Opinion
4-23-0116
11-02-2023
JEAN R. GLASS, JESSE J. FOWLER, TRINA TANGEROSE, VALERIE L. GREGORY, MIKE WINTERS, KIMBERLY K. WATSON, RICHARD W. LOGAN, and GREGORY L. GURSKI, Individually, as Well as on Behalf of All Other Persons Similarly Situated, Plaintiffs-Appellants, v. 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; THE DEPARTMENT OF PUBLIC HEALTH; THE ILLINOIS NURSES ASSOCIATION; THE AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 31; ILLINOIS STATE EMPLOYEES ASSOCIATION, LOCAL 2002; WEXFORD HEALTH SERVICES, INC.; and JAY R. PRITZKER, in His Official Capacity as Governor of the State of Illinois, Defendants-Appellees.
Attorneys for Appellant: Bethany D. Hager, of Danville, for appellants. Attorneys for Appellee: Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Carson R. Griffis and Frank H. Bieszczat, Assistant Attorneys General, of counsel), for appellees Department of Corrections, Department of Human Services, Department of Veterans' Affairs, Department of Juvenile Justice, Department of Central Management Services, Department of Public Health, and Jay R. Pritzker. Stephen A. Yokich and George A. Luscombe III, of Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich LLP, of Chicago, for appellee American Federation of State, County and Municipal Employees, Council 31.
Appeal from the Circuit Court of Sangamon County No. 21CH500008 Honorable Jennifer M. Ascher, Judge Presiding.
Attorneys for Appellant: Bethany D. Hager, of Danville, for appellants.
Attorneys for Appellee: Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Carson R. Griffis and Frank H. Bieszczat, Assistant Attorneys General, of counsel), for appellees Department of Corrections, Department of Human Services, Department of Veterans' Affairs, Department of Juvenile Justice, Department of Central Management Services, Department of Public Health, and Jay R. Pritzker.
Stephen A. Yokich and George A. Luscombe III, of Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich LLP, of Chicago, for appellee American Federation of State, County and Municipal Employees, Council 31.
No brief filed for other appellees.
JUSTICE CAVANAGH delivered the judgment of the court, with opinion. Justice Harris concurred in the judgment and opinion. Justice Steigmann specially concurred, with opinion.
OPINION
CAVANAGH, JUSTICE
¶ 1 Plaintiffs, Jean R. Glass, Jesse J. Fowler, Trina Tangerose, Valerie L. Gregory, Mike Winters, Kimberly K. Watson, Richard W. Logan, and Gregory L. Gurski, are employed in state-owned congregate-care facilities in Illinois. They brought this action against Governor Pritzker and the Illinois governmental agencies that run these facilities: 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, and the Department of Public Health (collectively, the state defendants). In addition, plaintiffs have joined, as defendants, their collective bargaining representatives: the Illinois Nurses Association; the American Federation of State, County and Municipal Employees, Council 31 (AFSCME); and the Illinois State Employees Association, Local 2002 (collectively, the unions). The remaining defendant is Wexford Health Services, Inc., a medical-services vendor that has a contract with the Department of Corrections. In their lawsuit, plaintiffs challenge a workplace policy that they and other employees working in the congregate-care facilities must be vaccinated or tested for COVID-19.
¶ 2 On January 10, 2023, the circuit court granted motions by the state defendants and AFSCME to dismiss the amended complaint, with prejudice, on the ground that the court lacked subject-matter jurisdiction. See 735 ILCS 5/2-619(a)(1) (West 2022). (The motions for dismissal also contended that the amended complaint failed to state a cause of action. See id. § 2-615.) Plaintiffs appeal.
¶ 3 In our de novo review (see Zander v. Carlson, 2020 IL 125691, ¶ 18), we find no special statutory jurisdiction in this case (see Ill. Const. 1970, art. VI, § 9). Plaintiffs identify for us no relevant statute that confers subject-matter jurisdiction on the circuit court to review this administrative action by the state defendants-this directive that employees in state-operated congregate-care facilities be vaccinated or tested for COVID-19 as a condition of their continued employment. See id. Nor, in their written argument to us, do plaintiffs explain under what legal theory the unions and Wexford would be liable to them. Consequently, any argument in favor of the actions against Wexford and the unions is forfeited. See Ill. S.Ct. R. 341(h)(7) (eff. Oct. 1, 2020). Because of this lack of subject-matter jurisdiction and because of this procedural forfeiture, we affirm the circuit court's judgment.
