Lurkins v. Bond County Community Unit No. 2 , 2021 IL App (5th) 210292 ( 2021 )

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Appellate Court Date: 2021.10.27
14:33:50 -05'00'
Lurkins v. Bond County Community Unit No. 2, 2021 IL App (5th) 210292Appellate Court JUSTIN T. LURKINS, as the Parent and Guardian of Student M.L.;
Caption MICHELLE LURKINS, as the Parent and Guardian of M.M.; and
JEFFREY AND JENNIFER REHKEMPER, as the Parents and
Guardians of A.R., D.R., and G.R., as Well as on Behalf of All Parents
and Guardians of Students Similarly Situated, Plaintiffs-Appellees, v.
BOND COUNTY COMMUNITY UNIT NO. 2, a Body Politic and
Corporate, and WES OLSEN, as Superintendent of Bond County
Community Unit No. 2, Defendants-Appellants.
District & No. Fifth District
No. 5-21-0292
Filed October 1, 2021
Decision Under Appeal from the Circuit Court of Bond County, No. 21-MR-39; the
Review Hon. Ronald J. Foster Jr., Judge, presiding.
Judgment Vacated and remanded.
Counsel on Barney R. Mundorf, Heather R. Igoe, and Dana B. Edwards, of Guin
Appeal Mundorf, LLC, of Collinsville, for appellants.
Thomas G. DeVore, of Silver Lake Group, Ltd., of Greenville, for
appellees.
Panel JUSTICE MOORE delivered the judgment of the court, with opinion.
Justices Welch and Barberis concurred in the judgment and opinion.
OPINION
¶1 Defendants, Bond County Community Unit School District No. 2, incorrectly named as
Bond County Community Unit No. 2, and Wes Olsen as superintendent of the school district
(school district), appeal the September 21, 2021, temporary restraining order issued “with
notice” (TRO) by the Bond County circuit court. The TRO enjoins the school district from
requiring the plaintiffs’ children “to wear a mask for the purposes of allegedly preventing the
spread of an infectious disease unless the parent or legal guardian of a student consents or there
is a lawful order of quarantine having been issued against a particular student from the local
health department.” For the following reasons, we vacate the TRO and remand for further
proceedings.
¶2 I. BACKGROUND
¶3 On September 16, 2021, plaintiffs, Justin T. Lurkins, as the parent and guardian of student
M.L.; Michelle Lurkins, as the parent and guardian of M.M.; and Jeffrey and Jennifer
Rehkemper, as the parents and guardians of A.R., D.R., and G.R., as well as on behalf of all
parents and guardians of students similarly situated, filed a verified petition for declaratory
relief and writ of injunction against the school district, based on the school district’s mandate
requiring all students in the district to wear a mask while indoors at the school. Thereafter, the
plaintiffs filed a petition for a TRO, requesting that the school district be restrained from
enforcing the mask mandate.
¶4 On September 20, 2021, the school district filed a memorandum in opposition to the
plaintiffs’ motion for TRO and supporting documentation. Based on the documentation, the
circuit court was informed of the following: (1) on July 21, 2021, the school district adopted a
return to school plan that highly recommended, but did not require, students to wear masks on
school property; (2) on August 4, 2021, in response to the “more aggressive and ***
transmissible” Delta variant of COVID-19, the Illinois Governor issued Executive Order 2021-
18 (Exec. Order No. 2021-18, 45 Ill. Reg. 10726 (Aug. 4, 2021), https://www.illinois.gov/
government/executive-orders/executive-order.executive-order-number-18.2021.html [https://
perma.cc/NJB7-82VJ]), requiring all schools in Illinois to follow the joint guidance by the
Illinois State Board of Education (ISBE) and the Illinois Department of Public Health (IDPH),
including that guidance requiring the indoor use of face coverings by students, staff, and
visitors who are over the age of two and medically tolerate a face covering, regardless of
vaccination status, consistent with Centers for Disease Control guidance; (3) on August 9,
2021, ISBE and IDPH issued the “Revised Public Health Guidance for Schools” (Ill. State Bd.
of Educ. & Ill. Dep’t of Pub. Health, Revised Public Health Guidance for Schools: Part 5—
Supporting the Full Return to In-Person Learning for All Students (August 2021), https://
iecam.illinois.edu/wp-content/uploads/2021/08/Updated-Public-Health-School-Guidance.
pdf) [https://perma.cc/KL6B-NPTK]), requiring all teachers, staff, students, and visitors to
prekindergarten through twelfth-grade schools to wear a mask while indoors, regardless of
vaccination status; and (4) in response to these mandates the school district amended its return
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to school plan to mandate face coverings in accordance with the Governor’s executive order
and the ISBE and IDPH’s joint guidance; (5) on August 26, 2021, the Governor issued an
executive order requiring face coverings in all public indoor spaces for all individuals over the
age of two who are medically able to tolerate a face mask; and (6) the Governor has extended
these executive orders such that they remain in place.
