A sharply divided Illinois appeals panel has dealt a blow to efforts to restrain the ability of Gov. JB Pritzker and other Illinois government officials from requiring government workers to get a COVID vaccine, or get fired.
In the 2-1 ruling, a three-justice panel of the Illinois Fourth District Appellate Court ruled Illinois’ Health Care Right of Conscience law doesn’t apply to forced vaccinations within a workplace.
The majority further stated the definition of “quarantine” under the law doesn’t include forced vaccinations and testing in the workplace, so workers face no loss of their rights under Pritzker’s so-called “vaccine or test” mandate, even if they are afforded no meaningful recourse beyond agreeing to be terminated from their jobs for refusal to comply.
Illinois Fourth District Appellate Justice Peter Cavanagh
| Illinoiscourts.gov
A dissenting appellate justice, however, blasted his colleagues for allowing the Pritzker administration and other state officials to ignore the text of the law and Illinois Supreme Court precedent, and instead substitute the opinion of “experts” concerning the “science” behind the spread of COVID-19.
The majority decision was authored by Justice Peter C. Cavanagh, with Justice James A. Knecht concurring.
Justice Robert J. Steigmann dissented.
The decision comes in response to appeals brought by firefighters, public school employees, and state workers in various agencies, who sued Pritzker, a number of state agencies, and other local governments, including the city of Pekin and the Deland-Weldon Community Unit School District 57. In those lawsuits, the plaintiffs argued the vaccine-or-test mandates imposed Pritzker and their various government employers ignored state law and violated their rights.
They argued the Health Care Right of Conscience Act should protect them from discrimination for refusing on conscience grounds to take the vaccine.
And they argued the Illinois Department of Public Health Act doesn’t give Pritzker and the government agencies for which they worked the authority to order them to receive the vaccine, or face unemployment. Instead, they said, the IDPH Act gives quarantine power to state and local public health departments, with due process protections expressly given to anyone those departments seek to force to submit to forced vaccinations and testing and other forms of quarantine courts have identified in the law.
Sangamon County Judge Jennifer M. Ascher denied their requests for temporary restraining order, saying such arguments carried minimal chances of success.
However, Ascher’s decision conflicted with rulings from her Sangamon Court colleague, Judge Raylene Grischow. In those rulings, Grischow granted restraining orders to public workers challenging vaccine-or-test mandates, finding the IDPH Act’s due process protections against forced quarantine should apply to COVID vaccines and testing.
In the majority decision, however, justices Cavanagh and Knecht sided with Ascher.
The justices noted the Health Care Right of Conscience Act specifically forbids the state from discriminating against people over their “conscientious refusal to receive, obtain, accept, perform, assist, counsel, suggest, recommend, refer or participate in any way in any particular form of health care services contrary to his or her conscience.”
However, Cavanagh and Knecht said they believed Illinois lawmakers may have meant to use the word “discriminate” in an “unconventional sense … contrary to its dictionary meaning,” which “creates an ambiguity in the statute.”
This, they said, means the law could be interpreted to exclude forced vaccinations, as a condition of employment, from the anti-discrimination provisions of the Conscience Act. That, they said, should allow the courts to accept a “clarification” of the Conscience Act, passed earlier this year by the Illinois Democrats who dominate the Illinois General Assembly, saying the law didn’t conflict with the vaccine mandates imposed by fellow Democrat, Pritzker.
The majority, however, preferred to use the dictionary when defining the word “quarantine,” as used in the IDPH Act.
They said the compulsory COVID vaccinations and testing for the public employees was not a form of quarantine, which they defined solely as forced isolation and exclusion from the community at large.
Instead, the majority said they believed compulsory workplace vaccinations and testing are a “workplace safety rule and a workplace rule of considerate conduct toward the public that the agencies serve.”
“Just because section 2 of the (IDPH Act) confers upon the Health Department such authority, it does not logically follow that the employers lack authority over workplace safety, such as the authority to require employees, on pain of loss of employment, to undergo vaccination or testing for infectious diseases such as COVID-19,” Cavanagh wrote.
In his dissent, Justice Steigmann did not address the quarantine question, or the limits of the IDPH Act.
Instead, Steigmann criticized his colleagues for their treatment of the Right of Conscience Act.
Steigmann noted the Illinois Supreme Court has explicitly declared judges cannot accept “clarifications” from state lawmakers concerning the intent of a law passed by a different General Assembly.
Further, he said, the Fourth District majority simply ignored an earlier opinion of their colleagues on the Illinois Second District Appellate Court, who specifically rejected a government agency’s attempt to argue the term “discriminate,” as used in the Conscience Act was “ambiguous.”
Instead, he said, the Fourth District majority and Judge Ascher gave too much credence to the opinions and views of the “experts” relied upon by Pritzker in issuing his vaccination edicts.
Steigmann noted courts routinely evaluate disputes among scientific experts in cases dealing with medical malpractice, commercial liability and negligence, among others.
But he said this case is different from those in fundamental ways.
“None of (those) cases concerning disputes between experts involved fundamental constitutional rights, such as a directive from a governmental agency than an employee be injected, over the employee’s objection, with a substance that supposedly expert opinion deems beneficial and unlikely to cause harm,” Steigmann wrote.
“However, past experience has shown that courts have on occasion accepted the views of ‘experts’ to the detriment of both citizens and the reputation of the judiciary.”
He specifically cited two prior decisions from the U.S. Supreme Court – the 1927 decision in Buck v Bell, which declared forced sterilization of the “feeble-minded” to be constitutional, and the 1944 decision in Korematsu v United States, which supported the federal government’s forced incarceration of Japanese Americans during World War II.
“History shows - and our constitution provides - that the courts are the only true protector and guarantor of the fundamental rights of citizens,” Steigmann wrote. “They rightly look to the judiciary to curb executive overreach and to protect their fundamental rights.
“In the cases I mentioned earlier, Buck and Korematsu, the courts’ failures to live up to those standards was shameful.
“However, it is not enough to acknowledge those failures; instead, those cases should stand as a clarion call for the judiciary to protect fundamental constitutional rights, even when so-called ‘experts’ deem such rights unworthy of protection because of whatever emergency they claim currently exists.”
Plaintiffs were represented in the case by attorney Bethany Hager, of Danville.