McHenry County Sheriff v. McHenry County Department of Health ( 2021 )

Digitally signed
by Reporter of
Decisions
Reason: I attest to
Illinois Official Reports the accuracy and
integrity of this
document
Appellate Court Date: 2021.02.10
13:35:45 -06'00'
McHenry County Sheriff v. McHenry County Department of Health,
2020 IL App (2d) 200339Appellate Court THE McHENRY COUNTY SHERIFF, Plaintiff-Appellee, v. THE
Caption McHENRY COUNTY DEPARTMENT OF HEALTH, Defendant-
Appellant.–THE CITY OF McHENRY; THE VILLAGE OF
ALGONQUIN; THE CITY OF WOODSTOCK; and THE VILLAGE
OF LAKE IN THE HILLS, Plaintiffs-Appellees, v. MELISSA H.
ADAMSON, in Her Official Capacity as Public Health Administrator
for the McHenry County Department of Health, and THE McHENRY
COUNTY DEPARTMENT OF HEALTH, Defendants-Appellants.
District & No. Second District
No. 2-20-0339
Rule 23 order filed June 25, 2020
Motion to
publish allowed July 22, 2020
Opinion filed July 22, 2020
Decision Under Appeal from the Circuit Court of McHenry County, Nos. 20-MR-373,
Review 20-MR-387; the Hon. Michael J. Chmiel, Judge, presiding.
Judgment Reversed.
Counsel on Robert J. Long and Douglas S. Dorando, of Daniels, Long & Pinsel
Appeal LLC, of Waukegan, for appellants.
Jennifer J. Gibson, of Zukowski, Rogers, Flood & McArdle, of Crystal
Lake, for appellees City of McHenry, Village of Algonquin, City of
Woodstock, and Village of Lake in the Hills.
Patrick D. Kenneally, State’s Attorney, of Woodstock (Jana Blake
Dickson, Assistant State’s Attorney, of counsel), for other appellee.
Colleen Connell, Ameri R. Klafeta, and Emily Werth, of Roger
Baldwin Foundation of ACLU, Inc., of Chicago, for amici curiae
Health & Medicine Policy Research Group et al.
Panel PRESIDING JUSTICE BIRKETT delivered the judgment of the
court, with opinion.
Justices Zenoff and Brennan concurred in the judgment and opinion.
OPINION
¶1 On April 10, 2020, plaintiffs, the McHenry County Sheriff (Sheriff) and the City of McHenry,
the Village of Algonquin, the City of Woodstock, and the Village of Lake in the Hills
(collectively, the Municipalities), obtained a temporary restraining order requiring defendants,
the McHenry County Department of Health and Melissa H. Adamson, in her official capacity as
public health administrator for the McHenry County Department of Health (collectively, the
Department), to disclose to the McHenry County Emergency Telephone System Board
(Telephone System Board) the names and addresses of persons who reside in McHenry County
and test or have tested positive for the illness denominated COVID-19. The Department moved
to reconsider and to dissolve the temporary restraining order, and the circuit court of McHenry 1
County denied the motion. The Department now appeals, pursuant to Illinois Supreme Court Rule
307(d) (eff. Nov. 1, 2017), the trial court’s judgment denying its motion to reconsider and to
dissolve the temporary restraining order. We reverse and dissolve the temporary restraining order.
¶2 I. BACKGROUND
¶3 Late in 2019, COVID-19 was identified as a novel coronavirus and the cause of a severe
respiratory illness. In March 2020, the World Health Organization announced that the spread of
COVID-19 qualified as a global pandemic. In response, our governor took measures to reduce
the spread and contraction of the illness throughout the state, with the responsibility of
enforcement shouldered by local law enforcement.
1
Each plaintiff requested the information about persons residing within its respective jurisdiction. For
simplicity and in light of the specific relief the trial court granted—disclosure to all police officers in
McHenry County, not to only the officers in the Sheriff’s and each Municipality’s police departments
(infra ¶ 11)—we will aggregate the parties’ various requests into a singular request for the information
about persons who reside in McHenry County.
