A federal judge has dismissed a lawsuit in which an attorney alleged the city of Chicago’s vaccine passport violated his constitutional rights and interfered with his contractual rights.
On Dec. 29, Fedor Kozlov, an attorney who practices law through the Law Office of Fedor Kozlov P.C., of Chicago, filed suit in Cook County Circuit Court against the city and Chicago Mayor Lori Lightfoot. Kozlov is represented by attorney Shawn A. Moore, a lawyer affiliated with Kozlov’s firm. The city removed the case to federal court, where Kozlov began encountering roadblocks.
On Jan. 3, the day the city rule took take effect, U.S. District Judge Sara Ellis denied Kozlov’s request for a restraining order to stop Lightfoot and the city from requiring restaurants, theaters, sports arenas, health and fitness centers and a host of other non-retail businesses in Chicago to demand all patrons older than 5 present proof of full vaccination against COVID-19 before being allowed to enter their facilities for more than 10 minutes.
On Jan. 19, Ellis rejected Kozlov’s motion to reconsider her Jan. 3 ruling. In so doing, Ellis also rejected Kozlov’s argument that an order from Allison Arwady, Chicago’s public health commissioner, was illegal because it took effect without approval from the General Assembly or Chicago City Council.
In an order filed Feb. 28, Ellis granted the city’s motion to dismiss Kozlov’s lawsuit altogether without leaving him room to amend the complaint. Kozlov's appeal of Ellis’ denial of the restraining order is pending, and Kozlov will be allowed to appeal the dismissal, as well.
Kozlov argued the vaccine requirement interferes with his contractual relationship as a season ticket holder to Chicago Bulls and Blackhawks home games at the United Center. His constitutional claims rest on allegations the city’s executive order violates his rights to due process and equal protection, as well as the Constitution's Commerce Clause.
“Although Kozlov has a right to bodily autonomy and to privacy, that right does not rise to the level of a fundamental right in the vaccination context,” Ellis wrote, adding the city’s order “does not compel vaccination but instead only places restrictions on what activities those who do not choose to get vaccinated can do.”
Ellis further said Kozlov didn’t establish how his desire to abstain from vaccination couples with the property interest in his season tickets to establish a “fundamental right deserving of strict scrutiny.” She said the law requires Kozlov to show a total lack of “conceivable basis” supporting the city’s order, but explained substantial precedent showing the rational public interests of government action intended to combat the spread of COVID-19.
She similarly rejected Kozlov’s equal protection argument, writing that “being unvaccinated does not amount to membership in a suspect class.” Ellis said mandates such as Chicago’s “undoubtedly” treat people differently based on vaccination status, but again noted the government has a rational basis for its actions.
Kozlov’s Commerce Clause allegation relied on the city’s lack of a negative COVID-19 test option for those who aren’t vaccinated, which he said is impacting United Center ticket sales, attendance and revenues, which affects teams from other states that play in Illinois. However, Ellis said such a claim requires plaintiffs to show discrimination against out-of-state firms, and added the U.S. Seventh Circuit Court of Appeals, in addressing his motion for an injunction, clarified the rule only applies in the city and regardless of where someone comes from to patronize a city business.
Ellis further rejected Kozlov’s state law claims, writing that his contract with the teams entitle him to hockey and basketball tickets and parking spots, but not attendance. If he doesn’t want to comply with the conditions, she said, he could resell the tickets without penalty. Along those lines, Kozlov brought a claim of tortious interference with prospective business expectancy, because the vaccine mandates limit the resale market, but Ellis said the claim fails because he didn’t allege a loss of “the right and ability to sell those tickets.”
She likewise rejected his unjust enrichment claims, noting the teams didn’t cancel any games. Rather, he opted to not attend. She also said he was wrong to allege the city violated its home rule authority because the order affects people who live outside the city. The legal question, Ellis surmised, is whether the order is an attempt to regulate property outside city limits.
“Providing Kozlov with the opportunity to amend his complaint would be futile because he cannot correct the defects the Court has identified with his claims,” Ellis wrote, adding that because the vaccine mandate expired Feb. 28, any amended claims likely would be moot.