June 08, 2020
Commercial Litigation Alert
Author(s): Seth A. Horvath
Over a month after the first lawsuit challenging Illinois’s COVID-19 stay-at-home order was filed, a key issue remains unresolved. This alert provides an update on Illinois’s COVID-19 litigation.
Illinois’s COVID-19 litigation has turned into a statewide chess match. So far, Governor J.B. Pritzker’s administration is winning. But one very important piece remains on the board: section 7 of the Illinois Emergency Management Agency Act (EMAA). Here’s an update.
The first lawsuit challenging Illinois’s stay-at-home order was filed just over a month ago. A lot has happened since then, both in and out of court. But a critical issue has yet to be firmly resolved: Does the governor have the authority to extend the use of his emergency powers beyond 30 days under section 7 of the EMAA?
Opponents say “no,” and one state-court judge has agreed not just once, but twice. In April, he blocked the stay-at-home order’s enforcement against a state legislator. More recently, he prohibited the state from enforcing the order against a small-business owner. The first case was removed to federal court; the second was on an expedited appeal to the state appellate court until two weeks ago, when the plaintiffs consented to an order vacating the lower court’s temporary restraining order (TRO).
The state, for its part, has argued that the EMAA gives the governor the authority to issue successive disaster proclamations based on the same underlying disaster, each of which triggers a new 30-day period for exercising emergency powers. One federal judge and three state judges have agreed.
This is what the statute says:
Sec.7. Emergency Powers of the Governor. In the event of a disaster, as defined in Section 4, the Governor may, by proclamation[,] declare that a disaster exists. Upon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days the following emergency powers; provided, however, that the lapse of the emergency powers shall not, as regards any act or acts occurring or committed within the 30-day period, deprive any person, firm, corporation, political subdivision, or body politic of any right or rights to compensation or reimbursement which he, she, it or they may have under the provisions of this Act . . . . 
The governor’s five-phase plan to reopen the state, which includes ongoing stay-at-home restrictions for individuals and businesses, hinges on the meaning of these two sentences. The cases challenging the governor’s authority fall roughly into three categories: (i) political, (ii) religious, and (iii) commercial. Below is a case-by-case breakdown. 
Bailey v. Pritzker: TRO granted and voluntarily vacated; removed to federal court
The first lawsuit challenging the governor’s stay-at-home order has been the most active in court and the most politically charged.  When state representative Darren Bailey initially filed suit, he asked for a TRO granting him, and only him, relief from the stay-at-home order. He won. But on appeal, he opted to vacate the TRO and expand the scope of his lawsuit on remand to challenge the stay-at-home order on constitutional grounds and seek relief on behalf of all Illinois residents. After the TRO was vacated, the Illinois Supreme Court, which the state had asked to hear the case, declined to weigh in.
In entering the TRO, the trial court agreed that Bailey was likely to succeed on the merits of his claim that the governor exceeded his statutory authority under section 7 of the EMAA by continuing to exercise his emergency powers after the 30-day period following his original disaster proclamation. Bailey was poised to make that argument, as well as others, at a summary-judgment hearing on May 22. But on the eve of the hearing, the state removed the case to federal court, where it remains.
Since the case’s removal, the parties have disputed whether there is any basis for federal jurisdiction. That issue is being briefed on an expedited basis.
In an interesting and somewhat unusual turn of events, the United States Attorney for the Southern District of Illinois has filed a brief opposing federal jurisdiction. The brief states, among other things, that the federal court should “promptly” return the matter to state court because “the plaintiff makes no federal claim,” but rather “alleges the governor exceeded the statutory authority granted under the [EMAA],” which is an issue of state law.
Cabello v. Pritzker: Awaiting hearing
The Cabello lawsuit was filed less than a week after Bailey.  Like the plaintiff in Bailey, the plaintiff in Cabello is a state legislator. Both plaintiffs are represented by the same counsel.
At the time Cabello was filed, an important differentiating factor was the scope of the litigation. From the outset, Cabello challenged the stay-at-home order on both statutory and constitutional grounds and sought relief on behalf of all Illinois residents.
For a short time, it looked like Cabello would become the lead case in this area. But the litigation has lain dormant.
The religious cases represent the second wave of litigation over the stay-at-home order. They are federal cases, not state cases, and have been active both at the trial and appellate levels.
Cassell v. Snyders: Preliminary injunction denied; appeal pending
Cassell v. Snyders is noteworthy for being the first and only federal case to address section 7 of the EMAA.  Cassell primarily challenges the stay-at-home order’s ban on religious gatherings under the First Amendments of the U.S. and Illinois Constitutions. But the case also includes a state statutory component in which the plaintiffs argue that the stay-at-home order violates the EMAA and two other state laws.
A federal district judge denied the plaintiffs’ request for preliminary injunctive relief. In his opinion, he held, in dicta, that as long as a “threat of widespread or severe damage, injury, or loss of life” continues to exist from the COVID-19 pandemic, the governor has the authority to exercise his emergency powers under the EMAA.
The plaintiffs immediately appealed the district court’s order. The appeal is pending before the U.S. Court of Appeals for the Seventh Circuit.
Elim Romanian Pentecostal Church v. Pritzker: Preliminary injunction denied; appeal pending; injunction pending appeal denied
Elim Romanian Pentecostal Church v. Pritzker was filed in the wake of Cassell.  In Elim, a different federal district judge denied preliminary injunctive relief on the plaintiffs’ First Amendment claims, agreeing with the judge’s rationale in Cassell.From there, however, the case followed a much different arc.
