Glass v. Department of Corrections

2022 IL App (4th) 220270

203 N.E.3d 986

461 Ill.Dec. 384

Jean R. GLASS, Jesse J. Fowler, Trina Tangerose, Valerie L. Gregory, Mike Winters, Kimberly K. Watson, Richard W. Logan, and Gregory L. Gurski, Individually, as Well as on Behalf of All Other Persons Similarly Situated, Plaintiffs-Appellants,

v.The DEPARTMENT OF CORRECTIONS ; The Department of Human Services; The Department of Veterans’ Affairs; The Department of Juvenile Justice; The Department of Central Management Services; The Department of Public Health ; The Illinois Nurses Association; The American Federation of State, County and Municipal Employees, Council 31 ; the Illinois State Employees Association, Local 2002; Wexford Health Services, Inc.; and Jay R. Pritzker, in His Official Capacity as Governor of the State of Illinois, Defendants-Appellees.

Janelle Hermann, Individually, as Well as on Behalf of All Other Persons Similarly Situated, Plaintiff-Appellant,

v.Deland-Weldon Community Unit School District No. 57, a Body Politic and Corporate; Amanda Geary, as Superintendent of Deland-Weldon Community Unit School District No. 57; The department of Public Health ; the Illinois State Board of Education ; and Jay R. Pritzker, in His Official Capacity as Governor of the State of Illinois, Defendants-Appellees.

Joshua Graham and Andrew Vice, Plaintiffs-Appellants,

v.The Pekin Fire Department; The City of Pekin; The Department of Public Health ; and Jay R. Pritzker, in His Official Capacity as Governor of the State of Illinois, Defendants-Appellees.

NOS. 4-22-0270

4-22-0271

4-22-0272 cons.

Appellate Court of Illinois, Fourth District.

Filed April 13, 2022

Rehearing Denied April 27, 2022

Bethany D. Hager, of Danville, for appellants.

Stephen A. Yokich and George A. Luscombe III, of Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich LLP, of Chicago, for appellee American Federation of State, County and Municipal Employees, Council 31.

Nikoleta Lamprinakos and Susan E. Nicholas, of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Chicago, for Deland-Weldon Community Unit School District No. 57 and Amanda Geary.

Alison Harrington and Scott B. Dolezal, of Best, Vanderlaan & Harrington, of Chicago, for appellees Pekin Fire Department and City of Pekin.

Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, Sarah A. Hunger, Deputy Solicitor General, and Leigh J. Jahnig and Nadine J. Wichern, Assistant Attorneys General, of counsel), for other appellees.

JUSTICE CAVANAGH delivered the judgment of the court, with opinion.

¶ 1 According to the complaints in these three appeals, the plaintiffs work for or used to work for public employers in Illinois, either on the local level or the state level. We will refer to the plaintiffs, collectively, as "the employees." In the circuit court of Sangamon County, the employees petitioned for the issuance of temporary restraining orders that would bar the public employers and Governor Pritzker from enforcing a workplace policy requiring all employees either to be vaccinated against COVID-19 or, alternatively, to undergo regular testing for COVID-19. The court denied the petitions for temporary restraining orders. The employees appeal. We find no abuse of discretion in that ruling. Therefore, we affirm the judgments in these three cases.

¶ 2 I. BACKGROUND

¶ 3 The employees allege that the public employers gave them a choice: either become fully vaccinated against COVID-19 or, alternatively, if vaccination is unacceptable for moral or medical reasons, undergo regular testing for the virus. Both of those options, the employees plead, are offensive to their conscience. Now they face, or already have incurred, unpaid suspension or discharge for noncompliance with this new COVID-19 policy—a policy that, the employees allegedly learned from their employers, had been handed down from the Governor.

¶ 4 The employees sought declaratory and injunctive relief against the public employers, the Governor, and the Department of Public Health (Health Department), among other defendants. According to the employees, the vaccination or testing policy was unauthorized by law. They maintained that only the Health Department had statutory authority to quarantine people and to require them to be vaccinated against, or to be tested for, contagious diseases. The employees further claimed that imposing the vaccination or testing policy upon them was an act of discrimination prohibited by section 5 of the Health Care Right of Conscience Act (Conscience Act) ( 745 ILCS 70/5 (West 2020) ).

¶ 5 Concluding that the pleadings failed to establish any claim that was likely to succeed on its merits, the circuit court denied the employees’ petitions for temporary restraining orders.

¶ 6 The employees appeal pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017).

