Another Republican Lawmaker Sues To Halt Illinois’ Stay-At-Home Order

Unlike a previous lawsuit, this suit would affect all of Illinois. But legal experts dismiss the challenges as unlikely to win.

stay at home signs
Signs are posted to lift the spirits during the COVID-19 outbreak in Palatine, Ill., Friday, April 3, 2020. Two Illinois GOP state lawmakers have now sued to try and stop Democratic Gov. JB Pritzker's stay-at-home orders meant to slow the spread of the virus, which has also devastated Illinois' economy. Nam Y. Huh / Associated Press
stay at home signs
Signs are posted to lift the spirits during the COVID-19 outbreak in Palatine, Ill., Friday, April 3, 2020. Two Illinois GOP state lawmakers have now sued to try and stop Democratic Gov. JB Pritzker's stay-at-home orders meant to slow the spread of the virus, which has also devastated Illinois' economy. Nam Y. Huh / Associated Press

Another Republican Lawmaker Sues To Halt Illinois’ Stay-At-Home Order

Unlike a previous lawsuit, this suit would affect all of Illinois. But legal experts dismiss the challenges as unlikely to win.

Democratic Illinois Gov. JB Pritzker Wednesday dismissed another Republican-driven lawsuit aiming to derail his upcoming stay-at-home order extension as political showboating as COVID-19 deaths continued their unrelenting move higher.

The newest court maneuver taken by state Rep. John Cabello, R-Machesney Park, aims to free everyone in the state from the governor’s edict, not just himself, but at least some legal scholars cast serious doubts on the two cases that now challenge Pritzker’s emergency authority.

Cabello’s lawsuit comes after a downstate judge ruled against Pritzker’s order on Monday, exempting a different GOP lawmaker, state Rep. Darren Bailey, from the stay-at-home order. That exemption, however, only applied to the lawmaker who filed the suit.

“I’m trying to show and prove that this is not political,” said Cabello, whose legislative district takes in part of Rockford and its surrounding area. “This is not a stunt. This is giving the governor an opportunity to do what’s right.”

Cabello’s lawsuit questions whether Pritzker abused his emergency powers set forth in state law by imposing and extending a series of stay-at-home orders, which restricted residents’ movements and shuttered Main Streets across the state. The governor’s directive remains in effect until the end of May.

Cabello is arguing that state law doesn’t permit governors to extend disaster declarations beyond 30 days and that after a month, the state’s chief executive should solicit legislative involvement in navigating through emergencies.

“Let’s find a way to move everyone together in the same direction and understand there are everyday tax-paying citizens that are staring bankruptcy in the face,” Cabello said. “There’s mom and pop shops that can do the same thing as the big box stores.”

But just as he did with Bailey’s lawsuit, Pritzker heaped scorn on Cabello’s effort as residents brace for 30 more days of hunkering down in their homes to slow transmission of the lethal and highly contagious coronavirus.

“It’s a similarly irresponsible lawsuit,” the governor said during his Wednesday COVID-19 briefing. “We’re in the business here of keeping people safe and healthy. That’s what the stay-at-home-order has been about. I think that lawsuit is just another attempt at grandstanding.”

Cabello’s suit comes after Pritzker furiously criticized State Rep. Darren Bailey, R-Xenia, over his earlier lawsuit filed in Clay County. A judge Monday sided with Bailey, but that legal victory was limited in scope. It only exempted Bailey from the governor’s stay-at-home order, not everyone else.

On Wednesday, Democratic Attorney General Kwame Raoul filed paperwork with a state appeals panel and with the Illinois Supreme Court to appeal Monday’s decision by the judge in heavily Republican Clay County, about 250 miles south of Chicago.

“I am asking the appellate court to address this mistaken circuit court decision now,” Raoul said in a statement. “In addition, I believe that it is paramount for the Illinois Supreme Court to take up this matter immediately because continued uncertainty surrounding this question will lead to additional actions — as we have seen today — that threaten the governor's ability to save lives.”

The same downstate lawyer represents both Bailey and Cabello.

Pritzker has warned that the wellspring of litigation would breed more lawsuits across the state, but some Chicago legal scholars interviewed Wednesday by WBEZ said the two cases that have emerged so far don’t appear to have much chance of succeeding.

Northwestern University law professor Nadav Shoked characterized both Cabello and Bailey’s actions as “nuisance lawsuits” and sized them up similarly to the governor.