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¶4 Plaintiffs were understandably concerned that their law enforcement officers’ performance of
their duties would be made more dangerous by the risk of exposure and infection; plaintiffs
therefore requested that the Department provide the names and addresses of persons who reside
in McHenry County and test or have tested positive for COVID-19. Plaintiffs requested that the
information be provided to the Telephone System Board, which oversees the emergency
telephone system, so that, upon dispatch, individual police officers could be notified when they
could be encountering an infected person, thereby allowing the individual officers to take
“adequate precautions” to minimize the risk of infection. Plaintiffs alleged that, with the
requested information routed through the emergency telephone system and dispatch, individual
officers could not independently, by using the tools in their possession, obtain the names of
infected persons. The implication from this allegation was apparently that this method would
adequately safeguard the sensitive health information of COVID-19-positive persons, preventing
or minimizing the risk of unauthorized disclosure.
¶5 The Department had several objections to plaintiffs’ request. The information sought was
protected health information under the Health Insurance Portability and Accountability Act of
1996 (HIPAA) (Pub. L. No. 104-191, 110 Stat. 1936 (1996) (codified as amended in scattered
sections of Titles 18, 26, 29, and 42 of the United States Code)). The information sought would
be ineffective for the purpose of protecting individual police officers because, due to deficiencies
in testing for infections, the estimated infection count was believed to be some 10 times greater
than the reported confirmed infections and there was concern that the illness could be spread
through asymptomatic infected persons. The Department also believed that the information
sought had little epidemiological value in terms of limiting the spread of COVID-19. Further, the
Department believed that the information sought could actually be harmful to the police because
it might give an officer a false sense of security that a person with whom he or she was interacting
was not infected, whereas the person could have been infected but had not tested or was
asymptomatic. According to the Department, the emergency telephone operators had been given
guidance on questions to ask to ascertain the likelihood that a person needing an emergency
response had been infected, and this information would be more up-to-date and more reliable
than information just listing those who had tested positive. 2 Instead, the Department agreed to
provide the addresses, but not the names, of persons who test or have tested positive. The
justification was that, if one person at an address had been infected, then all persons residing at
the address had likely been exposed and were possibly infected. Finally, the Department
adamantly recommended that police officers should govern all their interactions with members
of the public as if both they and the other individuals were infected. Plaintiffs and the Department
could not reach an agreement regarding the disclosure of the requested information.
¶6 On April 7, 2020, the Sheriff and the Municipalities each filed a three-count complaint. In
each complaint, count I sought a declaratory judgment, count II sought a writ of mandamus, and
count III sought a permanent injunction. All counts sought exactly the same relief: that the
Department provide to the Telephone System Board the names and addresses of all individuals
who reside in the county and test or have tested positive for COVID-19. The Sheriff and the
Municipalities also each filed an emergency motion: the Sheriff filed an emergency motion for a
preliminary injunction and the Municipalities filed an emergency motion for a temporary
restraining order and preliminary injunction. The motions sought substantially the same relief as
2
Of course, this does not necessarily apply to a police officer responding to a law enforcement
emergency instead of a first responder (which could include a police officer) responding to a health
emergency.
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in the complaints (hereinafter, we refer to these motions collectively as “plaintiffs’ motions for a
temporary restraining order”). The Municipalities attached to their complaint copies of
documents from the United States Department of Health and Human Services and from the
Illinois Department of Public Health indicating that, under an exception to HIPAA, local health
departments, like the Department, were permitted to disclose “information regarding individuals
with positive tests for COVID-19” to law enforcement officers and other first responders.
¶7 Before the suit was filed, both the Sheriff and the Department were being advised by members
of the state’s attorney’s office. At some point, when it was apparent that the conflict over the
requested information would not be resolved through negotiation, the state’s attorney’s office
advised the Department that it would no longer represent the Department but would continue to
represent the Sheriff, so the Department would have to find alternate representation. Indeed, on
April 7, 2020, the state’s attorney filed an emergency petition for the appointment of independent
counsel to represent the Department. On April 9, 2020, the trial court made the appointment.
¶8 In the unsettled period between the state’s attorney announcing its intent to withdraw
representation of the Department and the appointment of independent counsel, the Department
and the attorney who was ultimately appointed worked to craft the Department’s response in
opposition to the pending motion for a temporary restraining order. According to the Department,
it began working with its attorney on April 8, 2020, in anticipation of an April 9 hearing.
