McHenry Cnty. Sheriff v. McHenry Cnty. Dep't of Health

2020 IL App (2d) 200339

162 N.E.3d 310

443 Ill.Dec. 676

The MCHENRY COUNTY SHERIFF, Plaintiff-Appellee,

v.The MCHENRY COUNTY DEPARTMENT OF HEALTH, Defendant-Appellant

The City of McHenry ; The Village of Algonquin; The City of Woodstock; and The Village of Lake in the Hills, Plaintiffs-Appellees,

v.Melissa H. Adamson, in Her Official Capacity as Public Health Administrator for the McHenry County Department of Health, and The McHenry County Department of Health, Defendants-Appellants.

No. 2-20-0339

Appellate Court of Illinois, Second District.

Rule 23 Filed June 25, 2020

Motion to Publish Granted July 22, 2020

Opinion filed July 22, 2020

Robert J. Long and Douglas S. Dorando, of Daniels, Long & Pinsel LLC, of Waukegan, for appellants.

Jennifer J. Gibson, of Zukowski, Rogers, Flood & McArdle, of Crystal Lake, for appellees City of McHenry, Village of Algonquin, City of Woodstock, and Village of Lake in the Hills.

Patrick D. Kenneally, State's Attorney, of Woodstock (Jana Blake Dickson, Assistant State's Attorney, of counsel), for other appellee.

Colleen Connell, Ameri R. Klafeta, and Emily Werth, of Roger Baldwin Foundation of ACLU, Inc., of Chicago, for amici curiae Health & Medicine Policy Research Group, Illinois Coalition for Immigrant and Refugee Rights, and League of United Latin American Citizens of Illinois.

PRESIDING JUSTICE BIRKETT delivered the judgment of the court, with opinion.

¶ 1 On April 10, 2020, plaintiffs, the McHenry County Sheriff (Sheriff), and the City of McHenry, the Village of Algonquin, the City of Woodstock, and the Village of Lake in the Hills (collectively, the Municipalities) obtained a temporary restraining order requiring defendants, the McHenry County Department of Health and Melissa H. Adamson, in her official capacity as public health administrator for the McHenry County Department of Health (collectively, the Department), to disclose to the McHenry County Emergency Telephone System Board (Telephone System Board) the names and addresses of persons who reside in McHenry County and test or have tested positive for the illness denominated COVID-19. The Department moved to reconsider and to dissolve the temporary restraining order, and the circuit court of McHenry¹ County denied the motion. The Department now appeals, pursuant to Illinois Supreme Court Rule 307(d) (eff. Nov. 1, 2017), the trial court's judgment denying its motion to reconsider and to dissolve the temporary restraining order. We reverse and dissolve the temporary restraining order.

¶ 2 I. BACKGROUND

¶ 3 Late in 2019, COVID-19 was identified as a novel coronavirus and the cause of a severe respiratory illness. In March 2020, the World Health Organization announced that the spread of COVID-19 qualified as a global pandemic. In response, our governor took measures to reduce the spread and contraction of the illness throughout the state, with the responsibility of enforcement shouldered by local law enforcement.

¶ 4 Plaintiffs were understandably concerned that their law enforcement officers' performance of their duties would be made more dangerous by the risk of exposure and infection; plaintiffs therefore requested that the Department provide the names and addresses of persons who reside in McHenry County and test or have tested positive for COVID-19. Plaintiffs requested that the information be provided to the Telephone System Board, which oversees the emergency telephone system, so that, upon dispatch, individual police officers could be notified when they could be encountering an infected person, thereby allowing the individual officers to take "adequate precautions" to minimize the risk of infection. Plaintiffs alleged that, with the requested information routed through the emergency telephone system and dispatch, individual officers could not independently, by using the tools in their possession, obtain the names of infected persons. The implication from this allegation was apparently that this method would adequately safeguard the sensitive health information of COVID-19-positive persons, preventing or minimizing the risk of unauthorized disclosure.