¶ 4 I. BACKGROUND
¶ 5 In their amended complaint, plaintiffs allege essentially as follows. They are employed, either directly or via agency contract, in congregate-care facilities operated by the Illinois government. At the direction of Governor Pritzker, the state defendants imposed a vaccination-or-testing requirement upon everyone working in the facilities, including plaintiffs. To continue working in the facilities, an employee must be vaccinated against COVID-19. Alternatively, if the employee receives a religious or medical exemption from the vaccination requirement, the employee must undergo weekly testing for the virus.
¶ 6 On religious grounds, plaintiffs object to this workplace requirement that they be vaccinated or tested for COVID-19. The Adams County circuit court, in which this case originated, granted a request by two of the plaintiffs, Fowler and Winters, to temporarily restrain the implementation of the vaccination-or-testing requirement. At the same time, on a motion by the state defendants, the Adams County circuit court transferred this case to the Sangamon County circuit court. The state defendants then appealed, and we vacated the temporary restraining order, holding that the circuit court of Adams County lacked subject-matter jurisdiction to issue the order. Glass v. Department of Corrections, 2022 IL App (4th) 210740, ¶ 3 (Glass I).
¶ 7 A few months afterward, in Glass v. Department of Corrections, 2022 IL App (4th) 220270, ¶ 1 (Glass II), we affirmed the Sangamon County circuit court's denial of a petition by plaintiffs for a temporary restraining order against the vaccination-or-testing requirement. We concluded that plaintiffs had no likelihood of success under either of the statutes that they invoked: section 5 of the Health Care Right of Conscience Act (Conscience Act) (745 ILCS 70/5 (West 2020)) or section 2(c) of the Department of Public Health Act (Health Act) (20 ILCS 2305/2(c) (West 2020)). Glass II, 2022 IL App (4th) 220270, ¶ 32.
¶ 8 After the vacation of the Adams County circuit court's temporary restraining order in Glass I, the Sangamon County circuit court (to which the case had been transferred) allowed plaintiffs to amend their complaint to cure the jurisdictional deficiency. Plaintiffs amended their complaint. The state defendants and AFSCME then moved for a dismissal of the amended complaint, with prejudice, pursuant to section 2-619(a)(1) (735 ILCS 5/2-619(a)(1) (West 2022)) because of a lack of jurisdiction. Alternatively, they moved for a dismissal pursuant to section 2615 (id. § 2-615) because of a failure to state a cause of action. Concluding that the additional facts alleged in the amended complaint failed to cure the jurisdictional deficiency, the Sangamon County circuit court granted defendants' motion to dismiss the amended complaint. Plaintiffs elected to stand on their amended complaint, whereupon the court designated the dismissal as being with prejudice.
¶ 9 II. ANALYSIS
¶ 10 A. Plaintiffs' Noncompliance With Rule 341
¶ 11 Instead of filing a brief in the appellate court, plaintiffs have filed a memorandum that little resembles the brief required by Illinois Supreme Court Rule 341 (eff. Oct. 1, 2020). To name some of its deficiencies, the memorandum lacks a statement of issues (see Ill. S.Ct. R. 341(h)(3) (eff. Oct. 1, 2020)), a jurisdictional section (see Ill. S.Ct. R. 341(h)(4)(ii) (eff. Oct. 1, 2020)), and an argument section (although the memorandum does make arguments) (see Ill. S.Ct. R. 341(h)(7) (eff. Oct. 1, 2020)). Also, the memorandum lacks supporting citations to the record. See Ill. S.Ct. R. 341(h)(6), (7) (eff. Oct. 1, 2020).
¶ 12 Because of this pervasive noncompliance with Rule 341, the state defendants and AFSCME have moved that we strike plaintiffs' memorandum and dismiss the appeal. "This court has the discretion to strike an appellant's brief and dismiss an appeal for failure to comply with Rule 341." Holzrichter v. Yorath, 2013 IL App (1st) 110287, ¶ 77. According to case law, however, these sanctions might be too severe if, despite the noncompliance with Rule 341, review is reasonably feasible. See Canel &Hale, Ltd. v. Tobin, 304 Ill.App.3d 906, 911 (1999); Cottrill v. Russell, 253 Ill.App.3d 934, 938 (1993). Even though plaintiffs' violations of Rule 341 are abundant, they do not hinder or preclude review. Therefore, we will evaluate the merits of this appeal. We remind plaintiffs, however, that, instead of being an optional guideline, Rule 341 has "the force of law." Morse v. Donati, 2019 IL App (2d) 180328, ¶ 16. Also, we suggest to plaintiffs that there are practical reasons for the requirements in Rule 341-these requirements are designed to help the party make a case. Disregarding the requirements in Rule 341 can weaken the rational persuasiveness of one's brief.
