Lurkins v. Bond Cnty. Cmty. Unit No. 2

2021 IL App (5th) 210292

175 N.E.3d 680

Justin T. LURKINS, as the Parent and Guardian of Student M.L.; Michelle Lurkins, as the Parent and Guardian of M.M.; and Jeffrey and Jennifer Rehkemper, as the Parents and Guardians of A.R., D.R., and G.R., as Well as on Behalf of All Parents and Guardians of Students Similarly Situated, Plaintiffs-Appellees,

v.BOND COUNTY COMMUNITY UNIT NO. 2, a Body Politic and Corporate; and Wes Olsen, as Superintendent of Bond County Community Unit No. 2, Defendants-Appellants.

NO. 5-21-0292

Appellate Court of Illinois, Fifth District.

October 1, 2021

Barney R. Mundorf, Heather R. Igoe, Dana B. Edwards, Guin Mundorf, LLC, of Collinsville, IL for appellants.

Thomas G. DeVore, Silver Lake Group, Ltd., of Greenville, IL for appellees.

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

¶ 1 Defendants, Bond County Community Unit School District No. 2, incorrectly named as Bond County Community Unit No. 2, and Wes Olsen as superintendent of the school district (school district), appeal the September 21, 2021, temporary restraining order issued "with notice" (TRO) by the Bond County circuit court. The TRO enjoins the school district from requiring the plaintiffs’ children "to wear a mask for the purposes of allegedly preventing the spread of an infectious disease unless the parent or legal guardian of a student consents or there is a lawful order of quarantine having been issued against a particular student from the local health department." For the following reasons, we vacate the TRO and remand for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 On September 16, 2021, plaintiffs, Justin T. Lurkins, as the parent and guardian of student M.L.; Michelle Lurkins, as the parent and guardian of M.M.; and Jeffrey and Jennifer Rehkemper, as the parents and guardians of A.R., D.R., and G.R., as well as on behalf of all parents and guardians of students similarly situated, filed a verified petition for declaratory relief and writ of injunction against the school district, based on the school district's mandate requiring all students in the district to wear a mask while indoors at the school. Thereafter, the plaintiffs filed a petition for a TRO, requesting that the school district be restrained from enforcing the mask mandate.

¶ 4 On September 20, 2021, the school district filed a memorandum in opposition to the plaintiffs’ motion for TRO and supporting documentation. Based on the documentation, the circuit court was informed of the following: (1) on July 21, 2021, the school district adopted a return to school plan that highly recommended, but did not require, students to wear masks on school property; (2) on August 4, 2021, in response to the "more aggressive and *** transmissible" Delta variant of COVID-19, the Illinois Governor issued Executive Order 2021-18 (Exec. Order No. 2021-18, 45 Ill. Reg. 10726 (Aug. 4, 2021), https://www.illinois.gov/ government/executive-orders/executive-order.executive-order-number-18.2021.html [https:// perma.cc/NJB7-82VJ]), requiring all schools in Illinois to follow the joint guidance by the Illinois State Board of Education (ISBE) and the Illinois Department of Public Health (IDPH), including that guidance requiring the indoor use of face coverings by students, staff, and visitors who are over the age of two and medically tolerate a face covering, regardless of vaccination status, consistent with Centers for Disease Control guidance; (3) on August 9, 2021, ISBE and IDPH issued the "Revised Public Health Guidance for Schools" (Ill. State Bd. of Educ. & Ill. Dep't of Pub. Health, Revised Public Health Guidance for Schools: Part 5— Supporting the Full Return to In-Person Learning for All Students (August 2021), https:// iecam.illinois.edu/wp-content/uploads/2021/08/Updated-Public-Health-School-Guidance. pdf) [https://perma.cc/KL6B-NPTK]), requiring all teachers, staff, students, and visitors to prekindergarten through twelfth-grade schools to wear a mask while indoors, regardless of vaccination status; and (4) in response to these mandates the school district amended its return to school plan to mandate face coverings in accordance with the Governor's executive order and the ISBE and IDPH's joint guidance; (5) on August 26, 2021, the Governor issued an executive order requiring face coverings in all public indoor spaces for all individuals over the age of two who are medically able to tolerate a face mask; and (6) the Governor has extended these executive orders such that they remain in place.

¶ 5 On September 21, 2021, the circuit court entered an order granting the plaintiffs’ petition for a TRO, enjoining the school district from requiring the children of the named plaintiffs to wear a mask on school property "unless the parent or legal guardian of a student consents or there is a lawful order of quarantine having been issued against a particular student from the local health department." On September 23, 2021, the school district filed a notice of interlocutory appeal pursuant to Illinois Supreme Court Rule 307(d) (eff. Nov. 1, 2017).

¶ 6 II. ANALYSIS

¶ 7 We review the circuit court's order granting a TRO for an abuse of discretion. Bradford v. Wynstone Property Owners’ Ass'n , 355 Ill. App. 3d 736, 739, 291 Ill.Dec. 580, 823 N.E.2d 1166 (2005). To be an abuse of discretion, a decision must be clearly illogical, arbitrary, unreasonable, contrary to law, or not the product of conscientious judgment. People v. Breeden , 2016 IL App (4th) 121049-B, ¶ 46, 403 Ill.Dec. 775, 54 N.E.3d 916. " ‘A party seeking a TRO must establish, by a preponderance of the evidence, that (1) he or she possesses a certain and clearly ascertainable right needing protection, (2) he or she has no adequate remedy at law, (3) he or she would suffer irreparable harm without the TRO, and (4) he or she has a likelihood of success on the merits.’ " Bradford , 355 Ill. App. 3d at 739, 291 Ill.Dec. 580, 823 N.E.2d 1166 (quoting Wilson v. Hinsdale Elementary School District 181 , 349 Ill. App. 3d 243, 248, 284 Ill.Dec. 847, 810 N.E.2d 637 (2004) ). Although a likelihood of success on the merits does not require a showing that is sufficient to warrant relief after a final hearing, the plaintiffs must establish that they will probably be entitled to the relief requested if the proof should sustain their allegations. Donald McElroy, Inc. v. Delaney , 72 Ill. App. 3d 285, 290-91, 27 Ill.Dec. 892, 389 N.E.2d 1300 (1979).

¶ 8 The school district argues, inter alia , that we must vacate the TRO because the plaintiffs failed to name the Governor, ISBE, and IDPH as party defendants to this action. We agree. Our colleagues in the First District set forth the legal requirements in Illinois for the naming of necessary parties as follows:

" ‘A necessary party is one whose participation is required to (1) protect its interest in the subject matter of the controversy which would be materially affected by a judgment entered in its absence; (2) reach a decision protecting the interests of the parties already before the court; or (3) allow the court to completely

...