Tom DeVore, an attorney at the fore of the legal fight against Illinois state COVID restrictions, has now asked a Springfield judge to strike down the city of Chicago’s vaccine-or-test mandate for city workers, saying the city unlawfully issued the mandate under both state law and under orders issued by Gov. JB Pritzker, and the city’s threats to fire the workers if they don’t comply with the mandate violates their due process rights under state law.
On March 17, DeVore, of Silver Lake Legal Group, of downstate Greenville, filed suit on behalf of dozens of Chicago city workers against the city of Chicago, Mayor Lori Lightfoot and Illinois Gov. JB Pritzker. The complaint was filed in Sangamon County Circuit Court, in Springfield, where the Illinois Supreme Court has typically ordered all COVID-related lawsuits against Pritzker to be heard.
The plaintiffs are also seeking a temporary restraining order forbidding the city from enforcing the mandate, and potentially firing employees who decline to comply.
“The Plaintiffs have a right to insist he or she not be compelled to comply with (the mandate) which Lightfoot avers was promulgated by Chicago unless the same is lawfully adopted pursuant to Illinois law,” DeVore wrote in the motion for temporary restraining order.
The lawsuit takes aim at the mandate, issued by Lightfoot through the Chicago Department of Public Health, in October, which required all city workers to either receive a full dose of COVID vaccine, or submit to regular testing, as a condition of employment.
The city’s vaccine mandates have been challenged on various fronts since December, so far to no avail. While the union representing Chicago’s police officers won a temporary reprieve, an arbitrator ruled recently police officers cannot choose to not comply, if they wish to keep their jobs.
Federal judges have also declined to intervene to this point against the city’s vaccine mandate.
In DeVore’s new lawsuit, he largely reproduces arguments he has presented in other cases he has led against COVID restrictions implemented by the state and Pritzker.
Most recently, DeVore persuaded Sangamon County Judge Raylene Grischow to issue a restraining order on Feb. 4 blocking Pritzker from issuing “emergency rules” requiring students in all Illinois public schools to wear masks and submit to other COVID-related restrictions, including compulsory testing and exclusion from class.
In her decision, Grischow determined state agencies under Pritzker’s control had illegally issued the emergency rules. Further, she ruled those compulsory masking, testing and exclusion rules violated the due process rights of students, their parents and educators.
She ruled the law known as the Illinois Department of Public Health Act granted the power to order any kind of quarantine – including “modified quarantines” like masking, testing and compulsory vaccinations – to state and local public health agencies. Further, she said that law granted people ordered into quarantine the right to object, and compel the government agents to get a court order, backing up the quarantine order.
That restraining order was ultimately voided by the Illinois Supreme Court, who said the order had been mooted after a committee of Illinois state lawmakers refused to allow Pritzker to reinstitute the rules, after they expired in mid-February.
Neither the state Supreme Court nor a state appeals court granted Pritzker’s request to throw out Judge Grischow’s reasoning.
DeVore has filed suit on behalf of Chicago Public Schools teachers, also challenging that district's vaccine-or-test mandate.
Further, that line of reasoning recently was echoed in a decision by a Cook County judge, rejecting the effort by the Cook County Health Department to force a student who repeatedly tested negative for COVID, to remain out of school for 10 days, simply because that student may have been exposed to another who tested positive.
In the new lawsuit against Lightfoot and Pritzker, DeVore brought that same reasoning to bear on the city’s vaccine-or-test mandate.
In the complaint, DeVore notes the city’s mandate order includes no reference to any action the Chicago City Council may have taken to approve the mandate.
Further, he notes the order includes no reference to any state law granting the mayor and the Chicago Health Department the power to force city workers to get a vaccine over their objections, or potentially lose their jobs, without a court order.
The complaint asserts the CPHD should be forced to comply with the due process requirements written into the state public health law.
“It would be an absurd proposition for Chicago or Lightfoot to suggest CPHD, who wields supreme authority over such matters, are required to obtain consent, or a court order, yet they can somehow disregard this same procedural and substantive due process to force vaccination or testing, upon the Plaintiffs to limit the spread of an infectious disease, and should Plaintiffs refuse each has their livelihood stripped away until they are financially starved into compliance,” DeVore wrote in the complaint.
The complaint argues the city’s vaccine mandate should be considered legally null, because it was issued outside of the authority afforded to the city under state law.
DeVore further argues the city can’t find refuge in executive orders and emergency rules issued by Pritzker, ordering certain city workers to get vaccinated against COVID or lose their jobs. He argues those orders and rules are also illegal, under the IDPH Act.
“Quite simply, the Defendants are infringing upon the lawful right of the Plaintiffs, to be free to choose for themselves whether to undergo vaccination or testing, for the purpose of limiting the spread of an infectious disease, absent consent or a court order,” DeVore wrote in the complaint.