NOTICE NOTICE Decision filed 06/08/23. The This order was filed under text of this decision may be NO. 5-22-0300 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Peti ion for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

ROBERT THORNTON, SHAWN HOLLAND, ) Appeal from the ASHLEY HEFFELFINGER, CHARLES SPIVEY, ) Circuit Court of SHANDA JACKSON, PAUL GIFFEN, DEAWN ) Christian County. RHODES, MICHAEL JONES, JOSH RICKEY, ) BLAKELEE OSWALD, JACOB FREEMAN, JACOB ) ROACH, JAMES DUNNAN IV, JARED RUSK, JOHN ) CRUM, NATHAN DEUSHANE, NICK JONES, ) ANDREW CAMPBELL, ANDREW VOLK, BRADLEY ) ELLIS, CHAD LEMAR, CHRISTIAN BECKER, ) COURTNEY EDWARDS, GREG EDWARDS, ) HOLLY LEMAR, JEFF WALSH, ASHLEY HANDLEY, ) CHARLOTTE HARDEN, KAYLA NEIN, MELISSA ) ROSS, MICHAEL TIMONEY, CRAIG MORGAN, ) DION SULLIVAN, JESS BURLEY, NICHOLAS BYERS, ) JACOB ROY, MATTHEW VAUGHN, JEREMY FINK, ) CHERYL WHITE, DEREK PARK, MICHAEL ) DULAKIS, MICHAEL ECKERT, SHANE HULICK, ) SHARON PRICE, and MATTHEW ORWIG, ) ) Plaintiffs-Appellants, ) ) v. ) No. 22-MR-28 ) THE DEPARTMENT OF CORRECTIONS and ) THE DEPARTMENT OF CENTRAL MANAGEMENT ) SERVICES, ) Honorable ) Stanley M. Brandmeyer, Defendants-Appellees. ) Judge, presiding. ______________________________________________________________________________

JUSTICE VAUGHAN delivered the judgment of the court. Justices Welch and Moore concurred in the judgment.

ORDER

1 ¶1 Held: The circuit court’s order dismissing plaintiffs’ complaint for declaratory judgment is affirmed where the circuit court lacked subject matter jurisdiction.

¶2 Plaintiffs, consisting of 45 individuals employed by the Illinois Department of Corrections,

appeal the trial court’s dismissal of their complaint for declaratory judgment based on the court’s

lack of subject matter jurisdiction. For the following reasons, we affirm.

¶3 I. BACKGROUND

¶4 On April 14, 2022, plaintiffs filed their amended verified complaint requesting a

declaratory judgment based on section 2 of the Department of Public Health Act (20 ILCS 2305/2

(West 2020)), against defendants, the Illinois Department of Corrections (IDOC) and the Illinois

Department of Central Management Services (CMS). The complaint alleged that CMS managed

the employment relationship with state employees on behalf of IDOC and Governor Pritzker

demanded state employees be vaccinated or tested to limit the spread of COVID, “subject to

bargaining.” The complaint alleged that plaintiffs’ union, the American Federation of State,

County and Municipal Employees (AFSCME), engaged in interest arbitration with the State,

which resulted in a final opinion and award as to how Governor Pritzker’s directive would be

handled. 1 The complaint further alleged that, pursuant to the final opinion, if state employees

refused to submit to vaccination or testing, their livelihood was threatened as they could be placed

on “no-pay administrative leave” into perpetuity or until the employee complied.

¶5 Count I of the complaint requested a declaratory judgment and alleged that defendants

could not demand vaccination or testing to limit the spread of an infectious disease. The count

further alleged that the Illinois legislature vested the Illinois Department of Public Health, not

1 Briefing was completed on November 21, 2022, as plaintiffs declined to file any responsive brief. The parties confirmed at oral argument that on January 10, 2023, IDOC rescinded the vaccination and testing mandate; however, the agency retained authority to reimplement the mandate, if necessary. 2 defendants, with authority on public health issues, no delegation to defendants was ever made, and

defendants had no legal authority to compel the state employees to vaccinate or test to prevent the

spread of an infectious disease. Plaintiffs requested an order declaring that defendants were

required to have a lawful court order issued by the health department before it could compel the

state employees to vaccinate or test to limit the spread of an infectious disease.

¶6 Count II requested a declaratory judgment and alleged that the plaintiffs had statutory rights

as individual citizens to not be subjected to vaccination or testing without due process of law and

their claims against the State were independent of the arbitration process. The count further alleged

that even if the employee’s rights could be waived by agreement, there was no express waiver by

plaintiffs. This count requested a finding that the January 19, 2022, arbitration award did not

preclude the state employees from bringing their statutory right claims in state court.

