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 As more time passes, and state and local regulatory requirements are supplemented, modified, withdrawn, or challenged, that fragmentation is likely to increase.
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.
Under the Illinois Emergency Management Agency Act (EMAA or Act), “the [g]overnor may by proclamation declare that a disaster exists.”  The EMAA defines “disaster” to include, among other things, “public health emergencies.”  Once a “disaster” is declared under the EMAA, the Act confers certain “emergency powers” on the governor.  The governor then “shall have and may exercise” those powers “for a period not to exceed 30 days.” 
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.  The March 9 proclamation declared all counties within the state to be a “disaster area.” 
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 . . . .”  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. 
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.  The same day, the governor issued Executive Order 2020-18, which extended the provisions of the March 20 order until April 30, 2020. 
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.  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.”  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.  The TRO will remain in effect until May 27, with a preliminary-injunction hearing to occur by that date. 
The TRO raises several questions for Illinois businesses monitoring their legal obligations under the state’s COVID-19 restrictions.
What is a TRO?
What is the scope of the TRO entered here?
Did the court declare the governor’s March 20 order unconstitutional?
Does the TRO apply outside the jurisdiction of the court in which it was entered?
Can the TRO be appealed?
Is the TRO being appealed?
How long will it take the appellate court to decide the appeal?
Will the appellate court’s decision be binding across the entire state?
Have other similar lawsuits been filed in Illinois?
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Commercial Litigation Alert | 05.06.20