However, the trial court, sua sponte, advanced the hearing from the morning of April 9 to 3 p.m.
on April 8. At the April 8 hearing, the state’s attorney objected to the Department’s choice of
attorney, further complicating the Department’s ability to respond, because, as noted, the
Department’s attorney was not definitively appointed until “late the next day,” on April 9. The
Department represents that, at the April 8 hearing, it submitted a draft of its response to plaintiffs’
motions for a temporary restraining order, and it now claims that, had it had the full amount of
time, as originally scheduled, to craft a response, it would have submitted something very like
what ultimately became its motion to reconsider and to dissolve the temporary restraining order.
Instead, the Department filed the admittedly imperfect response appearing in the supporting
record.
¶9 On April 8, 9, and 10, 2020, the parties engaged in several hearings. The trial court attempted
to coax the parties to negotiate and settle their differences, to no avail. The parties appear to agree
that all parties fully participated in those hearings and that they were able to submit meaningful
pleadings regardless of the Department’s later disappointment in the completeness of its original
written response. It also appears that the issues regarding the temporary restraining order were
heard, although the record is not entirely clear as to whether a hearing was conducted expressly
litigating the motions for a temporary restraining order and the response.
¶ 10 On Friday, April 10, 2020, the trial court granted plaintiffs’ motions for a temporary
restraining order. Pertinently, the court determined that plaintiffs had demonstrated “a certain and
clearly ascertainable right needing protection,” namely:
“the right of police officers to have the names of individuals who reside in McHenry
County and who are infected with COVID-19, available through the McHenry County
Emergency Telephone System Board, where these names can be secured to protect the
privacy rights of individuals under the law, for use by police officers without unnecessary
dissemination, and will serve to assist police officers in the performance of their duties to
the best of their ability.”
The court determined that the Department had conceded that the requested information “could be
helpful to first responders.” (Emphasis omitted.) The court also reasoned that police officers were
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different from ordinary citizens in that they are required to interact with potentially infected
persons as part of their sworn duties, so providing the requested information could best enable
police officers to perform their jobs and protect themselves and the community to the fullest
extent possible.
¶ 11 The trial court entered the temporary restraining order requiring the Department to “disclose
the names and addresses of all individuals that reside within McHenry County, Illinois, that are
positive for COVid-19 [sic] to” the director of the Telephone System Board and no more than
two other named designees, “to be entered into its Premise Alert Program, for use by all police
officers in McHenry County.” The court also ordered a seven-day limitation on the retention of
the names and addresses and other provisions designed to protect the confidentiality of the health
information to the extent possible. The court ordered that the temporary restraining order remain
in effect “pending hearing on Plaintiffs’ requests for preliminary injunction,” the hearing for
which it scheduled 10 days later, on April 20, 2020.
¶ 12 On Tuesday, April 14, 2020, two days after the entry of the temporary restraining order, the
Department filed a motion to reconsider and to dissolve the temporary restraining order. The trial
court ordered that the temporary restraining order continue in force and effect while the
Department’s motion was briefed and until plaintiffs’ motions for a preliminary injunction were
decided. During the pendency of the Department’s motion, the League of United Latin American
Citizens of Illinois (League) filed an emergency petition to intervene as a defendant. On May 26,
2020, the court denied the League’s petition to intervene.
¶ 13 On June 1, 2020, the trial court heard the parties’ arguments on the Department’s motion to
reconsider and to dissolve the temporary restraining order. On June 16, 2020, the trial court
denied the motion to reconsider and to dissolve. In its decision, the court acknowledged first that
a temporary restraining order is designed to maintain the status quo until a hearing on the merits
can be held. The court then recounted the elements necessary to entitle a party to the entry of a
temporary restraining order: (1) the party possesses a certain and clearly ascertainable right in
need of protection, (2) the party lacks an adequate remedy at law, (3) the party will experience
irreparable harm without the protection of the temporary restraining order, and (4) the party has
a likelihood of success on the merits. Against that backdrop, the trial court assessed its entry of
the temporary restraining order and then addressed the motion to reconsider and to dissolve.
