Troogstad v. City of Chi.

• Decision Date: 24 November 2021
• Docket Number: 21 C 5600
• Parties: Scott TROOGSTAD et al., Plaintiffs, v. The CITY OF CHICAGO and Governor Jay Robert Pritzker, Defendants.
• Court: U.S. District Court — Northern District of Illinois

571 F.Supp.3d 901

Scott TROOGSTAD et al., Plaintiffs,

v.The CITY OF CHICAGO and Governor Jay Robert Pritzker, Defendants.

No. 21 C 5600

United States District Court, N.D. Illinois, Eastern Division.

Signed November 24, 2021

Jonathan D. Lubin, Attorney at Law, Skokie, IL, for Plaintiffs.

Michael A. Warner, Jr., William R. Pokorny, Franczek Radelet PC, Celia Meza, City of Chicago Law Department, Erin Kathryn Walsh, Richard Jason Patterson, Franczek P.C., Chicago, IL, for Defendant City of Chicago.

Hal Dworkin, Mary Alice Johnston, Office of Illinois Attorney General, Chicago, IL, for Defendant Jay Robert Pritzker.

MEMORANDUM OPINION AND ORDER

John Z. Lee, United States District Judge

Various employees of the City of Chicago have filed this case to challenge Governor J.B. Pritzker's Executive Order 2021-22 as well as the City's mandatory vaccination

policy. Along with the complaint, Plaintiffs filed a motion for a temporary restraining order. The Court denied that motion on October 29, 2021. This Memorandum Opinion and Order memorializes that ruling.

I. Factual Background

In response to the ongoing COVID-19 pandemic and the rise of the significantly more transmissible Delta variant of the virus, Illinois Governor J.B. Pritzker signed Executive Order 2021-22 ("EO 2021-22") on September 3, 2021. EO 2021-22 mandates that all health care workers¹ be fully vaccinated² against COVID-19 or submit to weekly COVID-19 testing by September 19, 2021. Def. Gov. J.B. Pritzker's Resp. Opp'n Pls.’ Pet. TRO ("Def. J.B. Pritzker's Resp.") Ex. A (EO 2021-22) § 2(a)(i), ECF No. 14. The order provides exemptions to the vaccination

requirement for persons for whom vaccination is "medically contraindicated" and for whom vaccination would require violating "a sincerely held religious belief, practice, or observance." Id. § 2(e). Persons who qualify for either exemption must submit to weekly testing. Id.

Following Governor Pritzker's order, the City of Chicago announced its own mandatory vaccination

policy ("City Vaccination Policy"). Unlike EO 2021-22, the City's vaccine mandate covers all City employees, see Def. City of Chicago's Resp. Pls.’ Emergency Pet. TRO ("Def. City's Resp."), Ex. B1 (City Vaccination Policy) § II, ECF No. 18, requiring them either to be fully vaccinated by October 15, 2021, or submit to biweekly COVID-19 testing. Id. § IV.A–B. And unlike EO 2021-22, the City Vaccination Policy contains a sunset provision that ends the option to submit to biweekly testing as an alternative to vaccination on December 31, 2021. Id. After that date, full vaccination (or an approved medical or religious exemption) will become a "condition of employment." Id. § IV.B.

Plaintiffs are employees of the City of Chicago who work for the City's Fire, Water, and Transportation Departments. See Compl. ¶¶ 5–139, ECF No. 1. Some Plaintiffs allege that they have already contracted COVID-19, while others do not believe they have had the virus. See id. Forty-five Plaintiffs have applied for a religious exemption from the City Vaccination

Policy. See Def. City's Resp., Ex. B, Owen Decl. ¶ 13. Five of these exemptions have been denied, and the rest are still pending as of the date of the October 29, 2021 hearing. Id.

Plaintiffs oppose EO 2021-22 and the City Vaccination

Policy because they believe requiring vaccination and testing as a condition of continued employment violates their constitutional rights and Illinois law. They bring claims against both Governor Pritzker and the City, alleging that EO 2021-22 and the City Vaccination Policy violate their substantive due process, procedural due process, and free exercise rights. Plaintiffs also bring claims against both Defendants under the Illinois Healthcare Right of Conscience Act, 745 Ill. Comp. Stat. 70/1 et seq.

