The village of Orland Park has joined the growing list of those challenging Gov. JB Pritzker’s claim to emergency public health powers, which he claims allows him to shutdown businesses and activities across Illinois in response to the threat posed by COVID-19.
On June 16, the village in Chicago’s south suburbs joined with two of its residents and a tavern owner, filing suit in Chicago federal court against Pritzker.
The lawsuit specifically asserts Pritzker has ignored the village’s request to reopen its businesses faster than the governor has proposed. The village and individual plaintiffs also accuse the governor of ignoring state law and trampling the constitutional rights of Illinois residents and business owners to due process and equal protection, in locking down much of the state’s economy in response to the COVID-19 pandemic.
The plaintiffs assert their lawsuit is centered on the need to “calibrate” Pritzker’s broad use of emergency executive powers in addressing COVID-19 statewide.
“The exercise of authority, however well-intentioned, by the Governor, as the elected leader of the state in attempting to protect the public welfare, must be exercised within the confines of constitutional and statutory provisions established by citizens through their elected officials,” the complaint said.
The lawsuit followed weeks of requests from Orland Park village officials to persuade Pritzker to speed up the process of reopening shops, restaurants, bars and other businesses in the village and throughout the state. Orland Park Village President Keith Pekau publicly assailed the governor's actions related to COVID-19 in a video posted by the village government, and threatened legal action if Pritzker did not relent.
In the complaint, the lawsuit notes the village had created its own reopening plan, which called for Orland Park businesses to open about two weeks earlier than what Pritzker had laid out in his so-called “Restore Illinois” plan.
That plan had been announced by the Pritzker administration in May, as Illinois neared the peak of its initial wave of COVID-19 cases.
The governor said the plan had been developed to safely guide the state as it moved to allow businesses to reopen and activities to resume in phases and with restrictions statewide.
A host of businesses and activities had ceased across the state in mid-March, when Pritzker announced a range of orders he said were needed to combat the spread of the novel coronavirus that causes COVID-19.
Among these orders were limits on the size of public and private gatherings, and the so-called stay at home order, which divided the state’s businesses, organizations and activities into the categories of “essential” and “non-essential.”
The orders forced thousands of businesses to close across Illinois, producing skyrocketing levels of unemployment not seen since the Great Depression and leaving many businesses unable to ever reopen.
One of the plaintiffs in the Orland Park lawsuit, Tom McMullen, owner of The Brass Tap, in Orland Park, said in the filing his restaurant has lost as much as 85% of its normal revenue since March, and had been forced to furlough 10 of its 14 regular employees.
The governor’s orders have generated an outcry from the business community. The orders have also been challenged by a host of different lawsuits in state courts and federal courts alike, from state lawmakers, churches, business owners, a suburban park district and others.
All of the lawsuits center on the assertion that Pritzker overstepped the bounds of his authority under state law and the Constitution, trampling on the rights of people, businesses and other organizations, and needs to be restrained by the courts.
To this point, most judges have rejected such claims. A federal appeals panel, for instance, this week ruled Pritzker has the authority to restrict church worship services in the name of public health, without violating the First Amendment’s religious freedom guarantees.
However, the lawsuits continue to be filed, and continue to center on roughly the same allegations.
Those allegations were largely restated in the Orland Park complaint. The village and its individual co-plaintiffs contend state law does not allow Pritzker to declare a statewide disaster and exercise his emergency powers for more than 30 days without getting expressed approval from the Illinois General Assembly.
Further, the Orland Park lawsuits asserts the governor lacks the power under the Illinois Public Health Act to simply order businesses closed, without securing court orders.
Pritzker has argued in other cases the Public Health Act does not apply in this instance, and he has said state law allows him to use his emergency powers statewide for as long as he determines an emergency exists, so long as he re-declares a statewide disaster every 30 days.
The Orland Park lawsuit asks a federal judge to strike that interpretation of the law down, and block the governor from continuing to enforce his orders statewide, unless the General Assembly specifically grants him an extension on his powers.
In the lawsuit, Orland Park and the individual plaintiffs assert the governor has ignored their rights to due process and equal protection under the law, guaranteed by the 14th Amendment.
“… The Governor has failed to establish that all other reasonable means of correcting the problem (COVID-19) have been exhausted, and that no less restrictive alternative means exist,” the plaintiffs said.
Further, Orland Park argued Pritzker has violated the Illinois state constitution, stepping on their authority as a home rule community to regulate businesses within village boundaries. They assert those powers can only be removed by the General Assembly, and not by executive orders from the governor.
Orland Park said it would like to implement its own reopening plan for businesses within its boundaries, but has not yet done so, out of fear the governor might take action against them. Pritzker has publicly threatened to withhold COVID-related disaster recovery funds and assistance from local governments that defy his executive orders.
Orland Park and is co-plaintiffs are represented in the action by attorneys Lance Malina, J. Allen Wall and Howard Jablecki, of the firm of Klein, Thorpe and Jenkins Ltd., of Chicago.