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Another loss for Tom DeVore, this time in Christian County

Thursday, Apr 28, 2022 - Posted by Rich Miller

* Christian County? Whew

State of Illinois, Fourth Judicial Circuit Christian County

Robert Thornton, et al. v. Illinois Department of Corrections, et al.

Plaintiffs argue they cannot be required to vaccinate or test for COVID-19 as a condition of employment without first being afforded the statutory procedures available under Section 2 of the Illinois Department of Public Health Act, 20 ILCS 2305/2.

Plaintiffs also argue that although the vaccination and testing requirements are imposed pursuant to their collective bargaining agreement and the interest arbitration award, they are not bound by the requirements because their union lacks power to waive their rights under the IDPH Act, and the arbitrator lacked jurisdiction to issue the award, under the theory that the requirements are general public health measures, not work safety measures.

Specifically, and in addition, Plaintiffs argued that: “Defendants ask once again for this Court to stay this proceeding in hopes to take it out of the hands of the 5th Appellate District. The Attorney General sets for to this Court the request for stay filed by counsel for Plaintiffs in another matter arguing the case should remain in Sangamon. The suggestion is that this case must be stayed while the Supreme Court is reviewing it because there was a request in another case by Attorney Devore under similar circumstances. First off, that case does not have a TRO pending where emergency relief is being sought. Secondly, and more importantly, that case includes the Governor as a Defendant as it attacks the Governor’s authority. Any case that has included the Governor and his authority to issue executive orders have been transferred to Sangamon County. This case is not such a case as the Governor is not a party.”

Defendants are seeking a stay of the within proceeding, or a dismissal with prejudice of Plaintiff’s Petition: “One day after vigorously opposing a brief stay in this case to allow the Illinois Supreme Court to determine, pursuant to the Department’s Rule 384 motion to transfer whether this case belongs in Sangamon County with dozens of other COVID-related cases, including a case that raises the exact same claim made here, Mr. DeVore admits that this case belongs in Sangamon County. Of course, Defendant’s Rule 384 motion to transfer this case to Sangamon County was necessitated by Mr. DeVore’s decision to file this case in Christian County in the first place, despite his admission that such a filing goes against the clearly expressed intent of the Illinois Supreme Court. In light of Mr. DeVore’s admission, the Court should reconsider its earlier ruling and grant a stay of this case pending the Illinois Supreme Court’s ruling on the Rule 384 motion. In the alternative, the Court should deny the motion for temporary restraining order because the Court lacks subject matter jurisdiction, Plaintiffs’ claims have already been rejected by the Illinois Appellate Court, and Plaintiffs have failed to establish any of the elements necessary for such extraordinary relief.”

This Court, as previously stated, has heard and considered the arguments of esteemed Counsel and finds no need to grant the Motion for Stay. As Plaintiffs’ attorney has cogently argued, the Governor is not a named Party to this cause of action and therefore a transfer to Sangamon County is unnecessary.

Instead, this Court adopts the Defendant’s argument as that argument relates to the prayer for a dismissal. As a result of the prior Fourth District decisions, most recently in Graham v. Pekin Fire Department, 2022 IL App (4th) 220270, issued one day before Plaintiffs filed this case, and in Allen v. Bd. of Educ. of N. Mac Cmty. Unit Sch. Dist. No. 34, 2022 IL App (4th) 220307-U, which was issued on April 20, 2022; this Court is required to follow and adopt the same reasoning stated in those decisions.

The Appellate Court also ruled, three months ago, that the circuit court lacks subject matter jurisdiction over this claim, and that exclusive jurisdiction lies with the Illinois Labor Relations Board because the requirements are terms and conditions of employment negotiated between the State and Plaintiffs’ collective bargaining representative. Glass v. Ill. Dep’t of Corr., 2022 IL App (4th) 210740.

This Court is unable to ignore the reasoning set out in Graham and Glass. Both decisions are binding on this Court, and the persuasive authority most recently provided in Allen is further confirmation that this Court lacks subject matter jurisdiction over Plaintiffs’ claims.

The General Assembly has not conferred subject-matter jurisdiction on this court to review the correctness of the interest arbitration award unless either the employer or the exclusive bargaining representative seeks judicial review pursuant to 5 ILCS 315/14. Glass, 2022 IL App (4th) 210740, ffll 49, 51. For the foregoing reasons the Plaintiff’s Motion for Temporary Restraining Order is denied, and the within cause is dismissed.

DeVore may be trying to get this issue into the more conservative Fifth Appellate District. But the Christian County ruling and the opinion it’s based on were pretty darned cut and dried.

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8 Comments
  1. - Steve Rogers - Thursday, Apr 28, 22 @ 2:24 pm:

    With a batting average well below the Mendoza line, perhaps Devore should call it a career and retire.


  2. - TheInvisibleMan - Thursday, Apr 28, 22 @ 2:26 pm:

    “necessitated by Mr. DeVore’s decision to file this case in Christian County in the first place, despite his admission that such a filing goes against the clearly expressed intent of the Illinois Supreme Court.”

    I’ve seen 6 month license suspensions for less than this.


  3. - fs - Thursday, Apr 28, 22 @ 2:31 pm:

    “First off,”

    Such professional language.

    He realizes he’s arguing in front of a Court, and not posting on social media, right? Or is he having one of his Facebook minion commentators write his complaints and briefs now?

    I’m sure his law professors are all very proud.


  4. - Oswego Willy - Thursday, Apr 28, 22 @ 2:32 pm:

    “Ok, ok, I lost, but can I still grift off it?”

    - DeVore, maybe


  5. - JS Mill - Thursday, Apr 28, 22 @ 2:34 pm:

    =“Ok, ok, i lost, but can I still grift off it?”

    - DeVore, maybe=

    Not maybe, definitely.


  6. - Bruce( no not him) - Thursday, Apr 28, 22 @ 3:18 pm:

    This is the brilliant legal mind we need for the Attorney General.
    Said no one except Tom Devore


  7. - Huh? - Thursday, Apr 28, 22 @ 4:39 pm:

    “… esteemed Counsel … cogently argued …”

    Not knowing the judge, I have to guess this is snark.


  8. - New Englander - Thursday, Apr 28, 22 @ 7:10 pm:

    It’s unfortunate that most of the media covers the handful of Devore wins, but mostly ignores his avalanche of losses. And, even the handful of wins have been largely vitiated by subsequent rulings. I mean, it’s doubtful that Judge Grischow herself could rule on a mask lawsuit in Devotee’s favor today, given these recent fourth district cases. But no one seems to realize that because it doesn’t get reported except by Rich :-)


Sorry, comments for this post are now closed.


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