¶ 14 The trial court briefly noted the standards governing a motion to reconsider a judgment under
section 2-1203 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1203 (West 2018)), as well
as for a motion to dissolve a temporary restraining order under section 11-108 of the Code (735
ILCS 5/11-108 (West 2018)). Importantly, the court emphasized: “to underscore the essential
crux of the Court’s finding in granting the [temporary restraining order (TRO)], under State and
Federal law ***, the Defendants have the discretion to provide the requested information.”
(Emphasis added.) The court urged the parties to settle the matter through alternative dispute
resolution or other less adversarial measures. The court then denied the motion to reconsider and
to dissolve the temporary restraining order, referred the matter to mediation, and continued all
orders (including the temporary restraining order) in effect.
¶ 15 On June 17, 2020, the Department filed its notice of interlocutory appeal pursuant to Illinois
Supreme Court Rule 307(d) (eff. Nov. 1, 2017). On the same date, Health & Medicine Policy
Research Group, the Illinois Coalition for Immigrant and Refugee Rights, and the League moved
for leave to file an amicus curiae brief in the instant matter, which we granted.
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¶ 16 II. ANALYSIS
¶ 17 On appeal, the Department argues that the trial court erred in denying its motion to reconsider
and to dissolve. Specifically, the Department contends that the trial court (1) usurped the
Department’s authority and impermissibly substituted its judgment for the Department’s,
(2) improvidently granted the temporary restraining order because plaintiffs could not meet the
necessary standards for such an order, and (3) failed to accord proper weight to the privacy rights
of the individuals affected by the compelled disclosure of their names.
¶ 18 A. Governing Principles
¶ 19 The parties sharply disagree about the scope of our review in this appeal. However, before
we can reach that question, we must first determine which of the parties’ arguments are properly
before us. Plaintiffs characterize the Department as effectively appealing the issuance of the
temporary restraining order and they argue that, for various reasons, this ought not to stand.
Instead, according to plaintiffs, we have jurisdiction only over the trial court’s judgment denying
the Department’s motion to reconsider and to dissolve. We agree that the Department’s
arguments seem to attack the issuance of the temporary restraining order, and it does not fully
explain how the arguments relate to the judgment denying its motion to reconsider and to
dissolve.
¶ 20 Illinois Supreme Court Rule 307 (eff. Nov. 1, 2017) generally governs taking an interlocutory
appeal from a trial court’s decision on some sort of an injunction. Rule 307(d) particularly applies
to the appeal of a trial court’s decision on a temporary restraining order, allowing for the “review
of the granting or denial of a temporary restraining order or an order modifying, dissolving, or
refusing to dissolve or modify a temporary restraining order” and requiring the aggrieved party
to file a notice of appeal “within two days of the entry or denial of the order from which review
is being sought.” Ill. S. Ct. R. 307(d)(1) (eff. Nov. 1, 2017). It is well settled that the time for
filing a notice of appeal from an interlocutory order will not be tolled by a motion in the trial
court, such as a motion to reconsider, attacking the order appealed from. Ben Kozloff, Inc. v.
Leahy, 149 Ill. App. 3d 504, 507 (1986). Thus, to appeal the April 10, 2020, issuance of the
temporary restraining order, the Department was required to file its notice of appeal no later than
April 14, 2020. Instead of filing a notice of appeal, however, the Department filed a motion to
reconsider and to dissolve the temporary restraining order. Under Rule 307(d) and longstanding
authority like Ben Kozloff, the issuance of the temporary restraining order is clearly off the
appellate table as a direct matter. This means that we cannot and will not entertain arguments
suggesting that the trial court abused its discretion in issuing the temporary restraining order.
Nevertheless, while direct review of the issuance is barred, such review may still be approached
in other ways.
¶ 21 That leaves us with the June 16, 2020, order denying the Department’s motion to reconsider
and to dissolve. For similar reasons as outlined above, it would seem that the motion-to-
reconsider portion of the motion would likewise be off the table, as those arguments would
necessarily be a direct attack on the issuance of the temporary restraining order. Once again, Rule
307(d) and longstanding authority would bar our consideration of the motion-to-reconsider
arguments. However, the remainder, namely, the specific arguments addressed to dissolving the
temporary restraining order, clearly can be addressed. Rule 307(d)(1) expressly provides for
appellate “review of the granting or denial of a temporary restraining order or an order modifying,
dissolving, or refusing to dissolve or modify a temporary restraining order.” The trial court’s June
16, 2020, order denied the Department’s request to dissolve the temporary restraining order, and
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the Department filed its notice of appeal on June 17, 2020. We therefore may entertain the
Department’s appeal to the extent that it challenges the denial of its motion to dissolve.
