The legal team behind many of the court challenges to the emergency powers wielded by Gov. JB Pritzker have returned to court in far southern Illinois, this time with a lawsuit brought by a business owner and Iraq War veteran who is seeking a restraining order blocking the governor’s executive orders throughout the state.
On May 21, attorneys Tom DeVore and Erik Hyam filed suit in Clay County Circuit Court on behalf of plaintiff James Mainer and his business HCL Deluxe Tan.
A hearing on the restraining order request is scheduled for Friday, May 22.
The arguments in Mainer’s lawsuit are very similar to those expressed by others of DeVore’s clients in other legal challenges to Pritzker’s assertions of emergency authority in response to the COVID-19 pandemic.
Those clients include State Rep. Darren Bailey (R-Xenia), who represents the state legislative district that includes Clay County and its county seat, Louisville.
In Mainer’s lawsuit, as in Bailey’s, the plaintiffs assert the governor has exceeded the bounds of his authority under state law.
Pritzker has asserted he has the ability to govern the state through executive orders, to minimize the spread of COVID-19 and “save lives,” as the governor has repeatedly asserted.
However, in the nearly three months since the governor has declared a statewide disaster and assumed the emergency powers, his orders have been met by a rising tide of resistance and legal challenges. Those challenges have been brought by state lawmakers, business owners, churches, pastors and others.
Many of them have particularly taken aim at Pritzker’s stay at home order, under which the governor has closed and halted a wide swath of “non-essential” businesses and otherwise common societal activities.
Others have challenged the governor’s restrictions on the size of religious worship and prayer services, asserting Pritzker has trampled their constitutional religious free exercise rights.
The state law claims, however – such as those raised by DeVore’s clients – have focused on Pritzker’s continued invocation of the Illinois Emergency Management Agency Act. In Section 7 of that law, the governor is granted broad, sweeping powers in the aftermath of a declared disaster. However, plaintiffs have asserted the governor’s powers are limited to just 30 days; beyond that, they allege, the governor needs to secure approval from the Illinois General Assembly.
Pritzker and Illinois Attorney General Kwame Raoul, however, have argued the law should be read to require the governor merely to essentially re-declare a disaster every 30 days to continue wielding his emergency powers until such time as the governor believes a disaster has passed.
In his complaint, however, Mainer and DeVore argue the governor has no power to continuously re-declare a disaster months after the occurrence that caused the disaster. They assert the power of the governor ends with attempts to “avert” a disaster, not to continue to mitigate a disaster that has already occurred.
They argue Pritzker, as the first governor to ever “issue serial proclamations back to back,” is violating restrictions under the law, which should prevent him from “energizing the 30-day emergency powers to attempt to seize control the movement (sic) and activities of the people, and forcible closure of businesses, of the entire state of Illinois.”
DeVore and Mainer note that prior interpretations of the IEMAA law from other Illinois attorneys general, including Democrat Lisa Madigan and Republican Jim Ryan, disagree with the interpretation now defended by Raoul, on behalf of his political ally, Pritzker.
DeVore and Mainer further argue the governor has exceeded his powers under the state constitution and other state laws, including the Illinois Department of Public Health Act.
They say the power to restrict the movement of Illinois residents and close businesses, as expressed in Pritzker’s COVID-19 executive orders, is not granted to him by any state law. They said that power resides in the IDPH Act, which instead gives that power to the Illinois Department of Public Health and local county health boards.
But that power is subject to challenge by individuals in the courts.
DeVore has repeatedly noted in his court filings that Illinois residents and businesses have been denied the ability to contest any movement restrictions or closure orders since Pritzker first declared a disaster and began locking down the state.
While other lawsuits have been limited in scope, Mainer’s lawsuit would seek a statewide injunction, blocking enforcement of Pritzker’s executive orders.
Mainer’s lawsuit comes on the heels of Pritzker’s efforts to forestall a ruling on similar questions in the lawsuit brought by Bailey.
On the eve of a hearing on Bailey’s request for summary judgment on his state law claims, the governor and attorney general removed the case to federal court in the Southern District of Illinois. DeVore and Bailey have moved to block that transfer and send Bailey’s case back to Clay County court.
After filing the notice of removal, a spokesperson for the Attorney General’s Office released the following statement:
“The Attorney General’s office will continue to defend the governor’s constitutional and statutory right to act to protect the health and safety of all Illinois residents.
“The law gives a defendant the right to remove a case to federal court when a plaintiff files a complaint in state court alleging a violation of rights that are enshrined the U.S. Constitution, and we have done so in several other cases challenging the governor’s executive orders. Because Mr. Bailey’s amended complaint alleges violations of his federal constitutional rights, we removed his case to the U.S. District Court for the Southern District of Illinois.”