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

• Decision Date: 02 February 2023
• Docket Number: 22-cv-1269-JES-JEH
• Parties: 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.
• Court: U.S. District Court — Central District of Illinois

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 2, 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 a pending motion to dismiss (Doc. 9) (“First Motion”), as do the District Defendants (Doc. 12). 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”), asserting the bar of res judicata. Plaintiffs have responded and, with leave of

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Court, the State Defendants have replied. For the reasons indicated herein, the Second Motion to Dismiss is hereby DENIED.

BACKGROUND

Plaintiffs are teachers and staff employed by the School District, who on August 15, 2022, filed a 5-Count complaint in federal court. Plaintiff asserts that Defendant Pritzker's September 3, 2021 Executive Order (“EO”) 2021-22^[1] mandating Covid-19 vaccination and testing for Illinois public schools staff, and the School District's compliance, violated 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 various preliminary and permanent injunctive relief, declaratory relief, and money damages.

As noted, the State Defendants had filed a prior First Motion to Dismiss which remains pending. Generally, a party must assert all of the defenses in a motion to dismiss, rather than in successive motions. Fed.R.Civ.P. 12(g)(2). At the time Defendants filed the First Motion, however, a related state court case, Sewell, et al. v. Pritzker, et al., Sangamon County Case No. 2021 CH 500012, had not yet been decided. In the interim, Sewell has been dismissed with prejudice as moot, by the agreement of the parties. Defendants assert that this has preclusive res judicata effect on the claims here. The Court will entertain Defendants' Second Motion to Dismiss, as Rule 12(g) does not bar a defense which they could not have raised earlier. Zurich CapitalMkts. v. Coglianese, 383 F.Supp.2d 1041, 1049-50 (N.D. Ill. 2005) (Rule 12(g) did not bar the defendants from raising res judicata in successive motion to dismiss where the issue was not ripe when the prior motion was filed.)

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In Sewell, Defendants had a pending motion to dismiss to which Plaintiffs did not respond, rather, agreeing to the state court dismissal with prejudice. (Doc. 18 at 4). While neither party reveals the basis for the stipulated dismissal and the state court's mootness finding, this Court is aware that on September 17, 2021, the subject EO was amended by EO 2021-24, and no longer required Covid-19 vaccination and testing in the public schools.^[2] As the mandate no longer applied, and as Plaintiffs' requested state court relief was limited to relief from the mandate, it is presumed that this was the basis for the Agreed Order and the mootness finding.

The State Defendants assert that the judgment in Sewell was final, with the result that Plaintiffs' Complaint here is procedurally barred. A review of the state case reveals that on November 3, 2021, the Sewell Plaintiffs, the same Plaintiffs as in the federal case,^[3] filed an Amended Petition for Declaratory Relief and Writ of Injunction in Peoria County. (Doc. 16-3). They named the same State and District Defendants, contesting the legality of the mandatory vaccination and testing policies. The Illinois Supreme Court consolidated Sewell with nine other related cases and transferred them to the Sangamon County State Court.

On November 3, 2022, Sangamon County Judge Jennifer Ascher entered an order on Sewell, finding all claims moot, and that no exception to mootness applied. Judge Ascher entered an order with the agreement of the parties, dismissing the case with prejudice. See Order reproduced below:

AGREED ORDER DISMISSING PLAINTIFFS' CLAIMS AGAINST ALL DEFENDANTS

Having considered the positions of the parties and being fully advised, the Court hereby finds that the claims against the above-named Defendants in the abovecaptioned action are moot, and that no exception to mootness applies. See e.g., Austin v. Bd. of Educ., 2022 IL App (4th) 220090-U, ¶ 6. By agreement of

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Plaintiffs, the State Parties, the District, and Dr. Roger Alvey, all claims against the State Parties, the District, and Dr. Roger Alvey are dismissed with prejudice.

(Doc. 18-1). The second page contains the language, “Agreed as to Form and Substance,” and is signed by Plaintiffs' and Defendants' respective counsel. The November 3, 2022 dismissal left the parties 30 days in which to appeal. Ill. Sup. Ct. R. 303(a)(1). When no appeal was filed, the judgment became final on December 6, 2022. See Robertson v. Winnebago Cnty. Forest Preserve Dist., 301 Ill.App.3d 520, 528 (2d Dist. 1998).

Defendants assert that res judicata attaches under the terms of the Agreed Order, as there was a final adjudication on the merits due to the with-prejudice dismissal for mootness; and that Plaintiffs are bound by their stipulation and agreement. Plaintiffs dispute this, asserting both that a finding of mootness is not a final adjudication on the merits, and the Agreed Order did not, and was not intended, to finally dispose of all claims so as to have been a final adjudication on the merits.

STANDARDS

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 ChicagoLodge 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

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entitled to the assumption of truth are those that are factual, rather than mere legal conclusions. Iqbal, 556 U.S. at 679.

Res Judicata, the “claim preclusion doctrine,” provides that a final judgment on the merits rendered by a court of competent jurisdiction will bar any subsequent action between the same parties, or their privies, on the same cause of action. Federal courts are required, under the Full Faith and Credit Act, 28 U.S.C. § 1738, “to give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged.” Kremer v. Chem. Const. Corp., 456 U.S. 461, 466 (1982); Hayes v. City of Chi., 670 F.3d 810, 813 (7th Cir. 2012). Res judicata is meant to “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Warren v. McCall, 709 F.2d 1183, 1184 (7th Cir. 1983).

In Illinois, claim preclusion will bar “relitigation of claims that were-or could have been-determined in an earlier proceeding where the first suit resulted in a final decision on the merits, the same transaction or occurrence underlies both actions, and those actions involve the same parties. Ruhl v. Hardy, 692 Fed.Appx. 295, 296 (7th Cir. 2017). Res judicata prevents a party “splitting a single cause of action [or] ... using ... several theories of recovery as the basis for separate suits.” Alvear-Velez v. Mukasey, 540 F.3d 672, 677 (7th Cir. 2008) (internal citation omitted). Green v. Northwest Community Hospital, 401 Ill.App.3d 152 (1st Dist. 2010); (a plaintiff cannot sue for part...