The plaintiffs immediately sought an injunction pending appeal from the Seventh Circuit. And the Seventh Circuit promptly denied the injunction. In a short but telling order, the court held that, based on its preliminary review of the appeal, the stay-at-home order “responds to an extraordinary public health emergency,” “does not discriminate against religious activities,” does not “show hostility toward religion,” and “appears to impose neutral and generally applicable rules.” 
The plaintiffs then sought injunctive relief from the U.S. Supreme Court. For a brief, dramatic moment, it appeared the U.S. Supreme Court might intervene when Justice Brett Kavanaugh ordered the state to respond to the plaintiffs’ injunction request within 24 hours. But after the state’s response was submitted, Justice Kavanaugh denied the plaintiffs’ request for interim relief.
The case remains on appeal to the Seventh Circuit. Oral argument is scheduled for June 12.
Amid the political and religious litigation discussed above, business owners across the state began challenging the stay-at-home order’s legality. The results have been mixed.
Running Central Inc. v. Pritzker: TRO denied
The first small-business lawsuit against the stay-at-home order was Running Central Inc. v. Pritzker.  Filed on behalf of an athletic-shoe retailer in the retailer’s home county, the case was transferred to the state capital at the state’s request. After the transfer, the court denied the plaintiff’s request for a TRO. The court found that there was no likelihood the plaintiff would succeed on the merits of its claims since limiting the governor’s exercise of his emergency powers to 30 days was “contrary to the plain reading of the [EMAA].” The plaintiff did not appeal the ruling, but the case remains pending.
Mahwikizi v. Pritzer: TRO denied
While Running Central was being litigated “downstate,” a Chicago-based rideshare driver challenged the stay-at-home order’s face-mask restrictions in Mahwikizi v. Pritzker.  The court denied the plaintiff’s request to prohibit the state from requiring rideshare drivers and their passengers to wear protective masks inside their rideshare vehicles. The TRO phase of the litigation was disposed of quietly, with little fanfare, despite resulting in the first state-court order finding that the stay-at-home order did not violate section 7 of the EMAA.
The case is still pending in the trial court. A motion to dismiss has been filed.
Mainer v. Pritzker: TRO granted and voluntarily vacated
Mainer v. Pritzker was filed on behalf of a tanning salon and its owner by the same lawyers handling Bailey and Cabello and was assigned to the same judge who entered a TRO in Bailey.  The lawsuit was filed on the same day Bailey was removed to federal court. The following day, which was supposed to be the day of the summary-judgment hearing in Bailey, the judge entered a TRO in favor of the plaintiffs.
As in Bailey,the judge in Mainer found that the plaintiffs were likely to succeed on the merits of their claims because the stay-at-home order violated section 7 of the EMAA. But the scope of the court’s TRO was limited: it prohibited the state from enforcing the stay-at-home order against the plaintiffs and only the plaintiffs, not against “all citizens and businesses similarly situated.”
The state filed an expedited appeal. The day the plaintiffs’ response brief was due, they consented to dissolve the TRO. According to the plaintiffs, new guidance on the governor’s plan to reopen the state had remedied their injury, “at least prospectively,” while the appeal was pending.
The case remains before the trial court. The plaintiffs intend to amend their complaint.
Edwardsville/Glen Carbon Chamber of Commerce v. Pritzker: TRO denied
Edwardsville/Glen Carbon Chamber of Commerce v. Pritzker is the first commercial lawsuit in which a business association, rather than a single business, has challenged the stay-at-home order.  The plaintiff, represented by the same attorneys responsible for Bailey, Cabello, and Mainer, is a local chamber of commerce with roughly 500 members.
The trial court denied the plaintiffs’ request for a TRO. They still have time to appeal the ruling. It remains to be seen whether they will pursue an appeal or focus their efforts on litigating before the trial court.
According to the lawyers handling the Bailey, Cabello, Mainer, and Edwardsville litigation, over eighty small businesses have hired them to oppose the stay-at-home order.  Some of their clients appear to prefer nonlitigation solutions before heading to court; others have already filed suit against the state.  With a stable of willing clients, more lawsuits may be forthcoming.
According to the governor, Phase 4 of the five-phase plan to reopen the state is just around the corner and could begin as early as the end of June. So is the COVID-19 litigation rapidly heading toward mootness?
Not necessarily. For one thing, Phase 4 still imposes restrictions on individual gatherings and business operations. For another, the dispute over section 7 of the EMAA may fall into one or more well-known exceptions to the mootness doctrine for cases that are (i) public in nature and likely to recur or (ii) capable of repetition but evading review. 
No one relishes the thought of another COVID-19 outbreak later this year or early in 2021. But if the possibility exists, and another series of COVID-19-related executive orders is imminent, the section 7 issue is one reviewing courts may decide to resolve sooner rather than later.
With the exception of the TROs entered in the Bailey and Mainer cases, both of which were voluntarily vacated on appeal, the state has successfully defended the stay-at-home order from an onslaught of legal challenges. Yet there is no definitive Illinois state-court ruling on whether the stay-at-home order violates section 7 of the EMAA. Until such a ruling is entered, the litigation is likely to continue.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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