Type: Law Bulletins
Date: 05/11/2020

Mutiny in the Counties: Illinois Divided Over Governor's Extended "Stay at Home" Order

Effective May 1, 2020, Illinois Gov. J.B. Pritzker extended the state’s “Stay at Home” Order another 30 days with certain modifications. Among the noteworthy changes, golf courses, greenhouses and animal groomers may reopen under certain safety guidelines; state parks are to begin a phased re-opening under guidance from the Department of Natural Resources; and non-essential retail stores may reopen to fulfill telephone and online orders through outside pick-up or delivery. Likewise, the list of “essential” activities for which people are permitted to leave their residences was expanded to include “engag[ing] in the free exercise of religion,” provided that such exercise complies with social distancing requirements and is limited to 10 people. Finally, individuals over the age of two who are able to medically tolerate it are required to wear a face-covering in all outdoor public places where they cannot maintain six-foot social distancing and all indoor public places, such as stores.

Even with certain restrictions having been lifted or relaxed, a number of Illinois lawmakers, public officials, businesses and residents pushed back against the Governor’s authority to extend the Order. Below is a chronology of the primary legal challenges and acts of public resistance across the state.

  • April 23, 2020 – Bailey v. Pritzker

In the first case of its kind, Illinois State Rep. Darren Bailey (R. Xenia) (Bailey) filed litigation in Clay County Circuit Court seeking a declaration that, under the Illinois Emergency Management Agency Act, Gov. Pritzker lacked the authority to extend his March 20, 2020, Executive Order beyond April 8, 2020 (i.e., 30 days after his initial March 9, 2020 disaster proclamation). On April 27, 2020, Clay County Judge Michael McHaney issued a temporary restraining order enjoining the enforcement of the Governor’s March 20, 2020, Order (and any similar orders) against Bailey only, finding that Bailey had satisfied all of the elements necessary for emergency injunctive relief, including demonstrating a clearly ascertainable right in need of protection, “namely his liberty interest to be free from Pritzker’s executive order of quarantine in his own home,” and imminent “irreparable harm” if Bailey continued to be subject to the restrictions of the Order.

The Illinois Attorney General Kwame Raoul, on behalf of Gov. Pritzker, immediately appealed the entry of the temporary restraining order to the Fifth District Appellate Court and filed an emergency motion for direct appeal with the Illinois Supreme Court.  Although most direct appeals must be made first to the Illinois Appellate Court, the Attorney General asked the Illinois Supreme Court to step in because “public interest requires prompt adjudication” of this dispute under Illinois Supreme Court Rule 302(b). Before the appellate court could rule, however, Bailey agreed to vacate the temporary restraining and the matter was remanded back to the Clay County Circuit Court on May 1, 2020.

Bailey indicated his intent to amend his original complaint to include newly discovered information which allegedly strengthens his contention that the Governor overreached, such as Illinois Department of Public Health guidelines which state that if public health officials believe a person is a “danger to the public health,” they may quarantine or isolate that person “to prevent the probable spread of a dangerously contagious or infectious disease,” but only with the resident’s consent or a court order issued within 48 hours. According to Bailey, the Governor violated Illinois citizens’ due process rights when he instituted the “Stay at Home” Order without following these mandated procedures.

Shortly after the appellate court remanded the case back to the circuit court, the Attorney General filed a supplemental emergency motion with the Illinois Supreme Court asking the high court to issue a “supervisory order” under Illinois Supreme Court Rule 383 and to stay the circuit court proceedings until it renders its decision. Notwithstanding the vacating of the temporary restraining order which effectively mooted the instant appeal, the Attorney General argued the underlying question of the Governor’s authority to extend the Order is not moot, and, in any event, the case falls within the “public interest exception” to the mootness doctrine because it is a question “of a public nature,” which requires “an authoritative determination for the future guidance of public officers,” and “there is a likelihood of future recurrence of the question.”

On May 8, 2020, Bailey filed an objection to the Attorney General’s emergency motion, contending that the Illinois Supreme Court’s intervention, even under these circumstances, “horrific and daunting, as they may be,” is not warranted and violates longstanding precedent. The Illinois Supreme Court has yet to rule on the Attorney General’s motion.

  • April 29, 2020 – Cabello v. Pritzker

Following Bailey’s lead, Illinois State Rep. John Cabello (R-Machesney) (Cabello) filed a class action against the Governor in Winnebago County Circuit Court. Similar to Bailey’s lawsuit, Cabello’s 176-page, four count complaint alleges that the Governor exceeded his authority under the Illinois Emergency Management Agency Act. However, Cabello’s complaint casts a wider net than Bailey’s as it is intended to apply to all Illinois residents, not only Cabello. Moreover, it includes claims that the Governor violated Illinoisans’ substantive and procedural due process rights because he required them to “quarantine” and “isolate” without adhering to the procedures required by the Illinois Department of Public Health and its enabling statute. Although Cabello did not seek an emergency temporary restraining order, he does ask the court at the conclusion of the case to enter a permanent injunction enjoining the Governor from further enforcing his March 20, 2020 Order or issuing any other order that restricts the freedom of Illinois citizens to leave their homes or engage in activities in the state. Cabello’s case remains pending.

