NO. 5-09-0447 N O T IC E
Decision filed 12/16/09. The text of IN THE this dec ision m ay b e changed or
corrected prior to the filing of a APPELLATE COURT OF ILLINOIS P e t i ti o n for Re hea ring or the
disposition of the same. FIFTH DISTRICT ________________________________________________________________________
CARTER KALBFLEISCH, by and ) Appeal from the Through His Next Friends, ) Circuit Court of CHRISTOPHER KALBFLEISCH and ) Monroe County. MELISSA KALBFLEISCH, ) ) Plaintiff-Appellee, ) ) v. ) No. 09-CH-57 ) COLUMBIA COMMUNITY UNIT SCHOOL ) DISTRICT UNIT NO. 4, ) Honorable ) Dennis B. Doyle, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________
JUSTICE WEXSTTEN delivered the opinion of the court:
This is an interlocutory appeal taken pursuant to Supreme Court Rule 307(a)(1) (188
Ill. 2d R. 307(a)(1)). At issue in this case is whether the Monroe County circuit court
properly ordered a preliminary injunction to compel the defendant-appellant, Columbia
Community Unit School District Unit No. 4 (the school district), to permit the plaintiff-
appellee, Carter Kalbfleisch, a five-year-old child with autism, to bring his service dog with
him to school pursuant to section 14-6.02 of the School Code (105 ILCS 5/14-6.02 (West
2008)).
BACKGROUND
On July 17, 2009, Carter, by his next friends, Christopher Kalbfleisch and Melissa
Kalbfleisch, filed a verified complaint for injunctive relief and a verified motion for a
preliminary injunction, claiming that he had a right under section 14-6.02 of the School Code
(the service animal statute) to bring his service dog with him to Parkview Elementary School
1 (the school). That section provides as follows:
"Service animals such as guide dogs, signal dogs[,] or any other animal
individually trained to perform tasks for the benefit of a student with a disability shall
be permitted to accompany that student at all school functions, whether in or outside
the classroom." 105 ILCS 5/14-6.02 (West 2008).
On July 21, 2009, the school district filed a notice of removal, alleging that the case
arose under federal law, and the case was removed to the United States District Court for the
Southern District of Illinois (the district court). Carter filed a motion to remand, and on
August 5, 2009, the district court granted the motion and remanded the case to the circuit
court after finding that Carter's claim did not arise under and was not preempted by federal
law. Kalbfleisch v. Columbia Community Unit School District Unit No. 4, 644 F. Supp. 2d
1084 (S.D. Ill. 2009).
On August 13, 2009, the school district filed a motion to dismiss the verified
complaint for injunctive relief and the motion for a preliminary injunction, contending that
because Carter failed to exhaust his administrative remedies, the circuit court lacked
jurisdiction over the subject matter in the complaint and the motion for a preliminary
injunction. On August 19, 2009, the circuit court held a hearing on the school district's
motion to dismiss. The court denied the motion and gave the school district leave to file its
answer that day. After a brief recess, the school district filed its answer.
The next day, the court held a hearing on Carter's motion for a preliminary injunction,
where the following evidence was presented.
Carter's mother, the only witness to testify on Carter's behalf, stated that Carter was
diagnosed with medium-to-severe autism at 18 months of age. She described Carter's
behavior prior to having his service dog as follows: Carter was prone to having tantrums on
a daily basis; he suffered from an eating disorder called pica, a pattern of eating nonfood
2 materials; he would refuse to walk when he was taken to public places; he sporadically would
take off running; he could not fall asleep on his own and, once asleep, woke up
approximately every hour; he did not communicate with anyone; and he was unable to focus.
She said Carter's tantrums involved kicking, screaming, and biting, often occurred at
dinner and would last approximately one hour, and also occurred in the morning at least three
times per week and would last approximately two hours. She testified that because of
Carter's eating disorder he had tried to eat such items as rocks, mulch, grass, trash, cleaning
supplies, batteries, and coins and had drunk from the toilet. She indicated that when the
family would take Carter to public places, such as parks, stores, and restaurants, Carter would
throw himself down on the ground and refuse to walk. As a result, Carter's family was
unable to take him to public places, and the family was homebound.