¶ 13 B. Glass I
¶ 14 In the present appeal, making a case means overcoming the law of the case. Under the doctrine of the law of the case, "the rulings on points of law made by a court of review are binding *** on subsequent appeals [in that case] to that same reviewing court unless a higher court has changed the law." Kennedy v. First National Bank of Mattoon, 259 Ill.App.3d 560, 563 (1994). Kennedy mentions one of the exceptions to the law of the case: "a higher reviewing court makes a contrary ruling on the same issue." Rommel v. Illinois State Toll Highway Authority, 2013 IL App (2d) 120273, ¶ 17. The other exception is "when a reviewing court finds that its prior decision was palpably erroneous." Id. Plaintiffs maintain that Glass I is erroneous-by which they must mean palpably erroneous. They do not mention Glass II.
¶ 15 Let us begin with Glass I. In that previous appeal, the state defendants challenged a temporary restraining order that the Adams County circuit court had entered at the request of two of the plaintiffs, Fowler and Winters, who worked in state-run congregate-care facilities. Glass I, 2022 IL App (4th) 210740, ¶ 2. The temporary restraining order prohibited the defendants from enforcing a workplace policy requiring employees in congregate-care facilities, as a condition of their continued employment, to undergo vaccination or testing for COVID-19. Id. As we noted in Glass I, the circuit court entered this temporary restraining order even though, because of pending interest arbitration, the policy had not yet been enforced against Fowler and Winters. See id. ¶ 34. Plaintiffs now allege in their amended complaint, "Following interest arbitration in which a decision was rendered on or about January 4, 2022, employees are now being told [that]"-unless their employer grants them a religious or medical exemption-"they must receive the first shot of a two-shot vaccine or one shot of a one-shot vaccine by January 31, 2022." At the time the Adams County circuit court entered the temporary restraining order, however, the interest arbitration was still pending.
¶ 16 In Glass I, instead of evaluating the temporary restraining order on its merits, we considered whether the Adams County circuit court had subject-matter jurisdiction to enter the order in the first place. We observed that, under the Illinois Constitution," '[c]ircuit courts shall have such power to review administrative action as provided by law.'" Id. ¶ 49 (quoting Ill. Const. 1970, art. VI, § 9). It was well-established that the constitutional phrase "as provided by law" meant "as provided by statutory law." Id. (citing cases). Thus, to review an administrative action, a circuit court had to have special statutory jurisdiction to do so. Id. In other words, for the Adams County circuit court to have jurisdiction to enter the temporary restraining order, a statute had to "provide[ ]" that the court had "power" to "review" the "administrative action" (Ill. Const. 1970, art. VI, § 9)-in this case, the administrative action of requiring personnel, as a condition of their continued employment in state-run congregate-care facilities, to be vaccinated or tested for COVID-19. See id.
¶ 17 We identified a statute, section 14(k) of the Illinois Public Labor Relations Act (5 ILCS 315/14(k) (West 2020)), that ultimately and indirectly might confer such power-but the statute had conditions that, in the case then before us, were unfulfilled. See Glass I, 2022 IL App (4th) 210740, ¶ 51. We say "indirectly" because, under section 14(k), the subject of judicial review would not be the administrative action itself. Rather, the subject of judicial review would be the arbitral decision on the administrative action. See id. Not only did we lack an arbitral decision in Glass I, but we lacked a statutorily permissible plaintiff. Under section 14(k), the action for judicial review of an arbitral decision had to be brought" 'by either the public employer or the exclusive bargaining representative.'" Id. (quoting 5 ILCS 315/14(k) (West 2020)). Plaintiffs did not meet that description. Nor were these jurisdictional obstacles overcome by allegations of an unfair labor practice, for the Illinois Labor Relations Board had exclusive jurisdiction over complaints of unfair labor practices. Therefore, in Glass I, we concluded that the Adams County circuit court lacked the required special statutory jurisdiction to enter the temporary restraining order. See id. ¶ 56.
