Glass v. Ill. Dep't of Corr.

• Citation: 2022 IL App (4th) 210740,196 N.E.3d 1178
• Docket Number: 4-21-0740
• Decision Date: 07 January 2022
• Parties: Jean R. GLASS; Jesse J. Fowler; Trina Tangerose; Valerie L. Gregory; and Mike Winters, Individually as Well as on Behalf of All Other Persons Similarly Situated, Plaintiffs-Appellees, v. ILLINOIS DEPARTMENT OF CORRECTIONS; Illinois Department of Human Services; Illinois Department of Veterans’ Affairs; Illinois Department of Juvenile Justice ; Illinois Department of Central Management Services ; Illinois Department of Public Health; and Jay R. Pritzker, in His Official Capacity as Governor of the State of Illinois, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

2022 IL App (4th) 210740
196 N.E.3d 1178

Jean R. GLASS; Jesse J. Fowler; Trina Tangerose; Valerie L. Gregory; and Mike Winters, Individually as Well as on Behalf of All Other Persons Similarly Situated, Plaintiffs-Appellees,
v.
ILLINOIS DEPARTMENT OF CORRECTIONS; Illinois Department of Human Services; Illinois Department of Veterans’ Affairs; Illinois Department of Juvenile Justice ; Illinois Department of Central Management Services ; Illinois Department of Public Health; and Jay R. Pritzker, in His Official Capacity as Governor of the State of Illinois, Defendants-Appellants.

No. 4-21-0740

Appellate Court of Illinois, Fourth District.

Filed January 7, 2022

Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Carson R. Griffis and Evan Siegel, Assistant Attorneys General, of counsel), for appellants.

Bethany D. Hager, of Danville, for appellees.

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

¶ 1 Some Illinois governmental agencies want their employees who work in congregate-care facilities to be vaccinated or tested for COVID-19. This lawsuit challenges such a policy. The plaintiffs are Jean R. Glass, Jesse J. Fowler, Trina Tangerose, Valerie L. Gregory, and Mike Winters, who are employed by the State of Illinois or by a vendor who provides services for the State of Illinois. The defendants are Governor Pritzker and various agencies of the State of Illinois, namely, 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 (CMS), and the Department of Public Health.

¶ 2 The defendants appeal a temporary restraining order that the Adams County circuit court granted at the request of two of the plaintiffs, Fowler and Winters. Illinois Supreme Court Rule 307(a)(1), (d) (eff. Nov. 1, 2017) allows appeals from temporary restraining orders and other injunctions. The temporary restraining order in this case prohibits the defendants from enforcing a workplace policy requiring their employees to undergo vaccination or testing for COVID-19. At the same time the court granted the motion for a temporary restraining order, the court granted a motion by the defendants to transfer this case to the circuit court of Sangamon County.

¶ 3 In our de novo review, we conclude that the circuit court lacked subject-matter jurisdiction over this case and that consequently the court was powerless to issue the temporary restraining order. See McCormick v. Robertson , 2015 IL 118230, ¶ 18, 390 Ill.Dec. 142, 28 N.E.3d 795 (holding that "[w]hether a circuit court has subject matter jurisdiction to entertain a claim presents a question of law which we review de novo "). Therefore, we vacate the judgment.

¶ 4 I. BACKGROUND

¶ 5 A. The Executive Order

¶ 6 On September 3, 2021, Governor Pritzker issued COVID-19 Executive Order No. 88 (Executive Order 2021-22) (Exec. Order No. 2021-22, 45 Ill. Reg. 11,639 (Sept. 3, 2021)). Section 5 of the executive order was titled "Vaccination Requirements at State-Owned or Operated Congregate Facilities." Id. at 11,648. The term " ‘[s]tate-owned or operated congregate facilities’ " was defined as "congregate facilities operated by the Illinois Department

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of Veterans’ Affairs, the Illinois Department of Human Services, the Illinois Department of Corrections, and the Illinois Department of Juvenile Justice." Id. Section 5 required "[a]ll State employees at State-owned or operated congregate facilities" to "have both doses of two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine by no later than October 4, 2021." Id . However, this requirement, section 5 added, was "subject to bargaining." Id .; see 5 ILCS 315/7 (West 2020) (providing that the public employer and the exclusive representative have the authority and duty to bargain collectively with respect to "conditions of employment").