She said that Carter had a tendency to sporadically take off running, sometimes into
a pond near their house or into a nearby road with traffic, that Carter would not fall asleep
on his own and would wake up about every hour, and that because of this, she had to sleep
in his bed with him for the previous two years. She said that if she did leave his room after
he had fallen asleep, she would lock his bedroom door to give her more time to respond if
Carter woke up and tried to leave the room. On one occasion, however, she was not able to
respond quickly enough, and Carter was able to get out of the home and into the pond in the
middle of winter.
She testified that Carter did not communicate with other students on his own and that
he did not speak any meaningful words but would mumble different sounds. She described
getting Carter to focus as almost impossible. She stated he would distract himself by self-
stimulation, or stimming, with his hands or other objects, and would stare off into the
distance when people tried to communicate with him.
She stated that when Carter was around three years old, his doctor suggested that
3 Carter obtain a service dog. After Carter's mother researched the issue and exhausted all
other possibilities, Carter's family decided to apply for a service dog with Wilderwood
Service Dogs (Wilderwood), a company that provided service dogs trained to aid patients
with neurological disorders. Carter's application was extensive, and once approved, he was
placed on a two-year waiting list for a service dog. Carter has a prescription for a service dog
from two different doctors.
She testified that after Carter's application had been accepted, Carter's family sent in
a video of Carter and a sample of his worn clothing. She indicated that these articles were
used to train Carter's service dog, Corbin, to become acquainted with Carter's appearance,
voice, and smell. It was Carter's mother's understanding that Corbin would sleep with
Carter's clothing and would watch the video of Carter repeatedly. She stated that Corbin was
trained to understand 70 commands and was specifically trained for Carter's pica, impulse
running, night awakenings, and tantrums. She stated that Corbin is a Bouvier breed, which
is considered to be a hypoallergenic dog. Carter's mother understood this to mean that people
who are allergic to dogs with fur would not be allergic to hypoallergenic dogs because they
have hair rather than fur.
On July 16, 2009, after approximately two years of being on a waiting list, Carter
received Corbin. Wilderwood brought Corbin to Carter's area so that Carter's mother and
father and anyone from the school could be trained to handle him. The training lasted eight
days, totaling approximately 80 hours, and Carter's mother and father attended the entire
training. Carter's aide at school also attended the training for two hours.
After the training, Carter's mother and father took an examination and passed. They
are currently awaiting their certificates from the State of Illinois for completing the training
and passing the examination. As a result of the training, Carter's mother and father are
certified dog handlers. According to Carter's mother, this means she is qualified to train
4 other people in their own comfortable environment. For example, she could train her mother
to handle Corbin in her mother's home but not anywhere else. She said that as of the time
of her testimony no one at the school was trained to handle Corbin but that she was able and
willing to train the staff to do so and was willing to remain with Carter and Corbin at school
if needed.
She testified that after having Corbin for a month or so, Carter was a much happier
child; that his tantrums have minimized to a couple per week and his recovery time has been
reduced to minutes, compared to the half hour to hour it used to take to reconcile the
situation; that Corbin will physically take Carter dow n if he takes off running into a
dangerous situation, like into traffic, and as a result, Carter does not try running for the road
anymore; that by the third night of training, Carter was able to sleep without his mother in
the room because Corbin would calm him when he woke up; that Corbin draws Carter out
of his stimming by batting him with his nose, which allows Carter to focus more; that the
family was able to take Carter to Six Flags without incident and on a weekend vacation to
Mark Twain Lake; and that on the second-to-last day of training, Carter, for the first time in
his life, used meaningful words when he told Corbin to "wait" and "hold."
She also testified that when Carter's grandfather was hospitalized, Carter and Corbin
were separated for a few days for about eight hours a day. She said that this disrupted their
working relationship because Corbin was not responding to his commands and that Carter
went back to having more tantrums. She stated that after a few days of coaching, their
relationship was back to normal. She testified that, in her opinion, separating Carter and
Corbin would greatly harm their working relationship and that if they are separated, Corbin
would become a pet, as opposed to a service animal, and Carter would suffer. She stated that
Carter and Corbin share a working relationship and a very strong bond and that in order to
maintain that bond and relationship, Corbin needs to be with Carter every day as a part of his
5 daily routines.