¶ 18 In sum, the main takeaway from Glass I is this. Generally, under the Illinois Constitution, circuit courts have subject-matter jurisdiction over all "justiciable matters." Ill. Const. 1970, art. VI, § 9. Case law defines a "justiciable matter" in broad terms: "a controversy appropriate for review by the court, in that it is definite and concrete, as opposed to hypothetical or moot, touching upon the legal relations of parties having adverse legal interests." Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill.2d 325, 335 (2002). However, to that broad grant of jurisdiction over all justiciable matters, the Illinois Constitution makes an exception for administrative actions: "Circuit Courts shall have such power to review administrative action as provided by law." Ill. Const. 1970, art. VI, § 9. Thus, even though a controversy over an administrative action would meet the description of a justiciable matter in the sense of being definite and concrete and touching upon the legal relations of parties having adverse legal interests, the default position, so to speak, is that the circuit court lacks jurisdiction to decide this type of controversy. To move the matter out of the default position of no jurisdiction, the plaintiff must identify a statute empowering the circuit court to review the administrative action in question. See McCormick v. Robertson, 2015 IL 118230, ¶ 19 ("With the exception of the circuit court's power to review administrative action, which is conferred by statute, a circuit court's subject-matter jurisdiction is conferred entirely by our state constitution." (Emphasis added.)); Collinsville Community Unit School District No. 10 v. Regional Board of School Trustees of St. Clair County, 218 Ill.2d 175, 181-82 (2006) ("Because review of a final administrative decision may only be obtained as provided by statute, a court is said to exercise 'special statutory jurisdiction' when it reviews an administration decision." (Emphasis added.)); Belleville Toyota, 199 Ill.2d at 336 ("Only in the area of administrative review is the court's power to adjudicate controlled by the legislature." (Emphasis added.)).
¶ 19 Thus, if a complaint seeks review of an administrative action, and if the circuit court grants a motion under section 2-619(a)(1) (735 ILCS 5/2-619(a)(1) (West 2022)) to dismiss the complaint for lack of subject-matter jurisdiction, we "interpret the pleadings and supporting materials in the light most favorable to the plaintiff," and we determine, de novo, whether a statute empowered the circuit court to review the administrative action. (Internal quotation marks omitted.) R.L. Vollintine Construction, Inc. v. Illinois Capital Development Board, 2014 IL App (4th) 130824, ¶ 23; see Ill. Const. 1970, art. VI, § 9. In making that determination, we are entitled to some help from the appellant-for again, "[p]oints not argued are forfeited." Ill. S.Ct. R. 341(h)(7) (eff. Oct. 1, 2020). Plaintiffs are the appellants, and the workplace policy of which they complain is an administrative action. Granted, the Illinois Constitution does not define the term "administrative actions." However, "[w]hen a drafter uses terms that are otherwise undefined, it is entirely appropriate to employ a dictionary to ascertain the plain and ordinary meaning of those terms." (Internal quotation marks omitted.) Board of Trustees of the City of Harvey Firefighters' Pension Fund v. City of Harvey, 2017 IL App (1st) 153074, ¶ 179. At least since 1857, according to Black's Law Dictionary, the term "administrative action" has meant "[a] decision or an implementation relating to the government's executive function or a business's management." Black's Law Dictionary (11th ed. 2019) (definition of "administrative action"). An administrative policy that all state employees working in congregate-care facilities must be vaccinated or tested for COVID-19 is "[a] decision or an implementation relating to the government's executive function." Id. Other than section 14(k) of the Illinois Public Labor Relations Act (5 ILCS 315/4(k) (West 2022))-which, on the petition of a public employer or an exclusive bargaining representative, provides for judicial review of an arbitral decision-we are aware of no statute empowering the circuit court to review the vaccination-or-testing policy. And again, even under section 14(k), the circuit court would review not the policy itself, but the arbitral order, to determine if the order" 'is arbitrary, *** capricious[,] or *** procured by fraud, collusion[,] or other similar and unlawful means.'" Glass I, 2022 IL App (4th) 210740, ¶ 51 (quoting 5 ILCS 315/15(k) (West 2020)).
¶ 20 In plaintiffs' view, relegating them to arbitration and to judicial review of the arbitral decision on the petition of their union is inconsistent with Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728 (1981), and Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). On the contrary, those cases drive home the very point we are making in our jurisdictional analysis.