¶7 Count III requested a permanent injunction enjoining vaccination or testing of state

employees. Attached to the complaint was a copy of the January 19, 2022, Illinois/AFSCME final

opinion and award. An emergency motion for a temporary restraining order (TRO) was also filed

on April 14, 2022.

¶8 On April 22, 2022, defendants filed their answer primarily denying plaintiffs’ allegations

or alleging the claims were insufficiently pled to allow for an answer. Defendants also alleged

affirmative defenses arguing, inter alia, the circuit court lacked subject matter jurisdiction

claiming that plaintiffs’ claims were subject to the exclusive jurisdiction of the Illinois Labor

Relations Board because plaintiffs’ vaccination and testing requirements were conditions of

employment at IDOC.

¶9 On April 28, 2022, the court denied plaintiffs’ motion for a TRO and dismissed plaintiffs’

cause of action, finding it did not have subject matter jurisdiction to review the correctness of the

3 arbitration award except for judicial review under section 14 of the Illinois Public Labor Relations

Act (5 ILCS 315/14 (West 2020)). The court relied on the decision in Glass v. Department of

Corrections,

, which found the circuit court, in a similar case, had no

subject matter jurisdiction. Plaintiffs appealed the denial of the TRO, and this court issued an order

finding the appeal moot on May 12, 2022. Thornton v. Illinois Department of Corrections,

. Plaintiffs now appeal the circuit court’s dismissal of their complaint.

¶ 10 II. ANALYSIS

¶ 11 On appeal, plaintiffs argue that the circuit court erred in finding it did not have subject

matter jurisdiction over the action because plaintiffs were seeking protection of their statutory

rights. They further argue that the IDOC vaccination and testing policy was a public health policy,

not a workplace rule. “Whether a circuit court has subject matter jurisdiction to entertain a claim

presents a question of law which we review de novo.” McCormick v. Robertson,

(citing Crossroads Ford Truck Sales, Inc. v. Sterling Truck Corp.,

).

¶ 12 “ ‘[S]ubject matter jurisdiction’ refers to the power of a court to hear and determine cases

of the general class to which the proceeding in question belongs.” Belleville Toyota, Inc. v. Toyota

Motor Sales, U.S.A., Inc.,

(2002). A circuit court’s consideration of

administrative actions is limited to that conferred by law, and the Illinois Constitution limits the

circuit court’s consideration solely to matters of administrative review. Ill. Const. 1970, art. VI,

§ 9; see also McCormick,

, ¶ 19. The initial consideration of labor relations

between public employees and employers lies within the province of the Illinois Labor Relations

Board. 5 ILCS 315/2 (West 2020). As such, the circuit court’s jurisdiction is limited to review of

Illinois Labor Relations Board decisions.

4 ¶ 13 Here, plaintiffs alleged that the IDOC vaccination and testing policy resulted from interest

arbitration which AFSCME requested after negotiations failed between CMS and AFSCME.

Pursuant to the Illinois Public Labor Relations Act (5 ILCS 315/1 et seq. (West 2020)), interest

arbitration addresses “unresolved disputes concerning wages, hours, terms[,] and conditions of

employment.” Id. § 14(p). Orders of the arbitration panel are judicially reviewed “upon appropriate

petition by either the public employer or the exclusive bargaining representative, by the circuit

court for the county in which the dispute arose.” Id. § 14(k). The petition must be filed “within 90

days following the issuance of the arbitration order.” Id.

¶ 14 Plaintiffs argue they are not seeking review of the interest arbitration award. They argue

they are asking the court to consider, irrespective of the interest arbitration decision, whether

plaintiffs had a right to come to the court to seek enforcement of their statutory rights under the

Department of Public Health Act (Health Act) (20 ILCS 2305/2 et seq. (West 2020)) due to their

employer’s alleged violation of those rights.

¶ 15 While plaintiffs claim the issue is one of statutory rights, the first count of their complaint

requested a declaratory judgment stating that defendants had no lawful authority to compel

plaintiffs to vaccinate or participate in testing. However, this issue, i.e., “the lawful authority of

the employer (Section 14(h)(1)),” was the basis of the December 29, 2021, interim interest

arbitration award. In re Arbitration Between State of Illinois & AFSCME Council 31, No. S-MA-

22-121 (Dec. 29, 2021). The interim decision found it was “long and well established that

governmental entities can mandate vaccinations.” Id. (citing Jacobson v. Massachusetts,

(1905) (smallpox vaccinations); Zucht v. King,

(1922) (public

school vaccinations); Klaassen v. Trustees of Indiana University,

(7th Cir. 2021)

(COVID-19 vaccinations)).

5 ¶ 16 Thereafter, the interim award addressed the stipulations of the parties as well as the interest

and welfare of the public.

