SPRINGFIELD — Before a Peoria County judge can rule on a local business’ challenge to the statewide stay-at-home order, he’ll decide whether the case should move to Springfield or Chicago.
Tenth Judicial Circuit Associate Judge Derek G. Asbury said he recognized the urgency of the lawsuit, but did not want to hear arguments or rule on the plaintiff’s motion for a temporary restraining order before first resolving the forum issue.
“I understand, for the litigants, that this is a TRO in nature and it’s very important, you want them quickly, but I don’t want to do this with less than fully reviewing the record and looking at everyone’s pleadings,” Asbury said at the outset of the hearing. “I want to be as fair as possible to everyone, consider all the factors involved and make sure that I’m correct in the law.”
The complaint appears to be the first filed in the state by a business challenging Pritzker’s April 30 executive order, which permits “non-essential” retail stores to reopen so long as they fulfill telephone and online ordering through curbside pickup and delivery.
Adam White, owner of the Peoria shoe store RC Outfitters, filed the case last week seeking a temporary restraining order blocking Pritzker from enforcing the restrictions on businesses outlined in his April 30 order.
The store’s suit also asks the court to issue a declaratory judgment that Pritzker lacks the legal authority to require non-essential businesses to close amid the coronavirus outbreak and that Pritzker’s emergency executive powers under the Illinois Emergency Management Act expired April 8.
“Executive Order 2020-32 does not merely seek to execute an existing law but rather, seeks to establish a new law beyond the scope of [Pritzker’s] executive power,” the complaint alleges. “… [Running Central] has been put out of business and, thereby, deprived of significant property rights as a direct result of [Pritzker’s] exercise of extra-statutory and unconstitutional authority.”
Pritzker on Thursday responded to the suit at his daily COVID-19 briefing, saying everybody has a right to sue.
“But the fact is that the goal here is to keep everybody healthy and safe in every community, even in that community,” Pritzker said. “And I certainly would encourage the people who might patronize, who might be patrons of that store, not to do so, and the local officials to enforce the executive order that’s in place.”
When attorneys for the state this week filed a response to the suit, however, they also filed a motion to transfer the proceedings to Sangamon County or Cook County, arguing that Peoria County is not the proper venue to challenge Prtizker’s order because the governor does not live there or keep a principal office there and didn’t issue the orders from that county.
“The Governor conducts state business through the Office of the Governor, an entity recognized by Illinois statute as located in Sangamon County,” the filing states. “Sangamon County was also the place where the orders and proclamations at issue here were promulgated.”
Potential witnesses — including state public health officials — work in Sangamon and Cook Counties — not in Peoria County.
Assistant Chief Deputy Attorney General Thomas J. Verticchio told the judge that hearing the case away from where Pritzker’s order was filed or signed would “turn venue on its head.”
“We know that’s not the law, we know that’s not the statutory law,” Verticchio said. “The Illinois Supreme Court has said for 100 years that venue is not where plaintiff resides.”
The AG’s office also argues Pritzker’s order is also not localized to Peoria or to the running store, meaning an issue with its enforceability or constitutionality should be decided in the “seat of government” in the state capital.
One of White’s attorneys, Andrew D. Cassidy of Cassidy & Mueller P.C. in Peoria, argued the case belongs in Peoria County because the complaint only challenges the legal ability to enforce Pritzker’s order against the running store.
“They can try to make it a bigger issue all they want,” Cassidy said. “But my client didn’t hire me to come in here and wipe out Executive Order 2020-32 as against the entire state.”
Asbury told the parties he would submit an order on the venue by May 14.
Other attorneys from the Illinois Attorney General’s office involved in the case include R. Douglas Rees, Christopher G. Wells, Darren Kinkead and Isaac Jones.
White is also represented by Ian M. White of Cassidy & Mueller.
This case in Illinois’ 10th Judicial Circuit Court is Running Central Inc. v. Pritzker, 20 CH 128.