¶ 22 Our inquiry thus turns to the propriety of the trial court’s denial of the motion to dissolve.
Whether to dissolve a temporary injunction is committed to the broad discretion of the trial court.
Stoller v. Village of Northbrook, 162 Ill. App. 3d 1001, 1008 (1987). The only issue before the
appellate court when reviewing the denial of a motion to dissolve a temporary restraining order
is whether the trial court abused its discretion. Id. at 1009. Substantive issues are to be considered
only insofar as it is necessary to determine whether the court abused its discretion. Id. at 1008.
Arguments pertaining to the issuance of the restraining order but unnecessary to resolving the
question of the court’s exercise of discretion in ruling on the motion to dissolve are irrelevant. Id.
at 1009. That, of course, implies the converse to be true as well: arguments pertaining to the
issuance and necessary to the question of the court’s exercise of discretion are relevant. See id.
at 1008 (“[e]ach substantive issue is only to be considered where it is necessary to determine
whether the trial court abused its discretion”).
¶ 23 The standard governing the trial court’s judgment on a motion to dissolve a temporary
restraining order is whether the party in whose favor the order was issued has demonstrated a fair
question as to the existence of its rights. Id. The trial court may deny the motion to dissolve if the
party in whose favor the order was issued demonstrates, to the court’s satisfaction, that the matter
out of which the rights arise should be preserved until a decision on the merits. Id. at 1008-09.
¶ 24 Based on the foregoing principles, the broader question of whether the trial court abused its
discretion in denying the Department’s motion to dissolve thus narrows to the question of whether
plaintiffs have demonstrated a fair question regarding whether they have the right to the name
and address information they are seeking.
¶ 25 B. The Fair Question
¶ 26 The Department squarely argues that the trial court improvidently granted the temporary
restraining order because plaintiffs have no right whatsoever to the information sought. The
Department concludes that, as a result, the trial court erred by denying its motion to dissolve. We
agree.
¶ 27 As an initial matter, we observe that a party seeking a temporary restraining order, or any
injunction, must establish facts demonstrating that (1) it has a protected right, (2) it will suffer
irreparable harm if the injunctive relief is not granted, (3) it has no adequate remedy at law, and
(4) there is a likelihood of success on the merits. County of Du Page v. Gavrilos, 359 Ill. App. 3d
629, 634 (2005). In making the application for injunctive relief like a temporary restraining order,
the party need not make out its entire case; rather, it need only demonstrate the existence of a fair
question on the elements and persuade the trial court to preserve the status quo until the case can
be decided on the merits. Id. Generally, while entering a preliminary injunction or a temporary
restraining order that alters the status quo is disfavored, doing so can be proper in some
circumstances. Kalbfleisch v. Columbia Community Unit School District Unit No. 4, 396 Ill. App.
3d 1105, 1117 (2009). However, if the court decides to alter the status quo in the appropriate
circumstance, the party seeking the alteration must first establish the probability, not just the
likelihood, of success on the merits before the relief will be granted. Id.¶ 28 As a secondary matter, while the parties have characterized the order at issue as a temporary
restraining order, it is not that cut and dried. As noted, a temporary restraining order is a type of
injunction. One entered without notice and without a hearing is governed by section 11-101 of
the Code (735 ILCS 5/11-101 (West 2018)) and is limited to a duration of 10 days. County of
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Boone v. Plote Construction, Inc., 2017 IL App (2d) 160184, ¶ 27. Where the temporary
restraining order is entered with notice but still without a hearing, the 10-day limitation of the
order no longer applies, but the hearing must be held within a short time of the expiration of the
10-day period; this prevents the possibly significant consequences of allowing the transitory
temporary restraining order to persist for too long where the opposing party did not participate in
a hearing. Id. However, where the temporary restraining order is entered after both notice and a
hearing, then it is the functional equivalent of a preliminary injunction. Id. ¶ 28. It would therefore
be arguable that the matter before us is the trial court’s denial of a motion to dissolve a preliminary
injunction.