¶ 21 In Barrentine, the plaintiffs were truck drivers who claimed that by not paying them for their work in performing pretrip safety inspections, their employer was violating the Fair Labor Standards Act of 1938 (Fair Labor Standards Act) (29 U.S.C. § 201 et seq. (2018)). Barrentine, 450 U.S. at 730-31. The collective bargaining agreement required the employer to compensate its drivers" 'for all time spent in [its] service.'" Id. at 730-31. In addition, the agreement had an arbitration clause. Id. at 731. Through their union, the employees submitted their wage claim to arbitration, but the arbitrators decided in favor of the employer. Id. The employees then brought their wage claim in federal court. Id. The question in Barrentine was whether the plaintiffs could sue in federal court after losing in contractually binding arbitration. See id. at 729-30. The Supreme Court decided that the lawsuit could proceed. See id. at 745. The arbitration was an attempt to vindicate contractual rights, whereas the judicial proceeding was an attempt to vindicate "independent statutory rights." (Internal quotation marks omitted.) Id. The Supreme Court observed:
"The statutory enforcement scheme [in the Fair Labor Standards Act] grants individual employees broad access to the courts. Section 16 (b) of the Act, 29 U.S.C. § 216(b), which contains the principal enforcement provisions, permits
an aggrieved employee to bring his statutory wage and hour claim 'in any Federal or State court of competent jurisdiction.' No exhaustion requirement or other procedural barriers are set up, and no other forum for enforcement of statutory rights is referred to or created by the statute." Id. at 740.
In the present case, plaintiffs do not sue under the Fair Labor Standards Act. Therefore, they must identify the statutory analogue to the Fair Labor Standards Act: the statute that allows them to go straight to the circuit court (without any exhaustion requirement or procedural barriers) and judicially challenge the administration action at issue.
¶ 22 Likewise, if plaintiffs mean to rely on Alexander, they must, like the plaintiff in Alexander, show their statutory ticket to get into court. In Alexander, an employer fired a drillpress operator purportedly for making too many defective parts that had to be scrapped. Alexander, 415 U.S. at 38. The collective-bargaining agreement forbade discrimination against any employee on the basis of race. Id. at 39. The employee filed a grievance with the employer. Id. Before the arbitration hearing on the grievance, the employee also filed a complaint of racial discrimination with the Colorado Civil Rights Commission, which in turn referred the complaint to the Equal Employment Opportunity Commission. Id. at 42. At the arbitration hearing, the employee claimed it was because of his race that the employer had fired him. Id. The arbitrator decided, however, that the employee had been fired for good cause. Id. The Equal Employment Opportunity Commission issued the employee a right-to-sue letter after finding no reasonable cause to believe that by firing the employee, the employer had violated Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq. (2018)). Alexander, 415 U.S. at 43. The employee then brought a Title VII action in federal court. Id. The issue in Alexander was whether the arbitral decision barred the Title VII action. Id.
¶ 23 The Supreme Court decided in Alexander that, despite the arbitral decision, the Title VII action could go forward. See id. at 47. The employee had met the prerequisites in Title VII for filing suit: (1) he had filed a timely charge of employment discrimination with the Equal Employment Opportunity Commission and (2) he had "received and acted upon the [Equal Employment Opportunity] Commission's statutory notice of the right to sue." Id. Title VII nowhere suggested that "a prior arbitral decision either foreclose[d] an individual's right to sue or divest[ed] federal courts of jurisdiction." Id. "[T]he private right of action remain[ed] an essential means of obtaining judicial enforcement of Title VII." Id. at 45. The Supreme Court reasoned:
"In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective-bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence." Id. at 49-50.
¶ 24 In the present case, plaintiffs do not sue under Title VII. Therefore, to benefit from Alexander, they must identify the analogue to Title VII: they must identify the statute in which a legislature-either the Illinois General Assembly or Congress-conferred upon them a private right of action to challenge the administrative action that the state defendants took in this case. To reiterate, a circuit court's subject-matter jurisdiction over "justiciable matters" does not include subject-matter jurisdiction to review "administrative action." Ill. Const. 1970, art. VI, § 9. To be convinced that Glass I is "palpably erroneous" (Rommel, 2013 IL App (2d) 120273, ¶ 17), we need to know what statute confers upon the circuit court the power to review the administrative action at issue. The supreme court explains:
"Because review of a final administrative decision may only be obtained as provided by statute, a court is said to exercise special statutory jurisdiction when it reviews an administration decision. [Citation.] Special statutory jurisdiction is limited to the language of the act conferring it[,] and the court has no powers from any other source." (Internal quotation marks omitted.) Collinsville Community Unit School District No. 10, 218 Ill.2d at 181-82.
To show that Glass I is not only erroneous, but palpably erroneous, plaintiffs must point out the statutory language that clearly empowers the circuit court to review the state defendants' workplace policy of requiring vaccination or testing for COVID-19.
