As lawyers representing the owners of a suburban restaurant prepare to ask the Illinois Supreme Court to step into the fight over the extent of Gov. JB Pritzker’s COVID-related emergency powers, the governor is asking a state appeals court to reissue a ruling to allow other courts to use it to shoot down other legal challenges to Pritzker’s lockdown-style restrictions.
On Nov. 10, the Illinois Attorney General’s office, representing Pritzker, filed a motion in the Illinois Second District Appellate Court asking it to give more legal heft to a ruling it issued four days earlier, favoring Pritzker's interpretation of a key legal question at the heart of a slew of lawsuits against Pritzker across the state.
On Nov. 6, a three-justice panel of the Second District court in Elgin overruled a Kane County judge, who had granted a temporary restraining order to the FoxFire restaurant, in west suburban Geneva. The order had allowed the restaurant to continue operating, despite an order from Pritzker forbidding all indoor dining at restaurants in Kane County, and later, statewide.
Illinois Gov. JB Pritzker
In that appellate decision, the justices had specifically ruled they believe Pritzker has the authority under state law to govern by executive order for as long as he believes the disaster that triggered his emergency powers continues. The law only requires Pritzker to essentially re-declare the disaster every 30 days, the justices said.
That legal conclusion aligns with the broad majority of other judges, both in state and federal courts, who have heard cases challenging Pritzker’s authority to impose restrictions on the state’s economy and society in the name of fighting COVID-19.
However, the appellate decision was issued as an “unpublished order” under Supreme Court Rule 23. That rule since the 1970s has allowed appellate courts ever since to issue orders that essentially apply only to the specific case and its participants. That means it generally can’t be used by other courts as precedent, or a kind of higher legal authority that can be used to handle similar legal questions when they crop up in other cases.
Now, Illinois Attorney General Kwame Raoul, a Democrat and political ally of Pritzker, has asked the Second District panel to “publish” its decision in FoxFire’s legal challenge, reissuing it as a formal opinion of the court, allowing it to be used as precedent.
Across the state, legal challenges have cropped up to Pritzker’s authority since this spring, when Pritzker first began to issue executive orders, citing powers under the Illinois Emergency Management Agency Act.
The cases have largely centered on a central claim: That Pritzker overstepped his authority. They claim the law should be read to limit Pritzker to use his emergency powers by right for a 30-day period immediately following a disaster declaration. After that, they argue, the governor must secure approval from the Illinois General Assembly.
Allowing Pritzker to continue claiming emergency powers to himself, without even perfunctory approval or review from the state’s elected lawmakers, would violate the core constitutional principle of separation of powers, they said.
To this point, only two judges – Judge Michael McHaney in Clay County court in southeastern Illinois, and Judge Kevin Busch, in Kane County – have backed those conclusions.
They said they will appeal the decision to the Illinois Supreme Court.
Raoul and Pritzker, however, say the appellate justices were correct in concluding the General Assembly already gave Pritzker the power he has claimed.
They argue a precedential decision is needed to cut short proceedings in many other cases where the same key legal questions are consistently raised.
“No previous opinion of an Illinois Appellate Court has decided whether the (IEMA) Act authorizes the Governor to issue successive proclamations from a single, ongoing disaster,” the Attorney General wrote in the new motion. “…Publication of this Court’s order, which explains an existing rule of law, thus would assist courts across Illinois currently tasked with resolution of this statutory question.”