Illinois trial court restricts enforcement of coronavirus (COVID-19) stay-at-home order

April 29, 2020

Commercial Litigation Alert

Author(s): Seth A. Horvath

The legal framework surrounding COVID-19 is highly fragmented due to regional differences over the perceived threat of the pandemic and the strategies for addressing it. As more time passes, and state and local regulatory requirements are supplemented, modified, withdrawn, or challenged, that fragmentation is likely to increase.

Enter the State of Illinois.

This week an Illinois trial court entered a temporary restraining order (TRO) prohibiting the state from enforcing the provisions of Governor J.B. Pritzker’s March 20, 2020 executive order. The state lawmaker who requested the TRO claims the governor had no authority to extend the executive order’s provisions beyond April 8, 2020. The TRO raises several questions for Illinois businesses seeking to stay up to date and informed on the state’s coronavirus restrictions.

Developments leading to the TRO

Under the Illinois Emergency Management Agency Act (EMAA or Act), “the [g]overnor may by proclamation declare that a disaster exists.” [1] The EMAA defines “disaster” to include, among other things, “public health emergencies.” [2] Once a “disaster” is declared under the EMAA, the Act confers certain “emergency powers” on the governor. [3] The governor then “shall have and may exercise” those powers “for a period not to exceed 30 days.” [4]

On March 9, 2020, Governor Pritzker issued a proclamation declaring that, based on the COVID-19 pandemic, a “public health emergency” existed within the State of Illinois. [5] The March 9 proclamation declared all counties within the state to be a “disaster area.” [6]

Later, on March 20, 2019, the governor issued Executive Order 2020-10, which, subject to certain exceptions for “essential activities,” required “all individuals currently living within the State of Illinois . . . to stay at home or at their place of residence . . . .” [7] The March 20 order, one of many “stay-at-home orders” issued by governors across the country in the wake of the COVID-19 pandemic, was effective from March 21, 2020, through April 7, 2020. [8]

On April 1, 2020, as the expiration date for the March 20 order was approaching, the governor issued a second proclamation declaring the COVID-19 pandemic to be “a continuing disaster” within the State of Illinois and all its counties. [9] The same day, the governor issued Executive Order 2020-18, which extended the provisions of the March 20 order until April 30, 2020. [10]

At a recent press conference held on April 23, 2020, the governor announced that, effective May 1, 2020, he would extend the provisions of the March 20 order through the end of May. As of this writing, no executive order has been issued to memorialize the extension. One is expected this week.


On April 23, 2020, an Illinois state representative filed a lawsuit in his individual capacity challenging the governor’s authority to extend the provisions of the March 20 executive order beyond April 8, 2020. In the lawsuit, titled Bailey v. Pritzker, 2020–CH–06 (Fourth Judicial Circuit, Clay County, Illinois), the plaintiff alleged that, under the EMAA, the March 20 order was required to lapse on or before April 8—thirty days after the coronavirus pandemic was declared a “disaster” on March 9. The plaintiff sought a declaratory judgment that the governor’s extension of the March 20 order’s provisions exceeded the governor’s statutory disaster-management authority. He also sought an injunction prohibiting the state from enforcing the provisions of the March 20 order against him.

Following briefing and argument, the court entered a TRO in the plaintiff’s favor. [11] According to the court, the plaintiff demonstrated that his liberty interest in being free from the March 20 order’s stay-at-home requirements was “a clearly ascertainable right in need of immediate protection.” [12] The court also concluded that the plaintiff had a reasonable likelihood of succeeding on the merits of his claims and that his ongoing home isolation constituted irreparable harm that could not adequately be remedied at law. [13] The TRO will remain in effect until May 27, with a preliminary-injunction hearing to occur by that date. [14]

Issues raised by the TRO

The TRO raises several questions for Illinois businesses monitoring their legal obligations under the state’s COVID-19 restrictions.

What is a TRO?

  • Under Illinois law, a TRO is an interim injunctive order designed to preserve the status quo while pending litigation is decided on the merits. [15] It is not a final order. In the upcoming weeks, there will be additional litigation over the issues raised in the Bailey lawsuit.

What is the scope of the TRO entered here?

  • The TRO in question prohibits the state from enforcing the stay-at-home provisions of the March 20 executive order against the plaintiff. So, for now at least, the scope of the TRO is very narrow: it applies to a single individual.

Did the court declare the governor’s March 20 order unconstitutional?

  • No. The court’s TRO is based on its interpretation of section 7 of the EMAA. The entire case rises and falls on whether section 7 allows the governor to extend the use of emergency powers beyond the initial 30-day period following a disaster proclamation. By finding that the plaintiff is likely to succeed on the merits of his claims, the court has suggested that it agrees with the plaintiff’s interpretation of section 7.

