Svendsen v. Ill. Dep't of Pub. Health

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HOLLY SVENDSEN, JENNIFER SEWELL, BRIAN BEVILL, MOLLI BEVILL, MINDI BEVILL, and ALLYSON LAFOLLETT, Plaintiffs, v. ILLINOIS DEPARTMENT OF PUBLIC HEALTH, ILLINOIS STATE BOARD OF EDUCATION, JAY R. PRITZKER, in his official capacity as GOVERNOR OF THE STATE OF ILLINOIS, BOARD OF EDUCATION FOR ILLINI BLUFFS SCHOOL DISTRICT #327, a body politic and corporate, and ROGER ALVEY, as Superintendent ILLINI BLUFFS SCHOOL DISTRICT #327, Defendants.

No. 22-cv-1269-JES-JEH

United States District Court, C.D. Illinois

February 3, 2023

ORDER AND OPINION

JAMES E. SHADID, UNITED STATES DISTRICT JUDGE

Plaintiffs Holly Svendsen, Jennifer Sewell, Brian Bevill, Molli Bevill Mindi Bevill, and Allyson LaFollett, proceed against Defendants Illinois Governor Jay B. Pritzker, the Illinois State Board of Education (“ISBE”), and the Illinois Department of Public Health (“IDPH”) (“State Defendants”); as well as the Board of Education of Illini Bluffs School District #327, and Illini Bluffs Superintendent, Roger Alvey, (“District Defendants”). The State Defendants have filed a Motion to Dismiss (“First Motion”), and accompanying Memorandum (Doc. 9, 10). The District Defendants also filed a Motion to Dismiss and accompanying Memorandum (Doc. 12, 16). Plaintiffs have filed a combined response (Doc. 14) to which the State Defendants have replied (Doc. 17).

The State Defendants subsequently filed (Doc. 18), a Supplemental Motion to Dismiss (“Second Motion”) on the grounds of res judicata which was denied on February 2, 2023. The Court, for the reasons indicated herein, hereby GRANTS the State and District Defendants' Motions to Dismiss (Doc. 9 and 12).

BACKGROUND

On September 3, 2021, Governor Pritzker issued Executive Order (“EO”) 2021-22^[1], requiring individuals employed as teachers or staff in Illinois public schools to be vaccinated against Covid-19 or regularly tested for Covid-19 if they were not vaccinated. The ISBE and IDPH issued joint guidance which was adopted by the District Defendants. The Plaintiffs District teachers and staff, filed a 5-Count complaint on August 15, 2022, alleging that these policies infringed upon their sincerely held religious beliefs. Plaintiffs asserted violations of Title VII of the Civil Rights Act, the Emergency Use Authorization Act (“EUA”), the Illinois Religious Freedom Restoration Act (“IRFRA”), Free Exercise under the U.S Constitution and Illinois constitution, and Equal Protection under the Fourteenth Amendment to the U.S. Constitution and under the Illinois constitution. Plaintiffs request declaratory relief, preliminary and permanent injunctive relief, and money damages against all Defendants.

On September 17, 2021, EO 2021-22 was amended by EO 2021-24 and the public school mandate for Covid-19 vaccination and testing was not renewed.^[2] The State and District Defendants assert that as the mandate no longer applies, Plaintiffs' request for injunctive relief is moot. Defendants also assert that Plaintiffs' complaint violates the Illinois rule against claims splitting, based on a related state court case involving the same parties, Sewell, et al. v. Pritzker, et al., Sangamon County Case No. 2021 CH 500012. Defendants further argue that the Title VII claim must be dismissed for various reasons, principal among them, the failure to exhaust administrative remedies. In addition, the State Defendants assert as to Counts III, IV, and V directed against them, that Plaintiffs do not have a viable EUA claim as the Covid-19 vaccine has full FDA approval; the recent amendment to the HCRCA does not violate the IRFRA, Free Exercise, Equal Protection and Due Process under the U.S. Constitution and Illinois constitution; and the State Defendants have Eleventh Amendment Sovereign Immunity as to Plaintiffs' IRFRA and Due Process claims.

STANDARD

A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of Police Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007); McGowan v. Hulick, 612 F.3d 636, 637 (7th Cir. 2010) (courts accept factual allegations as true and draws all reasonable inferences in plaintiff's favor). A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). These allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The allegations that are entitled to the assumption of truth are those that are factual, rather than mere legal conclusions. Iqbal, 556 U.S. at 679.

