On April 27, 2020, Clay County Judge Michael McHaney issued a temporary restraining order (the TRO) in the case of Darren Bailey v. Jay Robert Pritzker, Case No. 2020-CH-6, enjoining the enforcement of Illinois Gov. J.B. Pritzker’s March 20, 2020, Executive Order closing all non-essential businesses and requiring Illinois residents to “stay at home” (the Executive Order). The TRO bars enforcement of the Executive Order against a single individual, Illinois State Rep. Darren Bailey (R. Xenia) (Bailey), stating:

“Gov. Jay Robert Pritzker, or anyone delegated by him, is hereby enjoined from in anyway enforcing the March 20 Executive Order against Darren Bailey forcing him to isolate and quarantine in his home … [and] is hereby enjoined from entering any further Executive Orders against Darren Bailey forcing him to isolate and quarantine in his home.”

A copy of the TRO is attached here.

On April 23, 2020, Bailey filed a Verified Complaint against Governor Pritzker, in his official capacity, asking the court to declare that, under the Illinois Emergency Management Agency Act, 20 ILCS 3305/1, et seq. the Governor lacked the authority to extend the Executive Order beyond April 8, 2020 (i.e., 30 days after his initial March 9, 2020, disaster proclamation). Accordingly, Bailey contends the Governor’s repeated extensions of the stay-at-home order for all Illinois residents (most recently through May 30, 2020) are void. A copy of Bailey’s Complaint is attached here.

In granting the TRO, Judge McHaney found that Bailey had demonstrated: (1) a clearly ascertainable right in need of protection, “namely his liberty interest to be free from Pritzker’s executive order of quarantine in his own home,” (2) a “reasonable likelihood of succeeding on the merits” of his claims, (3) “irreparable harm” if the TRO is not issued and (4) no adequate remedy at law in that he “will continue to be isolated and quarantined in his home.” Unless reversed on appeal, the TRO will remain in effect for a period not to exceed 30 days from the date of its entry, at which time the court will hold a preliminary injunction hearing.

Although currently limited to Bailey, the TRO clears a path for other Illinois residents to join in Bailey’s lawsuit or file their own actions challenging the governor’s authority on the same grounds. Moreover, if Bailey prevails on the merits of his case, any extensions of the Executive Order beyond April 8, 2020 would be deemed void, and local Illinois municipalities would presumably be free to “reopen” as they see fit.

Gov. Pritzker responded strongly to the ruling, stating:

“Rep. Darren Bailey’s decision to take to the courts to try and dismantle public health directives, designed to keep people safe, is an insult to all Illinoisans who have been lost during this COVID-19 crisis and it’s a danger to millions of people who may get ill, because of his recklessness, at best, no one is better off because of this ruling and, at worst, people’s health and safety will suffer tremendously.”

On the evening of April 27, 2020, the governor filed a notice of appeal asking the Fifth District Appellate Court to reverse Judge McHaney’s decision and dissolve the TRO. The appeal remains pending and will be briefed and decided on an expedited basis.

Please check Taft’s COVID-19 Resource Toolkit for updates on this significant case of first impression in Illinois.