She stated that she notified Carter's special education coordinator that Carter was
going to obtain a service dog. She did so the first time after Carter's application for a service
dog had been approved. She said that at that time she asked what she needed to do to prepare
the school for the dog's arrival and was told that when the start of school was closer, the
school would look into any issues that might arise. She testified that she subsequently spoke
with the special education coordinator on several other occasions about Carter's service dog.
On March 11, 2009, Carter's annual individualized education plan (IEP) meeting was
held. At the conclusion of the IEP meeting, Carter's attorney asked whether the school would
allow a dog at the school, and the attorney was informed that the school's superintendent
handled those types of policy considerations. Carter's mother stated that she was informed
at this meeting that Carter would not be allowed to bring his service dog to school but that
she was unable to get the school to give her this message in writing. She indicated that she
tried on several other occasions to get something in writing indicating that Carter would not
be able to bring his service dog to school but that her efforts failed until June 2009. She said
she had filed complaints against the school district with the Illinois Department of Human
Rights, the United States Department of Education, and the Illinois State Board of Education.
The school district presented several witnesses: the director of special education for
the school district, Carter's case manager, the mother of another child enrolled to attend
Carter's school, the principal of Carter's school, and the superintendent of Carter's school.
Carter's case manager testified that Carter's mother told her during the summer of
2008 that Carter was applying for a service dog, that she believed having a dog in school
would be disruptive, and that Carter had an individual aide at school to ensure that Carter's
needs were met. Carter's principal testified that the school had a policy of allowing no
animals at school and that on the last day Carter attended his school, he did not have a dog
6 with him.
The mother of another child enrolled to attend the morning session of preschool at the
school testified that her child has a rare lung disease, that her child is highly allergic to dogs,
that the school district promised her at her child's IEP meeting on August 18, 2009, that her
child would not be exposed to any animals, and that if there was a dog in her child's
classroom, her child would not go to school. The school district's superintendent testified
that in June he denied Carter's request to bring his service dog to school.
After hearing all the evidence, the court issued a preliminary injunction but deferred
its entry until the following Monday, August 24, 2009, when a hearing on how to implement
Carter's service dog at school would be held, because issuing it that day would be too much
of a hardship on the school district. The following Monday, the school district filed a motion
to stay, requesting the court to stay its order granting the motion for a preliminary injunction,
pending the resolution of its appeal. The court denied the school district's motion and entered
the order for a preliminary injunction enjoining the school district from preventing Carter
from attending school while being accompanied by his service dog under the service animal
statute. The court made the order effective September 14, 2009. On the same day, the school
district filed its notice of appeal pursuant to Supreme Court Rule 307(a)(1).
On August 25, 2009, the school district filed a motion to stay the preliminary
injunction pending the appeal with this court. We denied that motion on September 1, 2009.
On October 26, 2009, Carter filed a motion to strike portions of the school district's reply
brief. On November 9, 2009, we issued an order taking the motion to strike with the case.
We now grant that motion, and we have not considered those portions of the school district's
reply brief in reaching our decision. Pursuant to Supreme Court Rule 345 (210 Ill. 2d R.
345), the Illinois Attorney General's office filed a brief amicus curiae on Carter's behalf.
7 ANALYSIS
The school district raises three points on appeal. First, the school district contends
that because Carter failed to exhaust his administrative remedies prior to bringing suit, the
circuit court lacked jurisdiction to enter a preliminary injunction. Second, the school district
avers that Carter failed to meet the requirements necessary to obtain a preliminary injunction.
And finally, the school district argues that the circuit court failed to m aintain the parties'
status quo and properly consider the public interest in balancing the equities between the
parties.
On appeal from an order granting or denying a preliminary injunction, " 'we examine
only whether the party seeking the injunction has demonstrated a prima facie case that there
is a fair question concerning the existence of the claimed rights.' " Mohanty v. St. John Heart
Clinic, S.C., 225 Ill. 2d 52, 62 (2006) (quoting People ex rel. Klaeren v. Village of Lisle, 202
Ill. 2d 164, 177 (2002)). Generally, we review this decision for an abuse of discretion
(Mohanty, 225 Ill. 2d at 63), but where "the trial court's determination regarding the grant of
a preliminary injunction involves the interpretation of statutory law, the appropriate standard
of review is de novo." Caro v. Blagojevich, 385 Ill. App. 3d 704, 709 (2008), appeal
allowed, 231 Ill. 2d 629 (2009). Thus, we review the trial court's interpretation of the service
animal statute de novo but review its findings of fact for an abuse of discretion.