¶ 25 C. Glass II
¶ 26 In Glass II, plaintiffs claimed that the Conscience Act (745 ILCS 70/1 et seq. (West 2020)) and the Health Act (20 ILCS 2305/1.1 et seq. (West 2020)) empowered the circuit court to review the workplace policy. We adhere to our conclusion in Glass II that both statutes are inapplicable.
¶ 27 1. The Conscience Act
¶ 28 Plaintiffs claim that by conditioning their continued employment on their being either vaccinated or tested for COVID-19, the state defendants unlawfully discriminate against them and thereby violate section 5 of the Conscience Act (745 ILCS 70/5 (West 2022)), a violation that, according to plaintiffs, entitles them to a judicial remedy under section 12 (id. § 12).
¶ 29 In Glass II, we noted that Public Act 102-667, § 5 (eff. June 1, 2022), made the plaintiffs' invocation of the Conscience Act problematic. See Glass II, 2022 IL App (4th) 220270, ¶ 15. That amendment provided as follows:
" 'It is not a violation of [the Conscience] Act for any person or public official, or for any public or private association, agency, corporation, entity, institution, or employer, to take any measures or impose any requirements, including, but not limited to, any measures or requirements that involve provision of services by a physician or health care personnel, intended to prevent contraction or transmission of COVID-19 or any pathogens that result in COVID-19 or any of its subsequent iterations. It is not a violation of this Act to enforce such measures or requirements. This Section is a declaration of existing law and shall not be construed as a new enactment. Accordingly, this Section shall apply to all actions commenced or pending on or after the effective date of this amendatory Act of the 102nd General Assembly. Nothing in this Section is intended to affect any right or remedy under federal law.'" Id. (quoting Pub. Act 102-667, § 5 (eff. June 1, 2022) (adding 745 ILCS 70/13.5)).
It cannot seriously be denied that the vaccination-or-testing policy is" 'intended to prevent contraction or transmission of COVID-19,'" to quote this new section of the Conscience Act, section 13.5. Id. (quoting Pub. Act 102-667, § 5 (eff. June 1, 2022) (adding 745 ILCS 70/13.5)). Regardless of whether the requirement succeeds in preventing the contraction or transmission of COVID-19, it is intended to do so. See Krewionek v. McKnight, 2022 IL App (2d) 220078, ¶ 37. An executive order by the Governor recites:
"WHEREAS, the CDC has recognized vaccination as the leading public health prevention strategy to end the COVID-19 pandemic and recommends that all *** staff *** be vaccinated as soon as possible; and, * * *
WHEREAS, requiring individuals in health care settings to receive a COVID-19 vaccine or undergo regular testing can help prevent outbreaks and reduce transmission to vulnerable individuals who may be at a higher risk of severe disease; and, ***
WHEREAS, it is the duty of every employer to protect the health and safety of employees by establishing and maintaining a healthy and safe work environment and requiring employees to comply with health and safety measures ***." Exec. Order No. 2021-22, 45 Ill. Reg. 11,639 (Sept. 3, 2021), https://coronavirus.illinois.gov/content/dam/soi/en/web/illinois/documents/govern ment/executive-order-2021-22.pdf [https://perma.cc/V5UA-DELZ].
Plaintiffs imply, in their memorandum, that this executive order was the impetus for the vaccination-or-testing policy. The policy meets the description of section 5 of Public Act 102-667: it is" 'intended to prevent contraction or transmission of COVID-19.'" Glass II, 2022 IL App (4th) 220270, ¶ 15 (quoting Pub. Act 102-667, § 5 (eff. June 1, 2022) (adding 745 ILCS 70/13.5)). On January 7, 2022, when we issued Glass II, the amendment of the Conscience Act, which added section 13.5, had not yet gone into effect. Nevertheless, in Glass II, we concluded that the circuit court could reasonably regard this amendment as what it purported to be-" 'a declaration of existing law'" Id. (quoting Pub. Act 102-667, § 5 (eff. June 1, 2022) (adding 745 ILCS 70/13.5))-and that when the amendment was so regarded, the court's denial of plaintiffs' petitions for temporary restraining orders against the vaccination-or-testing policy was not an abuse of discretion. Id. ¶ 32.