ANALYSIS

Claims Splitting

As noted, the State and District Defendants have each asserted the Illinois rule against claims splitting, referencing the Sewell case which was unresolved at the time the motions were filed. Sewell was concluded in state court on November 3, 2021, and the State Defendants subsequently filed a Second Motion to Dismiss, (“Second Motion”), asserting that Sewell barred the federal action under the doctrine of res judicata. While the Court has addressed this in a prior order, for clarity's sake and as res judicata and claims splitting have elements in common, it will repeat some of its findings here.

On November 3, 2021, the Sewell Plaintiffs, the same Plaintiffs as in this case,^[3] filed a Complaint in Peoria County requesting declaratory and injunctive relief. (Doc 16-3). The Complaint identified the same State and District Defendants, contesting the mandatory vaccination and testing policies. The Illinois Supreme Court consolidated Sewell with nine other related cases and transferred to the Sangamon County State Court. On November 3, 2022, Sangamon County Judge Jennifer Ascher entered an Agreed Order which had been stipulated to by the parties, finding all claims moot and that no exception to mootness applied, dismissing the case with prejudice. See (Doc. 18-1). It appears that the mootness finding was premised on EO 2020-24 in which the public school Covid-19 vaccine and testing mandate was allowed to lapse. The ruling became final on December 6, 2022, when no appeal was filed. Ill. Sup. Ct. R. 303(a)(1); Robertson v. Winnebago Cnty. Forest Preserve Dist., 301 Ill.App.3d 520, 528 (2d Dist. 1998).

After the Sewell case was decided, Defendants filed their Second Motion, asserting the res judicata defense. Res judicata will bar a subsequent lawsuit “if there is (1) an identity of the parties in the two suits; (2) a final judgment on the merits in the first; and (3) an identity of the causes of action.” Cooper v. Retrieval-Masters Creditors Bureau, Inc., 42 F.4th 688, 696 (7th Cir. 2022) (citing Barr v. Board of Trustees of Western Illinois Univ., 796 F.3d 837, 839 (7th Cir. 2015)). The Court found an identity of the parties and causes of action between this case and Sewall, a finding that is the law of the case and applies as to this motion as well. See Rekhi v. Wildwood Indus., Inc., 61 F.3d 1313, 1317-18 (7th Cir. 1995) (law of the case “limits redetermination of rulings made earlier in the same lawsuit.” (citing Christianson v. ColtIndustries Operating Corp., 486 U.S. 800, 816 (1988)).

However, the Court denied the res judicata motion, finding that one of the three elements was lacking; that the state court dismissal for mootness did not represent a final adjudication on the merits. See Johnson v. Du Page Airport Auth., 644 N.E.2d 802, 808-09 (Ill.App.Ct. 2d Dist. 1994) (overturning dismissal with prejudice for mootness) (“[T]he law of this State is clear that a cause deemed moot “will not be res judicata, since there is no judgment on the merits.” (internal citations omitted); Gassman v. Clerk of the Circuit Court of Cook Cnty., 71 N.E.3d 783, 792 (Ill.App.Ct. 1st Dist. 2017) (“A mootness finding is not a judgment on the merits and will not support a finding of res judicata in a future case.”).

The Court's denial of the res judicata motion does not necessarily foreclose the claims splitting defense, as claims splitting is viewed as separate and distinct from res judicata. Scholz v. United States, 18 F.4th 941, 951 (7th Cir. 2021) (“[C]laim splitting draws on the law of claim preclusion [and] . . . is related to, but distinct from, the doctrine of claim preclusion.” Id. (citing Roumann Consulting Inc. v. Symbiont Constr., Inc., No. 18-1551, 2019 WL 3501527, at *6 (E.D. Wis. Aug. 1, 2019). See also, Katz v. Gerardi, 655 F.3d 1212, 1218 (10th Cir. 2011) (“[T]the claim-splitting doctrine does not fall within a conventional res judicata analysis. . . The rule against duplicative litigation is distinct from but related to the doctrine of claim preclusion or res judicata.” (citing Curtis v. Citibank, N.A., 226 F.3d 133, 138 (7th Cir. 2000)).

“The rule against claim-splitting requires a plaintiff to assert all of its causes of action arising from a common set of facts in one lawsuit. By spreading claims around in multiple lawsuits in other courts or before other judges, parties waste ‘scarce judicial resources' and undermine ‘the efficient and comprehensive disposition of cases.'” Katz, 655 F.3d at 1217 (citing Hartsel Springs Ranch of Colo., Inc. v. Bluegreen Corp., 296 F.3d 982, 985 (10th Cir. 2002)). While a final judgment on the merits is necessary for res judicata, only two of the requirements are necessary for claims splitting; an identity of the parties in the two suits, and an identity of the causes of action. Cooper, 42 F.4th at 696 (citing Barr, 796 F.3d at 839). Claims splitting will apply even...