  • April 29, 2020 – Woodford County Prosecutor Rejects Governor’s Order

Woodford County State’s Attorney Gregory Minger announced that he will not prosecute violations of the Governor’s Stay at Home Order within his county because he does not believe the Governor has the constitutional authority to impose the restrictions relating to the pandemic beyond a 30-day period and enforcement of the Order results in the “improper taking of property interests and pecuniary interests without just compensation.”

  • April 30, 2020 – The Beloved Church v. Pritzker

The Beloved Church, located in Stephenson County, sued Gov. Pritzker, two Stephenson County law enforcement officials, and a Stephenson County public health official in federal court in the Northern District of Illinois to block the part of the Governor’s extended Order, which prohibits public worship services in Illinois churches. The church and its pastor alleged the Stay at Home Order violated their First Amendment right to exercise religion, the Illinois Religious Freedom Restoration Act, the Illinois Emergency Management Agency Act and the Illinois Department of Public Health Act.

On May 2, 2020, District Judge John Lee denied the plaintiffs’ requests for a temporary restraining order and preliminary injunction, finding that “[b]ased on the text and structure of the [Illinois Emergency Management Agency] Act, [d]efendants have the better argument, . . . . Some types of disasters, such as a storm or earthquake, run their course in a few days or weeks. Other disasters may cause havoc for months or even years.” Judge Lee reasoned: “It is difficult to see why the legislature would recognize these long-running problems as disasters, yet divest the [g]overnor of the tools he needs to address them.” Judge Lee also rejected the plaintiffs’ claim that the Governor’s Order violated the Illinois Department of Public Health Act, stating that the Governor’s restriction on large public gatherings “falls far short of a ‘quarantine’ as that term appears in the [a]ct.”

Following Judge Lee’s decision, the Beloved Church held an in-person worship service with more than ten in attendance. Congregants were provided masks and hand sanitizer, and family units were spaced at least six feet apart. The Beloved Church has since appealed Judge Lee’s decision.

  • May 1, 2020 – Running Central, Inc. v. Pritzker

In the first action filed in the state by a for-profit business, Running Central, Inc. d/b/a RC Outfitters (RC), a retail shoe and clothing store, sued the Governor in Peoria County Circuit Court. Similar to the preceding cases, RC seeks a declaratory judgment that the Governor lacked the legal authority to require non-essential businesses to close amid the pandemic and the Governor’s emergency executive powers under the Illinois Emergency Management Agency Act expired on April 8, 2020 (30 days after the initial disaster proclamation). RC also filed an emergency motion for temporary restraining order to block the Governor from enforcing the extended Order precluding RC, a non-essential business, from reopening to in-store retail customers.

The Attorney General responded with a motion to transfer the proceedings to Sangamon or Cook County, arguing that Peoria County is not the proper venue to challenge the Governor’s Order because the Governor does not live or keep a principal office there and did not issue the Order from that county; the Office of the Governor is, according to Illinois statute, located in Sangamon County; and the potential witnesses, including state public health officials, work in Sangamon and Cook Counties.

Judge Derek Asbury stated that he recognized the urgency of the lawsuit but felt compelled to decide the venue question before ruling on RC’s request for a temporary restraining order. Judge Asbury is expected to issue his venue order on May 14, 2020.

  • May 1, 2020 – “Re-Open Illinois” Rally

Hundreds of people protested for hours in Chicago and Springfield, packing streets and holding signs and flags, calling for an end to the COVID-19 shutdown. The protesters did not wear masks, nor did they observe social distancing protocols. The rally was organized by Freedom Movement USA, a group funded by conservative donors sponsoring other similar protests around the country.

  • May 1, 2020 – Scott County State’s Attorney Rejects Governor’s Order

Scott County State’s Attorney Michael Hill announced that he would not prosecute anyone charged with violating the extended Stay at Home Order, referring to the Governor’s executive orders as simply “guidelines.”

  • May 4, 2020 – Pike County Police Chief Refuses To Enforce Governor’s Order

Pittsfield Police Chief Mike Starman announced he will not enforce the Governor’s mandate requiring face coverings in public and other provisions of the extended Stay at Home Order. According to Chief Starman’s statement, police in the west central Illinois city “will continue to honor the God-given right to the pursuit of life and happiness to the citizens of Pittsfield.”

Undoubtedly, Gov. Pritzker’s orders will continue to face challenges in both the court of law and the court of public opinion, even as he introduces a multi-phased approach to re-open the state. This ever-evolving controversy, drawn across party and regional lines, pits the need to protect human life against the desire to preserve personal liberty. Regardless of the ultimate winner, all would agree the stakes have never been higher.

Please check Taft’s COVID-19 Resource Toolkit for updates on this and other pandemic-related issues.

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