¶ 30 But let us assume, merely for the sake of argument, that Glass II is palpably erroneous in its willingness to accept Public Act 102-667, § 5 (eff. June 1, 2022), as a declaration of existing law. Even so, since the issuance of Glass II, the public act has gone into effect-the new section 13.5 is now in force-making plaintiffs' reliance on the Conscience Act untenable. The amendment plainly states that it" 'shall apply to all actions commenced or pending on or after the effective date of this amendatory Act.'" Glass II, 2022 IL App (4th) 220270, ¶ 15 (quoting Pub. Act 102-667, § 5 (eff. June 1, 2022) (adding 745 ILCS 70/13.5)). When determining whether a statutory amendment should be applied retroactively, we are supposed to follow the analysis in Landgraf v. USI Film Products, 511 U.S. 244 (1994). People ex rel. Madigan v. J.T. Einoder, Inc., 2015 IL 117193, ¶ 29. The supreme court has explained:
"Under the first step of Landgraf, we are to determine whether the text of the amended provision, itself, clearly expresses the legislature's intent that the amendment be given either prospective or retrospective application. [Citations.] If the legislature specifies that the amended statute is to be applied retroactively, that directive must be honored, unless it would be unconstitutional to do so." Id. ¶ 34.
By stating that it" 'shall apply to all actions commenced or pending on or after the effective date of this amendatory Act,'" section 13.5 clearly expresses the legislature's intent that the amendment be given retrospective application. Glass II, 2022 IL App (4th) 220270, ¶ 15 (quoting Pub. Act 102-667, § 5 (eff. June 1, 2022) (adding 745 ILCS 70/13.5)). Because we are unaware of any case holding it is unconstitutional for Illinois agencies to require, as a condition of continued employment, that their employees in congregate-care facilities be vaccinated or tested for COVID-19, we "must *** honor[ ]" the legislative directive. J.T. Einoder, 2015 IL 117193, ¶ 34. Section 5 of Public Act 102-667 shall apply to all cases pending as of June 1, 2022, just as it says.
¶ 31 In short, we follow the straightforward logic of the Second District in Krewionek. "Section 13.5 unequivocally states that it applies to 'all actions commenced or pending on or after the effective date of this amendatory [a]ct.'" (Emphasis in original.) Krewionek, 2022 IL App (2d) 220078, ¶ 18 (quoting 745 ILCS 70/13.5 (West Supp. 2021)). Like the claim of the plaintiffs in Krewionek, "[p]laintiffs' claim is a pending claim" (id.)-and therefore, "section 13.5 [of the Conscience Act] defeats plaintiffs' claim" (id. ¶ 38).
¶ 32 2. The Health Act
¶ 33 In the present appeal, plaintiffs recycle their argument in Glass II that the circuit court had jurisdiction under the following language from section 2(c) of the Health Act:
"In the event of an immediate [quarantine or isolation] order issued without prior consent or court order, the Department shall, as soon as practical, within 48 hours after issuing the order, obtain the consent of the person or owner or file a petition requesting a court order authorizing the isolation or quarantine or closure." 20 ILCS 2305/2(c) (West 2022).In Glass II, we held that this language from section 2(c) was inapplicable because "[t]o 'quarantine' someone [meant] to keep that person isolated from other members of society" and suspension or termination of employment was not a quarantine or isolation. As we reasoned in Glass II, "[t]he threatened penalty for noncompliance with the vaccination or testing requirement is merely the loss of employment, not quarantine or isolation. To be fired is not to be quarantined or isolated from the community at large." Glass II, 2022 IL App (4th) 220270, ¶ 27. In their memorandum, plaintiffs do not even acknowledge the existence of Glass II, let alone explain how it is plainly erroneous. Under the law of the case, then, section 2(c) of the Health Act is inapplicable.
¶ 35 In sum, it is the law of the case that, unless a statute empowers the circuit court to review the state defendants' vaccination-or-testing policy, the circuit court lacks jurisdiction to do so. Section 13.5 of the Conscience Act specifically disavows any legislative intention to confer such special statutory jurisdiction. It is the law of the case that section 2(c) of the Health Act confers no such jurisdiction. Plaintiffs identify no alternative source of special statutory jurisdiction. Offering no new arguments, they fail to convince us that our previous finding of a lack of jurisdiction is palpably erroneous. Therefore, we affirm the circuit court's judgment.
¶ 36 Affirmed.
¶ 37 JUSTICE STEIGMANN, specially concurring:
¶ 38 With reluctance, I concur with the maj ority opinion of my distinguished colleagues. The strange procedural context of this case makes it difficult for me to suggest an alternative resolution.
