By Leah Song and Gabrielle Sigel
Several state and federal court lawsuits have been brought challenging Illinois Governor Pritzker’s proclamations and executive orders related to COVID‑19 (“Executive Orders”). In federal court, in contrast with state court, the Governor has been successful defending his Executive Orders. Most recently, on July 29, 2020, in a written opinion issued on August 1, 2020, the Village of Orland Park, and certain of its residents lost their motion to obtain immediate invalidation of the Executive Orders, when Judge Andrea Wood, of the United States District Court for the Northern District of Illinois (“the Northern District”), found that their claims had less than a “negligible likelihood” of succeeding. Village of Orland Park v. Pritzker, No. 20-cv-03528.
As background to the Village’s lawsuit, in response to the COVID‑19 pandemic, Governor Pritzker issued Executive Orders on March 9, March 20, April 1, April 30, May 29, and June 26, 2020 declaring a statewide public health disaster and restricting business operations, gatherings above a certain size, and other measures consistent with both stay-at-home and reopening orders. On June 16, 2020 the Village of Orland Park, the owner of a restaurant in the Village, and two Village residents (“Plaintiffs”) sued Governor Pritzker seeking to have the federal court issue a temporary restraining order and preliminary injunction prohibiting enforcement of the Executive Orders.
Plaintiffs’ complaint alleged that the Executive Orders violate their due process rights, the equal protection clause of the Fourteenth Amendment, and their procedural and substantive rights under the Illinois constitution and the Illinois Department of Public Health Act. The Village claimed that the Executive Orders illegally attempt to prevent the home-rule municipality from implementing its own order, allowing a faster reopening. The restaurant owner claimed that the Executive Orders caused economic losses. The individual plaintiffs claimed that the Executive Orders caused personal isolation and restricted medically necessary exercise.
Based on Plaintiffs’ verified complaint, the facts of which were uncontested by the Governor at that early stage of proceedings, the court heard oral argument on June 30, 2020. The court ruled that Plaintiffs did not meet the standards for injunctive relief, which require them to show a “greater than negligible likelihood of success on the merits,” and that the balance of harms Plaintiffs may suffer as a result of their claimed injury are greatly outweighed by burdens on the Governor and the public interest. The court began its analysis of the merits of Plaintiffs’ claims by finding that “the COVID‑19 pandemic constitutes the very sort of extraordinary threat to public health and safety contemplated by the Supreme Court in Jacobson [v. Massachusetts, 197 U.S. 11 (1905)].” Slip op. at 13. Pursuant to the standards in Jacobson, because Plaintiffs could not show that “the Executive Orders have a real or substantial relationship to preventing the spread of COVID‑19 or beyond all question plainly and palpably invade Plaintiffs’ constitutional rights,” Plaintiffs’ federal claims did not have more than a negligible chance of success. Id.
Moreover, even without relying on deference to state authority during a public health emergency recognized in Jacobson, Judge Wood also was unpersuaded by the merits of any of Plaintiffs’ federal claims when analyzed based on “traditional constitutional analyses.” Slip op. at 14. With respect to Plaintiffs’ procedural and substantive due process claims, while the complaint was unclear as to the liberty or property interests at stake, the court considered that Plaintiffs “may be asserting rights to work, rights to travel, or rights to freedom of association.” Slip op. at 15. However, the court found that Plaintiffs failed to show that they were deprived of those interests without due process of law. For example, the court reasoned that “there is no constitutional procedural due process right to state-mandated procedures.” Id. Even if Plaintiffs “are ultimately correct that the Governor should have complied with the procedures…in implementing his response to COVID‑19, they still will not have established a federal constitutional violation.” Id. The court also found that Plaintiffs could not establish that their rights were, in fact, violated. The court dispensed with Plaintiffs’ equal protection claim by noting the “many rational bases for the distinctions drawn among different types of business in the Executive Orders.” Slip op. at 23. The court also found that the Governor’s defense under the doctrine of sovereign immunity under the Eleventh Amendment to the U.S. Constitution barred all of the state law claims in federal court. Slip op. at 27.
After finding that Plaintiffs had less than a negligible chance of prevailing on the merits of their claims, the court considered the balance of harms to “further demonstrate[ ] that a preliminary injunction would be inappropriate.” Id. “Granting a preliminary injunction to Plaintiffs would do extraordinary damage to the state’s interest (and the public interest) in preventing the spread of COVID‑19…. On the other side of the balance, Plaintiffs have made no showing that they are experiencing substantial harm as a result of the Executive Orders at this time or that they are likely to experience substantial harm in the near future.” Slip op. at 28. Therefore, the court denied Plaintiffs’ motion for injunctive relief.
