Three Challenge Gov’s Shut-Down Authority

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The attorney representing two Republican lawmakers in separate cases challenging Gov. JB Pritzker’s emergency powers has three new clients: a hair salon owner and a restaurateur with two establishments.

In Montgomery County, the number of positive coronavirus test results remained at 35, with 16 tests pending.

Attorney Thomas DeVore of Sorento–in the five cases–argues the governor has neither constitutional nor statutory power to implement consecutive 30-day COVID-19 state of emergency orders. If the governor doesn’t have that power, DeVore argues, he cannot extend stay-at-home orders.

DeVore also alleges the Illinois Department of Public Health and local health departments–not the governor –have “supreme authority” to enforce stay-at-home and business closure orders, and the procedure outlined in law should therefore be followed.

Pritzker on April 29 called the cases filed by Republican representatives Darren Bailey, of Xenia, and John Cabello, of Machesney Park, “irresponsible.”

“We’re in the business here of keeping people safe and healthy. That’s what the stay-at-home order has been about,” he said. “And I just think (Cabello’s) lawsuit is just another attempt at grandstanding.”

DeVore, in an interview, disagreed with Pritzker’s assessment. The suits, he said, aim to “get what’s right for residents of this state.”

“I would respectfully say that his unilateral actions as executive officer are irresponsible, because that’s not how these types of situations are to be handled,” DeVore said. “It’s irresponsible to suggest that a lone executive at any level of government–local, state, federal–wields that kind of power over people.”

All three of DeVore’s most recent filings against the state are nearly identical. According to the documents, the establishments’ owners have “no doubts Pritzker will at some point come before (a judge) with reams of paper, and a team of attorneys, proclaiming he was doing what was necessary to protect the people of this state.”

But that has “absolutely no consequence whatsoever” because, the lawsuits allege, the governor does not have the authority to order businesses closed. That power rests with the Illinois Department of Public Health, DeVore argues.

Those cases were filed by Sonja Harrison, owner of the Clay County-based Visible Changes Hair Salon, and Kevin Promenschenkel, who owns Poopy’s Pub & Grub in Carroll County and Dookie’s Pub & Grub in Clinton County. 

DeVore said he received a letter from a state’s attorney addressed to one of his clients that said Pritzker is closing businesses using powers granted to him by six provisions of the Illinois Emergency Management Agency Act.

While that law allows the governor to prevent people from coming to or leaving the state and frees up financial resources to “cope” with a disaster and hinder price gouging, it does not “expressly” allow him to shutter businesses, DeVore argues in court documents.

Even though Pritzker “may desperately attempt to glean some semblance of a shred of delegated authority” under that act, it would not “supersede the express supreme authority” of IDPH.

A directive on IDPH’s letterhead asserts it and local health departments have the power to close businesses and can enforce Pritzker’s related orders. DeVore said it is “ridiculous” the state is trying to square those two positions.

“This system is becoming so bureaucratic that your good, normal people are just cogs in a wheel,” he said.

According to the lawsuits, DeVore’s clients agree IDPH may shutter businesses if a public health risk exists. To do so, the owner must consent or a judge must sign off within 48 hours. The burden of proof to obtain a court order is significant–among other things, the department would need to prove that the community’s health is “significantly endangered” by the business it seeks to close.

Harrison and Promenschenkel allege they never received a formal notice that their businesses would be “forcibly closed” or what due process rights they had. That would be a violation of the procedure outlined by the Illinois Department of Public Health Act, if a judge agrees with their assessment those steps should be followed by the state. They are asking judges in three counties to agree that the businesses were shuttered without an avenue to appeal, that the Emergency Management Agency Act cannot afford Pritzker the power to close businesses, and that the steps outlined in the IDPH law should be followed.

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