¶ 5 The Department had several objections to plaintiffs' request. The information sought was protected health information under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (Pub. L. No. 104-191, 110 Stat. 1936 (1996) (codified as amended in scattered sections of Titles 18, 26, 29, and 42 of the United States Code)). The information sought would be ineffective for the purpose of protecting individual police officers, because, due to deficiencies in testing for infections, the estimated infection count was believed to be some 10 times greater than the reported confirmed infections and there was concern that the illness could be spread through asymptomatic infected persons. The Department also believed that the information sought had little epidemiological value in terms of limiting the spread of COVID-19. Further, the Department believed that the information sought could actually be harmful to the police, because it might give an officer a false sense of security that a person with whom he or she was interacting was not infected, whereas the person could have been infected but had not tested or was asymptomatic. According to the Department, the emergency telephone operators had been given guidance on questions to ask to ascertain the likelihood that a person needing an emergency response had been infected, and this information would be more up-to-date and more reliable than information just listing those who had tested positive.² Instead, the Department agreed to provide the addresses, but not the names, of persons who test or have tested positive. The justification was that, if one person at an address had been infected, then all persons residing at the address had likely been exposed and were possibly infected. Finally, the Department adamantly recommended that police officers should govern all their interactions with members of the public as if both they and the other individuals were infected. Plaintiffs and the Department could not reach an agreement regarding the disclosure of the requested information.

¶ 6 On April 7, 2020, the Sheriff and the Municipalities each filed a three-count complaint. In each complaint, count I sought a declaratory judgment, count II sought a writ of mandamus, and count III sought a permanent injunction. All counts sought exactly the same relief: that the Department provide to the Telephone System Board the names and addresses of all individuals who reside in the county and test or have tested positive for COVID-19. The Sheriff and the Municipalities also each filed an emergency motion: the Sheriff filed an emergency motion for a preliminary injunction and the Municipalities filed an emergency motion for a temporary restraining order and preliminary injunction. The motions sought substantially the same relief as in the complaints (hereinafter, we refer to these motions what ultimately became its motion collectively as "plaintiffs' motions for a temporary restraining order"). The Municipalities attached to their complaint copies of documents from the United States Department of Health and Human Services and from the Illinois Department of Public Health indicating that, under an exception to HIPAA, local health departments, like the Department, were permitted to disclose "information regarding individuals with positive tests for COVID-19" to law enforcement officers and other first responders.

¶ 7 Before the suit was filed, both the Sheriff and the Department were being advised by members of the state's attorney's office. At some point, when it was apparent that the conflict over the requested information would not be resolved through negotiation, the state's attorney's office advised the Department that it would no longer represent the Department but would continue to represent the Sheriff, so the Department would have to find alternate representation. Indeed, on April 7, 2020, the state's attorney filed an emergency petition for the appointment of independent counsel to represent the Department.

On April 9, 2020, the trial court made the appointment.

¶ 8 In the unsettled period between the state's attorney announcing its intent to withdraw representation of the Department and the appointment of independent counsel, the Department and the attorney who was ultimately appointed worked to craft the Department's response in opposition to the pending motion for a temporary restraining order. According to the Department, it began working with its attorney on April 8, 2020, in anticipation of an April 9 hearing. However, the trial court, sua sponte , advanced the hearing from the morning of April 9 to 3 p.m. on April 8. At the April 8 hearing, the state's attorney objected to the Department's choice of attorney, further complicating the Department's ability to respond, because, as noted, the Department's attorney was not definitively appointed until "late the next day," on April 9. The Department represents that, at the April 8 hearing, it submitted a draft of its response to plaintiffs' motions for a temporary restraining order, and it now claims that, had it had the full amount of time, as originally scheduled, to craft a response, it would have submitted something very like what ultimately became its motion to reconsider and to dissolve the temporary restraining order. Instead, the Department filed the admittedly imperfect response appearing in the supporting record.

¶ 9 On April 8, 9, and 10, 2020, the parties engaged in several hearings. The trial court attempted to coax the parties to negotiate and settle their differences, to no avail. The parties appear to agree that all parties fully participated in those hearings and that they were able to submit meaningful pleadings regardless of the Department's later disappointment in the completeness of its original written response. It also appears that the issues regarding the...