On July 27, 2020, the Governor moved to dismiss the entire case for failure to state a claim and lack of jurisdiction. Judge Wood arranged a briefing schedule on the Governor’s motion, and set September 29, 2020, for the next telephonic hearing in the case.
The ruling in Village of Orland Park follows three other successes for the Governor thus far in federal court. Judge John Lee heard the first Northern District case opposing the Governor’s Executive Orders in a case filed by The Beloved Church and its pastor against the Governor and the Stephenson County Sheriff and other officials on April 30, 2020. Cassell v. Snyders, No. 20-cv-50153. The church claimed that the Governor’s April 30, 2020 Executive Order violated the First Amendment’s Free Exercise Clause and three state statutes. On May 2, 2020, the court denied the church's request for injunctive relief. In a written decision issued on May 3, 2020, after finding, based on Jacobson, that the “traditional tiers of constitutional scrutiny do not apply” during an epidemic (slip op. at 14), the court ruled that the Order was a “neutral, generally applicable law” that is supported by a rational basis (slip op. at 26). The court then invoked the Governor’s Eleventh Amendment sovereign immunity with respect to the state law claims, and found the state law claims also unlikely to succeed on the merits. After this denial of injunctive relief in the district court, the church’s interlocutory appeal remains pending in the U.S. Court of Appeals for the Seventh Circuit as of this writing.
In a second federal case brought by a religious institution, in Elim Romanian Pentecostal Church v. Pritzker, No. 20‑cv‑02782, two churches contested the Governor’s Executive Order, which limited gatherings of more than ten people and imposed social distancing requirements, including on churches. They filed their complaint and a motion for emergency injunctive relief on May 7 and 8, 2020, respectively. The complaint challenged the Governor’s Order on federal and state constitutional grounds and state statutory grounds, but their motion for injunctive relief rested only on U.S. First Amendment rights. On May 13, 2020, Judge Robert Gettleman found that the Governor’s Order was both neutral and of general applicability; therefore, because it was supported by a rational basis, it was not unconstitutional. The court further found that “Plaintiffs’ request for an injunction, and their blatant refusal to follow the mandates of the Order are both ill-founded and selfish.” Slip op. at 11. Wheb the district court denied injunctive relief, the churches appealed to the Seventh Circuit. Their requests for injunctive relief were denied on appeal. In its June 16, 2020 decision, the Seventh Circuit, in part relying on Chief Justice Roberts’ concurring opinion to the denial of injunctive relief in a case brought by churches in the Ninth Circuit, ruled that “Illinois has not discriminated against religion and so has not violated the First Amendment.” Slip op. at 12. The Seventh Circuit then denied the churches’ request for rehearing en banc on July 27, 2020.
On June 15, 2020, several Illinois Republican Party organizations filed a complaint and motion for a TRO and preliminary injunction in the Northern District, alleging that because Governor Pritzker’s Executive Order prohibited gatherings greater than fifty people but exempted the free exercise of religion from this limit, the organizations’ rights under the First and Fourteenth Amendments were violated. Illinois Republican Party v. Pritzker, No. 20-cv-03489. Specifically, the Republican organizations alleged that, by exempting the free exercise of religion from the gathering limit, Governor Pritzker created an unconstitutional content-based restriction on speech. On July 2, 2020. Judge Sara Ellis, denied plaintiffs' motion for preliminary injunctive relief, ruling that their likelihood of success on the merits of their constitutional claims was less than negligible and the balance of harms weighed heavily against them. The court based its ruling on both Jacobson and a “traditional First Amendment analysis.” Slip op. at 9. The court found that “by exempting free exercise of religion from the gathering limit [in the Executive Order], the Order creates a content-based restriction.” Id. at 15. The court held, however, that the Executive Order survives “strict scrutiny” because the content-based restriction may “eliminate[ ] the increased risk of transmission of COVID‑19 when people gather while only exempting necessary functions to protect health, safety, and welfare and free exercise of religion. Therefore, the Governor has carried his burden at the stage in demonstrating that the Order is narrowly tailored to further a compelling interest….” Id. at 18. The political organizations filed for emergency relief on appeal. The U.S. Court of Appeals for the Seventh Circuit ruled that the Governor’s compelling interest in controlling the spread of COVID‑19 passed strict scrutiny, and denied their motion for emergency relief on July 3, 2020, and the U.S. Supreme Court denied plaintiffs’ emergency application for write of injunctive relief on July 4, 2020. Further proceedings on appeal to the Seventh Circuit are pending as of this writing.
Although the Governor scored successes in the federal lawsuits brought against his COVID‑19 actions, he has not fared as well thus far in state court. The state court litigation against the Governor’s Executive Orders will be addressed in a separate blog, to be published shortly.
For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID‑19 Resource Center.