¶ 7 II. ANALYSIS

¶ 8 A. The Showing Required for the Issuance of a Temporary Restraining Order

¶ 9 A party who petitions a circuit court to issue a temporary restraining order "must establish" for the court that the following four propositions hold true: (1) the party has a "protectible right," (2) the party will "suffer irreparable harm" if the petition is denied, (3) the "remedy at law is inadequate," and (4) "there is a likelihood of success on the merits." Jacob v. C&M Video, Inc. , 248 Ill. App. 3d 654, 664, 188 Ill.Dec. 697, 618 N.E.2d 1267 (1993). The appellate court in Jacob uses the phrase "must establish" but in the next sentence clarifies,

"The party seeking relief is not required to make out a case which would entitle him to relief on the merits; rather, he need only show that he raises a fair question about the existence of his right and that the court should preserve the status quo until the case can be decided on the merits." (Internal quotation marks omitted.) Id.

¶ 10 It is for the circuit court, not for us, to decide whether the party has raised a fair question about the existence of the claimed right and the need to preserve the status quo. The question for us is whether, by granting or denying a temporary restraining order (as the case may be), the circuit court abused its discretion. See id. ; C.D. Peters Construction Co. v. Tri-City Regional Port District , 281 Ill. App. 3d 41, 47, 216 Ill.Dec. 876, 666 N.E.2d 44 (1996). Posing the question "Did the circuit court abuse its discretion?" means applying "the most deferential standard of review" recognized by the law—"next to no review at all." In re D.T. , 212 Ill. 2d 347, 356, 289 Ill.Dec. 11, 818 N.E.2d 1214 (2004). "An abuse of discretion occurs only when the trial court's decision is arbitrary, fanciful, or unreasonable or where no reasonable person would take the view adopted by the trial court." Seymour v. Collins , 2015 IL 118432, ¶ 41, 396 Ill.Dec. 135, 39 N.E.3d 961.

¶ 11 The employees claim that the circuit court abused its discretion by denying their petitions for temporary restraining orders. The employees maintain that the court should have granted their petitions because, under section 5 of the Conscience Act ( 745 ILCS 70/5 (West 2020) ) and section 2305 of the Department of Public Health Act (Health Act) ( 20 ILCS 2305/2 (West 2020) ) as the employees interpret those statutes, they have the right not to be subjected to an employment requirement of being vaccinated or tested for COVID-19.

¶ 12 Let us examine those two statutes one at a time.

¶ 13 B. The Conscience Act

¶ 14 The employees claim that by conditioning their continued employment on their being either vaccinated or tested for COVID-19, the employers do that which is "unlawful": the employers "discriminate against" the employees "because of [their] conscientious refusal to receive" or "participate in" a "form of health care services." 745 ILCS 70/5 (West 2020). Section 5 of the Conscience Act provides as follows:

"It shall be unlawful for any person, public or private institution, or public official to discriminate against any person in any manner, including but not limited to, licensing, hiring, promotion, transfer, staff appointment, hospital, managed care entity, or any other privileges, because of such person's conscientious refusal to receive, obtain, accept, perform, assist, counsel, suggest, recommend, refer or participate in any way in any particular form of health care services contrary to his or her conscience." Id.

¶ 15 One of the reasons why the circuit court denied the employees’ petitions for temporary restraining orders was that recently the General Assembly passed an amendment making clear that it was not a violation of the Conscience Act for any employer to take measures calculated to prevent the spread of COVID-19. The amendment, which will go into effect on June 1, 2022, reads as follows:

"It is not a violation of this Act for any person or public official, or for any public or private association, agency, corporation, entity, institution, or employer, to take any measures or impose any requirements, including, but not limited to, any measures or requirements that involve provision of services by a physician or health care personnel, intended to prevent contraction or transmission of COVID-19 or any pathogens that result in COVID-19 or any of its subsequent iterations. It is not a violation of this Act to enforce such measures or requirements. This Section is a declaration of existing law and shall not be construed as a new enactment. Accordingly, this Section shall apply to all actions commenced or pending on or after the effective date of this amendatory Act of the 102nd General Assembly. Nothing in this Section is intended to affect any right or remedy under federal law." Pub. Act 102-667, § 5 (eff. June 1, 2022) (adding 745 ILCS 70/13.5 ).

¶ 16 The employees make essentially two arguments against the circuit court's reliance on this statutory amendment.

First, the employees argue that because the amendment does not go into effect until June 1, 2022, it is inapplicable to their cases. Second, the employees argue that,...