Yesterday, the Illinois Circuit Court in Clay County, Illinois issued an Order which declared that all executive orders issued by Governor J.B. Pritzker since April 8, 2020 related to COVID-19 are void (the “State Case”). Specifically, the Court declared that the 30-day period of emergency powers provided under the Illinois Emergency Management Agency Act, 20 ILCS 3305/1 et, seq., (the “Act”) lapsed on April 8, 2020. The Court also declared that Governor Pritzker had no Illinois constitutional authority to issue stay at home orders or close businesses.
A lot of Illinois citizens are asking ‘what does this mean?’ Simply put, it means that as of this moment, all restrictions on citizens and businesses are lifted. Masks are no longer required, social distancing is not required, restaurants can open to 100% indoor capacity without social distancing and gatherings of over 50 people are legal.
The Governor’s spokeswoman, Emily Bittner, says the Order is not final and did not include an injunction barring the State from enforcing the Governor’s phase four rules. No injunction is necessary to effectuate the ruling in the Order. The case was brought as a chancery case. Plaintiffs in chancery cases seek remedies that are non-monetary such as injunctions or, in this case, a declaration of the legality of executive orders. The Court declared that all of the Governor’s executive orders regarding COVID-19 are void as of April 8, 2020. Such declaration is the final say of the Circuit Court of Illinois. No injunction is needed as the Order simply erased the COVID-19 executive orders. If a citizen or a business acts in defiance of the now void executive orders and law enforcement or a government agency seeks to punish such action, then it would be proper for the person or business would seek an injunction to bar enforcement of the executive orders.
Ms. Bittner further stated that the Order is not binding because of a federal case ruling issued just moments before the Order. Ms. Bittner is referring to the case Illinois Republican Party, et, al., v. Pritzker, 20 C 3489 (N.D. Ill. Eastern Div. July 2, 2020) (the “Federal Case”). Such case has no bearing on the Order. In the Federal Case, the Federal Court ruled that one of the Governor’s executive orders limiting gatherings to 50 people did not violate the First Amendment of the U.S. Constitution. The Federal Court only analyzed the constitutionality of the effect of a single executive order. The Federal Court did not rule on whether the Governor had the authority to issue the executive order.
The State Case was filed in state court but the Governor attempted to transfer the case to federal court. The federal court declined to take the case and sent the case back to Illinois state court. Therefore, the federal court had the opportunity to rule on the merits of the Governor’s actions but the federal court found that there was no federal issue and that it was proper for a state court to decide a state issue of whether a Governor exceed his state statutory authority.
If the Order was not a final order and/or the Order is not binding, then why did Attorney General state immediately after the Order was issued that he was going to appeal? Such is a rhetorical question. The Order is a big deal and the Governor knows it. Of course, the Order will be appealed, the Governor has no choice. However, unless and until an appellate court overturns the Order, then the Governor’s COVID-19 executive orders do not exist.