The purpose of a preliminary injunction is not to determine controverted rights or
decide the merits of a case, but rather, its function is to preserve the rights of the parties or
the state of affairs legally existing just prior to the motion for a preliminary injunction until
the case can be decided on the merits. Harper v. Missouri Pacific R.R. Co., 264 Ill. App. 3d
238, 249 (1994); Arends v. Naughton, 11 Ill. App. 2d 227, 236 (1956); but see Heerey v.
Berke, 179 Ill. App. 3d 927, 941 (1989) ("The purpose of injunctive relief is to either relieve
the plaintiff of severe and irreparable injury or to [sic] preserve the status quo ***"
8 (emphasis added)). Granting a preliminary injunction is used to prevent a threatened wrong
or continuing injury and preserve the status quo with the least injury to the parties concerned.
In re Marriage of Jawad, 326 Ill. App. 3d 141, 154 (2001); Limestone Development Corp.
v. Village of Lemont, 284 Ill. App. 3d 848, 853 (1996).
The party seeking a preliminary injunction is required to establish four factors before
an injunction will be granted: (1) a clearly ascertained right in need of protection, (2) an
irreparable injury in the absence of an injunction, (3) an inadequate remedy at law, and (4)
a likelihood of success on the merits. Mohanty, 225 Ill. 2d at 62.
I. Exhaustion of Administrative Remedies
The school district's first contention is that the circuit court lacked jurisdiction to issue
a preliminary injunction because Carter failed to exhaust his administrative remedies. We
find it unnecessary to determine whether Carter failed to exhaust his administrative remedies
because the circuit court found that Carter would be subjected to irreparable harm and that
any other process would be inadequate due to time constraints. See Morr-Fitz, Inc. v.
Blagojevich, 231 Ill. 2d 474, 499 (2008) ("[E]xhaustion is not required if the administrative
remedy is inadequate or futile or in instances where the litigant will be subjected to
irreparable injury due to lengthy administrative procedures that fail to provide interim
relief"). As explained more fully below, we find that the circuit court did not abuse its
discretion in finding that Carter would suffer irreparable harm by proceeding through an
administrative process. Thus, the circuit court did not abuse its discretion in issuing the
preliminary injunction. Still, even if Carter's claim was pending in an administrative process,
we find under that under the circumstances of this case, the circuit court still would have had
jurisdiction to enter a preliminary injunction pending the completion of the administrative
process. See Kurtzworth v. Illinois Racing Board, 92 Ill. App. 3d 564, 584 (1981) ("[W]hen
the proper circumstances are presented it, a court exercising traditional and inherent chancery
9 powers may intervene in the administrative process by furnishing the provisional relief of a
preliminary injunction *** pending the completion of the administrative hearing processes
***"); Bartelstein v. Goodman, 340 Ill. App. 51, 54 (1950) (" 'If the remedy in equity is more
adequate because of some special circumstance of the situation, the jurisdiction of equity will
be sustained' " (quoting Cordell v. Solomon, 234 Ill. App. 430, 439 (1924))).
In any event, we find it questionable whether the school district has even preserved
this issue for our review. The denial of a motion to dismiss by itself is not a final and
appealable order but, rather, is an interlocutory order not appealable under any of the
exceptions set forth in Rule 307. In re Petition of Filippelli, 207 Ill. App. 3d 813, 817-18
(1990); Rosinia v. Gusmano, 90 Ill. App. 3d 882, 886-87 (1980). "Rule 307 allows only the
review of the order from which a party takes an appeal, and such an appeal does not open the
door to a general review of all orders entered by the trial court up to the date of the order that
is appealed." In re Petition of Filippelli, 207 Ill. App. 3d at 818; but see Sarah Bush Lincoln
Health Center v. Berlin, 268 Ill. App. 3d 184, 187 (1994) (holding that "the proper scope of
the review under Rule 307 is to review any prior error that bears directly upon the question
of whether the order on appeal was proper"). Here, the denial of the school district's motion
to dismiss raising the exhaustion-of-administrative-remedies argument was an interlocutory
order not generally appealable, and no right of appeal was granted pursuant to Supreme Court
Rule 308 (155 Ill. 2d R. 308). Rather, the school district appealed the circuit court's order
granting the preliminary injunction pursuant to Supreme Court Rule 307(a)(1), which
provides for an interlocutory appeal as of right when an injunction is granted. The school
district did not raise the exhaustion-of-administrative-remedies argument at the hearing on
the motion for a preliminary injunction, it was not considered by the circuit court at that
hearing, and taking this appeal did not open the door to a review of the ruling on the motion
to dismiss.