As to the latter factor, the panel relied on testimony asserting,

inter alia, the vaccines were “safe and effective at preventing COVID-19” and “the risk of severe

allergic reactions, blood clotting and myocarditis *** [was] extremely low.” 2 After addressing the

three relevant factors, the interim award found the issue of whether the State should mandate

COVID-19 vaccinations for the employees covered by the relevant collective bargaining

agreements in that case should be answered in the affirmative.

¶ 17 While plaintiffs contend their “claims do not raise any dispute with regard to any collective

bargaining contracts between Plaintiffs and their employers,” their requested relief in the first

count of the complaint clearly disputes the interim finding by the arbitrators that the State should

mandate vaccination of its employees. As this issue was specifically addressed in the interim

arbitration award and noted in the final interest arbitration award (In re Arbitration Between State

of Illinois & AFSCME Council 31, No. S-MA-22-121 (Jan. 19, 2022)), plaintiffs’ count I request

can only be classified as a request for review of that determination. Because standing for review

of that determination is limited to either the public employer or the exclusive bargaining

representative (5 ILCS 315/14(k) (West 2020)), of which plaintiffs are neither, we find the circuit

court correctly dismissed count I of plaintiffs’ complaint.

¶ 18 Plaintiffs’ second count requested a declaratory judgment stating that their claims for

statutory right violations under section 2 of the Health Act (20 ILCS 2305/2 (West 2020)),

stemming from the IDOC vaccination and testing mandate, were not precluded by the arbitration

award. At oral argument, plaintiffs clarified that the rights violated were under sections (d) and (e)

2 This court is aware of the contrary scientific findings issued subsequent to this testimony and admit difficulty may arise in attempting to revive the mandate based thereon; however, such issue is not before the court at this time. 6 of the Health Act (id. § 2(d), (e)). Section (d) grants the Illinois Department of Public Health

(IDPH) authority to order physical examinations and tests “necessary for the diagnosis or treatment

of individuals in order to prevent the probable spread of a dangerously contagious or infectious

disease.” Id. § 2(d). Section (e) grants IDPH authority to administer vaccines “as necessary in order

to prevent the probable spread of a dangerously contagious or infectious disease.” Id. § 2(e). Both

sections are subject to section (c), which requires IDPH to obtain consent prior to taking either

action and, if consent is not given or is denied, requires the agency to seek a court order. Id. § 2(c).

Section (c) also provides the agency’s elements of proof to obtain such court order and lists certain

rights and required notices afforded to the public related to the hearing. Id.

¶ 19 While plaintiffs claim the State violated their statutory rights under section 2 of the Health

Act and their claims thereunder were not precluded by the arbitration award, we disagree.

Plaintiffs’ argument ignores well-established law holding that waiver of a statutory right is a

permissive subject of bargaining. Skokie Firefighters Union, Local 3033 v. Illinois Labor Relations

Board, State Panel,

(citing Mt. Vernon Education Ass’n v. Illinois

Educational Labor Relations Board,

(1996)). Permissive subjects differ

from mandatory subjects, the latter of which “neither party can refuse to negotiate.” Id. ¶ 6.

“[P]ermissive subjects of bargaining are terms that the parties are not required to negotiate, but if

one side proposes negotiation on those matters, the other side may voluntarily negotiate.” Id.

However, if both sides do not agree to bargain the permissive subject, the arbitration panel cannot

consider the permissive subjects of bargaining. Id. ¶ 15.

¶ 20 We note the following from the interim interest arbitration award (In re Arbitration

Between State of Illinois & AFSCME Council 31, No. S-MA-22-121 (Dec. 29, 2021)):

7 “During the period August 9 through October 22, 2021, the parties engaged in

negotiations over the State’s decision to mandate vaccines for all employees in State owned

and operated congregate facilities. While agreements were reached for a number of

facilities, the parties reached impasse on the vaccine mandate issue for the correctional

Section 14 employees at facilities in DOC and DJJ and the Union filed for interest

arbitration with the Illinois Labor Relations Board.”

The decision further noted that the State maintained that it was not “obligated to bargain over its

decision to mandate vaccinations for employees in congregate facilities”; “[h]owever, the State

*** agreed to bargain with the Union.”

¶ 21 These statements indicate that both parties agreed the issue of mandatory vaccination and

testing were permissive subjects of bargaining. Equally compelling is the fact that neither party

sought a declaratory ruling (see 80 Ill. Adm. Code 1200.143(b) (eff. Aug. 1, 2016)) as to whether

the vaccination and testing requirements should be classified as a mandatory or permissive

bargaining subjects.

