Three businesses sue Pritzker, challenge his power to shutter services

Supreme Court denies request to hear arguments in state representative’s case

By REBECCA ANZEL
Capitol News Illinois
ranzel@capitolnewsillinois.com

SPRINGFIELD — 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.

Thomas DeVore, 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.

And DeVore said he has “over 100 clients” who enlisted his help reopening their businesses. He wrote letters notifying their local health departments and law enforcement agencies his clients have not received notifications their companies must shutter and if a court does not issue an order mandating they do so, they will reopen.

He added that  a hearing is scheduled in the Dookie’s Pub case on Wednesday at 1 p.m. in Clinton County. He did not say whether similar hearings were scheduled in the other two new cases.

Sauk Valley Media on Monday reported that Poopy’s, which was issued a cease-and-desist order for allowing customers to eat and drink on picnic tables “on premises,” has solved the problem by moving the picnic tables off premises to a wooded site behind the building that also belongs to Poopy’s owner.

Poopy’s, a popular biker bar and eatery in Savanna, began curbside service May 1, allowing patrons to eat on its patio on tables spaced 10 feet apart.

Also on Monday, the Illinois Supreme Court denied the attorney general’s request to consider arguments in Bailey’s case. It therefore remains in the Clay County Circuit Court.

A Clay County judge on April 27 granted a temporary restraining order that exempted Bailey, and only Bailey, from the governor’s stay-at-home order. At Bailey’s request, an appeals court undid that order and sent the case back to Clay County court. Attorney General Kwame Raoul had asked the Illinois Supreme Court to weigh in on the case before any further ruling in Clay County.