10 II. Preliminary Injunction Requirements
Next, the school district contends that Carter failed to establish two of the four
elements necessary for a preliminary injunction, i.e., that Carter failed to establish a
likelihood of success on the merits and that he would suffer irreparable harm.
A. Likelihood of Success
The school district contends that Carter did not establish that he had a likelihood of
success on the merits of his underlying complaint. It contends that Carter failed to establish
that Corbin was a service dog and that we should construe the service animal statute as
requiring an educational benefit. We disagree.
To establish a likelihood of success, Carter need only raise a fair question regarding
the existence of a claimed right and a fair question that he will be entitled to the relief prayed
for if the proof sustains the allegations. See Fischer v. Brombolich, 207 Ill. App. 3d 1053,
1066 (1991). Here, the school district does not contest that Carter has a clearly ascertained
right in need of protection under the service animal statute. As provided above, that statute
provides as follows:
"Service animals such as guide dogs, signal dogs[,] or any other animal
individually trained to perform tasks for the benefit of a student with a disability shall
be permitted to accompany that student at all school functions, whether in or outside
the classroom." 105 ILCS 5/14-6.02 (West 2008).
It is undisputed that Carter is a student with a disability. The school district argues,
however, that Carter did not establish that Corbin was a service animal. We note that Carter
was not required to establish that Corbin was a service animal, but rather, he only had to raise
a fair question regarding the existence of his claimed right. Without deciding the merit of
Carter's claim, we have reviewed the service animal statute de novo and have determined that
Carter has raised a fair question about the existence of his right under the service animal
11 statute.
When we interpret a statute, the fundamental rule of statutory construction is to
ascertain and give effect to the legislature's intent. Rosewood Care Center, Inc. v.
Caterpillar, Inc., 226 Ill. 2d 559, 567 (2007). In that process, the language of the statute is
the best indicator of legislative intent, and we give that language its plain and ordinary
meaning. Caterpillar, Inc., 226 Ill. 2d at 567. "We may not depart from the plain language
of the statute by reading into it exceptions, limitations, or conditions that conflict with the
express legislative intent." Caterpillar, Inc., 226 Ill. 2d at 567.
Carter's mother testified that a video of Carter and a sample of his clothing were sent
to Wilderwood to familiarize Corbin with Carter's appearance and smell, that Corbin was
trained to understand 70 commands, and that Corbin was trained for Carter's pica, impulse
running, night awakenings, and tantrums. She also testified that Carter has benefited from
having Corbin by having reduced tantrums and now needs less time to recover from his
tantrums, that Corbin is trained to physically take Carter down if he takes off running into
a dangerous situation, that Corbin had reduced Carter's night awakenings, and that Corbin
draws Carter out of his stimming. This testimony was sufficient to raise a fair question
regarding whether Corbin was a "guide dog[], signal dog[][,] or any other animal individually
trained to perform tasks for the benefit" of Carter (105 ILCS 5/14-6.02 (West 2008)).
As to the school district's argument that we should construe the service animal statute
as requiring an educational benefit, we find no such requirement under a plain reading of the
statute. The service animal statute requires that the service animal be "individually trained
to perform tasks for the benefit of a student with a disability." (Emphasis added.) 105 ILCS
5/14-6.02 (West 2008). The language of the statute does not include the term "educational
benefit," and we " 'should not attempt to read a statute other than in the manner in which it
was written' " (Caterpillar, Inc., 226 Ill. 2d at 567 (quoting Ultsch v. Illinois Municipal
12 Retirement Fund, 226 Ill. 2d 169, 190 (2007))). Nonetheless, Carter's mother testified that
Corbin draws Carter out of his stimming, which allows him to focus more on completing his
tasks and certainly would be an educational benefit. Reduced tantrums and a faster recovery
time would also provide Carter an educational benefit. Thus, we find that the circuit court
did not err in finding a likelihood of success on the merits of Carter's claim.