¶ 7 Section 5 carved out two exemptions to the vaccination requirement, a medical exemption and a religious exemption, and provided that the implementation of the executive order, along with its exemptions, was to be worked out in labor negotiations:

"e. Individuals will be exempt from the requirement to be fully vaccinated against COVID-19 if (1) vaccination is medically contraindicated, including any individual who is entitled to an accommodation under the Americans with Disabilities Act [of 1990 ( 42 U.S.C. § 12101 et seq. (2018))] or any other law applicable to a disability-related reasonable accommodation, or (2) vaccination would require the individual to violate or forgo a sincerely held religious belief, practice, or observance. Individuals who demonstrate they meet the requirements for an exemption will be subject to additional testing requirements.

f. The [CMS] Labor Relations team is instructed to negotiate effectuating this Executive Order with the relevant labor unions, and to bargain these provisions as appropriate under the law. " Exec. Order No. 2021-22, 45 Ill. Reg. at 11,649.

Thus, under section 5 of the executive order, CMS and the labor unions were to negotiate how to carry out the terms of the executive order, including its medical and religious exemptions.

¶ 8 B. The Proceedings in the Circuit Court

¶ 9 1. The Plaintiffs’ Petition for Declaratory and Injunctive Relief

¶ 10 On November 1, 2021, the plaintiffs filed in the Adams County circuit court a petition for declaratory and injunctive relief. In their petition, the plaintiffs allege substantially as follows.

¶ 11 The plaintiffs are employed, either directly or by agency contract, in congregate-care facilities operated by the defendants. Unless the plaintiffs comply with a directive by the defendants to undergo vaccination or testing for COVID-19—a directive that the plaintiffs find to be objectionable on religious grounds—the plaintiffs face unpaid suspension or the termination of their employment. Other employees of the defendants are in the same dilemma. The plaintiffs seek to represent a class of over 900 other individuals employed directly by the defendants or by agency contract who have moral objections to being vaccinated or tested for COVID-19. "Mass suspension or termination of employees such as Plaintiffs could in and of itself create a crisis of safety and health in the congregate care facilities of this state," the plaintiffs warn in their petition.

¶ 12 The plaintiffs acknowledge, in their petition, that a religious exemption to the vaccination requirement is—theoretically—available. Even so, employees who are granted such an exemption still must undergo regular testing. The plaintiffs have to undergo testing while they await a decision on their exemption application. They have filled out a form titled "Request of Religious Exemption From COVID-19 Vaccination," and they have submitted the

196 N.E.3d 1181

form to the agencies where they work. The plaintiffs, however, have yet to receive either an approval or a disapproval. The defendants were supposed to grant or deny the exemption request within 10 days after the submission of the form. Instead of honoring its own 10-day deadline, CMS has e-mailed the plaintiffs that " ‘additional information is needed to process the Religious Exemption Request.’ " The additional information that CMS requested is a documented history of religious exemptions to vaccinations, a verified affiliation with a religious group the tenets of which oppose vaccinations or medical procedures, and proof that the religious group opposes, specifically, the use of medications developed from fetal cells.

¶ 13 The plaintiffs believe that the COVID-19 vaccines have been developed from research using fetal cells from aborted fetuses. On religious grounds, the plaintiffs object to medications having such origins. Persons in custody in the congregate-care facilities operated by the defendants are allowed to remain unvaccinated for moral or personal reasons. The plaintiffs insist that they, too, have such a right. In the plaintiffs’ view, the vaccination requirement is arbitrary and unnecessary, considering that, "[a]ccording to the [Centers for Disease Control and Prevention], the survival rate of all persons who have contracted Covid-19 nation-wide [sic ], based on reported numbers is 98.40%." Such a distant chance of mortality, the plaintiffs suggest in their petition, does not justify the vaccination and testing mandate.

¶ 14 For that matter, the plaintiffs object to even being tested for COVID-19. They explain in their complaint:

"Requiring only unvaccinated persons to submit to testing for Covid-19 violates the moral consciences of Plaintiffs because, inter alia , Plaintiffs hold sincere beliefs that prevent them from submitting to or participating in workplace procedures which arbitrarily discriminate between employees on the basis of health care choices made pursuant to freedom of conscience."

¶ 15 The petition raises three theories against the defendants’ vaccination and testing mandate. Count I of the petition seeks a declaratory judgment that the defendants lack legal authority to implement a compulsory vaccination or testing program for COVID-19. Count II seeks a declaratory judgment that the vaccination and testing mandate violate the Health Care Right of Conscience Act ( 745...