¶ 29 Even if this were deemed the case, our review would still be limited to only the motion-to-
dissolve portion of the Department’s motion, although the briefing and decisional schedule would
not be as extremely compressed as under Rule 307. This is because, even if styled as an appeal
from the entry of a preliminary injunction, the more relaxed 30-day period (Ill. S. Ct. R. 307(a)
(eff. Nov. 1, 2017)) is not tolled by a motion to reconsider. Ben Kozloff, 149 Ill. App. 3d at 507.
To appeal the April 10 order as a preliminary injunction instead of a temporary restraining order,
the Department would have had to file its notice of appeal within 30 days, or by May 11, 2020
(because May 10 fell on a Sunday). The notice of appeal was not filed until June 17, well after
the expiration of the 30-day period to appeal a preliminary injunction. Ill. S. Ct. R. 307(a) (eff.
Nov. 1, 2017). Thus, regardless of whether we deem the April 10 order a preliminary injunction
or a temporary restraining order, our review would still be limited to the narrow issue of whether
the trial court abused its discretion in denying the Department’s motion to dissolve, as explained
above.
¶ 30 One final preliminary point remains: the trial court’s entry of the temporary restraining order
did not preserve the status quo but, rather, it altered it. As best we can ascertain, the status quo
was the Department’s agreement to provide the addresses but not the names of individuals who
test or have tested positive for COVID-19. The April 10 order changed that status quo by
compelling the disclosure of both the names and the addresses. As a result, the trial court was
obligated to consider plaintiffs’ motions for a temporary restraining order under the more
exacting standard of requiring the demonstration of a probability, rather than only a likelihood,
of success on the ultimate merits. Kalbfleisch, 396 Ill. App. 3d at 1117.
¶ 31 With the preliminaries out of the way, we now turn to the narrow issue confronting us:
whether the trial court abused its discretion in denying the Department’s motion to dissolve. In
other words, whether the trial court properly found that plaintiffs demonstrated, as they were
required to do, the existence of a fair question as to the right claimed, namely, the right to the
names and addresses of COVID-19-positive individuals residing in McHenry County.
¶ 32 Below, the parties adequately demonstrated that the information sought fell within an
exception to HIPAA that permitted but did not require a local health department to release
protected health information, like the names and addresses requested here, and we will not
recapitulate that material in this discussion. It suffices to note that the parties both agree (and our
review confirms) that the release of the information is permitted but not required; likewise both
the Illinois Department of Health (Ill. Dept. of Pub. Health, Guidance to Local Health
Departments on Disclosure of Information Regarding Persons With Positive Tests for COVID-
19 to Law Enforcement (Apr. 1, 2020), http://dph.illinois.gov/sites/default/files/20200401_
Guidance_on_Disclosure_of_Private_Information.pdf [https://perma.cc/LM8U-TQWF]) and the
Illinois State Attorney General (Ill. Att’y Gen. Office, Guidance Re: Disclosing Addresses for
Confirmed COVID-19 Cases to First Responders (Apr. 3, 2020) https://www.illinoisfirechiefs.
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org/assets/1/6/AGO_Guidance_re_Disclosure_of_Addresses_of_Confirmed_COVID-19_
Cases_to_First_Responders.pdf [https://perma.cc/S2JE-V8P2]) concluded that the disclosure of
names and addresses was permissive and not required. Indeed, the trial court itself recognized the
permissive and nonmandatory nature of the information sought: “to underscore the essential crux
of the Court’s findings in granting the TRO, under State and Federal law ***, the Defendants
have the discretion to provide the requested information.”
¶ 33 Where there is discretion to provide information sought, the party seeking the information
cannot claim a right to that information. E.g., Cordrey v. Prisoner Review Board, 2014 IL 117155,
¶ 18 (to demonstrate a clear right to the relief sought, the proposed actor must have no discretion
over performing the act sought to be compelled). Because there is no right to the information
sought here, plaintiffs could not demonstrate the existence of a fair question regarding the right
claimed—indeed, rather than a fair question, it is beyond question that plaintiffs have no right to
the information sought. Because there is no right to the information sought, plaintiffs could not
fulfill the elements necessary for the award of a temporary restraining order. Gavrilos, 359 Ill.