B. Irreparable Injury
The school district contends that Carter did not establish that he would suffer a valid
irreparable harm if a preliminary injunction were not granted. It argues that Carter's harm
is self-inflicted because Carter can attend school without his service dog if he so chooses.
It argues that self-inflicted harm cannot be irreparable harm.
"An alleged injury is defined as irreparable when it is of such nature that the injured
party cannot be adequately compensated therefor in damages or when damages cannot be
measured by any certain pecuniary standard." Cross Wood Products, Inc. v. Suter, 97 Ill.
App. 3d 282, 286 (1981). Here, the circuit court did not abuse its discretion in finding that
Carter would suffer irreparable harm if Corbin was not allowed to attend school with him.
Carter's mother testified that during the period of time Carter and Corbin were separated
while Carter's grandfather was hospitalized, Carter and Corbin's working relationship
deteriorated. She said that Corbin became less responsive to his commands and that Carter's
tantrums increased. She stated that in order for Carter and Corbin to maintain their bond,
Corbin needed to be with Carter every day as a part of his daily routines. This evidence was
not rebutted by the school district, and the injury is not compensable in damages, or
measurable by any pecuniary standard, and is exactly the type of harm that a preliminary
injunction is used to prevent.
Further, the school district's argument that Carter's harm is self-inflicted is without
merit. As established above, Carter has raised a fair question regarding the existence of his
13 right to take Corbin with him to school under the service animal statute. By attending school
without Corbin, Carter would suffer irreparable harm as a result of being separated from
Corbin during school hours. The school district cannot deny Carter access to school with his
service dog and then claim that his harm is self-inflicted.
III. Status Quo/Balance of Hardships
In its third point, the school district raises two separate arguments: (1) the circuit court
abused its discretion in issuing a preliminary injunction because it altered the status quo, and
(2) the circuit court abused its discretion in balancing the hardships in favor of Carter
because it failed to take into consideration the public interest.
A. Status Quo
The school district contends that the injunction was improper because it allegedly
altered the status quo between the parties. The school district argues that the status quo was
Carter attending school without a service dog because Carter attended school last year
without a service dog. Carter, on the other hand, defines the status quo as the school district
"not infringing upon Carter's rights secured to him by law." It argues that the school district,
"by denying Carter access to its school while being accompanied by Corbin, has changed the
status quo by denying Carter a right secured to him by the laws of the State of Illinois."
Under Illinois law, it is generally proper to issue a preliminary injunction that will
preserve the status quo of the parties rather than alter it. People v. Van Tran Electric Corp.,
152 Ill. App. 3d 175, 183 (1987). Often this is done by keeping all actions at rest, but
sometimes it happens that the status quo is not a condition of rest but, rather, is one of action
and the condition of rest is exactly what will inflict the irreparable harm. Brooks v. La Salle
National Bank, 11 Ill. App. 3d 791, 799 (1973). Still, in certain circumstances, altering the
status quo might be appropriate. See Keystone Chevrolet Co. v. Kirk, 69 Ill. 2d 483, 486
(1978) ("Where the effect of a temporary injunction will be to alter the status quo, the party
14 seeking it must first establish the probability of his ultimate success on the merits"); Citizens
Utilities Co. of Illinois v. O'Connor, 121 Ill. App. 3d 533, 535 (1984) (citing Kirk for the
proposition that where the party seeking the temporary restraining order would change the
status quo, it must first establish the probability of its ultimate success on the merits);
Lakeshore Hills, Inc. v. Adcox, 90 Ill. App. 3d 609, 611 (1980) ("The injunction here altered
rather than preserved the status quo. However, this does not require reversal").
"[The term] [']status quo['] has been the subject of countless, often inconsistent,
interpretations." Electronic Design & Manufacturing, Inc. v. Konopka, 272 Ill. App. 3d 410,
415 n.2 (1995). It has often been defined as the last actual, peaceful, noncontested status that
preceded the pending controversy. Limestone Development Corp., 284 Ill. App. 3d at 853.
Another interpretation of the term, however, is the condition necessary to prevent a
dissipation or destruction of the property in question. In re Marriage of Joerger, 221 Ill.
App. 3d 400, 409 (1991); Gannett Outdoor of Chicago v. Baise, 163 Ill. App. 3d 717, 721
(1987); Home Savings & Loan Ass'n of Joliet v. Samuel T. Isaac & Associates, Inc., 99 Ill.
