A southern Illinois judge on Thursday declared void Gov. J.B. Pritzker’s orders aimed at slowing the spread of the new coronavirus, saying state law doesn’t allow governors to extend disaster proclamations beyond 30 days or restrict the activities of residents and businesses by executive order.
Pritzker first declared a statewide disaster because of COVID-19 on March 9 and has issued extensions every 30 days. Those proclamations have been the legal basis for the governor’s stay-at-home order and restrictions in each phase of his “Restore Illinois” reopening plan.
The immediate implications of Clay County Circuit Judge Michael McHaney’s order, which stemmed from a lawsuit filed by state Rep. Darren Bailey, were not clear.
The state is in the fourth phase of Pritzker’s reopening plan, which includes a number of restrictions, such as a limit on crowd sizes and stricter regulations on businesses.
“That’s gone as we stand here right now,” said Bailey’s attorney, Thomas DeVore.
The Illinois attorney general’s office, which is expected to appeal, had no immediate comment.
The ruling came hours after U.S. District Judge Sara Ellis denied the Illinois Republican Party’s request to temporarily block Pritzker’s limit on gatherings from applying to political parties.
The Clay County ruling is the latest twist in a legal battle that has raised the profile of Bailey, a Xenia Republican who is running for a state Senate seat in the November election.
Bailey has drawn personal rebukes from the governor and was kicked off the House floor in a bipartisan vote during the General Assembly’s special session in May for violating a rule requiring lawmakers to wear masks.
McHaney previously ruled in Bailey’s favor, exempting him personally from Pritzker’s stay-at-home order. Bailey later withdrew and refiled his lawsuit, bringing the case back before the judge. The governor’s office attempted to move the case to federal court, but a federal judge in southern Illinois sent it back to Clay County.
“This is a victory for freedom. This is a victory for the people of Illinois,” Bailey said Thursday outside the courthouse, where he was greeted by supporters, some of whom wore T-shirts that read, “My governor is an idiot” on the front and “Fire Pritzker” on the back. None of them appeared to be wearing the face coverings required under Pritzker’s executive order.
Pritzker spokeswoman Emily Bittner downplayed the significance of the ruling in a statement.
“Every other court — both state and federal — that has considered these exact issues has agreed with the administration that executive orders protecting Illinoisans’ health and safety are well within the governor’s constitutional authority,” Bittner said. “This includes a federal court decision earlier today.”
DeVore said those rulings were largely preliminary and did not deal directly with the governor’s authority under Illinois law and the state constitution.
The Clay County ruling is not final and did not include an injunction barring the state from enforcing Pritzker’s phase four rules, Bittner said.
In the federal lawsuit filed last month, the state Republican Party and three local GOP organizations allege that Pritzker’s executive order capping the size of gatherings violates the party’s First and 14th Amendment rights.
The Republican groups are asking the court to exempt political parties from the limits and seeking permission to hold in-person events without size restrictions in the run-up to the November election.
They also sought a preliminary order barring enforcement of the rule, arguing that there was an urgent need to allow gatherings including a Fourth of July picnic planned by the Will County Republican Central Committee, one of the groups suing the first-term Democratic governor.
Judge Ellis wrote in a 21-page ruling issued Thursday that the GOP groups “have not shown how this exemption is a plain invasion of their constitutional rights” and denied their request for a temporary restraining order.
“Plaintiffs ask that they be allowed to gather — without limitation — despite the advice of medical experts and the current rise in infections,” Ellis wrote. “The risks in doing so are too great.”
The GOP lawsuit also challenges the governor’s authority to extend disaster proclamations beyond 30 days, but that wasn’t part of the request for immediate action, so Ellis’ ruling didn’t address the issue.
Ellis’ decision marked the latest court ruling to provide legal backing for the steps the governor has taken to slow the spread of the new coronavirus.
Republicans have vowed to appeal.
“We are disappointed with today’s results and obviously disagree with the ruling,” Illinois Republican Party Chairman Tim Schneider said in a statement. “Our fight to secure our First Amendment right is not over, however.”
At issue is whether Pritzker’s executive orders limiting gatherings violate the First Amendment rights to free speech and assembly and the 14th Amendment’s equal protection clause.
Republicans argue that the governor’s limits on gatherings discriminate based on the content of speech. They note he’s granted an exemption for religious groups and also participated in a protest with hundreds of other people in south suburban Matteson last month in response to the Minneapolis police killing of George Floyd.
“Political parties are for political expression what churches are for religious expression: the corporate manifestation of speech and interaction within a community of shared belief,” the lawsuit state. “Political parties’ events and rallies are also like protest rallies and marches. And like churches and marches, political parties operate in a world where time matters; the 2020 election is only months away.”
Ellis ruled that while allowing religious gatherings to operate under a different set of rules does create a “content-based restriction,” allowing them to continue while urging adherence to safety guidelines “is indeed the least restrictive means” to protect both the free exercise of religion and public health.
“The Constitution does not accord a political party the same express protections as it provides to religion,” Ellis wrote.
She added: “Allowing Plaintiffs to gather would open the floodgates to challenges from other groups that find in-person gatherings most effective. It would also require that the Court turn a blind eye to the increase in infections across a high majority of states, which as of July 1, 2020 includes Illinois.”
State officials on Thursday announced 869 new confirmed cases of COVID-19 and 36 additional fatalities, bringing the number of known cases to 144,882 cases and the death toll to 6,987 statewide since the pandemic began.
The seven-day rolling average of new cases, which health officials look at to smooth day-to-day fluctuations in the numbers, has been on the rise in Illinois over the past two weeks, but the number of people being tested also is increasing, which can lead to higher numbers. The percentage of tests returning positive results, meanwhile, has remained relatively stable, hovering between 2% and 3% on a seven-day average.
Pritzker’s initial statewide stay-at-home order took effect March 21 and ended May 29, when the state entered phase three of his “Restore Illinois” reopening plan. The state moved into phase four last Friday, which raised the cap on in-person gatherings to 50 people from 10 and loosened other restrictions.
The governor’s orders largely have been upheld so far in the face of legal challenges by churches and religious organizations, businesses and Republican lawmakers.
The U.S. Supreme Court even weighed in, declining to take action on behalf of two Chicago-area churches that sought to overturn a previous executive order that placed the 10-person limit on religious gatherings. However, that ruling came after Pritzker lifted the size limit on religious gatherings in favor of safety guidelines from the Illinois Department of Public Health.
The U.S. 7th Circuit Court of Appeals later ruled that the limit on religious gatherings did not discriminate or violate the First Amendment.
dpetrella@chicagotribune.com
