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Court hearing Friday is latest round in battle over legality of Illinois stay-at-home order
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Court hearing Friday is latest round in battle over legality of Illinois stay-at-home order

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Bailey and Durkin

State Rep. Darren Bailey, R-Xenia, left, listens to Illinois House Minority Leader Jim Durkin, R-Western Springs, as they speak before the Illinois House of Representatives voted 81-27 to remove Bailey from the House floor for not wearing a mask Wednesday. 

A court is expected to rule Friday on a request to invalidate the stay-at-home order in Illinois, part of a legal process that could determine the fate of measures meant to contain the spread of the coronavirus.

Clay County Judge Michael McHaney said he plans to resolve the case of Rep. Darren Bailey, a Republican, who challenged Gov. J.B. Pritzker’s executive order that closed most businesses and churches, and kept people at home with some exceptions.

McHaney previously ruled that Bailey was not bound by the order, but now Bailey -- who was removed from the General Assembly meeting Wednesday for refusing to wear a mask -- is seeking to eliminate the governor’s order for all citizens of the state.

The legal battle is playing out even as Pritzker moves to relax some restrictions May 29 as part of a phased reopening plan.


Restaurants and bars will be able to partially reopen under new Illinois COVID-19 rules

Republican state Rep. Darren Bailey removed from House floor after refusing to wear mask

A recent legal opinion from the Illinois state’s attorney appellate prosecutor’s office and a 2001 opinion from a previous Illinois attorney general both raised questions about the legality of governors’ orders. They have been cited by opponents of the order, including sheriffs and prosecutors who say they won’t enforce the directive.

But a federal court has ruled against the prior attorney general opinion and rejected two churches’ attempt to reopen as “selfish.” And the current attorney general’s office argues that well-established precedent allows the order as a way to protect the health of the public during an emergency.

Ultimately, as in Wisconsin, the state Supreme Court may decide the issue. Top Republican lawmakers there challenged the stay-at-home order of Democratic Gov. Tony Evers, arguing that he could not extend his order indefinitely without legislative approval.

A 4-3 majority of conservative justices ruled last week that the state’s health director overstepped authority by ordering people to stay in their homes, forbidding travel and closing businesses. Despite calls to maintain social distancing, people filled some bars elbow to elbow within hours.

Local orders remained in place in some counties, such as in Milwaukee and Madison, reflecting a blue/red split with more support for the restrictions in urban areas where the disease is most common and more opposition in rural areas.

Illinois has a majority of Democratic justices on its top court, which legal scholars concede might be more inclined to agree with a Democratic governor. The decision may turn on arguments citing two legal opinions by state lawyers.

One opinion was written by David Robinson, chief deputy director for the Illinois appellate prosecutor. In a memo he wrote in April to guide prosecutors, he concluded that stay-at-home recommendations and social distancing should be practiced, but that he was “less than confident” a court would uphold the order.

“From a strict enforcement standpoint,” he wrote, “although well-intentioned on an emergency basis, the EO is very broad and does appear to meet strict scrutiny …” He added that the order appeared to be beyond the 30-day limit of the state Emergency Management Agency Act.

An advisory opinion by former Illinois Attorney General Jim Ryan’s office in 2001 also found that the statute restricted emergency orders to 30 days.

But Illinois Attorney General Kwame Raoul’s office argued that those opinions carry no legal weight and are contradicted by court rulings.

The attorney general’s filing in the Bailey case cited multiple federal court rulings and a Cook County court ruling, both this year, that found that though the governor’s emergency order is limited to 30 days, he may reissue the order repeatedly as long as the emergency exists.

It also cited precedent for repeated emergency declaration by prior governors for flooding and other issues, which the General Assembly took no action to block. During a pandemic, the attorney general’s office argued, only government actions that are “arbitrary” or “unreasonable” are unconstitutional.

It seems pretty clear under the law that the governor has the power to renew his order after 30 days, in the view of Steven Schwinn, professor of law at the University of Illinois at Chicago John Marshall Law School.

For claims that the order interferes with individual rights, such as the right to freedom of religion, Schwinn said the courts will weigh whether the order matches the needs of the emergency. The fact that the order has a foreseeable end May 30 with a phased reopening may operate in Pritzker’s favor.

Republican state Rep. Darren Bailey removed from House floor after refusing to wear mask

Judges may also find a middle ground, for instance, allowing churches to reopen while taking precautions such as making worshippers wear masks and stay separated.

“By and large,” Schwinn said, “the courts will tolerate a mild intrusion on rights in the name of the greater good.”

It remains early in the legal process, and appellate courts will ultimately decide such cases, said Jason Mazzone, professor of law at the University of Illinois at Urbana-Champaign.

They will likely delay any lower court rulings that invalidate the law and will be “very reluctant” to significantly disrupt the order.

“Most lawsuits, particularly those making a wholesale attack on public health measures, are going to fail,” Mazzone wrote in an email. “The lawsuits that do ultimately succeed will likely involve plaintiffs presenting exceptional circumstances and asking for a narrow and individualized exemption from the rules.”

If the judge rules in Bailey’s favor, his attorney Tom DeVore said, it could invalidate the stay-at-home order statewide. That’s what happened Monday in Oregon when a circuit judge ended that state’s stay-at-home order, but the Oregon Supreme Court kept the coronavirus restrictions intact while it considers the issue.

The attorney general’s office would not comment about the potential impact of the ruling Friday, but spokesperson Annie Thompson said, “We will continue to defend the governor’s statutory and constitutional authority to protect the health and safety of Illinois residents, and we are evaluating our options.”

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