App. 3d 795, 802-03 (1981). Under either interpretation, we believe that "[t]he preliminary
injunction is designed to prevent a threatened wrong or the further perpetration of an
injurious act" (Kolstad v. Rankin, 179 Ill. App. 3d 1022, 1034 (1989) (citing Toushin v. City
of Chicago, 23 Ill. App. 3d 797, 801 (1974))). In this case, that was done by issuing the
preliminary injunction.
Once Carter established that he met the requirements necessary for a preliminary
injunction, the circuit court did not abuse its discretion in issuing a preliminary injunction
that prevented the threatened harm and maintained the status quo with the least injury to the
parties. See In re Marriage of Jawad, 326 Ill. App. 3d at 154; Limestone Development
Corp., 284 Ill. App. 3d at 853; see also Kolstad, 179 Ill. App. 3d at 1034 (rejecting the
defendant's argument that the status quo was the set of circumstances immediately prior to
15 the plaintiff's complaint where the defendant ignored "the fact that the failure to issue a
preliminary injunction could result in injury which had not previously occurred" and finding
that the preliminary injunction maintained the status quo by preventing a threatened wrong).
Here, the status quo was not a condition of rest but, rather, was a condition of action that was
necessary to prevent irreparable harm. See In re Adoption of Scraggs, 125 Ill. 2d 382, 388-89
(1988); Continental Cablevision of Cook County, Inc. v. Miller, 238 Ill. App. 3d 774, 790
(1992); American Telephone & Telegraph Co. v. Village of Arlington Heights, 174 Ill. App.
3d 381, 387-88 (1988); Davis v. East St. Louis & Interurban Water Co., 133 Ill. App. 2d 801,
804-05 (1971).
The school district argues that allowing Carter to attend school with Corbin cannot
be the status quo because it was never the actual status. To hold that the status quo was
Carter not attending school with his service dog because the service dog never attended
school last year would leave Carter with no avenue to prevent suffering irreparable harm–the
purpose behind issuing a preliminary injunction in the first place. E.g., Wilson v. Wilson, 217
Ill. App. 3d 844, 849 (1991); Davis, 133 Ill. App. 2d at 805 ("The prevention of this
irreparable injury is the keystone to the granting of injunctive relief ***"). In effect, to hold
otherwise would be to hold that despite finding that Carter has raised a fair question
regarding his legal right to attend school and take a service animal with him under the service
animal statute, the status quo was the school district likely infringing upon Carter's claimed
legal right. A probable violation of law should never be the status quo. See County of Du
Page v. Gavrilos, 359 Ill. App. 3d 629, 638 (2005) (" 'Where the acts sought to be enjoined,
however, violate an expressed law, "the status to be preserved could never be a condition of
affairs where the respondent would be permitted to continue the acts constituting that
violation" ' " (quoting San Miguel v. City of Windcrest, 40 S.W.3d 104, 109 (Tex. App. 2000)
(quoting Houston Compressed Steel Corp. v. State, 456 S.W.2d 768, 773 (Tex. Civ. App.
16 1970)))). "The function of a preliminary injunction is not merely to contain ongoing damage
but to prevent prospective damage." Gavrilos, 359 Ill. App. 3d at 638.
Finally, even if the status quo is to be altered, a reversal is not required in every case.
See Kirk, 69 Ill. 2d at 486; O'Connor, 121 Ill. App. 3d at 535; Adcox, 90 Ill. App. 3d at 611-
12. " 'An application for an injunction is addressed to the conscience and sound discretion
of the court, and it is not controlled by technical legal rules, and unless a reviewing court
finds that the discretion has been abused, the order will not be set aside.' " Keeshin v.
Schultz, 128 Ill. App. 2d 460, 468 (1970) (quoting Simpkins v. Maras, 17 Ill. App. 2d 238,
249 (1958)). We find no such abuse of discretion in this case.
B. Balance of Hardships
Lastly, the school district argues that the circuit court failed to properly consider the
public interest in balancing the hardships between the parties and that, as a result, the
preliminary injunction should be set aside. In response, Carter cites to Barrett v. Lawrence,
110 Ill. App. 3d 587, 593 (1982), for the proposition that the circuit court should not have
balanced the hardships between the parties because the school district has clearly violated
Carter's statutory right and the school district's violation of Carter's rights was wilful. In the
alternative, Carter contends that the circuit court properly balanced the hardships between
the parties.