App. 3d at 634. While we are at least approaching the substantive issue of the propriety of the
entry of the temporary restraining order, we are nevertheless permitted to do so in ascertaining
whether the trial court abused its discretion in denying the motion to dissolve. See Stoller, 162
Ill. App. 3d at 1008 (“[e]ach substantive issue is only to be considered where it is necessary to
determine whether the trial court abused its discretion” in reviewing the judgment on a motion to
dissolve a temporary restraining order). Because plaintiffs could not show the existence of a
clearly ascertainable right, they also could not show a probability, let alone a likelihood, of
success on the merits. Finally, because plaintiffs could not establish the necessary elements, they
were in no way entitled to the entry of the temporary restraining order. Perforce, the temporary
restraining order was improvidently granted. As a result, plaintiffs could not remotely
demonstrate the existence of a fair question regarding their right to the information sought. Thus,
the trial court unquestionably abused its discretion in denying the motion to dissolve the
temporary restraining order. Id. at 1008-09.
¶ 34 Moreover, plaintiffs argue that, because the Department failed to timely appeal the entry of
the temporary restraining order, it became the law of the case and thus established the right
sought. We disagree. Plaintiffs rely on our decision in Bradford v. Wynstone Property Owners’
Ass’n, 355 Ill. App. 3d 736, 739 (2005), in which we held, “[t]he failure to timely appeal from a
trial court’s order disposing of a motion to grant, deny, modify, dissolve, or refuse to dissolve a
TRO renders that order the law of the case.” However, it is axiomatic that the holding of a case
is only as strong as the authority on which it is based. 3 Bradford relied on Hwang v. Tyler, 253
Ill. App. 3d 43, 46 (1993), and Battaglia v. Battaglia, 231 Ill. App. 3d 607, 615 (1992), for its
law-of- the-case proposition. Bradford, however, failed to recognize that Hwang and Battaglia
were abrogated in Salsitz v. Kreiss, 198 Ill. 2d 1, 11-12 (2001), which definitively held that an
interlocutory appeal pursuant to Rule 307 was permissive and not mandatory. Because Bradford
relied without comment on authority that had already been abrogated, its support for plaintiffs’
argument is shaky at best, if not nonexistent. Further, even if we were to take at face value the
proposition for which plaintiffs cite Bradford, that a temporary restraining order becomes the law
3
We note that it is so axiomatic that we are unable to find a reported case using this precise
formulation. However, we made this precise articulation of the axiom paraphrasing and accepting the
State’s argument in People v. Maxey, 2013 IL App (2d) 120283-U, ¶ 47 (“the holding of a case is only as
strong as the authority on which it is based”; “if the authority underpinning a certain case turns out to be
illusory, weak or flawed, then that case is similarly unsuitable for use as authority”).
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of the case if it is not directly appealed, Bradford’s procedural posture is clearly distinguishable.
There, the plaintiffs filed successive motions for a temporary restraining order, all of which
sought identical relief. Bradford, 355 Ill. App. 3d at 740. We held that, by filing the successive
motions, the plaintiffs were essentially attempting to evade the time constraints for perfecting an
appeal from the grant of a temporary restraining order and that, because the plaintiffs did not take
the initial bite at the apple and appeal, the original temporary restraining order became the law of
the case. Id. By contrast, here, the Department has not attempted to evade the time limits for
perfecting an appeal; moreover, it is appealing the denial of its motion to dissolve, not the
issuance of the temporary restraining order. Bradford is therefore procedurally and factually
distinguishable as well as wholly questionable for the proposition for which plaintiffs cite it.
Accordingly, plaintiffs’ contention is unavailing.