¶5 On September 21, 2021, the circuit court entered an order granting the plaintiffs’ petition
for a TRO, enjoining the school district from requiring the children of the named plaintiffs to
wear a mask on school property “unless the parent or legal guardian of a student consents or
there is a lawful order of quarantine having been issued against a particular student from the
local health department.” On September 23, 2021, the school district filed a notice of
interlocutory appeal pursuant to Illinois Supreme Court Rule 307(d) (eff. Nov. 1, 2017).
¶6 II. ANALYSIS
¶7 We review the circuit court’s order granting a TRO for an abuse of discretion. Bradford v.
Wynstone Property Owners’ Ass’n, 355 Ill. App. 3d 736, 739 (2005). To be an abuse of
discretion, a decision must be clearly illogical, arbitrary, unreasonable, contrary to law, or not
the product of conscientious judgment. People v. Breeden, 2016 IL App (4th) 121049-B, ¶ 46.
“ ‘A party seeking a TRO must establish, by a preponderance of the evidence, that (1) he or
she possesses a certain and clearly ascertainable right needing protection, (2) he or she has no
adequate remedy at law, (3) he or she would suffer irreparable harm without the TRO, and
(4) he or she has a likelihood of success on the merits.’ ” Bradford, 355 Ill. App. 3d at 739(quoting Wilson v. Hinsdale Elementary School District 181, 349 Ill. App. 3d 243, 248 (2004)).
Although a likelihood of success on the merits does not require a showing that is sufficient to
warrant relief after a final hearing, the plaintiffs must establish that they will probably be
entitled to the relief requested if the proof should sustain their allegations. Donald McElroy,
Inc. v. Delaney, 72 Ill. App. 3d 285, 290-91 (1979).
¶8 The school district argues, inter alia, that we must vacate the TRO because the plaintiffs
failed to name the Governor, ISBE, and IDPH as party defendants to this action. We agree.
Our colleagues in the First District set forth the legal requirements in Illinois for the naming
of necessary parties as follows:
“ ‘A necessary party is one whose participation is required to (1) protect its interest
in the subject matter of the controversy which would be materially affected by a
judgment entered in its absence; (2) reach a decision protecting the interests of the
parties already before the court; or (3) allow the court to completely resolve the
controversy.’ [Citation.] An order entered without jurisdiction over a necessary party
will be void. [Citation.] The failure to join a necessary party may be raised at any time:
by the parties or by the trial court or by the appellate court sua sponte. [Citation.]”
Certain Underwriters at Lloyd’s London v. Burlington Insurance Co., 2015 IL App
(1st) 141408, ¶ 15 (quoting Zurich Insurance Co. v. Baxter International, Inc., 275 Ill.
App. 3d 30, 37 (1995), aff’d as modified, 173 Ill. 2d 235 (1996)).
¶9 In the case on appeal, the plaintiffs requested that the circuit court enjoin the school district
from enforcing the mask mandate that has been imposed on the school district by Executive
Order 2021-18 (Exec. Order No. 2021-18, 45 Ill. Reg. 10726 (Aug. 4, 2021) https://www.
illinois.gov/government/executive-orders/executive-order.executive-order-number-18.2021.
html [https://perma.cc/NJB7-82VJ]), the joint guidance promulgated by ISBE and IDPH in
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response thereto, Executive Order 2021-19 (Exec. Order No. 2021-19, 45 Ill. Reg. 10886 (Aug.
20, 2021), https://www.illinois.gov/government/executive-orders/executive-order.executive-
order-number-19.2021.html [https://perma.cc/RD3F-PJ9A]), Executive Order 2021-20 (Exec.
Order No. 2021-20, 45 Ill. Reg. 11429 (Aug. 26, 2021), https://www.illinois.gov/government/
executive-orders/executive-order.executive-order-number-20.2021.html [https://perma.cc/
E6W3-9E5M]), and other executive orders of relevance that have followed (Executive Orders
and Guidance). Thus, the Governor, ISBE, and IDPH have an interest in this matter that would
be materially affected by a judgment entered in their absence, and their participation is required
to protect that interest. In addition, the participation of these parties is required for the court to
reach a decision protecting the school district’s interest in following the mandates of the
Governor, IDPH, and ISBE to avoid any repercussions from those parties. Finally, to
completely resolve the controversy between the plaintiffs and the school district, the
participation of the Governor, IDPH, and ISBE is required because they are an additional
source of enforcement of the mask mandate that the plaintiffs seek to enjoin. For these reasons,
we find that the Governor, IDPH, and ISBE are necessary parties to this action. Accordingly,
because the TRO at issue was entered without jurisdiction over these necessary parties, it is
void and must be vacated. See Certain Underwriters at Lloyd’s London, 2015 IL App (1st)
141408, ¶ 15. Alternatively, the circuit court abused its discretion in entering the TRO because,
without adding these necessary parties, the plaintiffs cannot show a likelihood of success on
the merits because any final judgment entered without their participation would be void. See
id. (in order for a TRO to issue, the plaintiff must show a likelihood of success on the merits).
¶ 10 III. CONCLUSION
¶ 11 For the foregoing reasons, we vacate the September 21, 2021, TRO and remand for further
proceedings not inconsistent with this opinion. As we are vacating the TRO for failure to add
necessary parties, we make no opinion on the merits underlying this action.
¶ 12 Vacated and remanded.
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