A Chicago lawyer will take his fight against the city of Chicago’s vaccine passport mandate to a federal appeals court, after a federal judge again turned him away, this time explicitly declaring that the COVID vaccines’ seeming inability to prevent those who have been vaccinated from contracting COVID should have no bearing on whether the city can legally lock the unvaccinated out of restaurants, concerts, museums, sporting events and other indoor gathering spots.
On Jan. 19, U.S. District Judge Sara L. Ellis rejected a motion from attorney Fedor Kozlov to reconsider her earlier decision to deny Kozlov’s request for an injunction blocking the city from enforcing the vaccine passport orders issued by Allison Arwady, Chicago’s public health commissioner.
The mayor’s order, the judge said, “is rationally related to the City’s interest in slowing the spread of COVID-19, protecting the health of workers who interact with the public as a condition of their employment, and seeking to limit the burden on the healthcare system.”
U.S. District Judge Sara Ellis
“And, as previously noted by the Court, the existence of a debate about the degree of immunity provided by vaccines does not demonstrate that (Arwady’s order) is arbitrary or irrational.”
Judge Ellis further rejected Kozlov’s argument that Arwady’s order is illegal, because it was never approved by either the state legislature or even the Chicago City Council.
Judge Ellis said she believed Arwady was using “emergency measures,” acting within the authority delegated to her under state law and Chicago city ordinances.
Kozlov, an attorney who practices law through the Law Office of Fedor Kozlov P.C., of Chicago, had filed suit in late December in Cook County Circuit Court against the city and Mayor Lori Lightfoot.
The lawsuit challenges the authority of Lightfoot and the city to impose a rule requiring restaurants, theaters, sports arenas, health and fitness centers, and a host of other non-retail businesses in Chicago to demand all patrons over the age of 5 present proof of full vaccination against COVID-19 before being allowed to enter their facilities for more than 10 minutes.
The rule exempts retail stores and other shopping outlets, houses of worship, schools and various other kinds of facilities.
Lightfoot and the city announced the rule on Dec. 21. The rule took effect on Jan. 3.
Kozlov, who is unvaccinated against COVID, says he has recovered from a previous COVID infection, and has opted not to receive the COVID vaccines, at the advice of his doctor.
Because of the city’s vaccine passport mandate, Kozlov said he has been unable to enter the United Center, where he holds season tickets for both the Chicago Bulls and Chicago Blackhawks.
In his lawsuit, Kozlov alleges the vaccine passport mandate illegally interferes with his contract rights, as it effectively bars him from attending Bulls basketball and Blackhawks hockey games for which he has already purchased tickets.
He notes the city and county have each collected taxes from his purchase of those tickets, which he cannot now use, because of the vaccine passport mandate.
Further, he asserts the mandate constitutes an illegal “extraterritorial” law, extending the reach of Chicago and Cook County orders far beyond their boundaries, to impact the lives of people who live outside of Chicago and Cook County, yet travel into the city and county for various cultural, business or entertainment purposes.
And Kozlov argues the nature of the mandate itself, establishing two classes of people – the favored vaccinated, who are free to live their life as they please vs. the restricted unvaccinated, who are effectively barred from much of society – violates constitutional rights to equal protection under the law, as well as due process.
Ellis on Jan. 3 denied Kozlov’s request for a temporary restraining order against the mandates.
Kozlov asked the judge to reconsider that decision on Jan. 12. As part of his filing, Kozlov noted Mayor Lightfoot herself had recently tested positive for COVID, even though she had been fully vaccinated and had received a third booster dose.
Kozlov asserted this only demonstrated his point, that a vaccine passport mandate, which does not even allow for the option of the unvaccinated to provide proof of a negative COVID test, provides little protection to anyone.
“It is fortunate that even despite being fully vaccinated and boosted Mayor Lightfoot was still getting tested for Covid-19,” Kozlov wrote in his Jan. 12 filing.
“However, now it is clear on a very public stage, that the test itself was what allowed Mayor Lightfoot to become aware of the infection, and to subsequently quarantine as a result of acquiring that information, so as to avoid possibly spreading the virus further to others.
“… It would be appropriate for the Court to consider whether the Vaccine Mandate Orders, which require proof of vaccination to patronize indoor facilities, but do not require the showing of a negative test result within a prescribed period of time prior to entry of the same, will ultimately place the health, safety, and welfare of the public at an even greater risk than they would have been without the mandates.”
In his motion, Kozlov further asserted Judge Ellis had improperly relied on the 1905 U.S. Supreme Court decision in Jacobson v. Massachusetts to deny his injunction request.
That decision has been used by courts across the country to uphold a range of societal and economic restrictions imposed by governors and mayors, in particular, in response to the onset of the COVID pandemic.
In this case, however, Kozlov argued the Jacobson decision shouldn’t apply to an order of this magnitude and reach issued by a health department director, without explicit approval of a lawmaking body.
“… The initial object at issue which prompted the Jacobson case was a State of Massachusetts statute expressly authorizing compulsory vaccination. Here, no such similar state or legislative authorization for the Vaccine Mandate Orders exists,” Kozlov wrote.
Judge Ellis, however, said she did not believe the COVID passport orders can be undermined by either the evidence of COVID spread among the vaccinated, nor the lack of an explicit legislative mandate authorizing Arwady to impose the vaccine passport order.
Following Ellis’ denial of his motion to reconsider, Kozlov filed notice on Jan. 20 that he would appeal Ellis’ decision to the U.S. Seventh Circuit Court of Appeals.
Kozlov is represented in the case by one of his colleagues, attorney Shawn A. Monroe, of the Kozlov Law Office.