¶ 22 After the interim decision was issued, the case was remanded for the parties to determine

how the vaccination should be implemented. As shown by the final interest arbitration decision

(In re Arbitration Between State of Illinois & AFSCME Council 31, No. S-MA-22-121 (Jan. 19,

2022)), the State and AFSCME “reached agreement on a number of implementation issues and

memorialized their agreements in a Memorandum of Understanding.” By January 7, 2022, only

four issues remained for interest arbitration consideration, none of which included whether the

IDPH protocol for vaccinations or quarantines, i.e., obtaining a court order for those who declined

vaccination or disputed a need for quarantine, should be utilized.

8 ¶ 23 The default for any negotiation is that required by the statute; however, thereafter, “the

Union may waive its rights on its own accord.” Skokie Firefighters Union,

, ¶ 14. Accordingly, we find that plaintiffs’ claimed rights herein were waived pursuant to

AFSCME’s request, and the State’s agreement, to submit the issue of mandatory vaccination to

interest arbitration. Further, any dispute contesting the union’s waiver of the employee’s rights

would be considered an “unfair labor practice” claim which lies within the province of the Illinois

Labor Relations Board. Zander v. Carlson,

.

¶ 24 Plaintiffs also contend that the directive stemming from the final interest arbitration

decision was not a “workplace safety issue” but was instead an issue of “public health” pursuant

to National Federation of Independent Business v. Department of Labor, Occupational Safety &

Health Administration,

,

(2022). In National Federation, the United

States Supreme Court addressed the authority of the Occupational Safety and Health

Administration (OSHA) to issue federal regulations requiring every business in the United States

with more than 100 employees to require vaccination or submit to testing (at the employee’s own

cost and on the employee’s own time) if they did not vaccinate.

at ___, 142 S. Ct. at 662. The

Court found that OSHA did not have the authority to issue such a mandate. Id. at ___, 142 S. Ct.

at 666. The decision found the issue to be one of public health and stated that OSHA did not have

authority to regulate hazards of daily life simply because “most Americans have jobs and face

those same risks while on the clock.” Id. at _--, 142 S. Ct. at 665.

¶ 25 The Court continued by stating, “Although COVID-19 is a risk that occurs in many

workplaces, it is not an occupational hazard in most.” (Emphasis in original.) Id. The Court found

OSHA had “authority to regulate occupation-specific risks related to COVID-19” including “risks

associated with working in particularly crowded or cramped environments.” Id. OSHA was simply

9 precluded from issuing an all-encompassing mandate for all businesses, as the “danger present in

such workplaces differs in both degree and kind from the everyday risk of contracting COVID-19

that all face.” Id. at ___, 142 S. Ct. at 666. We note that nothing in National Federation addressed

whether an employer could mandate vaccination as a condition of employment for its employees.

As such, we find the decision distinguishable.

¶ 26 Plaintiffs also argue that while the circuit court was bound to following the precedent in

Glass,

, this court is not bound by the ruling and should consider the

issue as one of first impression. We note, however, no argument or citation to law was presented

for this contention. Glass, however, is directly on point. It involved similarly employed plaintiffs

and included both IDOC and CMS as defendants in addition to Governor Pritzker and Illinois

Departments of Human Services, Veterans’ Affairs, Juvenile Justice, and Public Health. As noted

above, Glass held the circuit court did not have subject matter jurisdiction.

. Further, in a

later decision that included the same parties, as well as additional plaintiffs and defendants, the

appellate court found that while section 2 of the Health Act conferred authority on the Health

Department, “it does not logically follow that the employers lack authority over workplace safety,

such as the authority to require employees *** to undergo vaccination or testing for infectious

diseases such as COVID-19.” Glass v. Department of Corrections,

; see also Allen v. Board of Education of North Mac Community Unit School District No. 34,

(School district “is not vested with *** broad powers [similar

to those granted to IDPH], nor is it trying to exercise them. Instead, it has adopted workplace rules

for the protection of students and school employees.”).

10 ¶ 27 Short of its citation to National Federation, plaintiffs provide no argument as to the State’s

authority to promulgate workplace safety rules. For all of these reasons, we affirm the circuit

court’s decision dismissing count II of plaintiffs’ complaint for a lack of subject matter jurisdiction.

¶ 28 Finally, a dismissal on the merits moots the issue of whether an injunction should be issued.

“A moot controversy is one that once existed but that, because of the happening of an event, has

ceased to exist and no longer presents an actual controversy between the parties.” McCaster v.

Greenwood,

(2002). The dismissal is such an event. Thornton,

. Accordingly, we affirm the trial court’s dismissal of count III.

¶ 29 III. CONCLUSION

¶ 30 For the foregoing reasons, we affirm the trial court’s dismissal of plaintiffs’ complaint for

declaratory judgment based on a lack of subject matter jurisdiction.

¶ 31 Affirmed.

11