Does the TRO apply outside the jurisdiction of the court in which it was entered?

  • Trial-court orders have no precedential effect. [16] If a different plaintiff in a different trial court were to challenge the March 20 order on similar grounds, the other court could analyze section 7 of the EMAA separately and independently from the Bailey court. But the Bailey court may, of course, enforce its own order within its own jurisdiction until that order is dissolved, reversed, or vacated.

Can the TRO be appealed?

  • Yes. Under Illinois law, an order granting, denying, modifying, dissolving, or refusing to dissolve a TRO is immediately appealable as of right. [17]

Is the TRO being appealed?

  • Yes. The Illinois Attorney General’s office, which represents the governor, filed a notice of appeal yesterday. A notice of appeal is a legal document a litigant must file to initiate an appeal under Illinois law. [18] It triggers various deadlines, including those for submitting briefs to the appellate court.

How long will it take the appellate court to decide the appeal?

  • Unlike other appeals, those involving TROs follow an expedited timeline. Under Illinois law, the appellate court must decide a petition appealing a TRO within five business days after the briefing on the petition has been completed. [19] Each side has two days to file a brief, with the petitioner’s deadline falling two days from the date on which the challenged order is entered and the respondent’s deadline falling two days from the date on which the petitioner’s brief is filed. [20] If the maximum amount of briefing time is used in this case, then the appellate court will issue an order by May 8.

Will the appellate court’s decision be binding across the entire state?

  • It depends. Although Illinois is divided into five appellate districts, the appellate court is a unified body. [21] Generally, when one panel of judges within an appellate district decides an issue, the panel’s decision is not binding on other panels within or outside the district. [22] It is, however, binding on circuit courts within or outside the district in which the panel is seated, unless a circuit court falls within another district that has resolved the issue differently, in which case the circuit court may defer to the case law from the district in which it is located. [23] Additionally, the appellate court can, and often does, resolve appeals with nonprecedential orders that, by rule, have no effect outside the scope of a specific case. [24] The effect of the appellate court’s decision in the Bailey case thus will depend on the type of order the court enters and the identity of the court called on to apply that order.

Have other similar lawsuits been filed in Illinois?

  • Today a second Illinois lawmaker filed a lawsuit challenging the state’s stay-at-home order on behalf of all state residents, not just on behalf of himself. The new lawsuit it titled Cabello v. Pritzker,2020–CH–210 (Seventeenth Judicial Circuit, Winnebago County, Illinois). As of this writing, the court has not entered any orders in the new case. Nixon Peabody will continue to monitor the Cabello litigation for additional developments.

  1. 20 ILCS 3305/7. [Back to reference]
  2. 20 ILCS 3305/4.[Back to reference]
  3. 20 ILCS 3305/2(a)(2); 20 ILCS 3305/7. [Back to reference]
  4. 20 ILCS 3305/7. [Back to reference]
  5. Gubernatorial Disaster Proclamation, March 9, 2020. [Back to reference]
  6. Id. [Back to reference]
  7. Executive Order 2020-10, March 20, 2020. [Back to reference]
  8. Id.[Back to reference]
  9. Proclamation, April 1, 2020. [Back to reference]
  10. Executive Order 2020-18, April 1, 2020. [Back to reference]
  11. See TRO, April 27, 2020. [Back to reference]
  12. Id. [Back to reference]
  13. Id. [Back to reference]
  14. Id. [Back to reference]
  15. See 735 ILCS 5/11–101. [Back to reference]
  16. See Delgado v. Bd. Election Comm’rs, 224 Ill. 2d 481, 488 (2007) (“Under Illinois law, the decisions of circuit courts have no precedential value . . . .”) [Back to reference]
  17. Ill. S. Ct. R. 307(d). [Back to reference]
  18. See Ill. S. Ct. R. 307(a); Ill. S. Ct. R. 303(b). [Back to reference]
  19. Ill. S. Ct. R. 307(d)(4). [Back to reference]
  20. Ill. S. Ct. R. 307(d)(2). [Back to reference]
  21. Ill. Const. Art. VI, §§ 1, 2; People v. Layhew, 139 Ill. 2d 476, 489 (1990) (“[T]here is but one appellate court within the State of Illinois . . . .”); see also People v. Granados, 172 Ill. 2d 358, 371 (1996). [Back to reference]
  22. See State Farm Fire & Cas. Co. v. Yapejian, 152 Ill. 2d 533, 539 (1992) (noting that “[a] decision of the appellate court” is “not binding on other appellate districts”). [Back to reference]
  23. See id. at 539–40. [Back to reference]
  24. See Ill. S. Ct. R. 23. [Back to reference]

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