¶ 35 Plaintiffs rely on Bank of Wheaton v. Village of Itasca, 178 Ill. App. 3d 626, 632-33 (1989),
to argue that, in order to justify the dissolution of a temporary restraining order, the party seeking
its dissolution must show a change in circumstances. While this is a true statement, so far as it
goes, Bank of Wheaton is not categorical and is of limited applicability to the specific
circumstances here. What we mean by “not categorical” is seen by looking at the authority on
which Bank of Wheaton relied, namely, Benson v. Issacs, 22 Ill. 2d 606, 609 (1961). Benson, like
Bank of Wheaton, does not stand for the proposition that the only way to challenge an injunction
is to show that the circumstances have changed. Instead, Benson states simply that, “[t]o entitle
a party to such relief [(the modification or dissolution of an injunction)], however, the necessary
showing must be made.” Id. Benson, therefore, requires no more and no less than “the necessary
showing” when demonstrating a party’s entitlement to the modification or dissolution of an
injunction. Where a party argues that an injunction was improvidently granted, a change in
circumstances is irrelevant because the party is arguing that there was something in the initial
circumstances that should have precluded the grant of the injunction, not that the circumstances
have changed requiring a modification or dissolution. Here, the Department’s motion to dissolve
argued that the temporary restraining order had been improvidently granted. The Department’s
argument is surely a valid basis for a motion to dissolve, and Bank of Wheaton does not gainsay
the Department’s rationale for seeking the dissolution of the temporary restraining order. We
therefore reject plaintiffs’ contention.
¶ 36 Plaintiffs argue that misgivings about the right claimed by the party seeking injunctive relief
do not justify the dissolution of the injunction. They rely on the following passage from People
ex rel. Stony Island Church of Christ v. Mannings, 156 Ill. App. 3d 356, 362 (1987):
“A temporary injunction should not be dissolved because the court may not be
absolutely certain the plaintiff has the right he claims. In order to resist a motion to
dissolve a temporary injunction, a plaintiff need not make out a case which would entitle
him to relief at the final hearing, he need only make a prima facie showing that he raises
a fair question as to the existence of the right he claims.”
This passage is, of course, entirely harmonious with Stoller, on which we rely for the standards
and principles of our review. However, as we have seen, the fair-question standard does not apply
to a case in which the temporary restraining order is entered not to preserve the status quo but to
alter it. Kalbfleisch, 396 Ill. App. 3d at 1117. In such a circumstance, the party seeking the
temporary restraining order must show a probability of success on the merits in the first instance.
Id. Here, plaintiffs not only cannot demonstrate the existence of any right to the information
sought, they similarly cannot demonstrate any possibility of success on the merits because they
have no right to the information sought. As a result, even under Mannings, plaintiffs cannot even
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make a prima facie showing that they have raised a fair question as to the existence of the right
claimed. Plaintiffs’ argument is unavailing.
¶ 37 Plaintiffs argue that the amended guidance statements the Department attached to its motion
to reconsider and to dissolve did not demonstrate any change in circumstances. As we have
already determined, however, a change in circumstances is but one way to justify the dissolution
of a temporary restraining order, not the only way. Here, the Department sought dissolution of
the temporary restraining order because it was improvidently granted. Plaintiffs’ arguments about
the failure to adequately demonstrate any change in circumstances is unresponsive to the
Department’s argument.
¶ 38 III. CONCLUSION
¶ 39 The Department sought to dissolve, as improvidently granted, the April 10, 2020, temporary
restraining order compelling it to provide to the Telephone System Board the names and
addresses of COVID-19-positive individuals residing in McHenry County. Our review of the trial
court’s judgment on the motion to dissolve reveals that, although the Department had the
authority and discretion to allow the release of the information sought, plaintiffs had no right to
the information. Because plaintiffs could not establish even an arguable right to the information,
let alone a fair question, the temporary restraining order was patently improvidently granted. As
a result, the trial court clearly abused its discretion in denying the Department’s motion to
dissolve the temporary restraining order. We note that our decision addresses only the narrow
legal issue presented and nothing else; it should not be deemed to endorse or disapprove of
anything beyond those narrow legal confines. We commend all parties for their efforts in these
unprecedentedly trying times, and we wish only that all the parties are placed in the best position
to discharge their duties safely and effectively. We further express our heartfelt appreciation for
the parties performing their difficult tasks, especially the individuals entrusted with our
communities’ safety and protection.
¶ 40 For these reasons, we reverse the judgment of the circuit court of McHenry County, and we
dissolve the April 10, 2020, temporary restraining order.
¶ 41 Reversed.
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