Vill. of Orland Park v. Pritzker, No. 20-cv-03528

475 F.Supp.3d 866

VILLAGE OF ORLAND PARK, an Illinois home-rule municipal corporation, et al., Plaintiffs,

v.Jay Robert PRITZKER, Governor of the State of Illinois, in his official capacity, Defendant.

No. 20-cv-03528

United States District Court, N.D. Illinois, Eastern Division.

Signed August 1, 2020

Lance C. Malina, Howard C. Jablecki, John A. Wall, Klein, Thorpe & Jenkins, Ltd., Chicago, IL, for Plaintiffs.

R. Douglas Rees, Isaac N. Freilich Jones, Darren Bernens Kinkead, Thomas John Verticchio, Office of the Attorney General State of Illinois, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

Andrea R. Wood, United States District Judge

This lawsuit represents one of several legal challenges to a series of executive orders issued by Illinois Governor Jay Robert Pritzker ("Governor") over the past few months in response to the public-health emergency presented by COVID-19. The plaintiffs in this case consist of the Village of Orland Park ("Village"), a home-rule municipality located in northeastern Illinois; Tom McMullen, the owner of a restaurant and pub in the Village known as the Brass Tap; and Gregory Buban and Joe Solek, two individual residents of the Village (collectively, "Plaintiffs"). Together, Plaintiffs have sued the Governor seeking injunctive and declaratory relief against enforcement of the challenged executive orders on the grounds that the orders violate Plaintiffs’ rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution, various provisions of the Illinois Constitution, and the Illinois Department of Public Health Act ("IDPHA"), 20 ILCS 2305/1.1 et seq. Before the Court is Plaintiffs’ motion for a temporary restraining order and preliminary injunction. (Dkt. No. 11.) Having received briefing and heard oral argument, the Court denies Plaintiffs’ motion for the reasons that follow.

BACKGROUND¹

I. The Governor's Executive Orders

The State of Illinois—along with the rest of the United States and indeed most of the world—currently finds itself in the midst of a global pandemic caused by the readily transmissible coronavirus SARS-CoV-2 and the potentially fatal disease it causes, COVID-19. As alleged by Plaintiffs, "[t]he pandemic has created an unprecedented emergency public health crisis that has left no one untouched and unaffected." (Compl. ¶ 2, Dkt. No. 1.) In an attempt to stem the tide of the crisis, the Governor has invoked his authority under the Illinois Emergency Management Agency Act ("EMAA"), 20 ILCS 3305/1 et seq. , to issue a series of proclamations and executive orders that, among other things, have restricted the activities of individuals and businesses for certain periods of time. (Compl. ¶ 3.) Those proclamations and executive orders may be summarized as follows:

• On March 9, 2020, the Governor issued a proclamation declaring a disaster in the form of a public-health emergency effecting all of Illinois's 102 counties. (Id. ¶¶ 50–52.)

• On March 20, 2020, the Governor issued Executive Order 2020-10 ("EO 2020-10"). (Compl. ¶¶ 53–61; id. , Ex. C, EO 2020-10, Dkt. No. 1-3.) EO 2020-10 ordered Illinois residents to shelter in place at their residences and forbade gatherings of more than ten people. EO 2020-10 also required restaurants to shut down all onsite consumption of food or beverages, but it allowed people to participate in outdoor recreation and to provide care to family members, friends, and pets in another household. EO 2020-10 also allowed persons in Illinois to leave the State.

• On April 1, 2020, the Governor issued a second proclamation, which would remain in effect for 30 days, declaring that a disaster continued to exist in Illinois. (Compl. ¶¶ 62–67; id. , Ex. D, April 1st Proclamation, Dkt. No. 1-4.) That same day, the Governor issued Executive Order 2020-18 ("EO 2020-18"). (Compl. ¶¶ 68–79; id. , Ex. E, EO 2020-18, Dkt. No. 1-5.) EO 2020-18 continued and extended EO 2020-10, without alteration, until April 30, 2020. (Id. )

• On April 30, 2020, the Governor issued a third proclamation, which would also remain in effect for 30 days, declaring that a disaster continued to exist in Illinois. (Compl. ¶¶ 80–87; id. , Ex. F, April 30th Proclamation, Dkt. No. 1-6.) That same day, the Governor issued Executive Order 2020-32 ("EO 2020-32"). (Compl. ¶¶ 88–108; id. , Ex. G, EO 2020-32, Dkt. No. 1-7.) For the purposes of the instant motion, EO 2020-32 was functionally identical to EO 2020-10 and EO 2020-18.

• The Illinois General Assembly, which had been in recess since March 9, 2020, was in session from May 20 to May 23, 2020. (Compl. ¶¶ 109–10.) The General Assembly did not amend any of the Illinois statutes relevant to the Governor's emergency powers or approve the Governor's executive orders. (Id. ¶¶ 111–12.)

