A new lawsuit claims a section of a law that Gov. JB Pritzker has relied upon to exercise pandemic-related emergency powers for more than a year should be struck down as unconstitutional.
The lawsuit, filed recently in Sangamon County Circuit Court in Springfield, argues the Illinois Emergency Management Agency Act improperly allows the state’s chief executive to assume powers that should be reserved only for elected lawmakers in the state legislature.
The lawsuit further argues the court should strip Pritzker of his emergency powers, because the law’s definition of “disaster” doesn’t square with the terms of the “disaster” Pritzker has repeatedly cited to justify the emergency declarations he has issued every month since March 2020.
Thomas DeVore
| Silver Lake Group
“These executive orders of Pritzker, and the resulting actions of the administration under his control, have been tantamount to legislative action,” the lawsuit argues.
“This legislative action has been undertaken without providing any due process to the citizens of the State of Illinois.
“As such, Section 7 of the IEMAA on its face was a pure delegation of legislative power in violation of the separation of powers of the Illinois Constitution,” the complaint stated.
The lawsuit was filed by Tom DeVore, a southern Illinois attorney who has, to date, led many of the failed attempts to persuade Illinois judges to curtail Pritzker’s use of emergency powers amid the COVID-19 pandemic.
The lawsuit follows on lawsuits brought in other states against governor’s who were accused of executive overreach in the effort to slow the spread of COVID-19.
In other states, including Wisconsin and Michigan, judges have slapped back their governors for abusing their pandemic-related emergency powers.
Illinois judges, however, so far largely have refused to follow suit, allowing Pritzker wide latitude to impose numerous restrictions on Illinois’ economy and society. Business groups, for instance, have complained for months that restrictions on various activities, such as gatherings and indoor restaurant dining, among others, have resulted in widespread business closures and unemployment, and other deep damage to the state’s economy.
DeVore partnered with Republican state lawmaker Darren Bailey last May to become the first to legally challenge Pritzker’s use of executive authority under the IEMA Act to respond to the onset of the COVID-19 pandemic in Illinois. In those other lawsuits, DeVore argued the IEMA Act should be read to limit Pritzker to use emergency powers for 30 days following the declaration of a disaster. After that, he should need explicit approval from the Illinois General Assembly.
Others have since followed suit, including restaurant owners who filed suit last fall after Pritzker reimposed indoor dining restrictions, as COVID cases again surged in Illinois and elsewhere.
One of those restaurateurs, who owns FoxFire restaurant in west suburban Geneva, has persisted in its efforts to secure a court order declaring Pritzker had no legal or scientific basis to restrict indoor dining.
When their request for an injunction landed before the Illinois Second District Appellate Court in Elgin, appeals judges there explicitly declared Pritzker had the authority to use emergency powers for as long as he believes a disaster continues, so long as he reissues disaster declarations every 30 days.
As that lawsuit has continued, however, a Sangamon County judge recently ruled Pritzker cannot dismiss FoxFire’s challenge just yet, and, for the first time, indicated there may be legal limits to the duration of Pritzker’s use of emergency powers.
“… The governor cannot rely on emergency powers indefinitely,” Grischow wrote in an order issued April 7. “The U.S. Constitution recognized the importance of dispersing governmental power in order to protect individual liberty and avoid tyranny.”
Pritzker, through the Illinois Attorney General’s office, has since asked Grischow to reconsider that decision, and has petitioned the Illinois Supreme Court to review Grischow’s refusal to dismiss the case.
The latest legal challenge, which is likely also ticketed for Grischow’s courtroom, targets the separation of powers cited by Grischow in that ruling.
Named plaintiffs in the action include Kirk Allen and John Kraft, who operate the news blog, known as the Edgar County Watchdogs. They have been persistent critics of Pritzker and his use of emergency powers under Section 7 of the IEMA Act for more than a year.
“… As applied by Pritzker using his admitted Serial Proclamation ruse, Section 7 of the IEMAA is being utilized in such a way as to be an excessive delegation of legislative power,” Allen and Kraft, through DeVore, wrote in their new complaint.