“We all know what’s going on here. It’s political grandstanding,” Shoked said. “It’s not really about the law. It is about making political statements, very much like those protesters in Columbus, Ohio, protesting against the governor there or in Michigan, protesting against their governor.

“It’s political warfare by other means,” he said. “I do doubt it will go too far.”

Because Illinois, unlike California or Louisiana, hasn’t had to contend with yearly bouts of earthquakes and wildfires or hurricanes, case law is not well developed with regard to the governor’s emergency powers spelled out in the state Emergency Management Agency Act.

That said, the statute does not explicitly dictate — as the governor’s legal opponents contend — that disaster declarations like the one Pritzker initially signed in March cannot be renewed if an emergency isn’t quelled, Shoked said.

“What they’re saying is that you can’t have two proclamations, each following each other based on the same emergency, in this case, based on the same virus. There’s no grounding in the statute for that,” the professor said. “I just don’t see why there’s anything wrong with the fact he basically did two proclamations based on the same continuing emergency.”

Scott Szala, adjunct professor at the University of Illinois College of Law who teaches Illinois constitutional law and policy, also said the governor appears to have the most legal leverage on his side at the moment.

“In the short run, I think certainly the governor has a strong argument in this particular case. If this went on for six months and you continued to go through proclamations just for six months, and it wasn’t the situation like a nuclear blast from that standpoint, then I think maybe the courts might look at it a little bit differently,” Szala said.

“There is a historical pattern where the legislature has allowed governors to issue successive or multiple proclamations on the same subject so there’s a history,” Szala said, citing emergency action taken around flooding. “I think you could argue there’s a common law.”

Meanwhile, on Wednesday, more deaths from COVID-19 were logged in Illinois.

State public health authorities reported 92 additional fatalities, involving people between their 30s and 90s in 15 separate counties. The total death toll from the virus now stands at 2,215 in Illinois, with a total of 50,355 cases identified in the state.

Pritzker’s existing stay-at-home order expires Thursday but will be replaced by another, similar order that extends through the month of May. Pritzker, who has predicted a crest in illnesses by mid-month, justified the extension as integral in keeping Illinois hospitals from being swamped and slowing the loss of life.

Last week, the governor touted internal models that show COVID-19 fatalities in Illinois could stand at nearly 30,000 had his original stay-at-home order never been implemented.

Lifting that order also could cause deaths to rise at a pace up to 10 times greater than if Illinois’ stay-at-home order remained in place, Pritzker said last week, citing modeling data produced by researchers at Northwestern University, the University of Chicago and the University of Illinois.

In other developments on the COVID-19 front in Illinois:

  • Possible nursing home strike: Pritzker encouraged nursing home operators and the union representing workers in those facilities to get a contract done as a May 8 deadline looms for a strike date. On Monday, members of the SEIU Healthcare Illinois delivered strike notices to 44 nursing homes in the state as contract negotiations hit a wall over wages, hazard pay related to the pandemic and staffing levels. “We cannot let our seniors down,” Pritzker said, encouraging the two sides to work out a deal.

  • Higher death reports: Pritzker acknowledged that the number of individuals who have died of coronavirus is likely much higher than the 2,215 that the Department of Public Health has recorded so far. The public health director, Dr. Ngozi Ezike, has previously said the state’s record-keeping of fatalities related to the illness were fairly accurate since most deaths have occurred in hospitals where a patient would’ve been tested. But Pritzker said a report out of California found people had the virus long before it even had a name, and he anticipates the same is true in Illinois. “We’re probably gonna have to go back and see how many of these (fatalities) probably, based upon all the symptoms, were COVID-19,” Pritzker said.

  • Trump enacts Defense Production Act for meat processors: Pritzker said the federal government needs to provide further guidance on how to protect employees at meat processing plants that are now required to remain open after President Trump enacted the Defense Production Act for that industry. The federal government regulates meat processors, but Pritzker said the state is likely to add guidance beyond the federal government’s action today. “We want to make sure they're open but we also want to make sure they’re safe. We’re trying to augment the efforts of the federal government,” Pritzker said. “In my opinion, everybody should be wearing a mask in these facilities. Everybody should have PPE available to them. They should be cleaned if there’s an outbreak.”

    Dave McKinney and Tony Arnold cover Illinois state politics and government for WBEZ. Follow them on Twitter @davemckinney and @tonyjarnold.