• On May 29, 2020, the Governor issued a fourth proclamation declaring that a disaster continued to exist in Illinois; this proclamation would also remain in effect for 30 days. (Id. ¶¶ 113–20; id. , Ex. H, May 29th Proclamation, Dkt. No. 1-8.) That same day, the Governor issued Executive Order 2020-38 ("EO 2020-38"). (Compl. ¶¶ 121–35; id. , Ex. I, Dkt. No. 1-9.) EO 2020-38 eliminated the requirement in the prior orders that Illinois residents shelter in place at their residences but continued to forbid gatherings of more than ten people. EO 2020-38 also permitted bars and restaurants in Illinois to allow customers to consume food and beverages in outdoor areas of their premises.

• Finally, after Plaintiffs filed their Complaint, the Governor issued a fifth proclamation on June 26, 2020, declaring that a disaster continues to exist in Illinois and stating that it will remain in effect for 30 days. (Resp. in Opp'n to Mot. for TRO, Ex. D, Dkt. No. 21-4.) That same day, the Governor issued Executive Order 2020-43 ("EO 2020-43"). (Id. , Ex. E, Dkt. No. 21-5.) EO 2020-43, which remains in force, permits gatherings of up to 50 people and allows indoor consumption of food and beverages at bars and restaurants as long as patrons maintain appropriate social distancing. EO 2020-43 has superseded the previous four executive orders.

For purposes of this opinion, the Court refers to the Governor's above-described executive orders collectively as the "Executive Orders." Although EO 2020-43 was issued after Plaintiffs filed their Complaint, the Court considers the present motion properly addressed to that latest Executive Order as well as its predecessors.²

II. The Plaintiffs

There are four Plaintiffs in this case. First, the Village is a home-rule municipality located in Cook and Will Counties in Illinois. (Compl. ¶ 6.) In April 2020, the Village published its own plan for reopening its businesses. (Id. ¶ 253.) The Village wishes to use that plan instead of following the Governor's Executive Orders. Other than complaining that the Village cannot use its own reopening plan, which would allow businesses to reopen on a faster timeline than the Executive Orders allow, Plaintiffs have not made any showing regarding what effects the Executive Orders have had on the Village or why the Village's plan is superior to the Executive Orders.

McMullen, the second Plaintiff, purports to bring suit as co-owner of a restaurant and pub called the Brass Tap. (Id. ¶ 7.) At the time Plaintiffs filed their Complaint on June 16, 2020, the Brass Tap had been closed to on-premises dining and consumption of alcoholic beverages since March 16, 2020. (Id. ¶ 138.) (As discussed above, Executive Order 2020-43 subsequently loosened this restriction.) The Brass Tap did not consent to its closure and did not receive written notice of the closure, written notice of its rights, or a closure order from a court. (Id. ¶¶ 139–46.) Plaintiffs allege that, as a result of the Executive Orders, the Brass Tap has suffered a "catastrophic loss of income." (Id. ¶ 147.) During the time period when it was limited to curbside pickup and delivery, the restaurant lost about 85% of its revenue. (Id. ¶ 148.) Even after it was allowed to open for outdoor dining under EO 2020-38, the Brass Tap only brought in about 60% of the revenue it had before the Governor first ordered Illinois residents to shelter in place. (Id. ) In addition, the restaurant had to throw out spoiled food and drink worth between $1,000 and $1,500. (Id. ) The record reveals nothing about how the Brass Tap has fared since the Complaint was filed. But it is undisputed that Illinois has allowed indoor dining at bars and restaurants, with mandatory social distancing, since EO 2020-43 went into effect on June 26, 2020.

The third Plaintiff, Buban, claims that he has been isolated at his residence in the Village since the Governor issued EO 2020-10 on March 20, 2020. (Id. ¶ 151.) He did not consent to this isolation, and at no point has he received written notice from the state or a written statement of his rights. (Id. ¶¶ 152–56.) Plaintiffs allege that due to the Executive Orders, Buban has been unable to visit immediate family members who live in another town or to engage in daily activities outside of his home. (Id. ¶¶ 157–58.) Similarly, Solek, the fourth Plaintiff, also claims that he has been isolated at his residence in the Village since March 20. (Id. ¶ 160.) He did not consent to the isolation or receive written notice or a written statement of his rights. (Id. ¶¶ 161–65.) Plaintiffs allege that this isolation has prevented Solek from visiting family or friends and from engaging in a cardiovascular workout exercise program recommended by his cardiologist. (Id. ¶¶ 166–68.) The Court observes, however, that the Executive Orders, on their faces, do not prohibit all contact with friends or family members, all activities outside the home, or cardiovascular exercise (although it is certainly fair to say that the Executive Orders restrict the manner in which those activities may be carried out). And Plaintiffs do not allege how the restrictions in the Executive Orders prevent Solek and Buban from seeing...