¶ 39 In an earlier incarnation of this case, Glass v. Department of Corrections, 2020 IL App (4th) 220270, ¶¶ 34-76, I dissented from this court's affirmance of the trial court's denial of the plaintiffs' petition for a temporary restraining order against the vaccination-or-testing requirement then imposed. I adhere to the views expressed in that dissent, particularly my concerns about how, in the past, the American judiciary has disgraced itself by relying upon the opinions of "experts" to permit the government to abridge some of the most fundamental constitutional rights possessed by this nation's citizens.
¶ 40 One example is the disgraceful decision of the United States Supreme Court in Buck v. Bell, 274 U.S. 200 (1927), in which that Court rejected an appeal by a woman who challenged an order that the superintendent of the State Colony for Epileptics and Feeble Minded sterilize her.
Given that compulsory vaccination is at issue in the present case, I found striking that Justice Oliver Wendall Holmes, writing for the Court, offered the following justification for that decision:
"It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes" (Emphasis added.) Id. at 207.
¶ 41 Justice Holmes concluded with the following observation: "Three generations of imbeciles are enough." Id.
¶ 42 As I noted in my dissent, only one justice dissented from this shocking decision, and he did not even bother to write anything to explain why he was dissenting.
¶ 43 Of course, Justice Holmes was not merely expressing his personal views about the matter at issue in Buck; instead, he was following the views of "experts" on the subject of how the "feeble-minded" should be treated, and there was in fact a "scientific consensus" on that subject. That "science" was eugenics.
¶ 44 All of this is worth mentioning again because the danger of compulsory vaccinations is real, and too often the "experts" of the moment, upon whose counsel governmental officials rely to impose such a requirement, are later shown to be either incorrect or to have based their opinions upon unreliable-or sometimes even fraudulent-research. Just a few examples of questionable decisions and directives regarding the recent COVID-19 pandemic are the following: (1) government explanations that drastic action was needed for "three weeks to flatten the curve," (2) claims that both young children and teachers should be masked, (3) questionable claims about the origin of the COVID-19 pandemic, and (4) the now-withdrawn claim that vaccination in fact prevented a vaccinated person from getting COVID-19-recall the many governmental officials who claimed that the "COVID pandemic is a pandemic of the unvaccinated"-that has now been revised to state that the vaccination will merely reduce the likelihood of a COVID-19 infection or the severity of that infection.
¶ 45 The potential danger of a compulsory vaccination, especially when the vaccine is new and has not yet been subj ect to years of rigorous testing, was well stated by Chief Judge Sutton in his dissent in In re MCP No. 165, 20 F.4th 264, 274 (6th Cir. 2021) (Sutton, C.J., dissenting), in which he wrote the following:
"It is one thing *** to require masks to minimize dangers to which 'employees are exposed' during the workday and at the workplace. It is quite another to make an across-the-board judgment that the employee is 'strongly encouraged'-emphasis on strongly-to undertake a medical procedure (a vaccination) that cannot be undone at the end of the workday."
¶ 46 One of the unusual aspects of this case is that the directive at issue to the various state employees was either (1) get vaccinated or (2) undergo weekly COVID-19 testing. As I discussed with counsel during oral argument, these alternatives impose dramatically different requirements upon the plaintiff-employees. That is, however inconvenient it might be for them to undergo weekly COVID-19 testing, that temporary requirement implicates no constitutional rights. And, in fact, apparently none of the plaintiffs has been fired for refusing to undergo the vaccination.
¶ 47 Thus, this case does not present the stark scenario I raised with AFSCME's counsel during oral argument when I asked him this hypothetical: Can the government force unwilling governmental employees to undergo a potentially dangerous vaccination and require those workers to pursue lengthy administrative proceedings before they may seek judicial protection through the courts? Despite representing an appellee in this case, AFSCME's counsel responded that the scenario I described would be "a bridge too far." I agree and think that description aptly applies.
¶ 48 Over 30 years ago, in another case in which AFSCME was a litigant, I wrote the following for a unanimous court:
"Injunctive relief will be granted when a public official's acts are arbitrary and capricious and he abuses his discretion, or if fraud, corruption, or gross injustice are shown to underlie his discretionary actions, a court may provide injunctive relief. [Citation.] Additionally, injunctive relief will be granted against public officials with respect to their official acts if those acts are either outside their authority or unlawful." Local 1894 v. Holsapple, 201 Ill.App.3d 1040, 1049 (1990).
¶ 49 Although the facts in Holsapple are different than those in the present case, I think what this court wrote in Holsapple could still apply, particularly in the scenario that I discussed with AFSCME's counsel that he wisely described as "a bridge too far."