CHICAGO (CBS) — Gov. JB Pritzker is asking the Illinois Appellate Court to vacate a temporary restraining order granted to a Clay County business owner and his tanning salon, essentially exempting them from the statewide stay-at-home order.
James Mainer and HCL Deluxe Tan had filed a new lawsuit on Thursday, seeking to have the governor’s executive order declared null and void. At a hearing on Friday, Mainer and HCL Deluxe sought a temporary restraining order barring the governor from enforcing the order statewide, but instead Clay County Judge Michael McHaney granted an order only for Mainer and his business.
Mainer is challenging the governor’s authority to extend his stay-at-home order beyond the first 30 days of his original disaster proclamation.
Tuesday evening, the Illinois Attorney General’s office appealed McHaney’s ruling, asking the Illinois Appellate Court to throw out the restraining order, arguing it “places undue weight on the harm to plaintiffs as compared with the immense public health crisis that will occur if the Governor is unable to exercise his statutory and constitutional powers to combat COVID-19.”
“Besides being dangerous, this conclusion is flawed as a matter of law, conflicts with three recent decisions upholding the Governor’s authority against nearly identical challenges, and is belied by the longstanding practice of numerous governors,” the attorney general’s office wrote. “What is more, when the General Assembly convened last week in special session, it unanimously passed two pieces of legislation that acknowledge the Governor’s authority to issue successive disaster proclamations. That the legislature took these measures with the knowledge that the Governor issued successive disaster proclamations relating to COVID-19 provides further confirmation that the circuit court was wrong.”
Two federal judges have sided with the governor in lawsuits filed by Illinois churches seeking to resume normal religious services, and a Sangamon County judge has denied a restraining order sought by a Peoria running store.
McHaney’s ruling against Pritzker was hardly unexpected, as McHaney has previously sent clear signals he’s opposed to the governor’s order. McHaney is the same judge who granted Illinois State Rep. Darren Bailey (R-Xenia) a temporary restraining order exempting him from the stay-at-home order last month.
“Every second this Executive Order is in existence, the Illinois Constitution, numerous sections of it are being violated and the Bill of Rights is being shredded,” McHaney said at the time.
Bailey later asked the courts to lift that restraining order while he filed an amended lawsuit to seek a court order invalidating the governor’s stay-at-home mandate statewide.
Last week, the governor’s office moved to send Bailey’s lawsuit to federal court, avoiding a hearing that had been scheduled for Friday afternoon, when McHaney had indicated he would issue a final ruling in Bailey’s case. Just hours after that maneuver, Mainer filed his lawsuit against Pritzker.
DeVore accused the Pritzker of “forum shopping” by sending Bailey’s case to federal court just hours before the governor was due to file a briefing in Clay County.
“Mr. Bailey’s complaint raises nothing but questions of Governor Pritzker’s authority under specific Illinois statutes. The Attorney General and the Governor have taken Mr. Bailey’s complaint and contrived federal questions where no such questions remotely exist,” DeVore said in a written statement.
Bailey’s attorneys have filed an emergency motion to send the case back to Clay County. The federal judge assigned to the case is scheduled to hold a hearing by phone on Tuesday.
Devore said he trusted the case will be moved back to Clay County, and on Friday, the Justice Department filed a briefing in federal court, urging a judge to send Bailey’s case back to state court.
“The federal government has an interest in preventing the limited resources of the federal courts from being drawn into state-law disputes that lie outside of their jurisdiction. True, the plaintiff’s argument may bear on federal due process challenges to the executive orders in other litigation. But the only claim at issue in his suit is under state law. A timely remand is required to allow the Illinois courts to resolve this issue quickly, which may affect the lives of each of the nearly 13 million residents and business owners in the state of Illinois,” Justice Department attorneys wrote in their filing.
Like Bailey’s attorneys, the Justice Department argued Bailey’s lawsuit does not raise any claims under the U.S. Constitution.
“The Court should remand this matter to the Illinois Circuit Court, which is limited to the question whether the Governor has overstepped his authority under the Illinois statute. While this case is important, it does not arise under federal law and thus falls outside this Court’s jurisdiction. It is up to the Illinois courts to rule on Plaintiff’s claims, which, because of the sweeping nature of the Orders, may affect millions of lives and raise significant constitutional concerns in other litigation,” the Justice Department wrote in its filing. “Even in the face of a pandemic—indeed, one might say especially in the face of a pandemic—States must follow the legal processes they have established to protect their people’s health, while also protecting their people’s rights. Such legal processes enable the States to make the sensitive policy choices in a manner responsive to the people and, in doing so, both respect and serve the goals of our broader federal structure, including the guarantee of due process in the U.S. Constitution. A remand of this matter will likewise respect our federal structure and allow those processes to unfold.”
Pritzker has successfully moved several other lawsuits challenging his stay-at-home order from state courts to federal courts, and at least two federal judges have sided with the governor in lawsuits filed by churches seeking to fully reopen. The 7th U.S. Circuit Court of Appeals also recently ruled the order ” does not discriminate against religious activities, nor does it show hostility toward religion” in denying a Chicago church’s request for an emergency injunction while it appeals its case.