"In balancing the equities, the court must weigh the benefits of granting the injunction
against the possible injury to the opposing party from the injunction." Schweickart v.
Powers, 245 Ill. App. 3d 281, 291 (1993). This general rule, however, is not applied where
the violation is wilful, where the existence of a private right and the violation thereof are
clear, or where the act complained of is tortious in itself. Barrett, 110 Ill. App. 3d at 593.
In balancing the equities, the court should also consider the effect of the injunction on the
public. Village of Bensenville v. City of Chicago, 389 Ill. App. 3d 446, 493 (2009).
17 Here, the circuit court balanced the hardships between the parties and found that the
injury Carter would suffer by being denied his right to be accompanied by Corbin
outweighed any harm potentially incurred by the school district. Because we find that the
circuit court did not abuse its discretion in making this finding, there is no need to address
Carter's argument that the circuit court should not have balanced the hardships between the
parties.
As explained above, there was ample evidence to support the circuit court's finding
that Carter would suffer irreparable harm if Corbin was not allowed to accompany him at
school. As to the school district's harm, Carter's case manager testified she thought having
a dog at school would be disruptive. The mother of another child who was planning to attend
Carter's school testified that her child suffered from a rare lung disease, that her child was
highly allergic to dogs, and that the school district had promised her that her child would not
be exposed to any animals at school. Because of these competing interests, the court did not
make the injunction effective immediately but made it effective three weeks after its entry.
It did so presumably to give the school district time to accommodate both students. There
was no evidence presented that the other child would be allergic to Corbin, a hypoallergenic
dog, that the school district could not accommodate both students, or that the school district
or public would suffer a great hardship by having Corbin at school with Carter. Carter's
mother offered to provide training to the school's staff on how to handle Corbin or stay with
him if need be. Thus, the circuit court did not abuse its discretion in finding in favor of
Carter in balancing the hardships.
CONCLUSION
In sum, we find that Carter has demonstrated a prima facie case that there is a fair
question concerning the existence of his claimed right under the service animal statute.
Preserving Carter's claimed legal right in status quo until a decision can be reached on the
18 merits prevents Carter from suffering irreparable harm–the purpose for issuing a preliminary
injunction. For the foregoing reasons, Carter's motion to strike taken with the case is granted,
and the circuit court's grant of the preliminary injunction is affirmed.
Motion granted; judgment affirmed.
GOLDENHERSH, P.J., and SPOMER, J., concur.
19 NO. 5-09-0447
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ___________________________________________________________________________________
CARTER KALBFLEISCH, by and ) Appeal from the Through His Next Friends, ) Circuit Court of CHRISTOPHER KALBFLEISCH and ) Monroe County. MELISSA KALBFLEISCH, ) ) Plaintiff-Appellee, ) ) v. ) No. 09-CH-57 ) COLUMBIA COMMUNITY UNIT SCHOOL ) DISTRICT UNIT NO. 4, ) Honorable ) Dennis B. Doyle, Defendant-Appellant. ) Judge, presiding. ___________________________________________________________________________________
Opinion Filed: December 16, 2009 ___________________________________________________________________________________
Justices: Honorable James M . Wexstten, J.
Honorable Richard P. Goldenhersh, P.J., and Honorable Stephen L. Spomer, J., Concur ___________________________________________________________________________________
Attorneys Christi L. Flaherty, David L. Mannix, Guin, Martin & Mundorf, LLC, 310 Regency for Centre, Collinsville, IL 62234 Appellant ___________________________________________________________________________________
Attorneys Anthony P. Gilbreth, Clay B. St. Clair, Crowder & Scoggins, Ltd., 121 West Legion for Avenue, P.O. Box 167, Columbia, IL 62236 Appellee Lisa M adigan, Attorney General of Illinois, Michael A. Scodro, Solicitor General, Jane Elinor Notz, Deputy Solicitor General, Erin Ipjian, Benjamin Johnson, Assistant Attorneys General, 100 West Randolph Street, 12th Floor, Chicago, IL 60601 (Amicus Curiae Brief - for The People of the State of Illinois) ___________________________________________________________________________________