To prevent the orders from taking effect, Plaintiffs seek a temporary restraining order that:

1. Enjoins the Governor from enforcing EO 2021-22's requirement that all health care workers, firefighters, EMTs, and paramedics be fully vaccinated against COVID-19, until the Court rules on their motion for a preliminary injunction or for the duration of the lawsuit;

2. Enjoins the City of Chicago from enforcing the City Vaccination

Policy, which requires all City employees to be vaccinated against COVID-19 or submit to biweekly testing, and will require vaccination as a condition of employment, until the Court rules on their motion for a preliminary injunction or for the duration of the lawsuit; and

3. Enjoins the Governor and the City from terminating or taking disciplinary action against employees who refuse to be vaccinated or submit to COVID-19 testing, until the Court rules on their motion for a preliminary injunction or for the duration of the lawsuit.

II. Legal Standard

As the Seventh Circuit has stated repeatedly, a temporary restraining order or a preliminary injunction is "an exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it." Orr v. Shicker , 953 F.3d 490, 501 (7th Cir. 2020) (quoting Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc. , 549 F.3d 1079, 1085 (7th Cir. 2008) ). And to obtain such drastic relief, the party seeking the relief—here, the Plaintiffs—carries the burden of persuasion by a clear showing. See Mazurek v. Armstrong , 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997).

When considering a motion for temporary restraining order, the Court must employ the same test as a request for a preliminary injunction: the plaintiff has the burden to show (1) a likelihood of success on the merits; (2) irreparable harm; and (3) that the balance of the equities and the public interest favors emergency relief. Fed. R. Civ. P. 65(b)(1)(A) ; see Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).

The Court then weighs these factors in what the Seventh Circuit has called a "sliding scale" approach. That is, "[t]he more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor; the less likely he is to win, the more need it weigh in his favor." Valencia v. City of Springfield , 883 F.3d 959, 966 (7th Cir. 2018) (internal quotation marks omitted). And "[w]here appropriate, this balancing process should also encompass any effects that granting or denying the preliminary injunction would have on nonparties (something courts have termed the ‘public interest’)." Id.

Additionally, the Court notes that its ruling is based upon the factual record currently before it on October 29, 2021. The complaint and motion were filed on October 21, 2021. The responses were filed on October 25, 2021, and Plaintiffs’ reply brief was filed on October 28, 2021. Neither side has had an opportunity for discovery regarding the various factual and scientific contentions raised in the parties’ briefs, and a more fulsome factual record may shed additional light on some of the arguments raised in the case.

Furthermore, the Court notes that Plaintiffs’ motion papers do not precisely define the scope of the right to bodily integrity upon which they rely. Most often, Plaintiffs rely on a right to be free from having to take vaccines. At others, Plaintiffs appear to object to being forced to perform self-administered COVID tests as part of one's employment. The Court focuses here on the first, because that is where the parties aim most of their arguments, but the Court believes its rationale disposes of the second as well.³

III. Analysis

I. Likelihood of Success on the Merits

The first factor—"likelihood of success on the merits"—requires the plaintiff to make a "strong showing that she is likely to succeed on the merits" of her claim; a mere "possibility of success is not enough" to warrant emergency relief. Ill. Republican Party v. Pritzker , 973 F.3d 760, 762 (7th Cir. 2020). This showing "does not mean proof by a preponderance," but requires the plaintiff to provide facts and legal theories supporting "the key elements of its case." Id. at 763. The Court will address each of Plaintiffs’ claims in turn.

A. Substantive Due Process Claim

Plaintiffs first allege that EO 2021-22 and the City Vaccination

Policy violate substantive due process. A substantive due process claim requires the plaintiff to "allege that the government violated a fundamental right or liberty." Campos v. Cook Cnty. , 932 F.3d 972, 975 (7th Cir. 2019). The violation must also be "arbitrary or irrational," because "substantive due process protects against only the most egregious and outrageous government action." Id.

According to Plaintiffs, requiring them to be vaccinated and submit to regular testing as a condition of employment infringes their fundamental right to bodily autonomy. More specifically, Plaintiffs argue that the vaccination

and testing requirements violate the fundamental right to refuse unwanted medical treatment as articulated in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990) and Washington v. Harper , 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990). From this, they assert that, because they have identified a fundamental right at stake, the Supreme Court's decisions in Roe v. Wade , 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey , 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), require the Court to apply strict scrutiny to the vaccination orders. Plaintiffs’ substantive due process argument is not likely to succeed on the merits for several reasons.

1. The Seventh Circuit's Klaassen decision

As an initial matter, Plaintiffs’ argument that the Defendants’ vaccine orders infringe their fundamental right to bodily autonomy runs squarely in the face of the Seventh Circuit's recent decision in Klaassen v. Trustees of Indiana University , 7 F.4th 592 (7th Cir. 2021). There, the Seventh Circuit upheld Indiana University's recent vaccination

, masking, and testing...