice, permanently preventing him from filing the cases again,” campaign spokeswoman Maura Possley said in a statement.

While DeVore’s fundraising email said he would continue the case against 35 districts not included in Grischow’s order, he said Tuesday he’s already heard from several districts that they are no longer enforcing the policies and that he’ll move to dismiss them from the case.

“To the extent our school districts don’t put these universal policies in place or to the extent the governor doesn’t try to implement mandates again, then we’ll move on with life, at least from the legal perspective,” he said.

There has never been a final court ruling on the merits of DeVore’s lawsuit challenging Pritzker’s authority to issue the mandates for schools. Grischow in February issued a temporary restraining order barring enforcement of the mask mandate and exclusion policies.

The case eventually made it to the Illinois Supreme Court, but in the interim, a legislative panel declined to renew Department of Public Health rules that served as part of the basis for the mask mandate.

The Supreme Court vacated Grischow’s order but sent the case back to the lower court without ruling on the merits of the arguments, allowing both DeVore and Pritzker to claim victory.

The same day the state Supreme Court issued its ruling in late February, the Centers for Disease Control and Prevention eased its masking guidelines, including for schools. That came just in time for Pritzker to add schools to the list of places where masks would no longer be required.

The state on Friday further adjusted its guidelines for the new school year to align with the latest recommendations from the CDC, which no longer recommends routine testing in schools or quarantining for people who’ve been exposed to the virus but aren’t showing symptoms or testing positive.

Chicago Tribune’s Jeremy Gorner reported from Springfield.

dpetrella@chicagotribune.com

jgorner@chicagotribune.com